126.The Appellant puts forward ten main arguments in support of this ground of appeal. He contends that the Trial Chamber committed errors of law, each of which could invalidate the judgement or warrant the holding of a new trial. [227] The Appeals Chamber understands that he also submits, in the alternative, that the accumulation of the said errors is at the very least, such as would invalidate the convictions as a whole. [228] The alleged errors relate to the manner in which the Trial Chamber conducted the trial and assessed the evidence. The Prosecution’s response is that the alleged errors do not exist or do not constitute errors of law that would invalidate the judgement. [229]

127.The Appellant alleges that the Trial Chamber committed an error of law affecting the Defence’s right to cross-examination provided for in Rule 85(B) of the Rules, [231] on the one hand, by preventing him from asking leading questions, and on the other hand, by directing his counsel not to challenge answers given by witnesses. He submits that the general attitude of the Trial Chamber suggests that the Chamber’s conception of the notion of cross-examination is so narrow that it amounts to a negation of the principle itself and, in this instance, made it impossible for his Counsel to cross-examine the witnesses properly and to effectively rebut the evidence proffered against him. According to the Appellant, this error of law is such as would invalidate all the convictions entered against him in the Judgement. [232]

128. The Appeals Chamber recalls that the Rules do not contain any specific provision on leading questions, but instead lay down general rules on examination and cross-examination which, appear to be patterned on the U.S Federal Rules of Evidence, [233] and, as it stated in Akayesu: [234]  

“True, under this system, leading questions are allowed and used during cross-examination whereas they are not permitted during examination-in-chief.  Still, in the opinion of the Appeals Chamber, the Rules take on a life of their own upon adoption.  Interpretation of the provisions thereof may be guided by the domestic system it is patterned after, but under no circumstance can it be subordinated to it.”

129. The Appellant offers four examples in support of his contention. The first example concerns the intervention by the Presiding Judge in response to an objection by the Prosecution chiding one of the Appellant’s Counsel for making “speeches” instead of asking questions [235] during the cross-examination of Witness E: [236]

“Mr. PRESIDENT: Yes, now we have always said to both the Prosecution and the Defence that they have to ask direct questions.  They have to avoid making comments and that they have to avoid asking leading questions. We have had the situation where we have said this is not acceptable. We have noticed that sometimes there are expressions that can perhaps be attributed to the way the French language is formulated; -Am I to understand  -am I right in saying--  Fine, I can understand that and I did not intervene. But in fact that is not a question.  A question is simply to ask the question,’ What do you mean by this?'  But not to say, 'Am I to understand this is what you mean by this?"  It is not the same thing. We will bear this in mind because you have raised it.  But this applies to both parties.  Fine, counsel you have the floor”. [237]

130.The Prosecution submits that this remark by the Presiding Trial Judge within the context of the clarification he wanted cannot be taken to mean a general ban on leading questions, as the Appellant claims. [238]

131. The Appeals Chamber points out that, in any event, the reminder by the Trial Chamber that the parties should avoid asking leading questions and making comments, which was given when a witness was being cross-examined, clearly goes beyond the framework of cross-examination and, in the instant case, was not followed to the letter. Indeed, a reading of the trial record shows that, quite apart from the three examples of intervention cited in relation to Witnesses B, M and Nsanzuwera, numerous leading questions were put to the witnesses in question and to other witnesses throughout the trial, during their cross-examination, particularly by Counsel for the Appellant, and this happened without the Trial Chamber interrupting. Under these conditions, it cannot be deduced from the foregoing general remark that the Appellant was, as he claims, systematically denied the right to test the credibility of witnesses and to cross-examine them effectively by asking them leading questions.

132.The second example cited by the Appellant relates to the cross-examination of Witness B and to the Presiding Judge’s intervention emphasizing that a question put by Appellant’s Counsel in relation to Witness B’s prior statement about RTLM Radio is a leading question, and requesting her to re-phrase it. [239]

133. The Judge’s intervention should be placed in its context:

MS. DICKSON: Thank you, Mr. President, your honours. Good afternoon Witness 'b'. Witness 'b' you told us yesterday that R.T.L.M., was the radio station of the Interahamwe, why did you say that?

A. Did I say that it was the radio of the Interahamwe?

Q. After a question by the Prosecutor yesterday concerning the Interahamwe, you spoke of R.T.L.M., 'their radio'.  When you said 'their' were you talking about the Interahamwe?

MR. PRESIDENT: Was that not a leading question.

MS. DICKSON: Well, Mr. President if you allow me, during the cross examination, I will again submit to you that the Defence should have a certain leeway in which to ask her questions.  Insofar as the witness is not being favourable to us in this case. [...]

MR. PRESIDENT: […] if a judge noted this, we did not note that he said anything about the R.T.L.M., and the Interahamwe. I didn't say you couldn't ask a question concerning that. I just simply said that this question as it was formulated, was leading. I am not trying to hinder your cross-examination.  Of course if you know there is one issue that I hold particularly at heart that is that of the rights of the accused.  But from time to time you must accept that sometimes you are not formulating the questions per se but rather making comments or providing commentary. [240]

134. The Appeals Chamber notes that Judge Kama’s intervention came after the witness had, by his question to the Appellant’s Counsel, shown that he was not sure of having made the statement ascribed to him by Counsel. The Appeals Chamber also notes that Appellant’s Counsel herself acknowledged that the witness did not make the statement in question:

MS. DICKSON: Well, in fact Mr. President, I was trying to establish the context for the witness's response because in fact during one of his answers he did not actually say R.T.L.M was Interahamwe’s radio but in progression he presented it that way.  So I wanted to in all fairness present, clarify his answer.[…] [241]

135. The Appeals Chamber further points out that, contrary to the Appellant’s assertion, the Defence indeed asked a leading question, insofar as the question contained some information that the wording of the question did not permit the witness to confirm or comment on. The Appeals Chamber points out that the Appellant himself considers this type of leading question unacceptable, whether during examination-in-chief or during cross-examination. [242] In such a context, the Appeals Chamber considers that the Judge’s intervention is fully justified.

136. Lastly, as also appears from a reading of the trial record, the Appeals Chamber points out that the Judge finally asked the witness a question that elicited the clarification apparently sought by Counsel for the Appellant:

MR. PRESIDENT: I am simply saying this because it seems like it is best to have the most direct and the clearest questions and that is going to be best for every one concerned.

[…]

MR. PRESIDENT: So let me now ask the witness.  Did you say yesterday when the Prosecutor asked you a question that R.T.L.M., was the Interahamwe radio? What did you say yesterday?  Please answer Counsel Dickson's question?

A: What I meant was, on this radio station there were programmes, messages that contained ethnic divisionist messages all of which tended to incite the population to kill each other.

MS. DICKSON: Thank you for your clarification. [243]

137.The third example given by the Appellant concerns the cross-examination of Witness M. The Appellant cites Judge Kama reproaching Counsel for the Appellant for making open suggestions, then reminding her not to ask leading questions. [244]

138. The Appeals Chamber points out that the Judge’s intervention came after the following question by Appellant’s Counsel upon the witness recalling the Appellant’s statements enjoining the Interahamwe to kill Tutsis, after he had distributed weapons in Cyahafi secteur:

[...] if you stayed ten meters away from a man who distributed weapons to Interahamwe, a person who had asked that Tutsis be exterminated, otherwise, he would come with an armored tank, wouldn't it be true to say that you are not really taking him very seriously if you stayed? [245]

The Chamber notes that the question put by Appellant’s Counsel is preceded by a remark in the same tone of voice, to which the witness replied, indicating that the Appellant’s statement scared him and prompted him to go back home. [246] It is in that context that the Judge intervened, pointing out to Appellant’s Counsel that she was suggesting answers to the witness on the basis of her own deductions, and requesting her to re-phrase her question. In the circumstances, there is no denying that the Judge’s remark seems fully justified and falls within the scope of the Judge’s duty to avoid needless examination. Furthermore, it should be noted that the Judge in no way stopped Appellant’s Counsel from seeking to clarify the reason behind the witness’s staying on the scene during the period in question, but asked her to put clearly the question to the witness this time, without suggesting to him again that, in fact, he never took the Appellant’s statement seriously.

139. The fourth example given by the Appellant in support of his contention concerns Witness Nsanzuwera and the intervention by the Trial Chamber, which, according to him, prevented his Counsel from challenging the answers. [247] The Prosecution responds that the Judge’s intervention in this instance is cited out of context and that the allegation is unfounded. The Appeals Chamber points out that Judge Kama’s remarks are cited only in part by the Appellant, and that they were made after his Counsel had been questioning Witness Nsanzuwera repeatedly, and for a long time, on the fact that he omitted to mention in a book he wrote, and during his previous testimony in the Kayishema/Ruzindana case, the year spent at the École Normale de Shyogwe (Teacher Training College, Shyogwe) during which he might have known the Appellant:

You are not going to accuse him because he has been a state prosecutor.  No, obviously the witness doesn't have the right to ask questions.  He must answer questions but at the same time the witness cannot be compelled to answer in a specific manner and that is why I am always against questions that are repeated. Once you have asked a question you go to another question.  If the answer is not suitable then you can draw the consequences.  I have always said that here. [248]

The Appeals Chamber considers that the trial record [249] shows that Judge Kama intervened to put an end to a tense and sterile exchange between the witness and Appellant’s Counsel, after the witness had already answered Counsel’s repetitive questions. Under these conditions, the Appeals Chamber holds that the Judge’s intervention lies perfectly within the framework of his role to prevent needless cross-examination.

140. To conclude on the first allegation pertaining to the violation of the Appellant’s right to cross-examine witnesses, the Appeals Chamber considers that the Trial Chamber did not, as the Appellant contends, systematically prohibit leading questions during cross-examination; neither did it prevent his Counsel from challenging witnesses’ answers. The Appeals Chamber holds that the interventions of the Trial Chamber mentioned by the Appellant fall within the ambit of the Presiding Judge’s role to prevent the proceedings from stagnating through repetitive or confused questions, or to ensure that the Defence does not, through its questions to the witness, put words into the witness’s mouth. The argument based on the alleged error of law must therefore be dismissed as unfounded.

