XI. GENOCIDE

519.Under this ground of appeal, the Appellant challenges the conviction entered against him by the Trial Chamber for the crime of genocide, as alleged in Count 1. [967] The Appeals Chamber understands that the arguments put forward in support of this ground of appeal consist of two main arguments and one alternative argument, all of which can be summarised as follows: [968]

(1)   error of law for having applied the erroneous legal test in determining the dolus specialis (or special intent); [969]

(2)   error of fact for having found that the evidence in this case established beyond any reasonable doubt that the Appellant possessed the requisite special intent;

(3)   alternatively, error of fact for having found that the evidence in this case established beyond any reasonable doubt that genocide occurred in Rwanda in 1994.

520.The Appeals Chamber will consider seriatum each of the errors-in-chief alleged by the Appellant. Should the main arguments fail, the alternative argument will also be considered. The Appeals Chamber recalls that, as such,  the setting aside of the Trial Chamber’s findings in relation to the killing of Emmanuel Kayitare does not affect the Trial Chamber’s findings in relation to the crime of genocide.

A. Error as regards the test to be applied in determining the dolus specialis

521.In paragraphs 61 and 398 of the Trial Judgement, the Trial Chamber relied, inter alia, on the Akayesu Trial Judgement in setting out the test to be applied in determining specific genocidal intent. The Appellant contends that the “test in Akayesu [970] , conforms less to the Statute [971] than the test used in the Kayishema/Ruzindana Trial Judgement. [972] He contends that the Trial Chamber erred in not applying the “test in Kayishema/Ruzindana” to the instant case. [973]

522. The Appellant asserts that the Trial Chamber, in particular, erred in law in finding that the specific intent could be inferred from the “general context of the perpetration of acts by others”. [974] The impact of applying such a test is manifested in paragraphs 398 and 399 of the Trial Judgement. [975] Paragraph 399 of the Trial Judgement allegedly shows, in particular, that the Appellant was found guilty of genocide without his specific acts being examined. [976] Instead, the Trial Chamber inferred his “guilt by association with a guilty organisation” or from “similarity of conduct”. [977] According to the Appellant, facts other than the “general context” should have been proven in order to establish that he was possessed of the specific genocidal intent. [978] He contends that the Trial Chamber committed an error of law which invalidates the Judgement, by relying solely on this demonstration. [979]

523. Before examining the determination of dolus specialis by the Trial Chamber, the Appeals Chamber deems it necessary to provide some clarifications regarding the mens rea required by Article 2 of the Statute. Article 2 provides that:

1. The International Tribunal for Rwanda shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this Article or of committing any of the other acts enumerated in paragraph 3 of this Article.

2. Genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

3. The following acts are punishable:

(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.

524. As recalled by the Appeals Chamber of ICTY in Jelisic, the Statute [980] defines the specific intent required for the crime of genocide as “the intent to accomplish certain specific types of destruction” [981] against a targeted group. Pursuant to the Statute, therefore, specific intent implies that the perpetrator seeks to destroy, in whole or in part, a national, ethnic, racial or religious group as such, by means of the acts enumerated under Article 2 of the said Statute. [982] In order to prove specific intent, it must be established that the enumerated acts were directed against a group referred to under Article 2 of the Statute and committed with the intent to destroy, in whole or in part, the said group as such.

525. The crime of genocide sometimes implies several offenders participating in the commission of the crime. The Appeals Chamber concurs with the Appellant that in order to find a person guilty of genocide, it must be established that such a person was personally possessed of the specific intent to commit the crime at the time he did so. Nonetheless, as stated by the Appeals Chamber in Kayishema/Ruzindana, “explicit manifestations of criminal intent are [] often rare in the context of criminal trials”. [983] In the absence of explicit, direct proof, the dolus specialis may therefore be inferred from relevant facts and circumstances. [984] Such an approach prevents perpetrators from escaping convictions simply because such manifestations are absent. [985] The validity of this interpretation was confirmed by the Appeals Chambers of both ad hoc Tribunals. [986] With respect to the facts and circumstances from which specific intent may be inferred, the ICTY Appeals Chamber in Jelisic stated that such facts are, inter alia:

