Rutaganda Appeals Judgement VIII

398. In his Appeal, the Appellant contends that the Trial Chamber committed errors of law and fact by finding Witnesses A, H, W and DD to be credible. The arguments in relation to this ground of appeal are examined in Sub-sections A and C, infra. Moreover, the Appellant was exceptionally allowed to add another ground of appeal pursuant to Rule 115 of the Rules, after judgment was reserved on the Appeal. The Appeals Chamber ordered the production of two incidental forms of additional evidence pursuant to Rules 98 and 107 of the Rules. The said evidence relates to the Appellant’s presence at the ETO school and Nyanza on 11 April 1994. The parties made their oral arguments on the said evidence at the hearing held on 28 February 2003 (“28 February 2003 Hearing”) at The Hague, the

Netherlands

. The additional evidence and the new arguments on appeal are examined in Sub-section D, infra.

399. The Appellant contends that the Trial Chamber committed errors of law and fact. He alleges that the Trial Chamber erred by failing to note the discrepancies between the Prosecution case at trial and the Indictment confirmed against the Appellant [661] (first ground). He alleges that the Trial Chamber committed errors that he terms errors “in principle” (that is, relating to the taking of evidence), [662] as such errors have been presented both as errors of law [663] and of fact [664] (second ground).

400. As regards the Appellant’s allegations of the discrepancies between the Prosecution case and the evidence adduced at trial, [665] the Appeals Chamber understands that the Appellant raises three main issues, namely (1) the lack of evidence to support some of the allegations made in the Indictment; [666] (2) the fact that only one single witness attested to some of the allegations [667] and (3) the divergence between the evidence tendered by the Prosecution and the facts alleged in the Indictment. [668] For its part, the Prosecution submits that it is not uncommon for the evidence presented at trial to differ somewhat from the rather shorthand summary of facts in an indictment. [669] For the Prosecution, there is no material difference between the facts alleged and the ones established by the evidence. The Prosecution further contends that the alleged discrepancies isolated by the Appellant, do not call the Trial Chamber’s findings into question, as they are supported by the evidence.

401. The Appeals Chamber notes that the Appellant merely calls into question the reasonableness of the Trial Chamber’s findings by means of general allegations enumerating the problems which, he submits, cast doubt on the facts alleged in the Indictment. It is the view of the Appeals Chamber that by that approach, the Appellant has not demonstrated that an error was committed. As he is not acquainted with the jurisprudence of the ICTR and ICTY concerning the standard of review of errors of fact in an appeal, the Appellant offers no explanation to demonstrate the alleged errors of fact that led to a miscarriage of justice. Moreover, where the Appellant makes serious allegations regarding the integrity of the judicial process, as he has done in this instance, he must, inter alia, demonstrate the prejudice caused by the divergences between the facts alleged in the Indictment and the evidence adduced at trial in accordance with the relevant jurisprudence, as recalled in the preceding section. [670] The Appeals Chamber finds that the Appellant has failed to demonstrate the alleged error or that it caused him any prejudice, and therefore dismisses this ground of appeal for lack of merit.

402.The Appellant also submits that the Trial Chamber committed the following general errors:

403. The Appeals Chamber notes first of all that the first and third errors alleged by the Appellant relate to some of the arguments presented earlier by the Appellant with regard to allegations concerning Witness H’s credibility. [672] Accordingly, the Appeals Chamber refers the parties to the relevant sections under this Part.

404.Concerning the alleged failure by the Appeals Chamber to note discrepancies in witness testimonies, deeming them minor, whereas, according to the Appellant, they were material, [673] the Appeals Chamber reiterates the standard of review in an appeal as recalled at the beginning of this Judgement, and cannot conclude that such an error was made, considering the general nature of the Appellant’s allegations and the complete lack of proof of the alleged error.

405.Lastly, the Appellant submits that the Trial Judges secured from Witness W speculative evidence incriminating Rutaganda through leading questions. [674] He submits that it would be unfair and unreasonable to infer, based on this testimony, that Rutaganda was in the vehicle. [675] The Appeals Chamber notes, as does the Appellant, that the Trial Chamber stated in paragraph 285 of the Judgement, that:

406. However, it is the view of the Trial Chamber that, contrary to the Appellant’s contention, the above quotation does not demonstrate that the Trial Chamber accorded particular significance to the said testimony. Indeed, apart from the fact that this testimony is rightly included in the summary of the said witness’s testimony, the Appeals Chamber affirms that the Trial Chamber did not rely solely on this testimony in its factual findings concerning the Appellant’s guilt. [676] Admittedly, the Trial Chamber refers to Witness W’s testimony in paragraph 304 of the Judgement. However, it should be emphasised that it was in reliance on the testimonies of A and H, [677] eyewitnesses who respectively “saw the Accused in a vehicle coming in from the direction of Nyanza” and, “saw the Accused on the way to Nyanza”, that the Trial Chamber found beyond a reasonable doubt that “the Accused was present and participated in the forced diversion of refugees to Nyanza”. [678] Read together, paragraphs 303 and 304 of the Trial Judgement clearly show that the Appellant’s allegations regarding Rutaganda’s presence during the forcible diversion of refugees to Nyanza are without merit.

407.The Appeals Chamber will now consider the allegations of error relating to testimonies of Prosecution witnesses regarding each of the sites referred to in the Indictment.

408.Under this ground of appeal, the Appellant alleges that the Trial Chamber committed an error in its evaluation of the evidence of Witnesses H and DD. Based on the evidence, the Trial Chamber found beyond reasonable doubt that the Accused was present and participated in the attack on Tutsi refugees at the Eto school. [679] The Appellant challenges this finding, submitting that he played no role in the attack and that the evidence relied on by the Trial Chamber is not reliable. [680]

409. Concerning this Witness’s evidence, the Trial Chamber stated that Witness H, a Tutsi man from Kicukiro, testified that on 6 April 1994, he took his family to the ETO school, where UNAMIR troops told them to come inside the compound for their protection. He stated that 3,500 to 4,000 took refuge at the ETO school. He testified that on the day of the attack on the ETO school, once the UNAMIR troops left the ETO compound, the Interahamwe immediately entered and proceeded to attack, firing guns and hurling grenades. That is when the witness saw the Appellant talking with Gérard Karangwa, President of the Interahamwe at the commune level. [681]

410. In its factual findings, the Trial Chamber found Witness H to be a credible witness. [682] The Trial Chamber recalled that Witness H saw the Appellant at the time of the attack on the ETO, in a group which began throwing grenades and firing at the refugees. [683]

411.The Appellant contends that the Trial Chamber erred by holding that Witness H was a credible and reliable witness to support its finding of guilt against the Appellant for the crimes at the ETO school. [684] In support of this contention, the Appellant advances three main arguments which allegedly show that Witness H is unreliable: [685]

412.The Appeals Chamber will address the arguments seriatim, as submitted by the Appellant.

(a) Animus towards the Appellant

413.The Appellant submits that Witness H’s testimony shows that he had a particular animus towards him, which should have led to a careful scrutiny of his evidence. [686] The animus, he explains, existed before the events of April 1994, as Witness H believed that the Appellant “was complicit in the attack on his residence following the assassination of the leader of the CDR party”. [687] The Appellant surmises that the witness offered this testimony with the clear intent of reminding the Trial Chamber of Rutaganda’s status in order to “ensure that his presence at ETO was interpreted nefariously” [688] and, as such, should have been considered unreliable by the Trial Chamber. [689]

414. The Prosecution submits that the Appellant’s contention that Witness H held an animus towards him was completely speculative. [690] It explains that Witness H simply clarified the identities of those who were at the ETO school at the relevant times. [691]

415. The Appeals Chamber notes that having observed and accepted Witness H’s testimony at trial, the Trial Chamber made a point of mentioning that the witness learned that the Appellant was in a vehicle, shortly after the arrival of the Interahamwe who had attacked his residence in February 1994. [692] Thus, it had the opportunity to determine whether the veracity of Witness H’s evidence was affected by any alleged animus. Having reviewed the transcripts of Witness H’s testimony, the Appeals Chamber finds nothing suggesting that such distorting animus was at work. [693]

(b) Readiness to make suppositions

416.The Appellant contends that Witness H showed a “readiness to make suppositions without any professed or demonstrated competence to do so.” [694] In support of this contention, the Appellant cites, inter alia, the dialogue between the Presiding Judge, Laïty Kama, and Witness H regarding an attack by the Interahamwe, [695] and between the Prosecution and the witness regarding the relative functions of the Interahamwe leadership structure. [696]

417.However, the Prosecution submits that the Appellant’s contention regarding Witness H’s testimony is incorrect. [697] It also argues that the witness’s admission of readiness to make suppositions reinforces his credibility. [698]

418.Indeed, the Appeals Chamber notes that the Appellant did not submit an accurate description of the dialogue between Judge Laïty Kama and the witness concerning the attacks by the Interahamwe before the UNAMIR departed the ETO school. Instead, the Appellant selectively replaced pertinent information with ellipses when quoting portions of the witness’s responses. [699] The Appeals Chamber takes the view that such a practice is misleading. Although the Presiding Judge initially stated that Witness H’s responses were “illogical”, [700] this statement should be considered in the context of the Judge’s questions which were aimed at clarifying why the refugees were not attacked by the Interahamwe on the road to the ETO school, whereas they had been attacked by those same Interahamwe at the ETO after the UNAMIR soldiers departed. It is precisely in this context that the Judge stated: “It is illogical”, and asked the witness to explain. Witness H clarified his responses by again answering the question put to him [701] , to the Judge’s satisfaction. The Appeals Chamber therefore finds this argument to be without merit.