141.The Appellant alleges that the Trial Chamber committed an error of law in ruling that neither the Defence nor the Prosecution had the right to raise objections to the presentation of evidence, and thus deprived them of the opportunity ensure the proper application of the rules of evidence pursuant to the provisions of Rule 89 of the Rules. [250] He submits that to deprive the parties of the right to raise objections during the presentation of evidence amounts to depriving the Tribunal of the assistance of the parties on the essential factors for the assessment of evidence, not only with regard to its admissibility, but also as regards the weight to be attached to it. He specifies that in the instant case, the parties seriously took into account the Trial Chamber’s warning and refrained from raising objections. He illustrates this contention with the remarks made by his Counsel during the cross-examination of Witness B: “The Defence is (sic) understood that in the case of these proceedings the Chamber will not accept for us to object.” [251] He further contends that it is actually during the presentation of evidence that objections are most relevant, as obtains in accusatorial systems, and that it would be pointless to expect the parties to present in their closing arguments each item of problematic evidence. In support of this argument, the Appellant invokes the jurisprudence of the ICTY Trial Chamber in Tadić [252] and of the ICTR Trial Chamber in Semanza. [253] He submits that even if the Appeals Chamber were to hold that the error committed by the Trial Chamber did not invalidate the conviction, the principle of renunciation, namely, that he did not raise any objection during the trial, cannot be invoked against him on appeal. [254]

142.The Prosecution submits in response that, by limiting objections, the Trial Chamber’s sole aim was to forestall constant and needless interruptions of the proceedings. The Prosecution further submits that the parties had, and effectively used, various means to make their objections known to the Trial Chamber. [255] According to the Prosecution, this approach conforms to the jurisprudence of the ICTY Appeals Chamber, which requires that any contentions raised on appeal must have been raised at trial, but does not require that they should have been raised in a specific manner. [256] The Prosecution emphasizes in the end that the Appellant’s allegation is unfounded. [257]

143. The Appeals Chamber recalls that the Rules of the Tribunal do not contain any specific provision on the right to raise objections during the presentation of evidence. Nonetheless, Rule 89 of the Rules, which contains general rules of evidence, provides as follows:

(A) The rules of evidence set forth in this Section shall govern the proceedings before the Chambers.  The Chambers shall not be bound by national rules of evidence.

(B) In cases not otherwise provided for in this Section, a Chamber shall apply the rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.

(C) A Chamber may admit any relevant evidence which it deems to have probative value.

(D) A Chamber may request verification of the authenticity of evidence obtained out of court.

144. After examining excerpts of the trial record cited by the Appellant, [258] the Appeals Chamber notes that the interruptions made by the Trial Chamber do not result from a decision to prohibit any party from presenting evidence as such. The interruptions by the Chamber were aimed at avoiding the ill-timed interruption of one party by another for the purpose of raising an objection during the examination of a witness. This position adopted by the Trial Chamber with regard to the procedure for raising an objection neither seems to be at variance with the Rules, nor with the spirit of the Statute, nor with the general principles of law, although it is not the only approach that is compatible therewith.

145.The Appeals Chamber notes that, incidentally, contrary to the Appellant’s assertion, the trial record shows that the parties, notably the Defence, were able, where appropriate during the hearings, including periods outside the cross-examination of witnesses, to voice their objections before the Tribunal relating to the presentation of evidence by the other party. Furthermore, the Appellant raised by way of motion a number of objections during the trial relating to the presentation of evidence by the Prosecution. The Appeals Chamber points out that in Tadić and in Semanza, cited by the Appellant in support of his argument, the Defence also made objections by way of written motion. Accordingly, the position adopted by the Trial Chamber preserved, in a fair manner, the right of the parties to bring to the notice of the Tribunal any objections they might have had to the presentation of evidence by the other party.

146.To conclude on the second allegation pertaining to the prohibition of objections, the Appeals Chamber considers that the approach taken by the Trial Chamber does not constitute an error of law.

147. While not challenging the admissibility of hearsay evidence, depending on the circumstances in which the evidence is adduced, the Appellant reproaches the Trial Chamber for having admitted such evidence on a number of occasions without any caution. [260] He submits that this is an error of law such as would invalidate the Judgement. The Appellant puts forward, in support of this argument, 12 examples drawn from the testimonies of Witnesses A, H, DD, BB, AA and Expert Witness Nsanzuwera.

148.First, the Appeals Chamber notes that the Trial Chamber indeed stated in paragraph 18 of the Trial Judgement as follows:

Pursuant to Rule 89 of the Rules, the Chamber may assess all relevant evidence which it deems to have probative value. The Rules do not exclude hearsay evidence, and the Chamber has the discretion to consider such evidence. Where the Chamber decides to consider such evidence, it is inclined to do so with caution.

Before examining in detail the allegations made by the Appellant, the Appeals Chamber concurs with the legal principles recalled in the Akayesu Appeal Judgement that govern the two distinct issues, namely, the admissibility and assessment of hearsay evidence before the Tribunal. [261]

149.The Rules of both this Tribunal and the ICTY generally reflect a preference for direct, live, in-court testimony. Nonetheless, the jurisprudence of both Tribunals admits that Rule 89(C) of the Rules confers on the Trial Chamber a broad discretion to admit any relevant evidence which it deems to have probative value, including indirect evidence. [262] This discretion is not unlimited. However, the standard to be met before ruling any evidence inadmissible is rigorous. It was thus held that “[A] piece of evidence may be so lacking in terms of the indicia of reliability that (it) is not ‘probative’ and is therefore inadmissible.” [263]

150.The Appeals Chamber notes that in this case, as in Akayesu, the Appellant challenges the admission of hearsay evidence that takes the form of direct, live, in-court testimony by witnesses in relation to events that they had not witnessed personally. The Appeals Chamber endorses the Appeals Chamber’s assessment in the Akayesu Appeal Judgement, [264] where it was held that when a witness gives evidence, such evidence is admitted in that, in the absence of timely objection, it becomes part of the trial record, as reflected in the transcripts, and that the main safeguard regarding the assessment of reliability of evidence in this case consists in preserving the right to cross-examine the witness on the hearsay evidence that is being challenged. [265] The Appeals Chamber also considers that in such circumstances, even if the decision hinges on the facts of the case, it is unlikely at that stage in the trial, and particularly in the absence of an objection, that a Trial Chamber would decide that the indicia of reliability of a witness testimony that the Chamber has heard live would be so lacking as to negate its probative value and render it inadmissible.

151.The Appeals Chamber considers that the examples cited by the Appellant in support of this allegation may be classified into three categories.

152.The first category concerns the items of hearsay recounted by the witnesses, which items have been entered into the trial record, but which the Appellant does not invoke as having been cited in the Judgement for whatever reason. The following testimonies fall into this category: Witness A’s statement in reply to a question from Judge Pillay, according to which the perpetration of acts of sexual violence on women and girls was ordered instead by the leaders of the Interahamwe; [266] the statement by Witness DD to the effect that some Tutsi women who survived told him after the war that they had been “raped”, given that the Interahamwe had “made them their wives and that they had been made pregnant by these men”; [267] the statement by Witness BB reporting a statement at second hand that “Mr. Rutaganda had gone to the battlefield with a man named Ramazani and other Interahamwe and that Ramazani had been killed and that Rutaganda became afraid”; [268] the statement by Witness AA that “people talked about a certain Rutaganda who was going to attack”; [269] and lastly, the statement by Witness Nsanzuwera that first, there were unverified rumours to the effect that the Appellant obtained bank loans from the leader of MRND; second, that he had information from the Director of Hôtel des Milles Collines (confirmed by Interahamwe detainees overheard by the witness in prison), that the Appellant reportedly sold beer in the hotel in question obtained from plunder committed by the Interahamwe; third, that the Appellant was engaged in smuggling currency, according to Interahamwe detainees, [270] and fourth, and lastly, that the first defence of the Interahamwe arrested after the genocide was to say that they had killed on the orders of their leaders. [271]

153. The Appeals Chamber recalls that the inclusion of witness statements containing hearsay evidence in the trial record does not ipso facto entail one conclusion or another as to their reliability or probative value. The first example cited is clearly not in the category of hearsay, but constitutes the witness’s expression of an opinion in response to a question from Judge Pillay to know whether the witness was aware of any Interahamwe leader who had tried to prevent the commission of the acts of sexual violence he had described. With regard to the statement that “Rutaganda” was going to attack and the statements relating to the bank loans, the proceedings clearly established that these were mere rumours. In the other cases, the trial record shows that during the examination-in-chief or cross-examination, clarifications were given on the circumstances in which the statements in question had been obtained. Upon examination, the contention that the testimonies in question had been admitted by the Chamber without caution is thus unfounded. The acts to which these testimonies refer are in fact irrelevant to the Indictment issued against the Appellant. Since the Appellant has failed to show that there was an error, this argument is accordingly dismissed.

154.The second category of examples cited by the Appellant in support of this argument relates to witness statements containing hearsay evidence, which statements have been included in the Trial Judgement as summaries of witness statements on the alleged events or as factual findings by the Trial Chamber. This category would include first of all, Witness A’s statement that the Hutus who were with him at the ETO, Murundi and Molondi told him that Colonel Léonidas Rusatira had asked the Hutus to split away from the group of refugees. [272] The Appeals Chamber understands from the latest filings by the Appellant that, on this point, he is raising an issue of error of law and of fact committed by the Trial Chamber. Paragraph 299 of the Trial Judgement indicates the following:

Colonel Léonides Rusatila (sic) separated Hutus from Tutsis at the ETO, prior to the attack, and several hundred Hutus left the ETO compound.

As concerns the admission of this hearsay evidence and the assessment of its probative value, the Appeals Chamber points out that the examination and cross-examination of Witness A afforded the Trial Chamber an appreciable number of indicia for the assessment of the circumstances in which the remarks in question, which were first hand, were heard by the witness, who was present at the scene and was a direct witness to the actual departure of the Hutus. In such circumstances, the Appeals Chamber considers that it has not been established that the Trial Chamber acted without caution, or that it exceeded its discretion by considering the said hearsay evidence as being admissible and ascribing probative value to it. The Appellant has not demonstrated further that this assessment by the Trial Chamber is unreasonable.