[] the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts. [987] (Emphasis added)

The ICTY Appeals Chamber also indicated that the existence of a plan or policy is not “a legal ingredient” of the crime of genocide, [988] but that proving the existence of such a plan or policy may facilitate proof of the crime. [989] Moreover, the Kayishema/Ruzindana Appeal Judgement reveals that making anti-Tutsi utterances or being affiliated to an extremist anti-Tutsi group is not a sine qua non for establishing dolus specialis. [990] The Appeals Chamber holds the view that establishing such a fact may, nonetheless, facilitate proof of specific intent.

526. The Appeals Chamber will now examine the Trial Chamber’s determination of the dolus specialis. It appears helpful, to this end, to examine paragraphs 398, 399 and 400 of the Trial Judgement, which read as follows:

398.  In its findings on the applicable law with respect to the crime of genocide, the Chamber held that, in practice, intent may be determined, on a case by case basis, through a logical inference from the material evidence submitted to it, and which establish a consistent pattern of conduct on the part of the Accused. Quoting a text from the findings in the Akayesu Judgement, it holds:

“On the issue of determining the offender’s specific intent, the Chamber considers that the intent is a mental factor which is difficult, even impossible, to determine. This is the reason why, in the absence of a confession from the Accused, his intent can be inferred from a certain number of presumptions of fact. The Chamber considers that it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act.”

399.The Chamber notes that many corroborating testimonies presented at trial show that the Accused actively participated in the widespread attacks and killings committed against the Tutsi group. The Chamber is satisfied that the Accused, who held a position of authority because of his social standing, the reputation of his father and, above all, his position within the Interahamwe, ordered and abetted in the commission of crimes against members of the Tutsi group. He also directly participated in committing crimes against Tutsis. The victims were systematically selected because they belonged to the Tutsi group and for the very fact that they belonged to the said group. As a result, the Chamber is satisfied beyond any reasonable doubt that, at the time of commission of all the above-mentioned acts which in its opinion are proven, the Accused had indeed the intent to destroy the Tutsi group as such.

400. Moreover, on the basis of evidence proffered at trial and discussed in this Judgement under the section on the general allegations, the Chamber finds that, at the time of the events referred to in the Indictment, numerous atrocities were committed against Tutsis in Rwanda. From the widespread nature of such atrocities, throughout the Rwandan territory, and the fact that the victims were systematically and deliberately selected owing to their being members of the Tutsi group, to the exclusion of individuals who were not members of the said group, the Chamber is able to infer a general context within which acts aimed at destroying the Tutsi group were perpetrated. Consequently, the Chamber notes that such acts as are charged against the Accused were part of an overall context within which other criminal acts systematically directed against members of the Tutsi group, targeted as such, were committed. (Footnotes omitted).

527.An overall analysis of paragraphs 398 through 400 of the Judgement reveals that the Appellant erroneously interpreted the legal standard applied by the Trial Chamber, as well as the facts and circumstances on which the Trial Chamber relied in determining the Appellant’s specific intent.

528. The Appellant contends that the standard applied by the Trial Chamber implies that it was not necessary to prove the dolus specialis. This contention is entirely unfounded. According to the principles recalled earlier, the standard applied in paragraph 398 of the Trial Judgement is in keeping with the generally accepted practice of the ad hoc Tribunals. The Appeals Chambers of the International Tribunal and the ICTY also confirmed that in the absence of explicit, direct evidence, specific intent may be inferred from other facts, such as the general context and the perpetration of other acts systematically directed against a given group. Such an approach does not imply that the guilt of an accused may be inferred only from his affiliation with “a guilty organisation.”