419.The Appeals Chamber is also of the view that, contrary to the Appellant’s contentions, the probative value of Witness H’s evidence was not undermined by the alleged suppositions made at trial. When asked by the Defence whether he was making suppositions, the witness clearly replied that he was and admitted that he did not know what the orders given to the Interahamwe were. [702] Moreover, the Appeals Chamber considers that the Appellant failed to show how the suppositions affected Witness H’s credibility, and in what way the Trial Chamber committed an error by relying, inter alia, on the said evidence in finding that the Appellant was present at the time of attack at the ETO. Consequently, the Appeals Chamber can see no reason for believing that it was unreasonable for the Trial Chamber to rely upon Witness H’s evidence, and therefore dismisses the Appellant’s allegations.

420.The Appellant also submits that Witness H testified based on “pure supposition” about the relative functions of the Interahamwe leadership structure, without any professed or demonstrated competence to do so. [703] That Witness H testified that the Appellant was more high-ranking than Gérard Karangwa within the Interahamwe does not, in the Appeals Chamber’s opinion, render his entire testimony incredible or unreliable. In any event, Witness H was not called, or asked, to give expert testimony on the hierarchy of the Interahamwe. Instead, he only provided this testimony upon being asked by the Prosecution whether the Appellant was superior to Gérard Karangwa. [704] Moreover, the Defence opted not to question the witness on this point at trial. In this regard, the Appellant cannot now argue on appeal that the witness was incompetent to testify on the leadership structure of the Interahamwe.

421.Lastly, the Appellant maintains that the Trial Chamber prejudicially misapprehended the evidence of Witness H in finding that Witness H knew that Mr. Kagina, an ETO teacher, was a member of the Interahamwe, although the witness stated that he did not know whether Kagina was a member of the Interahamwe. [705] In its Judgement, the Trial Chamber stated that Witness H knew Mr. Kagina to be a member of the Interahamwe. [706] While the Appeals Chamber emphasises that Witness H actually testified that he did not know whether Mr. Kagina was a member of the Interahamwe, but that he participated in the crimes, [707] it finds that this point was not material to the main issue of the Appellant’s presence at the ETO school and his participation in the crimes committed there. The Trial Chamber simply stated the facts in the summary of the witness’ testimony, but, on the basis of the testimonies of Witnesses H and DD, it established Rutaganda’s presence at the ETO school and his participation in the crimes committed there. The Appeals Chamber finds that the Appellant has not sufficiently demonstrated that the alleged error of fact led to a miscarriage of justice. Accordingly, the Appeals Chamber finds that this sub-ground of appeal must fail.

422.The Appellant points out that Witness H was defensive when responding to questions concerning his signed prior statement. [708] However, the Prosecution argues that the witness was not defensive, as he was simply trying to explain why discrepancies might exist between his January 1996 statement and the evidence of March 1997. [709] Having reviewed the trial transcripts regarding the witness’s response, the Appeals Chamber disagrees with the Appellant’s assertion that the witness came across as defensive. [710] Accordingly, the argument on this point must fail.

423. The Appellant also submits that Witness H provided inconsistent colour descriptions of the uniforms worn by members of the Interahamwe. [711] However, the Prosecution explains that the transcript shows that the witness’s description was either given or interpreted in error. It further explains that the witness later clarified his answer, thereby reducing the significance of any earlier inconsistency. [712] Having reviewed the trial transcript of Witness H’s testimony of 25 March 1997, [713] the Appeals Chamber notes the following dialogue between the Presiding Judge and Witness H concerning the colour of the Interahamwe uniform:

424.The Appeals Chamber recognises that there is some confusion in the trial transcript regarding the colour of the uniforms. It notes, however, that the dialogue between the Presiding Judge and Witness H set the record straight on this question, as Witness H answered it clearly. As the trier of fact, the Trial Chamber accepted the clarification as sufficient and credible and, as such, the Appeals Chamber cannot see why it was unreasonable to do so.

426. In discussing the nature of the evidence before it, the Trial Chamber noted that such inconsistencies, as identified by the Appellant, “were not material […] and could for the most part be attributed to external factors relating to pre-trial statements and other language and translation problems.” [721] This, the Appellant argues, is an error of law invalidating the decision with respect to paragraphs 13 to 16 of the Indictment. [722] The Appellant submits that the “readiness [of the Trial Chamber] to disregard and excuse problems with the witnesses for the Prosecution [...] represents a significant error of principle undermining the integrity of the findings made in the case generally, and with respect to this allegation particularly.” [723]

427.As regards an alleged error of fact, the Appeals Chamber reiterates that the Trial Chamber was best placed to determine whether the alleged inconsistencies were so material as to cast doubt on the evidence. As the said evidence was given in court, it was within the Trial Chamber’s discretion to determine its probative value, and the Appellant must demonstrate that the alleged error occasioned a miscarriage of justice. The Appeals Chamber also finds that such minor inconsistencies, as those identified by the Appellant, certainly cannot suffice to render Witness H’s entire testimony unreliable. [724] More importantly, the Appellant has failed to show that the alleged inconsistencies were material and substantial to the main issue of his presence at the Eto and of his participation in the attacks at the ETO school, and that the Trial Chamber failed to take them into consideration. Having reviewed the trial transcript relating to the testimony of this witness and of other witnesses cited by the Appellant, [725] the Appeals Chamber finds that the Appellant has failed to demonstrate the Trial Chamber’s alleged error in considering the inconsistencies to be minor in its evaluation of Witness H’s credibility in its findings on the ETO massacres, and that such an error led to a miscarriage of justice. Accordingly, the Appeals Chamber rejects the arguments challenging Witness H’s credibility.

428.Moreover, with regard to an alleged error of law, the Appeals Chamber recalls that “[W]here a party contends that a Trial Chamber made an error of law, the Appeals Chamber, as the final arbiter of the law of the Tribunal, must determine whether there was such a mistake. […] The Appeals Chamber may step in and, for other reasons, find in favour of the contention that there is an error of law.” [726] As regards the allegation that the Trial Chamber erred in law by invoking external factors relating to pre-trial statements and other language and translation issues in order to explain the inconsistencies in Witness H’s testimony, the Appellant appears to be making reference in part to paragraph 292 of the Trial Judgement. The Appeals Chamber affirms that, in this instance, the Trial Chamber simply took into consideration certain factors in order to make a fair evaluation of the evidence. Having noted minor inconsistencies, the Trial Chamber gave reasons that could explain such inconsistencies; however, the Appeals Chamber holds that the Trial Chamber did not justify or excuse the inconsistencies. Indeed, the Trial Judges made a point of stating that such inconsistencies “could for the most part be attributed to external factors” (emphasis added), and the Appeals Chamber does not find that this amounts to an error of law that would invalidate the trial Judgement. Moreover, the Appeals Chamber reaffirms its findings regarding a contention made as part of the ground of appeal under General Errors of Law, [727] whereby the Appellant challenges the Trial Chamber’s treatment of social and cultural factors.

429. Consequently, the Appeals Chamber fails to see any reason for a finding that the Trial Chamber made an error of law that could invalidate the decision or an error of fact that occasioned a miscarriage of justice, as contended by the Appellant. Accordingly, the Appeals Chamber dismisses the Appellant’s arguments in relation to Witness H, as they lack merit.

430.The Trial Chamber also found Witness DD to be a reliable identification witness. [728] In relation to his evidence, [729] the Trial Chamber stated that Witness DD, a Tutsi man who was a high school student in 1994, testified that he was a neighbour of the Appellant and that he knew that the latter was vice-president of the Interahamwe. [730] When he learned of the death of the Rwandan President, he fled with his entire family to the ETO for refuge, because the UNAMIR troops were there and they thought their safety would be ensured. On 11 April, when the UNAMIR troops left, Witness DD saw the Interahamwe attack. He testified that the Interahamwe leaders were present and named the Appellant as well as the conseiller of Kicukiro, who was also his neighbour, as having been among the leaders. He also saw the Appellant at about fifty (50) metres from the ETO entrance, together with the conseiller and many others he was unable to identify. According to the witness, all of them were armed, and the Appellant had a gun.

431.In its factual findings, the Trial Chamber relied on Witness DD’s testimony that he saw the Appellant armed with a gun at the time of the attack. Based on this evidence, the Trial Chamber found, beyond a reasonable doubt, that the Appellant was present and participated in the attack on Tutsi refugees at the ETO school. [731]

432. In addition to questioning the overall credibility of the witness, [732] the Appellant submits that Witness DD’s testimony is not reliable, as it contains numerous contradictions and inconsistencies compared to, inter alia, his previous statements made before the investigators of the Office of the Prosecutor. [733] In support of this contention, the Appellant submits that the Trial Chamber failed to consider the following inconsistencies:

433.As already stated, the Appeals Chamber must give a margin of deference to the Trial Chamber’s assessment of Witness DD’s testimony, as it is best placed to determine whether these alleged inconsistencies were so material as to cast doubt on the evidence. Although the Trial Chamber made no reference in its findings to the alleged inconsistencies, as pointed out by the Appellant, it can nevertheless be assumed that it regarded them as immaterial in determining the primary issue of the Appellant’s presence at the ETO school, [744] and that on this point, there can be no doubt.

434. In all events, having reviewed the relevant portions of Witness DD’s testimony, the Appeals Chamber does not consider the alleged inconsistencies material to the issue of the Appellant’s presence at the ETO school. [745] Notwithstanding, the Appeals Chamber holds that, in the light of the arguments put forward by the Appellant, the Appellant has failed to demonstrate that the Trial Chamber committed an error in its findings on Witness DD’s identification of the Appellant. Accordingly, the Appellant’s arguments challenging Witness DD’s credibility are rejected.