155.The Appeals Chamber also points out that this hearsay evidence is not directly relevant in respect of the Appellant himself, and that, with regard to the separation of Hutus from Tutsis at the ETO, the critical issue as to the Appellant’s responsibility is not to know who ordered the said separation, but the fact that the separation took place. However, with regard to this last point, it is Witness A’s direct evidence, not any hearsay evidence, that was taken into consideration by the Trial Chamber. Lastly, there was other evidence to the effect that Hutus and Tutsis had been separated in other places before the massacres. The Appellant has thus not established, in any event, that the alleged error, viewed from the angle of an error of law, is one that would invalidate the Trial Judgement under this count, or, viewed from the angle of an error of fact, is one occasioning a miscarriage of justice.

156. Second in this category would be the statement by Witness H, a Tutsi from Kicukiro, who was present during an attack on his house by the Interahamwe, after the CDR Chairman had been killed in 1994. The witness indicated that on that occasion he personally noticed the arrival of a vehicle and, upon inquiring from other persons present on the scene about the identity of those on board, learnt that it was one Gérard Karangwa and the Appellant. Paragraph 275 of the Trial Judgement summarizes the witness’ statement as follows:

Witness H, a Tutsi man from Kicukiro, testified that his house was attacked and searched in February 1994 by Interahamwe, armed with clubs, who had arrived shortly before a vehicle. Witness H was told that General Karangwa and the Accused /…/ were inside it.

The Appeals Chamber points out that the wording used by the Trial Chamber clearly indicates that the Chamber was not unaware of the fact that the information about the Appellant’s presence in the vehicle was hearsay. The Appeals Chamber notes that the Trial Chamber seems not to have sought clarification as to the identity of the authors of the statement in question, and that the Appellant made no attempt to have it during the cross-examination of the witness. However, it is clear that at the end of the examination of the witness who was close to the original source of the reported statements (given that he was in fact present when the vehicle arrived), the Trial Chamber possessed several facts relating to the circumstances in which the statements were heard, and could thus assess the reliability of the information in question at the time it was admitted. In the circumstances, it does not appear that the Trial Chamber acted without caution, or that it exceeded its discretion in assessing the evidence by admitting the hearsay evidence. The Appeals Chamber considers that, in any event, even if the alleged error were to be proved, it would not be such as would invalidate the Judgement, inasmuch as the statements in question pertain to events not referred to in the Indictment.

157.Moreover, although there is no denying that in the Trial Judgement’s reference to “General” instead of “Gérard” Karangwa, in reporting Witness H’s statement, indeed constitutes an error of fact, the Appellant does not demonstrate that this occasioned a miscarriage of justice. The Appeals Chamber notes that the events in question did not form part of the Indictment and that the Trial Chamber did not rely on them to convict the Appellant.

158. Third in the second category is the statement by Witness Nsanzuwera alleging that he heard from some members of the Interahamwe imprisoned after the genocide in Kigali Prison that Interahamwe leaders (including the former Secretary-General of MRND and the Appellant himself), were reportedly seen at the roadblocks giving orders. The said statement is summarized as follows in paragraph 363 of the Trial Judgement concerning the general allegations under paragraphs 5, 6, 7 and 8 of the Indictment:

An expert witness for the Prosecutor, Mr Nsanzuwera, [...] also testified that the Accused was often present at roadblocks and barriers, issuing orders.

159.The Trial record reveals that, contrary to the Appellant’s assertions, the Trial Chamber did not act without caution, insofar as it actually inquired about the conditions under which the said statements had been heard, and envisaged the possibility that the detainees in question made those accusations for the sole purpose of defending themselves. Once more, the Appeals Chamber holds that the admission of this hearsay evidence does not exceed the limits of the Trial Chamber’s discretion in assessing evidence, as stated supra. In any event, the Appeals Chamber notes that the Trial Chamber does not seem to have based the conviction of the Appellant under the various charges involving the roadblocks on this hearsay evidence, but indeed on direct evidence. Hence, even if an error had been committed, it is not such as would invalidate the Trial Judgement.

160.Contrary to the foregoing two categories of statements, the third category pertaining to Witness AA’s statement that Amgar Garage was “a venue for the Interahamwe and an Interahamwe headquarters” does not constitute hearsay, inasmuch as cross-examination of the witness reveals that he challenged the suggestion that he was in this case reporting rumours, and affirmed that he had personal knowledge of the matter.

161.To conclude, the Appeals Chamber holds that the argument is baseless, considering that the Appellant fails to demonstrate that the Trial Chamber misapprehended the standards set forth in Rule 89 of the Rules and, in this instance, failed to carry out its intention to assess “with caution” the hearsay evidence contained in the statements by Witnesses A, H, DD, BB, AA and Expert Witness Nsanzuwera as to their admissibility or probative value.

162.The Appellant alleges that the Trial Chamber committed errors of law relating to expert evidence, contrary to Article 24 of the Statute and Rules 89(B) and (C) and 94bis of the Rules, thereby invalidating the Judgement. In particular, he reproaches the Trial Chamber for refusing to conduct an inquiry into the expertise of Witnesses Heuts, Reyntjens and Nsanzuwera before hearing their evidence, or at the very least, for not satisfying itself of their expert qualifications; denying Defence Counsel the full opportunity to challenge the expertise of the last named witness, and declaring this witness to be an expert based on his status as a Rwandan and former Rwandan prosecutor; lastly, for permitting the three witnesses to offer opinions on matters clearly beyond their expertise, and for relying strongly on such evidence in the case of Witnesses Reyntjens and Nsanzuwera. The Appellant points out that the evidence of Witness Reyntjens is central to the nature and status of the Interahamwe za MRND, which forms the core of the charges against him, and that the admission of Witness Nsanzuwera as expert could only serve “to taint him” in the eyes of the Trial Chamber and to unduly admit evidence that was so prejudicial to him that it must invalidate the Judgement. [274]

163.The Prosecution, basing its argument on ICTY practice and procedure, as well as on a comparative study of the case-law of both Common law and Civil law jurisdictions, replies that the admission of a person as an expert and the probative value to be attributed to his testimony is dependent on two factors. First, the Tribunal must be convinced that the expert evidence could assist it in understanding all the evidence presented or in determining a fact in issue. Second, the witness called as an expert must have sufficient skill, knowledge or experience in or related to the pertinent field so that his or her opinion or evidence will probably aid the Tribunal in the search for truth. [275] The Prosecution concludes that the Appellant’s argument is unsubstantiated. [276]

164.The Appeals Chamber points out that, whereas the Rules lay down a specific procedure for admitting an expert witness’s report without hearing the witness, subject to its acceptance by the opposing party, [277] they do not require a “voir dire” examination of the person called as an expert. The Appeals Chamber recalls that, pursuant to Rule 89(A) of the Rules, the Chambers are not bound by national rules of evidence. In the instant case, the Trial Chamber clearly chose an approach that consists in having the qualifications of the persons called as experts by the Prosecution clarified during their examination-in-chief by the Prosecution and cross-examination by Counsel for the Appellant. This amounts to admitting the witness statement before having ruled on the admission of the witness as an expert. The Appeals Chamber considers that, where the Rules are silent as to the procedure for taking expert evidence at the hearing, and in accordance with the provisions of Rule 89(B) of the Rules, this approach does not appear to be contrary to the spirit of the Statute and the general principles of law, and was such as would permit a fair determination of the case.

165. In practice, the trial record shows that the Appellant’s assertion that the Trial Chamber did not allow an inquiry into the respective qualifications of the three experts called by the Prosecution is unfounded. Indeed, the said experts were heard on this point during their examination by the Prosecution, and Counsel for the Appellant had the opportunity to challenge their qualifications during their cross-examination. This is what Counsel did in the cross-examination of Expert Witnesses Reyntjens and Nsanzuwera.

166.Furthermore, with regard to Nsanzuwera, the Appeals Chamber will now examine the Appellant’s assertion that the following intervention of the Presiding Trial Judge prevented him from challenging the qualifications of this witness as expert:

We agree.  It is your right to ask the questions.  Those questions you are asking, well, appear normal. The witness has said that he is an expert, first of all, because he is Rwandan. He knows—he says that he knows he can give background, the history of the Interahamwe, what happened, and also he said that he has been a state prosecutor. So that is enough background for him to be considered an expert. [278]

A reading of the part of the trial record that follows this passage reveals that the cross-examination of the witness by Counsel for the Appellant on this particular point continues for long without the Presiding Judge interrupting. Although the language used by Judge Kama seems to imply that, in his opinion, the fact that the witness served as a State prosecutor in Rwanda constitutes a sufficient basis for considering that Nsanzuwera’s status as expert in this case has been established, there is no denying that the rest of the hearing enabled Counsel for the Appellant to raise a number of questions relating not only to the inadequacy of the qualification alleged, but also to the issue of neutrality. The Appellant fails to demonstrate that the Trial Chamber did not take into consideration all the issues raised at the hearing when admitting Nsanzuwera as an expert. Furthermore, in view of his previous duties as prosecutor in Rwanda, given that Nsanzuwera had information on the progress of the work of the commission set up at the Prosecutor’s Office in Kigali and charged with investigating the criminal activities of the Interahamwe in order to identify their leaders and members with a military past, and to list the various incidents during which the different youth movements confronted one another, the Appeals Chamber holds that the Appellant has not shown that the Trial Chamber abused its discretion by admitting the witness as an expert in the instant case. 

167.An examination of the examples—placed in their context—on which the Appellant relies to submit that the Trial Chamber committed an error of law in allowing the three witnesses to give opinions outside their area of expertise – in fact to speculate – shows that this allegation is unfounded. The most that the examples in question establish is that Expert Witness Heuts underscores the fact that a forensic investigator has to be more careful about his conclusions if research on explosives is conducted two years after the events, and that Professor Reyntjens takes precautions to state the limits of his research, with regard to some questions put to him. Moreover, the different questions put to Nsanzuwera about his sources of information enabled the Trial Chamber to evaluate in an informed manner the credibility of the testimony in question and the weight attached to it. The Appeals Chamber recalls in this regard that the assessment of the credibility of expert evidence is the primordial responsibility of the trier of fact, and that it has not been demonstrated in this instance that the trial judges in this case exceeded their discretion. [279]  

168. To conclude, the Appeals Chamber holds that the Appellant’s argument pertaining to errors of law relating to expert evidence is unfounded.