529. Moreover, an analysis of paragraphs 399 and 400 of the Trial Judgement reveals that the Appellant was not convicted of the crime of genocide on the basis of any particular theory of guilt by association. Paragraph 399 of the Trial Judgement clearly shows that the Trial Chamber found that the Appellant was possessed of the specific intent based on his specific acts, namely his direct participation in the widespread massacres committed against the members of the Tutsi group, and his ordering and abetting the commission of crimes against the Tutsis. The Trial Chamber also noted that the victims were systematically selected on account of their membership of the Tutsi group. Viewed in its context, the additional reference to the Appellant’s position of authority underscores the impact of his presence at the scene of the crimes and his exceptional ability to aid and abet the commission of the said crimes against members of the Tutsi group, due to the position of influence he held in the community.

530. Furthermore, it emerges from the Trial Judgement that the Trial Chamber considered the impact of the general context of the acts aimed at destroying the Tutsi group [991] after having noted, based on the Appellant’s acts, that he had indeed the specific intent. [992] The Appeals Chamber fails to see which passage of the Trial Judgement the Appellant relies on in order to contend that the dolus specialis was inferred from acts of others or from the general context. Paragraphs 399 and 400 of the Trial Judgement reveal that the Trial Chamber based its finding that the Appellant had the specific intent on the analysis of his own acts and conduct.

531. For all these reasons, this ground of appeal is dismissed.

B. Error in the assessment of the evidence

532.In his second ground of appeal, the Appellant contends that the Trial Chamber committed an error of fact that has occasioned a miscarriage of justice, by finding that the evidence presented proved beyond any reasonable doubt that he was possessed of the specific intent. [993] In particular, he contends that the evidence relating his interactions with certain members of the Tutsi group should have led a reasonable tribunal of fact [994] to find that dolus specialis was not proved beyond a reasonable doubt. [995] The Appellant advances several arguments in support of his ground of appeal.

533.Before examining the Appellant’s arguments, the Appeals Chamber notes that it emerges from the submissions on appeal that the Appellant does not contest the fact that the acts considered by the Trial Chamber were directed against members of the Tutsi group, owing to their being members of the said group. However, the Appellant contends that, on the basis of the evidence presented, the Trial Chamber should have concluded that it had not proved beyond any reasonable doubt that he personally had the intent to destroy this group. Nonetheless, the Appeals Chamber is not certain whether the Appellant reproaches the Trial Chamber for misapprehending some of the evidence or for committing an error in determining the probative value of the said evidence.

534.In any event, the Appeals Chamber recalls that, with respect to an allegation of error of fact, it does not suffice for the Appellant to offer various possible conclusions the Trial Chamber could have reached based on the evidence presented before it. [996] Two judges, both acting reasonably, can, indeed, come to different conclusions. [997] For the Appeals Chamber to intervene, the Appellant must, inter alia, demonstrate that no reasonable tribunal could have come to the conclusion as the one he contests [998] or that the Trial Chamber’s assessment of the evidence was wholly erroneous. [999] The Appeals Chamber notes that most of the arguments put forward by the Appellant in this instance do not suggest any such demonstration. Nevertheless, the Appeals Chamber will examine the allegations seriatim.

535.In his first argument, the Appellant alleges that the following evidence raises reasonable doubt as to whether he had the intent to destroy, in whole or in part, the Tutsi group; [1000]

- He saved the lives of Tutsis during the massacres, sometimes at great personal risk and financial expense; [1001]
- He befriended Tutsis; [1002]
- He hosted Tutsi refugees during the massacres; [1003]
- He provided food and drink to Tutsis during the material times; [1004] [1005]
- He carried Tutsi refugees in his car through roadblocks; [1006]
-  He employed Tutsis, [1007]  including during the massacres (e.g., his lawyer was Tutsi, [1008]  as well as the person who drove his car between Rwanda and Zaire [1009] );
-  Witness DEE, a Tutsi, testified for him. [1010]