435. Under this sub-ground of appeal, the Appellant challenges his conviction for the crimes which occurred at Nyanza on 11 April 1994. [746] The Trial Chamber accepted the evidence of Witnesses A, H and W, and found beyond a reasonable doubt that the Appellant was present and participated in the forced diversion of refugees to Nyanza and that he directed and participated in the attack at Nyanza. [747] On appeal, the Appellant contends that he played no role in those events, and that the evidence relied on by the Trial Chamber was unsafe. [748]

436. The Appeals Chamber affirms that the Trial Chamber found Witness A to be a credible witness. [749] In respect of his evidence, the Trial Chamber stated that Witness A, a Tutsi man who had worked for the Appellant as a mason, testified that on 7 April 1994 he went with his wife and five children to the ETO, a kilometre away from his house, to seek refuge and protection because the UNAMIR troops were stationed there. Witness A testified that the departure of the UNAMIR troops created panic among the refugees and caused many of them to leave the ETO entrance; as a result, Witness A was able to re-enter the compound where he was reunited with his family. According to him, that is when the Interahamwe came in and mixed in with the crowd of refugees inside the building. According to the witness, the refugees then decided to proceed together to the Amahoro stadium. The witness further testified that a soldier with a megaphone then came to them and told them it was not a good idea to go to the stadium and suggested instead that they go to Nyanza, where, he said, they would be safe. Along the way to Nyanza, he saw the Appellant coming in the opposite direction from Nyanza in his vehicle. He pulled over to the side of the road, got out, and stood leaning against the vehicle. He also saw a mason who had worked for the Appellant pleading for help, but the Appellant waved him away. Upon arrival at Nyanza, Witness A saw the Appellant again who was directing the Interahamwe into position to surround the refugees who had been gathered together in one spot. When asked whether he knew the Appellant, the witness answered that he had known him for six years, having seen him many times and having worked for him. [750]

437.In its factual findings, the Trial Chamber accepted Witness A’s eyewitness testimony that, on the way to Nyanza, he saw the Appellant coming in a vehicle from the direction of Nyanza, pulling over to the side of the road, getting out, and leaning against the vehicle. [751] The Trial Chamber also relied on Witness A’s testimony that he saw the Appellant wave away one his employees who begged for his assistance. [752] The Trial Chamber also referred to Witness A’s testimony that he saw the Appellant at Nyanza directing the Interahamwe, who were armed with grenades, machetes and clubs, into position to surround the refugees just prior to the killings.

438.The Appellant first points out that Witness A was the sole Prosecution witness relied upon by the Trial Chamber to find him guilty of the massacres at Nyanza. [753] The Appellant further contends that Witness A’s testimony was unreliable, both on its own and when considered in the context of the evidence of other witnesses. [754] In support of this contention, the Appellant sets out the following points which allegedly reflect inconsistencies and contradictory statements: [755]

439. The Appeals Chamber notes that in his Reply, the Appellant acknowledges that there were no inconstancies in the testimony in relation to the following issues; [775]

440. Having reviewed the totality of Witness A’s evidence, the Appeals Chamber finds no inconsistency with regard to the following issues:

441. The Appeals Chamber notes that Witness A’s testimony contains inconsistencies that it considers minor for the reasons outlined hereinafter, in relation to the following:

442.It should be recalled that it does not suffice for the Appellant to challenge the Trial Chamber’s assessment of the witness’s reliability by invoking alleged inconsistencies in the statements of one witness or between his testimony and the testimony of another witness. It falls to the Appellant to show that no reasonable trier of fact could have found Witness A to be reliable after having considered the whole of his testimony. Furthermore, the Appeals Chamber stresses that according to the applicable standards for review of an error of fact on appeal, the Appellant must show that the evaluation of the witness’s reliability was not only wholly erroneous, but also that such an error, if established, would occasion a miscarriage of justice. In such a case, it would be appropriate for the Appeals Chamber to substitute its own finding on the reliability of the impugned witness for that of the Trial Chamber.

443.To be sure, the Trial Chamber should take account of any inconsistencies in a witness’s testimony. The Appeals Chamber, however, emphasises that it falls to the trier of fact to assess the inconsistencies highlighted in testimony and determine whether they impugn the entire testimony. Moreover, the jurisprudence of both Tribunals recognises that a Trial Chamber has the discretion to accept a witness’ evidence, notwithstanding inconsistencies between said evidence and his previous statements, as it is up to the Trial Chamber to determine whether the alleged inconsistency is not sufficient to substantially cast doubt on the evidence of the witness concerned. [776] The question before the Appeals Chamber is whether the Trial Chamber made an error by considering some of the inconsistencies in Witness A’s statements to be minor and immaterial to the reliability of the said witness, whom the Trial Chamber ultimately found to be a reliable witness.

444.The Appeals Chamber finds that the inconsistencies raised by the Appellant are insufficient to substantially cast doubt on Witness A’s testimony, considering the charges against the Appellant in the Indictment. First, with regard to the colour of the vehicle Rutaganda was driving, the Appeals Chamber affirms that Witnesses A and W’s description of the Appellant’s vehicle differs only with respect to the colour. [777] However, the said witnesses identified the vehicle as belonging to the Appellant, [778] when they confirmed that the vehicle was a Peugeot and that it had a beer logo. [779] As to whether Witness A saw the Appellant in the Peugeot after the alleged October 1993 megaphone incident, the Appeals Chamber notes that the Trial Chamber did not consider this issue and finds the inconsistencies raised to be minor and irrelevant to the Appellant’s participation in the massacres perpetrated at the ETO and Nyanza on 11 April 1994.

445.Concerning the Appellant’s other allegations, the Appeals Chamber is of the view that, for the reasons explained hereinafter, the minor inconsistencies identified by the Appellant cannot impugn the substantive merits of the Trial Chamber’s finding the witness to be credible and his testimony to be reliable.

446.With regard to the alleged inconsistencies in the testimonies of Witnesses A, H and DD as to when the Interahamwe came into the ETO compound, the Appeals Chamber understands that the Appellant challenges Witness A’s credibility because of alleged inconsistencies in the evidence the Trial Chamber relied on in finding that 1) the witnesses “presented a similar account of the refugee situation at the ETO, the attack by the Interahamwe following the departure of UNAMIR troops” [780] and (2) “[W]hen the UNAMIR troops left the ETO on 11 April 1994, the Interahamwe and members of the Presidential Guard entered and attacked the compound, throwing grenades, firing guns and killing with machetes and clubs. [781] The Appeals Chamber notes that the Trial Chamber’s findings are based on the reliability of the testimonies of Witnesses A, H and DD, as well as that of Witness W, who is not mentioned by the Appellant in this sub-ground of appeal, all of whom testified that the Interahamwe came into the ETO compound after the departure of the UNAMIR troops. [782]

447.Having reviewed the transcript cited by the Appellant consisting of excerpts from Witness A’s testimony, the Appeals Chamber notes that the inconsistencies raised are, indeed, minor as to the time when the Interahamwe came into the ETO compound and that, notwithstanding such minor inconsistencies, the testimony in question is corroborative on numerous points. As concerns the alleged inconsistency as to when the attack took place, the Appeals Chamber, having reviewed the transcripts cited by the Appellant, notes that when the question was put to the witness as to when the refugees decided to leave the ETO, he answered that twenty to thirty minutes elapsed before the decision was made to leave the ETO and head towards the Amahoro stadium. Thus, the time specified has no relation to the time when the Interahamwe came into the ETO compound. [783] The Appeals Chamber therefore takes the view that the Appellant’s allegations do not discredit Witness A’s entire testimony. The same applies to the question as to whether CDR and MDR youths were at Sonatubes, considering that, in answer to a Defence request for clarification, the witness corrected his earlier statement to the investigators of the Office of the Prosecutor. [784] The Appeals Chamber notes that, moreover, the Trial Chamber did not take that point into account in its factual findings. [785] Finally, as regards the alleged inconsistencies in Witness A’s testimony regarding the mason who approached the Appellant on the road to Nyanza, [786] the Appeals Chamber emphasises that the Trial Chamber made reference thereto in its Judgement, [787] but that such inconsistencies are not material to Witness A’s identification of the Appellant at Nyanza and on the road to Nyanza. Accordingly, the Appeals Chamber holds that, considering the nature of the inconsistencies, it was not unreasonable for the Trial Chamber to accept Witness A’s evidence.

448.The Appeals Chamber therefore finds that the Appellant’s allegations of errors of fact are without merit. It is the view of the Appeals Chamber that the Appellant has failed to demonstrate that the Trial Chamber erred by not considering the alleged inconsistencies in its overall evaluation of the evidence, which it found reliable, and that the Appeals Chamber must reverse the Trial Chamber decision. [788] The Appeals Chamber, therefore, dismisses the arguments mentioned supra, in paragraph 52 of this Judgement.

449. Lastly, as regards the contention that the Trial Chamber should have taken into account the fact that Witness A was the sole witness to have testified that, on 8 April, Colonel Rusatira went to the ETO school and asked Hutus to separate themselves from the group, after which 600 to 1000 people left the group, [789] the Appeals Chamber recalls that the evidence of a single witness on a material fact does not require, as a matter of law, any corroboration. [790] Whether a Trial Chamber will rely on a single witness testimony as proof of a material fact, will depend on various factors that have to be assessed in the circumstances of each case. [791] That Witness A was the only witness who testified regarding Colonel Rusatira’s visit does not affect the probative value of his entire testimony. As such, the Appellant’s arguments on this point must fail.

450.In paragraph 303 of the Trial Judgement, the Trial Chamber found that Witness H also saw the Appellant on the way to Nyanza, standing in a group talking to a member of the Interahamwe, whom he recognized, and other people. In challenging this finding, the Appellant alleges that there are inconsistencies relating to (1) Witness H’s position en route to Nyanza and what he saw on the way, and (2) whether the Interahamwe led the group towards the road with the soldiers. [792] In response, the Prosecution submits that it fails to see how the Appellant can consider this testimony as inconsistent. [793]

451.Concerning the first alleged inconsistency, the Appeals Chamber notes that, on 26 March 1997, the following exchange took place between Prosecution and Witness H: [794]

452.The Appeals Chamber also notes that, on cross-examination by the Defence on 27 March 1997, the following dialogue took place: [795]

453. While the witness was unclear as to where he was positioned on the road, he is, however, quite clear as to the primary issue of whether the Appellant was present on the road to Nyanza. Given the fact that the Appellant was among thousands of refugees en route to Nyanza, the Appeals Chamber does not consider the witness’s precise location on the road to be material to the witness’s credibility. The Appeals Chamber does not find his testimony inconsistent and, therefore, finds that the Trial Chamber was correct in accepting Witness H’s explanation.