169.The Appellant contends that the Trial Chamber misapprehended the principles governing the burden of proof. He submits that the Trial Chamber committed six errors of law invalidating the Trial Judgement, contrary to Article 20(3) of the Statute and Rule 87(A) of the Rules, by violating the principle of presumption of innocence and by misapprehending the burden of proof that requires the Prosecution to prove the accused’s guilt beyond a reasonable doubt.

170.The Appellant reproaches the Trial Chamber mainly for misapprehending the rule that all the Defence needs to do when it offers an alibi is to raise a reasonable doubt and thus shift the burden of proof. In support of his contention, he cites excerpts from the Trial Judgement on the factual findings relating to the distribution of weapons: [281]

[...] Further the Defence did not produce any witnesses to confirm an alibi testifying that the Accused was elsewhere when the events described by the Prosecution witnesses took place, [...]. [282]

[...] 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. [283]

171. The Prosecution points out that the aforementioned passages of the Trial Judgement cited by the Appellant are quoted out of context, and that the argument reveals a misapprehension of the language used by the Trial Chamber. According to the Prosecution, the language used simply illustrates that the Trial Chamber did what it was required to do, namely, consider all the evidence presented at trial before ruling on the guilt or innocence of the Accused, without misapprehending the principle that the burden of proving guilt beyond reasonable doubt lies on the Prosecution. The Prosecution further submits that, in so doing, the Trial Chamber correctly held that the Appellant’s defence was more of a bare denial than an alibi. [284]

172. The Appeals Chamber recalls that the standard of proof to be applied is that of proof beyond a reasonable doubt, and that the burden of proof lies on the Prosecution, insofar as the Accused enjoys the benefit of the presumption of innocence. [285] The Appeals Chamber also endorses the Appeals Chamber’s considerations in Kayishema and Ruzindana whereby:

The Appeals Chamber recalls that at the trial stage, the Trial Chamber limited itself to assessing the evidence presented by the parties.  The Prosecutor must always prove the existence of the facts charged as well as the accused’s responsibility therefor. The Defence, for its part, must produce evidence before the Chamber in support of its claims that the crimes charged cannot be imputed to the accused because of his alibi.  However, in that case, the burden of proof is not shouldered by the Defence. It is merely required to produce evidence likely to raise reasonable doubt regarding the case of the Prosecution. [286]

173.In response to the question as to whether the Trial Chamber did, as the second passage cited by the Appellant seems to suggest, make an erroneous application of the burden of proof and shifted it, the Appeals Chamber considers that it is first of all necessary to find out what standard was applied in respect of the burden of proof by the Trial Chamber in the Judgement beyond the impugned paragraph. In this respect, the Appeals Chamber points out that Section 1.4 of the Trial Judgement dealing with evidentiary matters does not set out the standard applicable to the burden of proof.

174.An analysis of parts of the Trial Judgement dealing with the Chamber’s factual findings relating to paragraphs 11 to 18 of the Indictment helps to show that the Trial Chamber actually indicated that the onus was on the Prosecution to prove the charges brought against the Appellant beyond a reasonable doubt, and then went on to apply this standard by acquitting the Appellant of the charge against him when it deemed that the Prosecution had not discharged this burden.

However, the Chamber notes that the Prosecutor has not led evidence to the effect that the Interahamwe manning the roadblock had been stationed there by the Accused. Hence, the Chamber finds that it has not been proven beyond reasonable doubt that the Accused stationed Interahamwe members at the said roadblock. [287]

The Chamber notes however that only Prosecution Witness V had testified that the Accused had chaired the meeting and had taken the floor.  The Chamber notes that V’s testimony on this point is not corroborated by those of Witnesses C and EE, both of whom had declared that the Accused was indeed present at the meeting and had taken a seat at the table of speakers but had himself not taken the floor. Accordingly, the Chamber holds that, on the basis of uncorroborated testimonies presented to it, it has not been proven beyond a reasonable doubt that the Accused ordered that all Tutsis be tracked and thrown into the river. [288]

175.The Appeals Chamber further underscores the fact that, incidentally, the Trial Chamber explicitly recalled the standard of the burden of proof in most of its legal findings. [289] It is therefore not correct to claim, as the Appellant does, that the Trial Chamber in general misapprehended the principle of presumption of innocence and of burden of proof.

176.The Appeals Chamber considers next that it would be proper to place the passages cited by the Appellant in their context. Paragraph 196 of the Trial Judgement falls within the purview of the factual findings of the Trial Chamber in relation to the charges under paragraph 10 of the Indictment dealing with the distribution of weapons. After finding in paragraph 195 of the Trial Judgement that Prosecution Witnesses J, U, T and Q were credible, and deciding to rely on their testimonies, the Trial Chamber examined in paragraph 196 of the Judgement the Appellant’s rebuttal of the evidence brought against him in respect of this charge. The paragraph in question reads as follows:

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)

177. The Appeals Chamber considers that the language used by the Trial Chamber in the last sentence of the paragraph in question is ambiguous with respect to the standard of proof applied, particularly as the said standard has not been previously enunciated in the Judgement. The Appeals Chamber nonetheless concurs with the findings of the Appeals Chamber in Musema, which did not consider that the fact that the Trial Chamber assessed “the relative weight and probative value to be accorded to each piece of evidence in the context of all other evidence presented to it in the course of the trial,” did not allow for the conclusion that it had shifted the burden of proof, but, on the contrary, was proof of the correct application of the relevant rules of procedure and evidence. In the instant case, it appears that the Trial Chamber first considered that the testimonies of four of the witnesses called by the Prosecution in support of this charge were credible and reliable; and next it considered whether the Appellant’s rebuttals were sufficiently supported. The Appeals Chamber understands that this approach is in line with the first passage cited by the Appellant. The Appeals Chamber understands the expression “the Defence has not provided evidence which effectively refutes the evidence presented by the Prosecutor” to mean that, according to the Trial Chamber, the evidence adduced by the Appellant in support of his denial of the charges was not sufficient to cast reasonable doubt on the issue as to whether the Prosecution had discharged the burden of proof beyond a reasonable doubt. The last sentence of the paragraph illustrates this position:

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.

178. Accordingly, an analysis of the Trial Chamber’s approach in assessing the evidence presented before it by the parties shows that in this instance, it did not depart from the approach used in the rest of the Judgement, and did not apply a different standard of proof nor, as a result, commit an error of law in this respect.

179. The Appellant also raises, in support of his argument, the alleged violation by the Trial Chamber of the rule that the Accused should be given the benefit of the doubt because: first, it considered in paragraph 195 of the Trial Judgement (distribution of weapons) that Witness J was credible on the grounds that, during cross-examination, he had given reasonable answers to the questions put to him regarding the discrepancies between his testimony and his statement prior to the trial; [290] second, it considered in paragraph 253 of the Judgement (attack at the Amgar garage), with regard to Witness Q, “that the said contradictions can probably be attributed to the trauma he may have suffered from having to recount the painful events he witnessed and of which he was a victim"; [291] third, it considered as negligible the contradiction between the testimonies of Professor Haglund and of Witness Q and dismissed, in paragraph 259 of the Judgement, the findings by the former on the ground that the Trial Chamber was “not satisfied that the grave site referred to by Witness Q and the one exhumed by Professor Haglund are one and the same.”

180.In response, the Prosecution submits that the Trial Chamber, in general, ascribes probative value to the evidence before it based on its relevance and credibility, and that at the end of the proceedings the Prosecution should discharge its burden of proving that all the elements of the crime have been established beyond a reasonable doubt.

181.The Appeals Chamber considers that the aforementioned passages of the Judgement relating to the Trial Chamber’s assessment of the probative value of the testimonies of J and Q clearly show that the Chamber actually considered the testimonies to be credible and reliable after having measured the scope of the discrepancies referred to above. There is nothing to show that following this assessment the Trial Chamber entertained any doubts on the matter, as the Appellant’s allegation seems to suggest. The Appeals Chamber notes that the examples cited supra have also been used by the Appellant as allegations of factual errors in support of his ground of appeal pertaining to the distribution of weapons and to crimes committed at Amgar garage. The Appeals Chamber will thus re-endorse the relevant findings it made with reference to those grounds of appeal under Parts VI and VII of this Judgement. The Appeals Chamber holds that the argument that the examples in question also reflect a violation of the rule that the Accused should be given the benefit of the doubt is clearly unfounded.

182. The Appellant also submits that the approach taken by the Trial Chamber with regard to the non-corroboration of evidence denotes a violation of the principle that it is the Prosecution’s duty to prove the charges beyond a reasonable doubt. The Appellant refers in particular to a passage in paragraph 18 of the Trial Judgement:

The Chamber's approach is that it will rely on the evidence of a single witness, provided such evidence is relevant, admissible and credible.

The Appellant submits that, where corroboration of some evidence is not effectively requested, it is not sufficient for the said evidence to be “relevant, admissible and credible” for it to serve validly as the only basis for conviction; it must also be sufficiently strong to be believed beyond all reasonable doubt. [292] The Prosecution does not respond specifically to this contention.

183.With reference to paragraph 18 of the Trial Judgement, the Appeals Chamber notes that the French version of the passage cited above differs significantly from the English, without such difference affecting the assessment of the contention raised by the Appellant. The French version reads as follows:

La Chambre note qu'aux termes de l'Article 96i), la corroboration du témoignage de la victime n'est pas requise en cas de viol et de violences sexuelles. La Chambre s'associe aux Jugement Akayesu et au Jugement « Le Procureur contre Dusko Tadic » (le « Jugement Tadic ») selon lesquels le fait que le Règlement stipule que la corroboration du témoignage de la victime de violences sexuelles n'est pas requise n'autorise pas à déduire que la corroboration de témoignages est nécessaire dans les cas de crimes autres que les violences sexuelles. Toutefois, la Chambre examinera avec prudence tout témoignage unique. Elle pourrait s'en contenter pour autant qu'elle le juge pertinent, recevable et crédible. Conformément à l'Article 89 du Règlement, la Chambre peut recevoir tout élément de preuve pertinent dont elle estime qu'il a valeur probante. Le Règlement n'exclut pas la preuve par ouï-dire et la Chambre est libre d'examiner des preuves de cette nature. Cependant, lorsqu'elle décide de le faire, la Chambre procède en toute précaution [293]

184. The Appeals Chamber considers that paragraph 18 of the Judgement contains a relevant and accurate statement on the application of the rules of evidence, drawn on the Rules and case-law of the Tribunal with respect to the evidence of a single witness, hearsay evidence, and the principle of caution related thereto. The indication by the Trial Chamber that it would rely on the evidence of a single witness, so long as it considered such evidence relevant, admissible and credible, should not be interpreted to mean a misapprehension of the general rule of evidence, which requires the Prosecution to prove its case beyond a reasonable doubt. As indicated earlier, although Section 1.4 of the Judgement devoted to evidentiary matters does not contain a reminder of the principle relating to the burden of proof, the Trial Chamber well and truly applied it throughout the Judgement. The Appeals Chamber finds no reason to think that the passage cited, which is perfectly compatible with this principle, would signify that the Trial Chamber implicitly decided not to apply the principle in respect of uncorroborated evidence. The argument must therefore be dismissed.