536. The Appeals Chamber observes that the Trial Judgement does not refer to the totality of the evidence presented by the Appellant. The Appeals Chamber, nonetheless, recalls that, in general, a Trial Chamber is not required to articulate every step of its reasoning for each particular finding it makes. [1011] The Appeals Chambers of both ad hoc Tribunals have held that although the evidence produced may not have been referred to by a Trial Chamber, it may nevertheless be reasonable to assume that the Trial Chamber had taken it into account. [1012] Where evidence is not referred to in the Judgement, it is for the Appellant to show that the Trial Chamber indeed disregarded it. [1013]

537.The Appeals Chamber holds the view that the Appellant’s first argument does not satisfy such a burden of proof. In the instant case, the Appeals Chamber therefore believes it is justified to consider that the Trial Chamber took account of the evidence referred to. Indeed, it emerges from the Trial Judgement that the Trial Chamber considered several testimonies regarding the Appellant’s unusual behaviour, such as welcoming Tutsi refugees, [1014] allowing a Tutsi arrested at a roadblock to be given food and drink [1015] and going to great lengths to save a friend’s Tutsi wife. [1016] Moreover, according to the transcript of the hearing of 17 June 1999, the Appellant emphasized this aspect of his defence in his closing arguments. [1017] In the absence of any showing by the Appellant, the Appeals Chamber does not see on what basis it could be assumed, in this instance, that the Trial Chamber disregarded evidence randomly selected by the Appellant. In any event, the Appeals Chamber holds the view that a reasonable trier of fact could very well not take account of some of the illustrations provided by the Appellant, which appear immaterial within the context of the numerous atrocities systematically and deliberately perpetrated against members of the Tutsi group, owing to their being members of thereof. The first argument is therefore dismissed.

538. In his second argument, the Appellant contends that the Trial Chamber’s conclusion that he had dolus specialis is without “solid” foundation. [1018] He contends that the Trial Chamber would have reached a conclusion of reasonable doubt, [1019] were it not for the following errors:

- having relied on the testimonies of Witnesses C, V and EE at paragraph 315 of its Judgement; [1020]
-  having found the weapons distribution on 24 April 1994 relevant to the conviction for genocide (paragraph 385 of the Trial Judgement); [1021]
- having failed to sufficiently take account of the testimony of Expert Witness François-Xavier Nsanzuwera, cited in paragraph 369 of the Trial Judgement. [1022]

539.To start with, the Appeals Chamber dismisses the allegation relating to paragraph 315 of the Trial Judgement. The testimonies of Witnesses C, V and EE were considered in the context of the facts alleged in paragraph 17 of the Indictment. It clearly emerges from paragraph 393 of the Trial Judgement that the Appellant was not found guilty of the crimes alleged in paragraph 17 of the Indictment. Therefore, even assuming that the Trial Chamber committed an error in its assessment of the testimonies of Witnesses C, V and EE, such error did not occasion a miscarriage of justice.

540.With respect to the allegation relating to the weapons distribution on 24 April 1994, [1023] the Appeals Chamber deems it useful to recall the impugned passage of the Trial Judgement: [1024]

[The Chamber] also finds that it is established beyond a reasonable doubt that on or about 24 April 1994, in the Cyahafi Sector, the Accused distributed Uzzi guns to the President of the Interahamwe of Cyahafi during an attack by the Interahamwe on the Abakombozi. [1025]

The Appellant argues that the Abakombozi were not Tutsis, but members of the youth wing of the PSD, a political party opposed to the MRND. [1026] According to the Appellant, the weapons distribution on 24 April 1994 was therefore essentially, politically motivated. [1027] He submits that, as such, it casts reasonable doubt as to his specific intent. [1028]

541.The Appeals Chamber observes that the Appellant merely asserts that the Abakombozi were not Tutsis, without giving any evidence to back up this assertion. [1029] For this reason, the Appellant’s contention is devoid of merit. Moreover, the Appeals Chamber stresses that, even if the group was not composed of Tutsis exclusively, that does not rule out the weapons distribution on 24 April 1994 being part of a plan directed against the Tutsi group or, otherwise, contributing to the destruction of the Tutsi group. In any event, the Appellant’s submissions do not show any error on the part of the Trial Chamber that led to a miscarriage of justice.  By miscarriage of justice is meant, inter alia, that a defendant is convicted despite the lack of evidence on a material element of the crime. [1030] The Appeals Chamber notes that even if the Trial Chamber had not relied on the weapons distribution of 24 April 1994, the other findings in paragraphs 383 through 402 of its Judgement provide a solid foundation for a reasonable tribunal of fact to consider that the Appellant was possessed of the specific intent.