454. Concerning the second alleged inconsistency, the Appellant submits that no other witness testified that Interahamwe led the group of refugees to the road with the soldiers. The Appeals Chamber holds that, pursuant to the decisions cited in the Introduction of this Judgement in relation to the issue of corroboration, [796] the fact that no other witness testified that the Interahamwe led the group back to the road does not render Witness H’s testimony incredible. What matters is the reliability and credibility accorded to the entire testimony by the Trial Chamber. The Appeals Chamber therefore finds this argument to be without merit. [816]

460.Having reviewed the relevant portions of Witness W’s testimony, [819] the Appeals Chamber does not find it to be inconsistent or contradictory with regard to the following issues:

461. The Appeals Chamber, however, finds minor inconsistencies in W’s testimony relating to the following issues, but considers that the inconsistencies did not affect Witness W’s credibility for reasons set out infra:

462. The Appeals Chamber again recalls that it is primarily for the Trial Chamber to assess the credibility of witnesses. Moreover, as trier of fact, the Trial chamber is not obliged to recount and justify its findings in relation to every submission made during trial [820] and, as in the instant case, if a party alleges the existence of inconsistencies in the testimony of a witness, the Appeals Chamber must give a margin of deference to the Trial Chamber’s findings unless the Appellant demonstrates that an error of fact was committed and that it occasioned a miscarriage of justice.

463. What is at issue in the instant case is to determine whether the Trial Chamber erred by relying on Witness W’s testimony in spite of the inconsistencies highlighted by the Appellant, inconsistencies that, he contends, impugn Witness W’s reliability.

464. Having reviewed the transcripts referred to by the Appellant, the Appeals Chamber finds the alleged errors of fact to be without merit. Admittedly, there is some confusion in Witness W’s testimony, or inconsistencies with regard to events, particularly prior to the events alleged in the Indictment. Nevertheless, the Appeals Chamber finds that the inconsistencies highlighted by the Appellant, consisting in part of mere suppositions, or in an attempt to interpret Witness W’s testimony in the Appellant’s favour, are minor and cannot demonstrate that no reasonable tribunal could have accepted Witness W’s evidence regarding the facts alleged in the Indictment. The Appeals Chamber also recalls that the Trial Chamber relied upon Witness W’s testimony only in relation to the presence of a vehicle belonging to the Appellant on the road to Nyanza. As stated earlier, the Trial Chamber’s conclusion regarding the Appellant’s presence is based mainly on the testimonies of Witnesses A and H, direct witnesses, who observed Rutaganda on the road to Nyanza.

465. Concerning the alleged discrepancies identified by the Appellant in Witnesses W and A’s testimonies regarding the colour of the vehicle on the road to Nyanza, [821] the Appeals Chamber states that Witness W only saw Rutaganda’s vehicle and testified that he did not see the Appellant himself: he identified the vehicle as being white and green in colour with a beer logo. [822] Witness A, for his part identified a red vehicle, perhaps a Land Rover or Pajero, against which the Appellant was leaning on the road to Nyanza. [823] The Appeals Chamber emphasises that, in response to a question from a Judge, Witness A stated that the vehicle identified was not a Peugeot, as mentioned in his earlier testimony on 20 March 1997 concerning the October 1993 events. [824] Although Witness A’s testimony regarding the colour of the Appellant’s vehicle may appear contradictory at first glance, in reality, it is not so, considering that Witnesses A and W did not testify to the same facts: Witness A testified to having seen Rutaganda leaning against a red vehicle, [825] while Witness W testified to having see Rutaganda’s vehicle identified as green and white. [826] The Appeals Chamber is therefore of the view that it was correct for the Trial Chamber to rely on Witness W’s evidence, as it only contains minor inconsistencies.

466.For the foregoing reasons, the Appeals Chamber is of the view that the Appellant has failed to demonstrate the alleged errors of fact on the basis of which he contends that the Trial Chamber improperly exercised its discretion in its evaluation of the evidence of Witnesses A, DD, H and W and made a finding that no reasonable tribunal could have made. This ground of appeal is, therefore, dismissed.

D. Consideration of an alleged miscarriage of justice due to error of law concerning the admission of additional evidence

467.The Appeals Chamber now turns to consider the Appellant’s arguments in relation to additional evidence. Before considering the arguments on the merits, its necessary to recall the relevant appellate proceedings, and the standard of review on appeal where additional evidence has been admitted.

468. On 4 November 2002, five months into the Appeal deliberations, the Appellant filed an urgent motion [827] seeking, inter alia, an order pursuant to Rule 115 of Rules for admission of additional evidence. Considering that at that same time, the Prosecution was in the process of making some disclosures to the Appellant, the Appeals Chamber ordered the Appellant to file, pursuant to Rule 115 of the Rules, a consolidated motion by 6 January 2003 at the latest. [828] The Appellant filed the Consolidated Motion on 3 January 2003, [829] seeking, inter alia, an order for the admission of several items of additional evidence, including an investigation report prepared by Mr. Martin Seutcheu, Investigator with the Office of the Prosecutor (the “Seutcheu Report”). The Report had been prepared at the request of the Prosecution, following correspondence between the Office of the Prosecutor and Professor André Guichaoua, professor of Sociology at the Université de Lille,

France

, dated 10 November 2002 (“Communication of 10 November 2002”). In the said communication, Professor Guichaoua allegedly stated: “d’après mes informations il [Rutaganda] n’aurait pas été plus présent à Kicukiro que Rusatira” (the “Statement”). The Prosecution sought additional information from Professor Guichaoua and disclosed the information to the Appellant in the form of the written report of Mr. Seutcheu.

469. In an incidental motion, [830] the Appellant contended that the Prosecution should have disclosed to him the nature and source of the Communication of 10 November 2002, pursuant to Rule 68 of the Rules. The Appeals Chamber dismissed the Appellant’s motion in a decision rendered on 13 February 2003. [831] The Appeals Chamber, nevertheless, held that the Communication of 10 November 2002 appeared relevant for the purpose of considering the admissibility of the Seutcheu Report under Rule 115 of the Rules, and ordered that it be provided to the Appeals Chamber; the Prosecution did so on 14 February 2003. [832] The Appeals Chamber subsequently held that the interests of justice required that the Communication of 10 November 2002 be provided also to the Appellant, subject to the relevant protective measures. [833]

470.In a decision rendered on 19 February 2003, [834] the Appeals Chamber held that in light of the Communication of 10 November 2002, the Seutcheu Report was relevant and credible and could sufficiently show that the Appellant’s convictions for genocide and extermination as crimes against humanity were unsafe. The Appeals Chamber also considered that it was necessary to hear Professor Guichaoua as a witness in order to determine whether the Seutcheu Rapport actually revealed an error of fact of such magnitude as to occasion a miscarriage of justice. Professor Guichaoua was summoned to appear as a witness pursuant to Rules 98 and 107 of the Rules. [835] All the other motions by the Appellant for admission of additional evidence were dismissed.

471. In a decision and order rendered on 25 February 2003, [836] the Appeals Chamber allowed the Appellant to present new evidence in relation to the ETO school and Nyanza, it being understood that these submissions were to be limited to the impact the new evidence would have on the Appeal. The submissions on appeal and Professor André Guichaoua’s deposition were heard at the 28 February 2003 Hearing.

472. Before examining the submissions on the merits, the Appeals Chamber will recall the applicable standards of review on appeal where additional evidence has been admitted.

473. Pursuant to Article 24 of the Statute the Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the grounds of an error of law invalidating the decision or an error of fact which has occasioned a miscarriage of justice. Where additional evidence has been admitted on appeal, the Appeals Chamber is required to determine whether the additional evidence actually reveals an error of fact of such magnitude as to occasion a miscarriage of justice. [837] In accordance with Rule 118(A) of the Rules and the relevant jurisprudence, [838] the test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings? [839] Where the Appeals Chamber finds that a reasonable trier of fact could have reached a conclusion of guilt based on the evidence before the Trial Chamber together with the additional evidence, it must uphold the Trial Chamber decision.

474.The Appellant contends that he did not participate in the events at the ETO and Nyanza, Kicukiro commune, on 11 and 12 April 1994. [840] At the 28 February 2003 Hearing, he reiterated some of the arguments submitted in his Appeal, namely that the Trial Chamber erred by rejecting his alibi [841] and by finding Witnesses A, H, W and DD to be credible witnesses. [842] He also contended that the Trial Chamber would have acquitted him if it had considered the evidence before it together with the additional evidence. [843] The Appellant also submits that Professor Guichaoua’s testimony corroborated the defense of alibi offered at trial, [844] as it established that he was not present at the ETO and Nyanza on 11 April 1994. [845]

475. The Prosecution responded that the Statement, considered in the light of Professor Guichaoua’s testimony, could not lead to the conclusion that no reasonable tribunal of fact could have found that the Appellant did not participate in the events at the ETO and Nyanza. [846] According to the Prosecution, Professor Guichaoua’s testimony reveals that he does not possess information as to whether or not the Appellant was present at the ETO and Nyanza on 11 April 1994. [847] Therefore, his testimony cannot be given such weight as to [848] cast doubt on the evidence tendered at trial, including, inter alia, the direct evidence of three eyewitnesses who saw the Appellant at the ETO, Nyanza and on the road to Nyanza on 11 April 1994. [849]

476. The Appeals Chamber has considered, supra, [850] the Appellant’s contention that the Trial Chamber committed an error by rejecting his alibi, [851] and finding Witnesses A, H, W and DD to be credible witnesses. [852] Each of the sub-grounds of appeal has been dismissed. [853] The Appeals Chamber therefore finds the testimonies of Witnesses A, H, W and DD to be reliable and credible. The question the Appeals Chamber must consider in this instance is whether the Trial Chamber’s factual findings, although they were safe at trial, may actually be unsafe in view of the additional evidence. In order to answer this question, the Appeals Chamber must first determine whether the additional evidence tends to show that the Appellant was present at the ETO and Nyanza on 11 April 1994. If required, it will then assess the probative value of the said evidence and its impact on the testimonies of Witnesses A, H, W and DD, in the light of the relevant Trial Chamber findings.