185.The Appellant submits that the Trial Chamber committed an error of law by adopting erroneous and general criteria in its assessment of the contradictions between witnesses’ prior statements and their in-court testimony, with a view to minimizing their importance. [295] According to him, this error has occasioned an incorrect assessment of the evidence presented by the Prosecution, and this calls for a retrial. [296] In support of his allegations, the Appellant invokes in particular the Judgement rendered in Kayishema and Ruzindana. [297]

186.The Appellant specifically refers to paragraph 19 of the Trial Judgement, which reads as follows:

The Chamber notes that during the trial, the Prosecutor and the Defence relied on pre-trial statements from witnesses for the purposes of direct and cross-examination. In many instances, inconsistencies and contradictions between the pre-trial statements of witnesses and their testimonies at trial were pointed out by the Defence. The Chamber concurs with the reasoning in the Akayesu Judgement, which held: '[...] these pre-trial statements were composed following interviews with witnesses by investigators of the Office of the Prosecutor. These interviews were mostly conducted in Kinyarwanda, and the Chamber did not have access to transcripts of the interviews, but only translations thereof. It was therefore unable to consider the nature and form of the questions put to the witnesses, or the accuracy of interpretation at the time. The Chamber has considered inconsistencies and contradictions between these statements and testimony at trial with caution for these reasons, 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. Moreover, the statements were not made under solemn declaration and were not taken by judicial officers. In the circumstances, the probative value attached to the statements is, in the Chamber's view, considerably less than direct sworn testimony before the Chamber, the truth of which has been subjected to the test of cross-examination.’ (References omitted)

187. The Appellant advances the following main arguments:

-     The Appeals Chamber should attach little weight to the references in which the Trial Chamber was concurring with the reasoning in the Akayesu Trial Judgement. [298] The Prosecution submits in rebuttal that this argument has no legal basis. According to the Prosecution, there is no provision in the Rules to stop the Trial Chamber from relying on its earlier decisions, unless an error of law can be demonstrated; [299]

-     The Trial Chamber was speculating when it considered that the discrepancies could have resulted from errors in the transcripts of prior statements or from errors in translation thereof, without allowing Counsel for the Appellant to establish whether this was indeed the case. [300] The Appellant emphasizes that his motions seeking disclosure by the Prosecution of tapes or cassettes or notes of witness interviews, which would have helped him to determine whether or not there was such an error, were only considered belatedly by the Trial Chamber, which dismissed them; [301]

-     The Trial Chamber erroneously relied on the time lapse between the events and the appearance of the witness in order not to take the discrepancies into account. [302] The Appellant submits that this argument enabled the Trial Chamber to shield the credibility of Prosecution witnesses from challenges based on the discrepancies, and to neutralize any negative impact that failing memories could have on the testimony of witnesses. The Prosecution, on the contrary, considers that it was proper for the Trial Chamber to take these factors into consideration; [303]

-     According to the Appellant, the Trial Chamber committed an error of law in holding that the discrepancies between prior statements and in-court testimony should be discounted because the statements were not taken by judicial officers. [304] In his opinion, discrepancies of this nature affect the credibility of a witness, unless the witness can convincingly explain them away. The Appellant submits that the Trial Chamber erred by confusing the use of the said statements as hearsay with their use in determining the extent of the contradictions and their effect on the credibility of witnesses. He submits that it does not matter whether those statements were taken under oath, as prior statements are not presented as hearsay evidence in order to prove the truth of their content, but simply to impeach the credibility of the witness in view of apparent contradictions;

-     The Trial Chamber committed an error by adopting a general policy that gives precedence to in-court testimonies. [305] The Prosecution submits that this argument is unfounded, because the Chamber, in its opinion, made a rational assessment of the contradictions that arose from prior statements. [306]

188.Before any other consideration, the Appeals Chamber recalls that the Trial Chamber is primarily responsible for assessing and weighing the evidence presented at trial and, in this regard, it is for the Trial Chamber to consider whether a witness is reliable and whether the evidence presented is credible. [307] In so doing, it is incumbent on the Trial Chamber to take an approach it considers most appropriate for the assessment of evidence. [308] Hence, when the Appellant relies on the Kayishema and Ruzindana Judgement [309] to contend that the approach taken by the Trial Chamber to assess the evidence in the instant case is inappropriate, he is raising an argument that the Appeals Chamber considers irrelevant. Furthermore, the Appeals Chamber considers as baseless the assertion that it should attach little weight to references by the Trial Chamber to the decision in Akayesu, on the ground, inter alia, that the composition of the Chambers was the same. In fact, Trial Chambers, which are courts with coordinate jurisdiction, are not mutually bound by their decisions, although a Trial Chamber is free to follow the decision of another Trial Chamber if it finds that decision persuasive. The fact that a bench of the Trial Chamber comprises the same Judges in any two cases does not alter the validity of this principle. [310]

189. With regard to the argument alleging the adoption of a general policy which gives priority to in-court testimony, the Appeals Chamber recalls the view expressed in Akayesu that “such a general finding is, in the circumstances of a particular case, properly open to a Trial Chamber, but it is not, as suggested, reflective of a ‘policy’.” [311] After recalling the context in which Trial Chambers can consider prior statements, [312] the Appeals Chamber concluded in this case that it was incumbent on the Trial Chamber to assess and weigh the evidence before it, in the circumstances of each individual case, to determine whether or not the evidence of the witness as a whole was relevant and credible. [313]

190.The Appeals Chamber in the instant case reiterates its findings in Akayesu and, upon analysing the Judgement, dismisses the Appellant’s arguments. Indeed, contrary to Appellant’s contentions, it seems that the Trial Chamber did not adopt a general policy that gives precedence to direct testimony. The Chamber instead assessed the credibility of witnesses and the reliability of their testimonies in light of the contradictions in their prior statements, and took into consideration the fact that the witnesses gave reasonable answers to the questions put to them about the contradictions. [314] In so doing, it did not hesitate to hold that material contradictions could not stand up to the scrutiny of cross-examination [315] and to dismiss the testimony it considered to be unreliable [316] when the contradictions between the pre-trial statement of a witness and his testimony before the Chamber were such as to cast doubts on the probative value of the evidence, or on the overall testimony where the contradictions were of a material nature.

191.The Appeals Chamber will now consider the Appellant’s argument that the Trial Chamber belatedly considered, and subsequently denied, his request for disclosure of investigators’ tapes, cassettes or notes on witness interviews. He submits that access to the said tapes and notes would have enabled him to ascertain the reliability of the translations. It would be proper to recall the context in which the said request for disclosure was made. The Trial Chamber’s decision of 4 September 1998 referred to above addresses the Defence Motion dated 30 October 1997. [317] The relevant excerpts from this motion read thus:

32. The specific request in the applicant’s request for disclosure of 23 June, was as follows, as seen in document RD-2:

“Any tape, cassette, or notes from an interview written during the collection of statements from witnesses you have presented or intend to present.”

33. This request was made by the applicant because the witnesses in the present case have already stated that their written statements do not faithfully reflect the contents of their interviews with the investigators of the Tribunal.

34. In paragraph 3, the Trial Prosecutor indicates that he is not aware of having any tape, cassette or notes on interviews with witnesses he has called or intends to call before the Tribunal.

35. It is possible for the Prosecutor to ask the investigators within her own office, whether such cassettes or notes of interviews with witnesses exist.

36. If these tapes do exist, they are vital for the cross-examination of prosecution witnesses.

37. The Prosecutor has no justifiable grounds for not verifying whether or not these tapes exist and transmitting the results of her inquiry to the Defence. [318]

192.The Appeals Chamber notes that the Prosecution’s filings in response to the Motion of 30 October 1997 show that the Prosecution discharged its duty under Rule 66(B) of the Rules on this point by disclosing the documents, reports and video cassettes in its custody. [319] A reading of the Decision of 4 September 1998 also shows that after distinguishing the obligation to disclose under Rule 66(A)(i) and (ii), the right to inspect books, documents and other materials which are material to the preparation of the defence under Rule 66(B), and the obligation to disclose under Rule 68 of the Rules, the Trial Chamber correctly held, on the basis of the aforementioned filings by the Prosecution, that the Prosecution had fulfilled all of its obligations, with the exception of those pertaining to four witnesses. [320] If this were not the case, as the Appellant seems to suggest, with regard to access to recordings of witness statements, it was his duty to bring this issue to the attention of the Trial Chamber.

193.Lastly, the Appellant cannot validly raise the issue that the Trial Chamber considered his motion belatedly, whereas, during cross-examination of one witness in particular, he never raised the issue that he was still denied access to recordings of the witness statement that was made before the Office of the Prosecutor.

194.With regard to the argument that the Trial Chamber minimized the contradictions between prior statements and in-court testimony by advancing various reasons, such as errors in transcription, time lapse, and the fact that the statements were not taken by judicial officers, the Appeals Chamber reiterates the findings in the Akayesu Appeal Judgement in relation to arguments that are similar in many respects. [321] The Appeals Chamber in that instance found no error in this reasoning, and held “that it is within the Trial Chamber’s discretion, after seeing a witness, hearing their testimony (and that of other witnesses) and observing them under cross-examination, to accept or reject such testimony.” [322] The Appeals Chamber considers, in the case at bar, that the Appellant has not put forward any convincing arguments that would call into question the findings of the Appeals Chamber in Akayesu, whereby the above-mentioned factors, which are often taken into account by any Trial Chamber of an International Tribunal, and were considered in the Čelebići case, [323] are valid and reasonable.