542. With respect to the testimony of Expert Witness François-Xavier Nsanzuwera, the Appellant contends that the said testimony alone shows that the attacks were politically motivated and, therefore, that the Tutsis were not the exclusive targets thereof. [1031] Nsanzuwera’s testimony is summarized as follows in paragraph 369 of the Trial Judgement:

According to Expert Witness Nsanzuwera, the Tutsi were systematically targeted as such, because they were considered to be opponents of the regime. The militia, including the Interahamwe, killed Tutsis and Hutus who opposed the Hutu regime, the victims of these massacres being civilians. Mr. Nsanzuwera also confirmed the Interahamwe’s involvement in the killing of Tutsis was not spontaneous but well planned. (Footnotes omitted)

543. The Appeals Chamber observes that the section of the Trial Judgement containing paragraph 369 concerns neither the Appellant’s conduct nor his mental predisposition, but rather the evidence in respect of the general allegations made in paragraphs 6 through 8 of the Indictment. [1032] Therefore, as such, this argument cannot show that the assessment of the evidence on the Appellant’s dolus specialis is wholly erroneous. The arguments in support of this contention are entirely unfounded in light of the applicable standard of review on appeal.

544.For these reasons, the Appeals Chamber dismisses the Appellant’s second argument.

545. For his third argument, the Appellant also relies on the testimony of François-Xavier Nsanzuwera as described in paragraph 369 of the Trial Judgement. In particular, he contends that  the findings contained in paragraphs 369 and 400 of the Trial Judgement are inconsistent as to whether the Tutsis were targeted owing to their being members of the Tutsi group or to “being considered opponents of the regime”. [1033]

546. Paragraph 400 of the Trial Judgement reveals that the Trial Chamber’s conclusion regarding the existence of a general context within which acts aimed at destroying the Tutsi group were perpetrated is based on the conclusions regarding the general allegations in paragraphs 5 through 8 of the Indictment. Paragraph 369 of the Trial Judgement is under this section and relates specifically to the general allegations in paragraphs 6, 7 and 8 of the Indictment. The Appeals Chamber observes that, unlike paragraph 400 of the Trial Judgement, paragraph 369 contains neither legal findings nor even a single factual conclusion that rests on an overall assessment of the evidence presented before the Trial Chamber. Rather, paragraph 369 of the Trial Judgement is aimed at summarising one of the many testimonies that were offered at trial. The Appeals Chamber notes that the Trial Chamber considered this testimony in its assessment of the widespread and/or systematic nature of the attacks directed against the civilian Tutsi population. [1034] The Appeals Chamber also notes that the Trial Chamber’s factual conclusions with respect to the general allegations in paragraphs 6, 7 and 8 of the Indictment tend to show that the Tutsis were targeted owing to their being members of the said group. [1035]

547.The Appeals Chamber stresses that, in general, committing crimes as part of a widespread or systematic attack against a civilian population does not imply that such crimes, or others, were not committed with the intent of destroying, in whole or in part, a group referred to under Article 2 of the Statute. In any event, the Appeals Chamber notes that once more, in the instant case, the Appellant’s allegations do not show the unreasonableness of the Trial Chamber’s conclusions with respect to the general context. The Appellant has failed to explain or show that the assessment of the totality of the evidence on the general context was erroneous. For this reason, the Appellant’s third argument is rejected.