477. The additional evidence the Appeals Chamber is to consider includes the Communication of 10 November 2002, the Seutcheu Report and Professor Guichaoua’s deposition. Before considering this evidence, the Appeals Chamber must first dispose of a preliminary question raised by the Appellant in his closing arguments at the 28 February 2003 Hearing. The Appellant contends that Professor Guichaoua was guarded in his testimony and changed his account of the facts contained in the Communication of 10 November 2002 and the Seutcheu Report. [854] The Appellant avers that this was because Professor Gichaoua was hoping to “undo the damage his candid remark had made”. [855] He also submits that Professor Guichaoua thought he was talking “within the family” in the Communication of 10 November 2002 and the Seutcheu Report [856] – which could imply that Professor Guichaoua therefore considered that he “worked for the Office of the Prosecutor”. [857] The Appellant’s submissions reveal that, in his view, Professor Guichaoua was more inclined to tell the truth in his discussions with the Office of the Prosecutor than at the 28 February 2003 Hearing. The Appellant therefore prayed the Appeals Chamber to reject the “qualifications”. [858] If the Appeals Chamber were to allow this motion, it would give more weight to the “facts” contained in the Communication of 10 November 2002 and the Seutcheu Report.

478. Having considered the Communication of 10 November 2002, the Seutcheu Report, Professor Guichaoua’s deposition and the parties’ submissions, the Appeals Chamber hereby dismisses the Appellant’s allegation that Professor Guichaoua changed his version of the facts at the 28 February 2003 Hearing. On the contrary, the Appeals Chamber observes that Professor Guichaoua confirmed his Statement unequivocally. [859] Pursuant to the decisions rendered on this subject, [860] Professor Guichaoua was ordered to appear as a witness specifically to explain his Statement and reveal the information on which he relied. The Appeals Chamber notes that that is precisely what Professor Guichaoua did in his testimony at the 28 February 2003 Hearing. For these reasons, the Appellant’s preliminary motion is dismissed.

479. The Appeals Chamber will now consider the additional evidence consisting of the Communication of 10 November 2002, the Seutcheu Report and Professor Guichaoua’s deposition. In its Decision of 13 February 2003, the Appeals Chamber found that the Communication of 10 November 2002 was relevant for the purpose of considering the admissibility of the Seutcheu Report, pursuant to Rule 115 of the Rules. [861] In its Decision of 19 February 2003, the Appeals Chamber held that the Communication of 10 November 2002 showed that the Seutcheu Report was relevant, credible and had the capacity to show that the Appellant’s convictions for genocide and extermination as crimes against humanity were unsafe. [862] The relevant passage of the Communication of 10 November 2002 reads as follows:

480. The excerpts from the Communication of 10 November 2002 and the Seutcheu Report tend to suggest that the Appellant was not present at the ETO and Nyanza, Kicukiro commune, on 11 April 1994. Nevertheless, the relevant passages of the Communication of 10 November 2002 and the Seutcheu Report are not, in themselves, of significant probative value, considering that, on the one hand, the Seutcheu Report consists of a non-judicial statement produced by a third party – Professor Guichaoua – and, on the other hand, neither document specifies the nature or tenor of the information on which the Statement is based. As such, such evidence can neither invalidate nor cast doubt on the Trial Chamber’s findings that the Appellant was present at Kicukiro on 11 April 1994, as they are based on the testimonies of Witnesses A, H, W and DD. It is therefore necessary to consider Professor Guichaoua’s testimony in order to assess the weight to be accorded to the Statement contained in the Communication of 10 November 2002 and reproduced in the Seutcheu Report.

481. At the 28 February 2003 Hearing, Professor Guichaoua testified on the content of the Communication of 10 November 2002, and the context in which the Communication was made. He reaffirmed that “d’après […] [s]es informations il [Rutaganda] n’aurait pas été plus présent à Kicukiro que Rusatira” [863] [according to the information available to him, he (Rutaganda) was not any more present at Kicukiro than Rusatira]. He also repeated that “tout le monde connaissait Rutaganda à cette époque là” (i.e. April 1994) [864] [everyone knew Rutaganda at the time]. Concerning his statement that the Appellant was not present at Kicukiro, Professor Guichaoua stated that he did not regard it as a “conclusion”, but rather as a personal opinion” or “feeling”. [865] Questioned on the issue, he explained that he had formed that opinion in the following context:

482.Specifically with regard to the information underlying Professor Guichaoua’s personal feeling, his deposition reveals that:

483. The Appeals Chamber is aware that Professor Guichaoua has already testified as Prosecution expert witness in certain cases before the Tribunal. The Appeals Chamber, nevertheless, takes the view that the question of fact in issue – to wit, whether or not the Appellant was present at Kicukiro on 11 April 1994 – does not require an expert opinion. Indeed, the Decision and Order of 19 and 25 February 2003, respectively specified that Professor Guichaoua was not to testify as an expert witness. [879] Professor Gichaoua’s testimony was therefore considered as that of an ordinary witness.

484. In his closing submissions at the 28 February 2003 Hearing, the Appellant submitted that Professor Guichaoua’s testimony “proved” that he was not present at the ETO and Nyanza on 11 April 1994. [880] He contended that Professor Guichaoua conducted a “thorough and detailed investigation” of Colonel Rusatira’s presence at the ETO [881] and that he “attempted to educate himself about the matter at ETO and Nyanza” on 11 April 1994. [882] The information obtained by Professor Guichaoua is allegedly particularly relevant due to the fact that Colonel Rusatira and the Appellant were joined in the Rusatira Indictment. [883]

485. The Appeals Chamber rejects each of the aforementioned arguments. As has been recalled, Professor Gichaoua’s testimony reveals that his research was aimed only at verifying Colonel Rusatira’s schedule on 10, 11 and 12 April 1994. [884] The research was not aimed at obtaining information about the Appellant [885] or at reconstructing the 11 April 1994 events at the ETO, Nyanza and Sonatubes. [886] The contention that the Appellant and Colonel Rusatira were joined in the Indictment against Colonel Rusatira is without merit. On the one hand, the indictments of the Appellant and Colonel Rusatira are different in both form and substance. [887] On the other hand, although the Indictment against Colonel Rusatira refers to the Appellant, the one against the Appellant does not refer to Colonel Rusatira. In any event, the fact that both indictments are similar as regards the ETO and/or Nyanza events does not necessarily imply that the information obtained by Professor Guichaoua is relevant to the present case. [888]

486. The Appellant contends that Professor Guichaoua’s testimony is relevant insofar as it corroborates “by way of negative evidence” the defence of alibi that he offered in the instant case. [889] He contends that the information Professor Guichaoua obtained proves that he was not where the Trial Chamber found that he was. [890] The Appeals Chamber rejects this argument. The sources of information cited by Professor Guichaoua, although not entirely unrelated to the proceedings, do not appear to be relevant to the matter at issue. Professor Guichaoua’s testimony clearly demonstrated that: he never asked any of the people he interviewed about the Appellant’s presence at the ETO, Nyanza or the Sonatubes crossroads; [891] he did not ask anyone about the Appellant’s whereabouts on 11 April 1994; [892] the documents he consulted did not concern the Appellant’s movements, or the relevant period of the Indictment against him; with the exception of speculation by Professor Guichaoua, it appears that the authors of the documents he consulted were not in a position to know the Appellant’s whereabouts on 11 April 1994. [893] In fact, when questioned about this subject, Professor Guichaoua unequivocally confirmed that he had no tangible proof as to whether or not the Appellant was present at Kicukiro on 11 April 1994. [894]

487. The Appeals Chamber is of the view that the information on which Professor Guichaoua’s personal opinion is based cannot rationally prove that the Appellant was not present at Kicukiro on 11 April 1994. In his testimony, Professor Guichaoua himself stated that:

488.The Appeals Chamber therefore takes the view that Professor Guichaoua’s testimony as well as the Communication of 10 November 2002 and the Seutcheu Report do not have sufficient probative value to cast doubt on Witnesses A, H, W and DD’s evidence on which the Trial Chamber relied for its findings regarding the Appellant’s presence at Kicukiro on 11 April 1994. The reasonable doubt standard in criminal law cannot consist in imaginary or frivolous doubt based on empathy or prejudice. It must be based on logic and common sense, and have a rational link to the evidence, lack of evidence or inconsistencies in the evidence. In the instant case, the additional evidence considered by the Appeals Chamber lacks credibility due to the information on which it is based. It does not demonstrate whether or not the Appellant was present at the ETO and Nyanza on 11 April 1994. Therefore, the additional evidence does not tend to show that the Trial Chamber’s findings in this case are incorrect.

489. For these reasons, the Appeals Chamber finds that the Appellant has failed to prove that, based on the evidence presented at trial, together with the additional evidence, no reasonable tribunal of fact could have found the Appellant guilty of participation in the ETO and Nyanza massacres, and in the forcible diversion of refugees to Nyanza, Kicukiro commune on 11 April 1994. This ground of appeal is accordingly dismissed.