195.The Appeals Chamber holds the view that the Trial Chamber took into consideration the factors referred to above as part of its assessment of the impact of contradictions on witness credibility, but did not use them for the purpose of ignoring the contradictions between prior statements and testimony before the Chamber, as demonstrated above.

196.For these reasons, the Appeals Chamber holds that the Trial Chamber did not commit any error of law and, accordingly, dismisses the argument relating to prior witness statements.

197.The Appellant submits that the Trial Chamber committed errors of law in its assessment of the credibility of witnesses. In the Appellant’s view, the Trial Chamber misunderstood, on the one hand, the relation between false testimony (Rule 91 of the Rules) and its function as a Trial Chamber in evaluating evidence, [325] and, on the other hand, the significance of the Defence submission on “witness tainting”. ^[326]

198.Consequently, the Appellant contends that Prosecution evidence was never properly assessed and that he was not given the benefit of the presumption of innocence. The Appellant submits that this calls for a retrial, where a proper assessment of the evidence can be undertaken. [327]

199.The Appellant focuses on the following passage in paragraph 20 of the Trial Judgement, which reads as follows:

[…] This Chamber reaffirms its position that false testimony is a deliberate offence which requires wilful intent on the part of the perpetrator to mislead the Judge and thus to cause harm. The onus is on the party pleading a case of false testimony to prove the falsehood of the witness’s statements and to establish that they were made with harmful intent, or, at least, that they were made by a witness who was fully aware that they were false. To only raise doubt as to the credibility of the statements made by the witness is not sufficient to reasonably demonstrate that the witness may have knowingly and wilfully given false testimony. In the Chamber's view, false testimony cannot be based solely on inaccurate statements made by the witness, but rather requires wilful intent to give false testimony […]. [328]

200.The Appellant submits that, in view of the fact that this passage falls under the part of the Judgement dealing with evidentiary matters, it does not represent a mere summary of his unsuccessful motions to establish that there were false testimonies during the proceedings. According to him, this paragraph reflects the fact that the Judges took the view, during their deliberations, that they were not bound to consider the allegation that a witness may have lied in his testimony, unless the party making the allegation established the falsehood of the testimony and the witness’s intent. The Appellant contends that by so doing, with respect to Prosecution witnesses, the Trial Chamber shifted the burden of proof, and, thus, committed an error of law. [329]

201.The Appeals Chamber first of all emphasizes that the Appellant cites only part of paragraph 20 of the Trial Judgement. He omits the passages immediately preceding and following the passage he cites in support of his contention, which passages are indeed indispensable in understanding the reasoning followed by the Trial Chamber.

202.Indeed, paragraph 20 starts with the Trial Chamber recalling that the Defence filed motions in the course of the trial requesting investigations of alleged false testimony against two Prosecution witnesses, and that the said motions were dismissed by the Trial Chamber and that this decision was upheld on appeal. [330] It is directly within the context of these motions that the Trial Chamber recalls the interpretation of the requirements of Rule 91 of the Rules cited by the Appellant.

203. The passage which follows is even more crucial. In that passage, the Trial Chamber recalls the distinction made by the Appeals Chamber in the instant case in 1998 [331] between the credibility of witness testimony and the false testimony of a witness, in that the testimony of a witness may lack credibility without such testimony amounting to false testimony within the meaning of Rule 91 of the Rules. [332] The Trial Chamber clearly followed this distinction, and there is nothing to support the view advanced by the Appellant that it applied a different reasoning during its deliberations. Moreover, it has not been demonstrated that the Chamber refused to consider the Defence arguments calling into question the credibility of a Prosecution witness on the pretext that the Defence did not prove the falsehood of the witness’ testimony and/or the wilful intent of the witness to mislead the Trial Chamber. The Appeals Chamber is satisfied that, apart from the Defence motions requesting an investigation of possible false testimonies by Witnesses U and CC, which, logically, were considered by the Trial Chamber under Rule 91 of the Rules, the very Trial Chamber went on, in accordance with Rule 89(C) of the Rules, to assess the credibility of all the witnesses and the probative value of their testimonies after the hearings. [333] The Appeals Chamber accordingly holds that the Trial Chamber did not commit the error of law alleged.

204.The Appellant, in this contention, focuses specifically on the situation of some Prosecution witnesses who admitted that, following the events referred to in the Indictment, they had cooperated with the new government or had been conveyed to the mass grave sites at Amgar. [334] Further, the Defence asserts, on the basis of the testimony of Professor Reyntjens, that some witnesses cooperated, had links with or were influenced by the Ibuka Organization, which, according to Professor Reyntjens, allegedly paid people to give false testimony. [335] The Appellant reproaches the Trial Chamber for not taking these facts into consideration in the Judgement, and considers that this constitutes a serious omission in as much as there were serious reasons to apprehend the phenomenon of “witness tainting”. To support his allegations, the Appellant refers specifically to paragraph 21 of the Trial Judgement [336] which, in his view, reveals that the Trial Chamber misunderstood his submissions with regard to the impact that possible collaboration between witnesses and government officials could have had on the evidence. He alleges that by finding that this was neither a matter of “contamination” nor of “illegal means of collecting information”, but rather of hearsay, [337] the Trial Chamber committed an error of law.

205. Before considering any other issue, the Appeals Chamber points out that the statement by Professor Reyntiens that the Ibuka Organization paid people to give false evidence cannot, per se, constitute a sufficient ground for excluding, in a general manner, the testimony of Prosecution witnesses, or the testimony of persons who collaborated with the new government in any manner whatsoever.

206.The first issue the Appeals Chamber must address is whether the Trial Chamber committed an error in finding that it was dealing with hearsay, and not “contamination”. The Appellant refers particularly [338] to Witnesses Heuts, [339] J [340] and M. [341]

207. The Appeals Chamber recalls that the task of weighing and assessing evidence lies, first, with the Trial Chamber, and that it is therefore for the Trial Chamber to determine whether or not a witness is credible. [342] Furthermore, it falls to the Trial Chamber to take the approach it considers most appropriate for the assessment of evidence. [343] As concerns hearsay, it should be pointed out that it is not, per se, inadmissible, and that it is up to the Trial Chamber to assess with caution and on a case-by-case basis each evidentiary material of this nature, in accordance with the provisions of Rule 89 of the Rules. [344]

208. With regard to Witness Heuts, the Appeals Chamber emphasizes that during the cross-examination of this witness on the issues raised by Counsel for the Appellant, the said Counsel never raised any objection relating to the question of “tainting”. Furthermore, the Trial Chamber made no reference to this witness’s testimony in the Judgement. The witness himself characterized his evidence as hearsay. [345] Moreover, the Appellant in no way demonstrated that this witness had been “tainted”.

209.Next, the Appellant makes reference to Witnesses J and M [346] whose evidence the Trial Chamber took into consideration in respect of the charges related to the distribution of weapons. [347] The Chamber, inter alia, considered that Witness J was credible. In this instance, the Appeals Chamber is of the view that the Defence has not demonstrated in what way the fact that Witness J was a civil servant was sufficient to call into question his credibility. [348] Concerning Witness M, the mere fact that he had held a position of authority, or wielded the necessary influence to obtain a laissez-passer, cannot, per se, establish that the witness was, as alleged by the Appellant, “tainted”. [349] The Appeals Chamber also notes that the Trial Chamber found Witness M’s testimony to be unreliable. [350]

210.The Appeals Chamber will next determine whether the Trial Chamber committed an error by deliberately not taking into consideration the fact that some witnesses were “tainted” after having been exposed to prejudicial information by taking part in the exhumations at Amgar garage. According to the Appellant, since this exposure took place before their testimony, the Trial Chamber should not have determined the credibility of these witnesses on the basis of their ability to describe the sites in question. [351] The Appellant refers specifically to the testimonies of Witnesses J, AA, U and Q. [352]

211. First, with respect to Witness J, the Appeals Chamber emphasizes that this witness’s testimony was not taken into consideration by the Trial Chamber in its assessment of the events that took place at Amgar. As concerns Witness Q, who testified about the alleged killing of ten Tutsis at Amgar garage (paragraph 12 of the Indictment), [353] the Appeals Chamber observes that, in order to sustain its factual findings pertaining to paragraph 12 of the Indictment, the Trial Chamber heard the evidence of three Prosecution witnesses, namely, BB, T and Q, that it considered credible. [354] Of course, as the Appellant points out, [355] it seems that Witness Q actually testified that he had been to the Amgar garage three times with the investigators and that he was summoned to appear at the gendarmerie office. [356] Nonetheless, the Appeals Chamber remarks that the Trial Chamber examined Q’s evidence with caution and noted a number of contradictions. The Trial Judgement does not show that the Trial Chamber based the credibility of Witness Q entirely on his description of the site. The Chamber equally took into consideration Witness Q’s account, [357] which was corroborated by the evidence of Witnesses BB and T. In the Appeals Chamber’s opinion, the Trial Chamber did not attach a lot of weight to the witness’s ability to identify Amgar garage and the location of the grave from which the bodies were exhumed in assessing the credibility of his evidence.

212.Similarly, with regard to the testimonies of AA and U, [358] and the Trial Chamber’s findings on the murder of Emmanuel Kayitare (paragraph 18 of the Indictment), an analysis of paragraphs 317 to 344 of the Trial Judgement does not support a finding that the ability of Witnesses AA and U to describe the site played a crucial role in the assessment of their credibility. In any event, the Appeals Chamber in the instant case refers to its findings on the ground of appeal pertaining to the murder of Emmanuel Kayitare (Part IX of this Judgement).

213. Accordingly, the Appeals Chamber holds that the Appellant has not put forward any convincing argument to demonstrate the alleged errors of law relating to the assessment of witness credibility.