[656] Supplemental Document, para. 17.
| [657] Trial Judgement, paras. 390 to 392, 407 and 408.
[658] The testimonies of Witnesses H and DD were relied upon in relation to the ETO events; the testimonies of Witnesses A, H and W were relied upon in relation to the events at Nyanza and on the road to Nyanza.
[659] Trial Judgement, paras. 292 and 298.
[660] Ibid., paras. 297 and 298.
[661] Supplemental Document, paras. 17 (2) and (6).
[662] Rutaganda’s Brief, paras. 356 et seq.
[663] Supplemental Document, para 17(1).
[664] Ibid., paras. 17(3), (4) and (9).
[665] Rutaganda’s Brief, paras. 369 - 371. See also Rutaganda’s Reply Brief, p. 79, para. 7.05.
[666] Ibid., para. 370.
[667] Idem.
[668] Idem.
[669] Prosecutor’s Response, paras. 7.13 to 7.18.
[670] See Part VI: Distribution of Weapons.
[671] Rutaganda’s Brief, paras. 356 to 366.
[672] Ibid., paras. 357 to 359 [See also Supplemental Document, para. 17(4)] and Rutaganda’s Brief, para. 386 (under “Evidence of Witness H implicating Mr. Rutaganda – summarized”).
[673] Supplemental Document, para. 17 (9). See also Rutaganda’s Brief, paras. 360 to 361.
[674] Rutaganda’s Brief, para. 364. The Appellant refers to the following dialogue between Judge Aspegren and Witness W (T, 29 May 1997, pp. 19):
Q. Was Rutaganda himself there?
A. No, he wasn’t there. Except that I saw his vehicle but I didn’t see the driver.
Q. Is it possible that Mr. Rutaganda was in his car without you having seen him?
A. It is possible because I saw the vehicle from far.
[675] Rutaganda’s Brief, para. 365.
[676] See Trial Judgement, paras. 292 to 304, in particular, para. 304, where the Chamber states this: “Witness W saw a vehicle belonging to the Accused bringing in Interahamwe as reinforcements.” (Emphasis added)
[677] Trial Judgement, para. 303.
[678] Ibid., para. 304.
[679] Trial Judgement., para. 300.
[680] Rutaganda’s Brief, para. 372.
[681] Trial Judgement, paras. 275 to 279.
[682] Ibid., para. 292.
[683] Ibid., para. 300.
[684] Rutaganda’s Brief, para. 387.
[685] Ibid., para. 388 to 397.
[686] Ibid., para. 391.
[687] Ibid., para. 388. The Appellant cites T, 25 March 1997, p. 111.
[688] Ibid., para. 390.
[689] Ibid., para. 391.
[690] Prosecution’s Response Brief, para. 7.118.
[691] Ibid., para. 7.119.
[692] Trial Judgement, para. 275
[693] T, 25 March 1997, pp. 102 to 116
[694] Rutaganda’s Brief, paras. 392 to 395.
[695] Ibid., paras. 392 and 393. The Appellant cites T, 26 March 1997, pp. 69 and 70.
[696] Rutaganda’s Brief, paras. 394 and 395. The Appellant cites T, 26 March 1997, pp. 11 and 12, and T, 25 March 1997, p. 122.
[697] Prosecution’s Response Brief, para. 7.121.
[698] Ibid., para. 7.123.
[699] Rutaganda’s Brief, para. 392.
[700] See T, 26 March 1997, pp. 77-79.
[701] T, 26 March 1997, p. 69 (Witness H).
[702] T, 26 March 1997, p. 69.
[703] Rutaganda’s Brief, para. 394.
[704] T, 26 March 1997, pp.12 to 13 (Witness H).
[705] Rutaganda’s Brief, para. 357, and paras. 394 and 395 (quoting the Trial Jugement, para. 277).
[706] Trial Judgement, para. 277.
[707] T, 26 March 1997, p. 14.
[708] Rutaganda’s Brief, para. 396(1).
[709] Prosecution’s Response Brief, para. 7.129.
[710] T, 26 March 1997, Witness H, p. 80.
[711] Rutaganda’s Brief, para. 396(2).
[712] Prosecution’s Response Brief, para. 7.131.
[713] T, 25 March 1997, pp. 93 et seq. The Appeals Chamber notes that the French and English transcripts differ somewhat regarding who the Judge asked the question “[v]ous vous souvenez que vous avez dit bleu, vous ?”. In the English transcript, it is the witness who answers the question, whereas in the French transcript, it is the interpreter, not the witness, who answers “Je me m'en souviens pas, Monsieur le Président, mais c'est possible, mais je ne m'en souviens pas”.
[714] Rutaganda’s Brief, para. 396(3)-(10).
[715] Ibid., para. 396(3). The Appellant cites T, 25 March 1997, p. 105, and T, 26 March 1997, p. 54. In its Response, the Prosecution argues that this is not a contradiction, and that it is a relatively insignificant discrepancy in the light of Witness H’s entire testimony (See Prosecution Response, para. 7.133).
[716] Ibid., para. 396(4). The Appellant cites T, 26 March 1997, pp. 55 and 56. The Prosecution explains that the witness clarified the alleged inconsistency in his subsequent testimony. Ibid., para. 7.135.
[717] Ibid., para. 396(5). Reference to Witness H’s testimony (T, 25 March 1997, pp. 110 and 111) and to Captain Luc Lemaire’s testimony (T, 1 October 1997, pp. 210 to 211).
[718] Rutaganda’s Brief, para. 396(6). The Appellant cites T, 25 March 1997, pp. 111 and 121. The Prosecution responds that this cannot be considered a contradiction. Prosecution’s Response, para. 7.140.
[719] Ibid., para. 396(7). The Appellant illustrates the alleged inconsistencies between the testimonies of Witness H (T, 25 March 1997, p. 111) and Witness W (T, 29 May 1997, pp. 10 and 11).
[720] Ibid, para. 396(9). The Appellant refers to the Transcript of 26 March 1997, pp. 66 and 86.
[721] Trial Judgement, para. 292.
[722] See Supplemental Document, para. 17, and Rutaganda’s Brief, paras. 362 and 363.
[723] Rutaganda’s Brief, para. 363.
[724] Čelebići Appeal Judgement, para. 498.
[725] For Witness H, see Transcript of 25 March 1997, pp. 105, 110, 111, 121; T, 26 March 1997, pp. 54 to 56, 66 and 86. For Captain Luc Lemaire’s testimony, see T, 1 October 1997, pp. 210 to 211; for Witness W, see T, 29 May 1997, pp. 10 to 11.
[726] See Furundžija Appeal Judgement, para. 35.
[727] See Part IV of this Judgement.
[728] Trial Judgement, para. 292.
[729] Trial Judgement, paras. 280 to 282.
[730] Trial Judgement, para. 280.
[731] Trial Judgement, para. 300.
[732] Rutaganda’s Brief, paras. 401(12) to 407.
[733] In its Response, the Prosecution argues that these minor inconsistencies do not discredit or render Witness DD’s testimony unreliable. It maintains that the few inconsistencies identified by the Appellant are trivial, and do not jeopardise the Trial Chamber’s findings that Witness DD was a reliable and credible witness. See Prosecution’s Response, paras. 7.155 and 7.158.
[734] Rutaganda’s Brief, para. 401(1). The Appellant cites T, 27 May 1997, pp. 40 and 106.
[735] Ibid., para. 401 (2). Reference to T, 27 May 1997, pp. 45 and 106.
[736] Ibid., para. 401 (3). The Appellant cites T, 27 May 1997, pp. 50 and 51.
[737] Ibid., para. 401 (4). The Appellant cites T, 27 May 1997, p. 46, and T, 28 May 1997, p. 29.
[738] Ibid., para. 401 (5). The Appellant cites Witness DD’s testimony (T, 28 May 1997, p. 29) and Captain Lemaire’s testimony (T, 30 September 1997, pp. 170-171 and T, 1 October 1997, p. 87).
[739] Ibid., para. 401 (6) (The Appellant cites T, 27 May 1997, pp. 46 and 114 and T, 28 May 1997, pp. 29 and 35). See also point 8) (T, 27 May 1997, pp. 33 and 56 and T, 28 May 1997, p. 32).
[740] Ibid., para. 401 (7) (Reference to T, 27 May 1997, p. 113 and T, 28 May 1997, pp. 29 and 30).
[741] Ibid., para. 401 (9). The Appellant cites T, 27 May 1997, p. 113 (Witness DD) and T, 1 October 1997, pp. 210 to 211 (Capitaine Lemaire).
[742] Ibid., point 10. Reference to T, 27 May 1997, pp. 47 to 48.
[743] Ibid., point 11. (T, 27 May 1997, pp. 48 and109).
[744] In the Čelebići Judgement, para. 497, the Appeals Chamber found that “[A]lthough the Trial Chamber made no reference in its findings to the alleged inconsistencies [...], it can nevertheless be assumed that it regarded them as immaterial to determining the primary question [....]”.
[745] T, 27 and 28 March 1997, Witness DD.
[746] Trial Judgement, paras. 402 and 408.
[747] Ibid., paras. 302, 303 and 304.
[748] Rutaganda Brief, para. 372.
[749] Trial Judgement., para. 292.
[750] Ibid., paras. 267 to 270 and 274.
[751] Ibid., para. 303.
[752] Ibid., paras. 303 and 304.
[753] Rutaganda’s Brief, para. 375.
[754] Ibid., para. 377.
[755] In its Response, the Prosecution counters that these minor inconsistencies certainly do not demonstrate that the Trial Chamber acted unreasonably in relying on his evidence to hold the factual findings proven beyond a reasonable doubt. It also submits that when Witness A’s evidence is considered as a whole, the impression is that of a witness who provided truthful, coherent, detailed and accurate testimony, and who responded directly and concretely to the questions asked of him by the parties and the Bench. Finally, the Prosecution observes that Rutaganda’s Brief contains numerous inaccuracies and mis-citings of Witness A’s evidence. See Prosecution’s Response, paras. 7.24, 7.25 and 7.27.