214. The Appellant submits, with reference to paragraph 22 of the Trial Judgement, that the Trial Chamber committed an error of law by “discounting” contradictions and weaknesses in witness testimony before the Chamber on grounds that some witnesses had suffered the trauma of victimization. [359] The Appellant puts forward three main arguments in support of his allegations. [360] First, the Appellant contends that the Trial Chamber should not have considered the witnesses as victims before assessing their credibility. Second, he reproaches the Trial Judges for not having explained the impact they ascribed to these factors and, further, for considering the fact that the witnesses were victims in discounting the contradictions in some of the evidence (on this point, the Appellant refers specifically to the testimonies of Witnesses AA and Q with respect to the killings at Amgar garage [361] ). Third and last, the Appellant argues that the Trial Chamber, by referring to the notion of trauma to admit certain testimonies, never as much as considered that this factor could be one that probably “tainted” the evidence.            

215.It would be proper to first of all cite paragraph 22 of the Trial Judgement that the Appellant challenges:

“Many of the witnesses who testified before the Chamber in this case have seen atrocities committed against members of their families and close friends and/or have themselves been the victims of such atrocities. Some of these witnesses became very emotional and cried in the witness box, when they were questioned about certain events. A few witnesses displayed physical signs of fear and pain when they were asked about certain atrocities of which they were victims. The Chamber has taken into consideration these factors in assessing the evidence of such witnesses.”

216.In response to the Appellant’s first argument, the Appeals Chamber points out that the above-mentioned paragraph does not show in any way that the fact that the Judges characterized some witnesses as victims led them to refrain from questioning the credibility of their evidence. The Trial Chamber only noted a point which came up as the witness hearings went on, and which it rightly decided to take into consideration in assessing the credibility of the witnesses. Paragraph 22 of the Judgement clearly shows that the Chamber simply took “into consideration these factors in assessing the evidence of such witnesses”; in other words, it assessed the credibility of witnesses and the reliability of their evidence in light of the trauma they experienced. The Appeals Chamber emphasizes that the Trial Chamber never stated that it considered the trauma suffered by some witnesses as a guarantee that their statements were true.

217.In his second contention, the Appellant submits that the Trial Chamber failed to explain the impact of trauma, and relied on the status of some witnesses as victims to “discount” the contradictions in their evidence. Before any further consideration, the Appeals Chamber recalls the finding in the Musema Appeal Judgement: “Trial Chambers normally take the impact of trauma into account in their assessment of evidence given by a witness." [362] The Appeals Chamber also emphasizes that, in accordance with the general principles of evidence, it is incumbent on the Trial Chamber to adopt an approach it considers most appropriate for the assessment of evidence. [363] Furthermore, although the Trial Chamber must always provide a “reasoned opinion in writing,” it is not required to articulate every step of its reasoning for each particular finding it makes. [364] The Appeals Chamber notes that in the instant case, the Trial Chamber not only indicated in the introduction to the Judgement that it had taken into consideration the impact of trauma on witness statements, but also stated the scope of the trauma factor on some of the testimonies, and this is precisely the thrust of Appellant's third contention.

218. The Appellant indeed reproaches the Trial Chamber for “discounting” the discrepancies in some testimonies by invoking the impact of trauma. He challenges paragraphs 253 and 334 of the Trial Judgement cited below:

With respect to Witness Q in particular, the Chamber holds that the said contradictions can probably be attributed to the trauma he may have suffered from having to recount the painful events he witnessed and of which he was a victim. The Chamber stresses further that the time lapse between the events and the testimony of the witness must be taken into account in assessing the recollection of details.

The Chamber is of the opinion that Witness AA is credible and, consequently, accepts his testimony. Although contradictions emerged under cross-examination in his testimony with regards to details, such contradictions are not material and do not impugn the substance of his testimony on the circumstances of the death of Emmanuel Kayitare. The Chamber finds that such contradictions may be attributed to the possible trauma caused to Witness AA as a result of recounting the painful events he had witnessed and the period of time between the said events and AA's appearance before the Chamber. Additionally, the Chamber recalls that the inconsistencies between the witness testimony and statements made before the trial must be analysed in the light of difficulties linked, particularly, to the interpretation of the questions asked and the fact that those were not solemn statements made before a commissioner of oaths.

219.On this point, the Appeals Chamber refers to the opinion of the ICTY Appeals Chamber, which considers that in matters of evidence, there is no established rule that traumatic circumstances endured by a witness necessarily render his or her evidence unreliable. [365] In the instant case, it has not been demonstrated how the “trauma” would have rendered Witnesses AA and Q incapable of giving an accurate account of the events they experienced. Consequently, the Appeals Chamber considers that the Trial Chamber correctly held that the fact that a witness may forget or mix up small details is often as a result of trauma suffered and does not necessarily impugn his evidence in relation to the central facts of the crime. [366] Hence, the Appellant, by merely citing two paragraphs of the Judgement and raising general considerations, has in no way demonstrated the basis for his contention that the Trial Chamber in general discounted many contradictions in the evidence on grounds of trauma.

220.Lastly, the Appeals Chamber cannot entertain the argument that the Trial Chamber failed to acknowledge the possibility that trauma could “taint” the evidence of a witness who suffered it. Such a conclusion cannot be drawn from the fact that the Judgement does not mention the possibility that persons who were victims of atrocities may seek vengeance when giving evidence, or in any event show a lack of objectivity in their evidence. If this hypothesis could be validly contemplated, as the Appellant emphasizes, [367] in cases of war crimes or crimes against humanity, it would still be necessary to show concrete facts in support of the hypothesis with respect to a specific witness for the Trial Chamber to find his evidence not to be reliable or credible. However, the Appeals Chamber notes that on this point, the Appellant makes only general allegations.

221.Consequently, it has not been established that the Trial Chamber committed an error of law by taking into consideration the fact that some witnesses experienced traumatic events and by assessing their evidence in this light. The Appellant’s argument relating to the impact of trauma must therefore be dismissed.

222.The ninth argument put forward by the Appellant focuses on a passage in paragraph 23 of the Trial Judgement relating to the assessment of testimonial evidence. The paragraph in question is cited here in extenso:

The Chamber has also taken into consideration various social and cultural factors in assessing the testimony of some of the witnesses. Some of these witnesses were farmers and people who did not have a high standard of education, and they had difficulty in identifying and testifying to some of the exhibits, such as photographs of various locations, maps etc. [...] These witnesses also experienced difficulty in testifying as to dates, times, distances, colours and motor vehicles. In this regard, the Chamber also notes that many of the witnesses testified in Kinyarwanda and as such their testimonies were simultaneously translated into French and English. As a result, the essence of the witnesses' testimonies was at times lost. Counsel questioned witnesses in either English or French, and these questions were simultaneously translated to the witnesses in Kinyarwanda. In some instances it was evident, after translation, that the witnesses had not understood the questions. (Emphasis added)

223.The Appellant alleges in essence that the Trial Chamber committed an error of law by improperly taking judicial notice of social and cultural factors. For the Appellant, social and cultural factors are not “matters of common knowledge” in respect of which judicial notice should be taken under Rule 94(A) of the Rules of Procedure and Evidence. [369] He considers in fact that the Trial Chamber resorted to this approach even though it did not specifically state so. Yet, according to the Appellant, the Judges in so doing made generalizations that were not corroborated by evidence or, especially, by expert opinion. Thus, facts that were noted as being matters of common knowledge were in reality only matters of personal knowledge and stereotypes that the various members of the Chamber may have had on the Rwandan people. In support of his argument, the Appellant cites a Canadian case decided by the Ontario Court of Appeal, [370] where it was held that a judge had erred by considering as common knowledge his own personal experiences about the cultural tendencies of a native witness. The Appellant also reproaches the Trial Chamber for having applied the factors in question in a general manner, without indicating to which witnesses they applied, and in this way, disregarded some discrepancies in the evidence presented by the Prosecution. Therefore, since the evidence presented by the Prosecution was, according to the Appellant, never assessed properly, the Appellant requests a trial de novo where proper evaluation of the evidence can be undertaken. [371]

224.The Prosecution’s response is that the Appellant has misapprehended the scope and purpose of judicial notice. Rule 94(A) is not applicable in this instance and was not invoked by the Trial Chamber. In paragraph 23, the Trial Chamber simply summed up its general observations about witnesses. There was therefore no need for an expert opinion to validate such observations. Given that the judges had already heard many witnesses having the same socio-cultural background, they were perfectly entitled to draw certain general conclusions from their experience, without such amounting to common knowledge within the meaning of Rule 94(A). According to the Prosecution, the Trial Chamber did no more than assess the abilities of the various witnesses. The Prosecution submits that the Appellant has not shown that the Trial Chamber’s evaluation of the evidence has been unreasonable. It concludes that this argument should be dismissed, since no error of law has been committed. [372]

225. The Appeals Chamber considers that the Appellant has incorrectly characterized as judicial notice the approach taken by the Trial Chamber . The Appeals Chamber notes, first of all, that the Trial Judgement does not at all refer to judicial notice, the underlying purpose of which is to dispense with future proof of officially recorded facts that are indisputable.

226. The Appeals Chamber also notes that paragraph 23 of the Trial Judgement only states an observation that obviously dawned on the Trial Chamber as it heard the evidence given before it, namely, the fact that some of the persons heard were farmers and people who were not sufficiently literate, and that this situation had repercussions on the quality of their evidence, insofar as these witnesses experienced difficulties in answering certain questions under the conditions described by the Trial Chamber. The observation made by the Trial Chamber concerns the proceedings proper and not facts of common knowledge in respect of which proof would not be required. This is not the same thing as taking judicial notice and, consequently, the case cited by the Appellant in support of his contention is irrelevant.

227. The Appeals Chamber considers that in the passage referred to by the Appellant, placed in its context, the Trial Chamber seeks to clarify the approach it took in assessing testimonial evidence when faced with the difficulty mentioned earlier. In so doing, it was complying with the general principles of evidence referred to above, and did not commit an error of law. [373] The Appeals Chamber notes that the Appellant has not demonstrated further that this approach was unreasonable in the instant case.