[756] Rutaganda’s Brief, para. 378 (1). The Appellant cites T, 20 March 1997, pp. 92 to 93, and T, 24 March 1997, pp. 18 to 19.
[757] Ibid., para. 378(2). See T, 20 March 1997, p. 93; T, 24 March 1997, p. 22.
[758] Ibid., para. 378(4). The Appellant cites T, 20 March 1997, p. 116 (Witness A); T, 28 May 1997, p. 130, and T, 29 May 1997, pp. 20 to 21 (Witness W).
[759] Ibid., para. 378(5). The Appellant cites T, 20 March 1997, pp. 118 to 120.
[760] Ibid., para. 378(3) and (6) Appellant cites T, 20 March 1997, pp. 113 to 114 and p. 120, and T, 24 March 1997, p. 42.
[761] Ibid., para. 378(8). See also T, 20 March 1997, pp. 127 and 128.
[762] Ibid., para. 378(9). The Appellant cites T, 1 October 1997, pp. 26 and 208 (Captain Lemaire) and T, 20 March 1997, pp. 127 and 132 and T, 24 March 1997, p. 53 (Witness A).
[763] Ibid., para. 378(10). The Appellant cites T, 20 March 1997, pp. 134 to 135 and T, 24 March 1997, p. 65.
[764] Ibid., point (12). Reference to Witness A’s testimony (T, 21 March 1997, pp. 13 to 14) and to Captain Lemaire’s testimony (1 October 1997, p. 187).
[765] Ibid., para. 378(11) and (13). The Appellant cites T, 21 March 1997, pp. 10 to 11 and 17, and T, 24 March 1997, p. 66 (Witness A). For W, the Appellant cites T, 29 May 1997, p. 8.
[766] Ibid. para. 378(14). Reference to T, 21 March 1997, p. 18 (Witness A), and T, 1 October 1997, pp. 210 to 211 (Captain Lemaire).
[767] Ibid., para. 378 (15). The Appellant cites the following Transcripts as regards Witness A: T, 21 March 1997, pp. 19 to 21 and T, 24 March 1997, p. 89; Witness H: T, 25 March 1997, pp. 110 to 111; Witness DD: T, 27 May 1997, p. 113.
[768] Ibid., para. 378(16). Witness cites Witness A’s testimony (T, 24 March 1997, p. 112).
[769] Ibid., para. 378(17). The Appellant cites T, 21 March 1997, pp. 33 to 35 (Witness A).
[770] Ibid., para. 378(18). The Appellant cites T, 21 March 1997, p. 45 (Witness A) and T, 28 May 1997, p. 76 (Witness DD).
[771] Ibid., para. 378 (19). Witness cites Witness A’s testimony (T, 21 March 1997, pp. 49 to 50 and T, 24 March 1997, p. 118).
[772] Ibid., para. 378 (20). The Appellant cites T, 21 March 1997, p. 54 and T, 25 March 1997, p. 36 (Witness A) and T, 26 March 1997, p. 9 (Witness H).
[773] Ibid., para. 378 (21). The Appellant cites T, 21 March 1997, p. 54 (Witness A).
[774] Ibid., para. 378 (7). The Appellant cites T, 20 March 1997, p. 116; T, 24 March 1997, pp. 34 to 35 and T, 8 April 1994, p. 27 and 32 (Rutaganda’s testimony).
[775] Rutaganda’s Reply, para. 7.12 (regarding para. 378(3) of Rutaganda’s Brief), para. 7.17 (regarding para. 378(7) of Rutaganda’s Brief) and para. 7.24 (regarding para.378(11) of Rutaganda’s Brief).
[776] See, for example, Musema Appeal Judgement, para. 89, Čelebići Appeal Judgement, para. 497, and Kupreškić Appeal Judgement, para. 156. For instance, the Appeals Chamber emphasizes that in the instant case, the Trial Chamber did not hesitate to find Witness M’s unreliable and to not take it into account, as it contained many substantial inconsistencies regarding dates, time, figures and chronology of events.
[777] See T, 20 March 1997, p. 116 (Witness A) and T, 28 May 1997, p. 130 and T, 29 May 1997, p. 20-21 (Witness W).
[778] See T, 20 March 1997, p. 116 (l. 12) and T, 28 May 1997, p. 129-130 and T, 29 May 1997, p. 20.
[779] See T, 20 March 1997, p. 116 and T, 28 May 1997, p. 130 and T, 29 May 1997 p. 20-21.
[780] Trial Judgement para. 292.
[781] Ibid., para. 299.
[782] Trial Judgement, para. 268 (Witness A), para. 276 (Witness H), para. 280 (Witness DD) and para. 284 (Witness W).
[783] See T, 21 March 1997, pp. 19-21 and T, 24 March 1997, p. 89 (Witness A); Witness H: T, 25 March 1997, pp. 110 to 111; Witness DD: T, 27 May 1997, p. 113.
[784] See T, 24 March 1997, p. 112.
[785] Trial Judgement, paras. 292 to 304.
[786] See T, 21 March 1997, pp. 33 and 35 (Witness A). In this regard, the Appeals Chamber notes that as to whether witness A overheard Rutaganda, the witness clarified his statement when he responded to the questions put to him by the Presiding Judge. The following dialogue took place between the witness and the Presiding Judge:
MR. PRESIDENT: […] I would like for the witness to be clear because there are two possibilities. Either this person was going towards Rutaganda for protection and he gave him his hand gesture as if to say don't come near me but without saying anything or maybe he heard him say something?
THE WITNESS: I didn't hear the words he actually said but when the person I was speaking with came back to the crowd, he came back next to me and I asked him why he gone up to Rutaganda and he told me that he had gone because he thought that Rutaganda would safe him but that Rutaganda told him to get away.
MR. PRESIDENT: But that is not the same thing, earlier you said that he raised his hands and said don't come up near me. What exactly happen please be clear? Prosecutor, what are we putting on the record?
MR. PROSPER: I guess that Rutaganda made a gesture that can be interpreted as go away or do not come near me with his hands blushing away type of gesture.
MR. PRESIDENT: It is on the record. […]
[787] Trial Judgement, para. 303.
[788] See in general, Aleksovski Appeal Judgement, para. 64.
[789] Rutaganda’s Brief, para. 378 (12).
[790] See for example, Musema Appeal Judgement, para. 139, Aleksovski Appeal Judgement, para. 62; and Tadić Appeal Judgement, para. 65.
[791] See Aleksovski Appeal Judgement, para. 63 (citing Tadić Appeal Judgement, para. 65).
[792] Rutaganda’s Brief, para. 396 (8) (Reference to T, 26 March 1997, pp. 3-4 and T, 27 March 1997, p. 36) and para. 396 (10) (the Appellant refers to T, 25 March 1997, p. 115 – Witness H – and T, 27 May 1997, p. 50 – Witness DD -).
[793] Prosecution’s Response, paras. 7.146 and 7.152.
[794] T, 26 March 1997 (Witness H).
[795] T, 27 March 1997 (Witness H).
[796] See Introduction, paras. 23 and 24.
[797] Ibid., para. 300.
[798] Trial Judgement, paras. 283 and 285.
[799] Trial Judgement, para. 284.
[800] Ibid., para. 304.
[801] Ibid.
[802] Rutaganda’s Brief, para. 411.
[803] Ibid., para. 413.
[804] Rutaganda’s Brief, paras. 409 to 443.
[805] In its Response, the Prosecution submits that it was quite reasonable for the Trial Chamber to rely on the testimony of Witness W, even though he simply testified to seeing the Appellant’s vehicle on the road to Nyanza. Moreover, the Prosecutor disagrees with the Appellant’s contention that the testimony contains substantial inconsistencies which allegedly show that Witness W is unreliable. Although the Prosecution acknowledges that there are some inconsistencies, it explains that they are minor and do not discredit Witness W’s testimony. See Prosecution’s Response, paras. 7.206 to 7.240.
[806] Rutaganda’s Brief, paras. 412 and 413. The Appellant cites T, 28 May 1997, p. 130; T, 29 May 1997, p. 20 to 21 (Witness W); T, 24 March 1997, p. 114, and T, 21 March 1997, p. 36 to 37 (Witness A).
[807] Ibid., paras. 417 to 419 where Rutaganda cites T, 28 May 1997, pp. 133 to 138 and p. 149; and T, 29 May 1997, p. 37.
[808] Ibid., para. 420. The Appellant cites T, 28 May 1997, pp. 140 and 143.
[809] Ibid., para. 421 to 422. Reference to T, 28 May 1997, p. 149.
[810] Ibid., para. 423 to 424. The Appellant cites T, 28 May 1997, p. 140 andpp. 22 to 25, and T, 29 May 1997, pp. 49 to 52.
[811] Ibid., 425 to 427. Reference to T, 28 May 1997, p. 141.
[812] Ibid., paras. 428 to 429. The Appellant cites T, 28 May 1997, pp. 141 and 146.
[813] Ibid., paras. 430 and 431. Rutaganda cites T, 28 May 1997, p. 141, and T, 29 May 1997, p. 54.
[814] Ibid., paras. 432 to 434. Rutaganda cites T, 28 May 1997, pp. 144, 148, 125, 137, 138; T, 29 May 1997, pp. 50 and 53, and pp. 147 and 148.
[815] Ibid., paras. 435 and 436. The Appellant cites T, 28 May 1997, pp. 144, 145, 149, 153, 154, 41; and T, 29 May 1997, pp. 43 to 44.
[816] Ibid., paras. 437-439. The Appellant cites T, 28 May 1997, p. 154, and T, 29 May 1997, pp. 44 to 45 and 60; Trial Judgement, para. 286.
[817] Ibid., para. 440. Reference to T, 29 May 1997, p. 9 and pp. 16 to 17 (afternoon session).
[818] Ibid., para. 441 to 443. The Appellant cites T, 29 May 1997 (afternoon session) pp. 11 and 13, and T, 1 October 1997, pp. 188 to 189 and pp. 191, 195 and 196 (Captain Luc Lemaire’s testimony).
[819] T, 28 and 29 May 1997, Witness W.
[820] See Čelebići Appeal Judgement, para. 498.
[821] Rutaganda’s Brief, paras. 412 and 413. The Appellant cites T, 28 May 1997, p. 130; T, 29 May 1997, p. 20 (Witness W); T, 24 March 1997, p. 114; T, 21 March 1997, p. 36 to 37 (Witness A).
[822] See T, 29 May 1997, pp. 17 to 22.
[823] See T, 24 March 1997, pp. 106 to 114.
[824] At the hearing of 21 March 1997, the following dialogue took place regarding the events on the road to Nyanza (T, 21 March 1997, pp. 37 and 38) :
             “Q. What type of car was it?
             A. It was a Land cruiser             […]
             Q. Therefore it was not a Peugeot or the volsvagon (sic) that you talked about yesterday?”
It should be recalled that on 20 March 1997 (p. 116), Witness A testified about the vehicle in which he saw Rutaganda during the events of October 1997 (T, 20 March 1997, p. 111): “It was a blue pick up truck of the Peugeot brand”.
[825] T, 24 March 1997, p. 114.
[826] T, 29 May 1997, pp. 19-20.
[827] Urgent Defence Motion for an Order Varying the Grounds of Appeal Pursuant to Rule 107bis and Rules 114 and 116 of the Rules of Procedure and Evidence; for Disclosure Pursuant to Rules 66(B) and 68 of the Rules of Procedure and Evidence; for a Rehearing of Oral Argument in the Appeal Pursuant to Article 24 of the Statute of the International Tribunal for Rwanda, and for the Admission of Additional Evidence Pursuant to Rule 115(A) and (B) of the Rules of Procedure and Evidence, as well as a Request for Extension of the Page Limit Applicable to Motions”, of the Statute of the International Tribunal for Rwanda, and for the Admission of Additional Evidence Pursuant to Rule 115(A) and (B) of the Rules of Procedure and Evidence, as well as a Request for Extension of the Page Limit Applicable to Motions, filed on 4 November 2002.
[828] Decision on the Urgent Defence Motion for Disclosure and Admission of Additional Evidence and Scheduling Order, 12 December 2002.
[829] Consolidated Defence Motion for an Order Varying the Grounds of Appeal Pursuant to Rule 107bis and Rules 114 and 116 of the Rules of Procedure and Evidence; for a Rehearing of Oral Argument in the Appeal Pursuant to Article 24 of the Statute of the International Tribunal for Rwanda, and for the Admission of Additional Evidence Pursuant to Rules 115(A) and (B) of the Rules of Procedure and Evidence, as well as a Request for Extension of the Page Limit Applicable to Motions, 3 January 2003.
[830] Urgent Defence Motion for Disclosure Pursuant to Rules 66 B) and 68 of the Rules of Procedure and Evidence, and for a Reconsideration of Deadlines Imposed in Judge Jorda’s Order of December 12, 2002, 18 December 2002.
[831] Décision sur la “Urgent Defence Motion for Disclosure Pursuant to Rules 66 B) and 68 of the Rules of Procedure and Evidence, and for a Reconsideration of Deadlines Imposed in Judge Jorda’s Order of December 12, 2002”, 13 February 2003 (“Decision of 13 February 2003”). By this Decision, the Appeals Chamber held, inter alia, that the Prosecution had disclosed the relevant information pursuant Rule 68 of the Rules by means of the Seutcheu Report.
[832] Prosecution Filing Pursuant to the Appeals Chamber’s Decision Dated 13 February 2003 (Partly ex parte, Confidential), 14 February 2003.
[833] Order for the Prosecution to Provide the Defence With the Communication of 10 November 2002 and for Protective Measures (Confidential), 24 February 2003.
[834] Decision on the Consolidated Defence Motion for an Order Varying the Grounds of Appeal, for the Rehearing of Oral Arguments in the Appeal and for the Admission of Additional Evidence, and Scheduling Order, dated 19 February 2003 and filed on 14 May 2003 (“Decision of 19 February 2003”).
[835] See Decision of 19 February 2003, Citation à comparaître [summons] dated 24 February 2003, redacted version filed on 14 May 2003 (“Citation à comparaître”).
[836] Ordonnance portant calendrier [Scheduling Order] dated 25 February 2003, redacted version filed on 14 May 2003.
[837] The Appeals Chamber could have remitted the case to the Trial Chamber for it to consider any new evidence. In the instant case, the Appeals Chamber decided to rule on the matter (Kupreskic Appeal Judgement, para. 70).
[838] See mainly Kupreskic and Musema Appeal Judgements.
[839] Musema Appeal Judgement, paras. 185 and 186; Kupreskic Appeal Judgement, paras. 75 and 76.
[840] T(A), 28 February 2003, pp. 59 and 68.
[841] T(A), 28 February 2003, pp. 59, 65 and 77.
[842] T(A), 28 February 2003, pp. 67 and 74.
[843] T(A), 28 February 2003, pp. 68 and 66.
[844] T(A), 28 February 2003, p. 60.
[845] T(A), 28 February 2003, p. 65.
[846] T(A), 28 February 2003, pp. 72 to 73.
[847] T(A), 28 February 2003, pp. 72 to 73.
[848] T(A), 28 February 2003, pp. 72 to 73
[849] T(A), 28 February 2003, pp. 73.
[850] See Part V of this Judgement.
[851] T(A), 28 February 2003, pp. 59, 68 and 77.
[852] T(A), 28 February 2003, pp. 59 and 66.
[853] See Parts V and VIII of this Judgement.
[854] The Appellant contends that Professor Guichaoua made attempts to “minimize the force of the extraordinary statement which he made in [the Communication of 10 November 2002] – which he repeated to the Prosecution investigator, Mr. Seutcheu, [and has] repeated again in court” (see: T(A), 28 February 2003, p. 55; see also pp. 62 to 63).
[855] T(A), 28 February 2003, p.76.
[856] See, inter alia, T(A), 28 February 2003, p. 64.
[857] T(A), 28 February 2003, p. 63.
[858] T(A), 28 February 2003, p. 55; see also pp. 74 to 75.
[859] T(A), 28 February 2003, p. 6.
[860] See mainly Decision of 19 February 2003 and Citation à comparaître.
[861] Decision of 13 February 2003, p. 7.
[862] Decision of 19 February 2003, p. 6.
[863] T(A), 28 February 2003, p. 6.
[864] T(A), 28 February 2003, p. 17.
[865] T(A), 28 February 2003, pp. 6 and 7, 16 and 17 and 41. Professor Guichaoua also spoke of a “personal feeling” (T(A), 28 February 2003, p. 16).
[866] T(A), 28 February 2003, p. 21.
[867] T(A), 28 February 2003, p. 7. The only questions Professor Guichaoua allegedly asked concerning the ETO (T(A), 28 February 2003, p. 8), but it seems that he also has information regarding Sonatubes and Nyanza (T(A), 28 February 2003, p. 34)
[868] T(A), 28 February 2003, p. 16.
[869] T(A), 28 February 2003, pp. 12, 23, 29, 31, 44 and 49.
[870] T(A), 28 February 2003, pp. 7, 18
[871] T(A), 28 February 2003, p. 55.
[872] T(A), 28 February 2003, pp. 26 and 34.
[873] T(A), 28 February 2003, p. 26.
[874] T(A), 28 February 2003, p. 34.
[875] T(A), 28 February 2003, pp. 35 and 36.
[876] Mainly documents and statements obtained from UNAMIR.
[877] Mainly the statement of an ambassador to Rwanda during the relevant period, and the statement of someone who was hiding at Colonel Rusatira’s house on 11 April 1994.
[878] T(A), 28 February 2003, pp. 41 to 44; see also p. 46.
[879] In his closing statement at the 28 February 2003 Hearing the Appellant contended that Professor Guichaoua had appeared “as a Prosecution expert [witness]” (T(A), 28 Febuary 2003, p. 77; see also pp. 55, 65 and 68.).
[880] T(A), 28 February 2003, p. 65.
[881] T(A), 28 February 2003, p. 73.
[882] T(A), 28 February 2003, pp. 67 and 76. |
[883] T(A), 28 February 2003, p. 79
[884] T(A), 28 February 2003, p. 49.
[885] T(A), 28 February 2003, p. 18.
[886] T(A), 28 February 2003, pp. 26 and 30.
[887] The Indictment against the Appellant was confirmed on 16 February 1996, while the one against Colonel Rusatira was confirmed on 12 April 2002. The latter Indictment was withdrawn on 14 August 2002. The Prosecution did not file a motion for joinder pursuant to Rule 49 of the Rules.
[888] Moreover, the Appeals Chamber recalls that by its Decision of 19 February 2003, it dismissed the Appellant’s contention that the withdrawal of the Indicment against Colonel Rusatira demonstrated that his convictions for genocide and extermination as crime against humanity was unsafe.
[889] T(A), 28 February 2003, pp. 73 to 74.
[890] T(A), 28 February 2003, p.65.
[891] T(A) (French), 28 February 2003, p. 55.
[892] T(A), 28 February 2003, p. 30.
[893] Professor Guichaoua acknowledged that his sources were not at the ETO nor Nyanza at the time of the massacres and that, accordingly, they could not provide him with information regarding Rutaganda’s presence at the ETO based on their personal observations. (T(A), 28 February 2003 2003, pp. 31 to 42).
[894] T(A), 28 February 2003, pp. 7 and 73.
[895] T(A), 28 February 2003, p. 17.

VIII. ETO SCHOOL AND NYANZA MASSACRES

(a) Animus towards the Appellant

(b) Readiness to make suppositions