228.The Appeals Chamber will now consider the Appellant’s contention that the Trial Chamber took a general approach, without indicating in which cases and to what extent, in its assessment, it applied the test based on the impact of social or cultural factors. The Appeals Chamber notes that the fact that the Trial Chamber made the introductory observation referred to above, and stated its approach before considering the testimonies on a case-by-case basis, cannot lead to the conclusion that it did not make a proper assessment of the reliability and credibility of each testimony. Furthermore, the Appeals Chamber recalls that, although the Trial Chamber is primarily responsible for assessing the credibility of a testimony and must always provide a “reasoned opinion in writing”, it is not required to articulate every step of its reasoning for each particular finding it makes. [374] In particular, nothing stops the Chamber from stating, at the outset of the Judgement, the approach it has taken and which it subsequently follows, on a case-by-case basis, with regard to the impact of the difficulties linked to the social or cultural background of a witness, in order to assess the contradictions noted and to determine whether the witness was reliable and his evidence credible.

229. The Appeals Chamber notes that in the instant case, paragraph 23 of the Trial Judgement shows that the Trial Chamber made clarifications about the witnesses to whom its observation applied: “farmers and people who did not have a high standard of education,” who had difficulty in giving their testimonies before the tribunal, and “had difficulty in identifying and testifying to some of the exhibits, such as photographs of various locations, maps, etc. [...]” and also experienced “difficulty in testifying as to dates, times, distances, colours and motor vehicles.” A reading of the trial transcript strengthens the Trial Chamber’s observation. The examination of Witness A testifying about the attack on the ETO may be cited as an example. Witness A was born in a rural préfecture and lived in Rwanda all his life, spoke only Kinyarwanda, and was a mason by profession. At the hearings, in answer to a question that he should estimate the distance in kilometres between the Kicukiro commune and the Kigali Airport, the witness said:

I lived on the hill and the airport was located on a different hill. You can see the hill from us, as the crow flies, from our home. [375]

A few days later, during cross-examination of this same witness, the following exchange took place:

M^e DICKSON :  Si vous me permettez.  Lorsque vous avez quitté l’ÉTO, avez-vous quitté vers le nord? [Mr. Dickson :  If you would allow me, when you left the ETO, did you go north?]

TEMOIN A :  Nous sommes allés vers Rebero, comme si on allait vers Rebero. […] [Witness A:  We went towards Rebero as if we were going to Rebero.]

M. LE PRÉSIDENT :  Oui, oui,.  Mais vous voulez exactement quoi, qu’il vous montre quel trajet, d’où à où ? C’est plus simple je crois.  [Mr. President :  Yes, yes.  But what exactly do you want, that he show you the way he took, from where to where?  It’s more simple I think.]

M^e DICKSON :  De l’ÉTO … [Mr. Dickson :  From the ETO …]

M. LE PRÉSIDENT :  Parce que le nord, le sud, en général ils ne comprennent pas ce que c’est. [376] [Mr. President :  Because the north, the south, in general they don’t understand what that means.]

230.It is clear that the difficulties faced by a witness in estimating distances or giving a geographical direction must be taken into account in assessing the scope and reliability of certain aspects of his testimony; but these do not affect the testimony as a whole or its credibility. Accordingly, the Appeals Chamber holds that the part of the Appellant’s contention about the general nature of the reasoning in the Judgement regarding the impact of social and cultural factors on certain testimonies is unfounded.

231. The same holds for the allegation that the Trial Chamber referred to these factors to disregard certain discrepancies in the testimonies of Prosecution witnesses. Indeed, the Appeals Chamber considers that by taking these factors into account, the Trial Chamber showed that it was concerned about making a proper assessment of testimonial evidence. These factors, amongst others, such as translation-related difficulties, or the impact of trauma, must have led the Trial Chamber to put into perspective the discrepancies in certain statements. The Appeals Chamber notes that, in general, the Trial Chamber seems to have been satisfied that the testimonies considered were corroborated by other evidence, and that the discrepancies noted were minimal. A reading of the Judgement thus shows that the Trial Chamber discounted various parts of the Prosecution evidence that were considered to be too contradictory. The Appeals Chamber cannot find any error of law in this instance.

232. To conclude, the Appeals Chamber is of the opinion that the Trial Chamber did not commit the alleged errors of law.

233.The Appellant alleges that the Trial Chamber twice committed an error of law, namely, by not making sure that an accurate record of all the proceedings was kept, and by directing interpreters not to interpret what the witnesses actually said. Thus, according to the Appellant, the Trial Chamber violated Rule 81(A) of the Rules. [377] These errors are alleged to have been committed at the hearing of Witnesses AA and Q, who respectively testified about the allegations of weapons distribution, crimes committed at the Amgar garage and the murder of Emmanuel Kayitare. The demeanour of the said Prosecution witnesses, in the Appellant’s view, revealed a hostile attitude towards the Appellant, and should have been taken into account in assessing their credibility. Consequently, the Appellant asserts that the Trial Chamber’s attitude contributed to a trial in which Prosecution evidence was not evaluated in accordance with the law, and to casting doubts on the interpretation of all the testimonies. The Appellant submits that this error of law invalidates the Trial Chamber’s decision and warrants a retrial. [378] The Prosecution’s response is that the Appellant has grossly exaggerated the import of these incidents, which do not establish that an error of law has been committed or that the Appellant has suffered any prejudice. [379]

234.The two examples put forward by the Appellant in support of his contention concern the remarks of the Presiding Judge with respect to incidents that occurred during the cross-examination of Witnesses AA and Q, which incidents took place within a few days of each other. These witnesses seem to have taken turns in accusing Counsel for the Appellant of lying. It would be proper to place the remarks in their context:

With regard to the cross-examination of Witness AA:

THE DEFENDANT: Thank you, Mr. President.  Earlier when the question was asked by Ms. Dickson, she asked,  Yesterday, did you not say that you had only called upon the soldier once?  And, in fact, he said, No, you're lying. [...].

MR. PRESIDENT: Interpreter, is that correct?  Did he say, No, you're lying?

THE INTERPRETER: Yes, in fact, he did say that, and I said, no, that's not what I said.

MR. PRESIDENT: You were right to translate it that way, to soften the blow a bit, so to speak.  It is not admissible for you to use such language.  This is the first time we have heard a witness use such terms in such an impolite manner. I warned you yesterday that you should answer the questions, if you can.  If you cannot, then you shouldn't.  But you shouldn't make any comments or give us any assessment. Counsel, the Tribunal presents its excuses on behalf of the witness.  We can perhaps understand perhaps he's not educated enough to know better. [380]

With regard to the cross-examination of Witness Q: 

MS. DICKSON: What did the witness just say?  Was there a remark that he just said that was not interpreted?  I'm asking a question of the interpreter.  Was something just said?  It seems as though the witness just made a remark that was not interpreted, the very last thing he said.

THE INTERPRETER: The witness said that it wasn't true.  That's what I said.  In fact he said you are lying but I interpreted that as saying that's not true.

MR. PRESIDENT: You were correct in not translating verbatim exactly what he said [...].

THE WITNESS: I said it was not true because I did not finish burying those people because I didn't even bury them.

MR. PRESIDENT: In other words, the statement that you read which seems to say that he had been given the order to bury, that they did the work, he is now saying that this statement is not correct because he never participated in burying anybody so there you are.  Ask your question.

MS DICKSON: In fact I was going to ask him a question but he immediately said that this was a lie so I could ask him the question but -- [...]

MR PRESIDENT: No, I believe it was badly interpreted.  The witness said that the statement that you read is false.  I think that's more exact.  I don't think he was talking about you.  It is not logical.  You are not the one who made the statement.  You are just reading the statement. So I think it was badly interpreted.  We consider that it was badly interpreted.  It is not possible, Counsel.  You are not the one who made the statement.  You are reading a statement written by somebody else.  You are not the one who is lying.  It is the statement that's false. Interpreter, please explain that, that it is the statement that's false. [381]

235.The Appeals Chamber recalls that apart from the provisions of Rule 81(A) of the Rules, which require that a full and accurate record be kept of all the proceedings, Rule 76 of the Rules provides that “Before performing any duties, an interpreter or a translator shall solemnly declare to do so faithfully, independently, impartially and with full respect for the duty of confidentiality.” The Appeals Chamber notes that in the two examples provided by the Appellant, the statement “You were correct in not translating verbatim exactly what he said” is highly confusing. Although interpretation does not require word for word translation, it must be as accurate as possible, while taking into account, among others, the language level and cultural context of the person being interpreted. The expressions “you are lying” (plural) and “you are lying” (singular) obviously impute an intention to the person to whom they are addressed, which intention is not present in the more objective expression “I did not say that” or “that is not true.”

236.Assuming that the witnesses actually used the first expression, as seems to have been established in the case of Witness Q, but does not clearly seem to be so in the case of Witness AA, the two remarks by the Presiding Judge approving what the interpreter said, which amounts to cushioning the offensive remarks by the witnesses, hardly seem to be consistent with the requirement of accuracy of the trial record. However, when they are placed in context, it seems evident that they had no effect, insofar as in the two cases the remarks actually made by the witnesses appear in the trial transcripts, and the Presiding Judge did not have the intention to alter or modify the transcript. Thus, with regard to Witness AA, the Appeals Chamber notes that the Presiding Judge himself reinstated the expression “you are lying”, supposedly used by the witness. He did not in any way seek to hush up the impropriety committed against Appellant’s Counsel, since he even pointed out to the witness that his attitude was intolerable. He also presented the Tribunal’s excuses to Appellant’s Counsel on behalf of the witness, and reprimanded the witness. Similarly, with respect to Witness Q, the witness’s remarks were restored by the interpreter, and once again, the Trial Chamber did not attempt to cover up the issue. When the Presiding Judge indicated that the offensive words were the result of a poor translation, he simply wanted to clarify the situation by explaining that the first translation given by the interpreter was, in his opinion, more in line with what the witness wanted to say. The Appeals Chamber considers, nevertheless, that it would have been more judicious to question the witness directly in order to afford him the opportunity to clarify what he had in mind. The Appeals Chamber is of opinion that, although Judge Kama’s remarks are indeed unfortunate, they had no effect on the respect for the rule relating to the accuracy of trial transcripts, which rule is alleged to have been violated.

237. In conclusion, the Appeals Chamber holds that the argument based on the alleged errors relating to the editing of transcripts is unfounded. Considering that the errors alleged under this ground of appeal have not been established, there is no need to examine the alternative ground advanced by the Appellant relating to the cumulative effect of the errors.