548.In his fourth and last argument, the Appellant alleges that paragraph 388 of the Trial Judgement raises reasonable doubt as to his intent to harm Tutsis exclusively. [1036] The impugned paragraph reads as follows:

The Chamber is satisfied beyond any reasonable doubt that in April 1994, Tutsis who had been separated at a roadblock in front of the Amgar garage were taken to the office of the Accused inside the Amgar garage and the Accused thereafter directed that these Tutsis be detained within the Amgar garage. The Accused subsequently directed men under his control to take to take fourteen detainees, at least four of whom were Tutsis, to a deep hole near Amgar garage. On the orders of the Accused and in his presence, his men killed ten of the detainees with machetes. The bodies of the victims were thrown into the hole.

The Appellant contends that it can be presumed that the other persons detained were not Tutsi, and therefore that there is reasonable doubt as to whether his intent was to harm Tutsis exclusively. [1037]

549. A review of the Trial Judgement reveals that the interpretation suggested by the Appellant is erroneous. Indeed, the Trial Chamber’s analysis in paragraphs 242 through 251 of its Judgement reveals that, with the exception of four detainees, the ethnicity of the other detainees was not established beyond a reasonable doubt. That does not necessarily imply that the other detainees were Tutsi or that the Prosecution’s failure to establish the ethnicity of the other detainees leads to the presumption that they were not Tutsi. In this instance, no conclusion can be reached as to whether the other detainees were Tutsi or Hutu. The Appellant’s fourth argument is unfounded and must therefore fail.

550.For all these reasons, the Appeals Chamber dismisses the Appellant’s second main argument.  It is the opinion of the Appeals Chamber, after considering the arguments advanced by the Appellant, that the evidence relied on by the Trial Chamber establishes beyond reasonable doubt that the Appellant had the specific intent to destroy the Tutsi group.

551.Having dismissed all the main arguments, the Appeals Chamber will now examine the Appellant’s alternative arguments. [1038]

C. Error as to the existence of a genocide in 1994

552.In his alternative argument, the Appellant contests paragraph 400 of the Trial Judgement, [1039] contending that the Trial Chamber committed an error of fact [1040] for having found that, on the evidence, the mass killings which occurred in Rwanda in April and May 1994 constituted a genocide. [1041] The Appellant submits that a careful analysis of the evidence in this case shows reasonable doubt as to whether the events of 1994 can be described in law as a genocide. [1042] He argues that no reasonable tribunal of fact could have reached such a conclusion, [1043] and that the Trial Chamber’s assessment of the evidence was wholly erroneous. [1044] The Appellant alleges that the error occasioned a miscarriage of justice because, without having made the error, the Trial Chamber would not have entered a conviction on the genocide allegations. [1045]

553.The Appeals Chamber states that the Appellant’s contention is, prima facie, unfounded. Indeed, the Trial Chamber did not actually conclude, in paragraph 400 of its Judgement, that the atrocities committed in the territory of Rwanda in April and May 1994 constituted a genocide, but considered that:

[] From the widespread nature of such atrocities, throughout the Rwandan territory, and the fact that the victims were systematically and deliberately selected owing to their being members of the Tutsi group, to the exclusion of individuals who were not members of the said group, the Chamber is able to infer a general context within which acts aimed at destroying the Tutsi group were perpetrated. (Emphasis added)

554. The analysis upon which this conclusion rests was made by the Trial Chamber as part of its consideration of the Appellant’s specific intent. The Appeals Chamber recalls that, in its consideration of the first main argument, it confirmed the validity of the approach by which dolus specialis was inferred from certain facts, such as the general context and the perpetration of other acts systematically directed against a targeted group. Moreover, the Appeals Chamber held, upon considering the second main argument, that the evidence upon which the Trial Chamber relied established beyond any reasonable doubt that the Appellant had the specific intent to destroy the Tutsi group. The Appeals Chamber reiterates that it clearly emerges from paragraph 399 of the Trial Judgement that the Trial Chamber inferred the Appellant’s specific intent from his personal conduct. Indeed, paragraphs 399 and 400 of the Trial Judgement show that the Trial Chamber considered the impact of the general context only after noting that Appellant’s acts established that he had the dolus specialis. [1046] Moreover, the Trial Chamber concluded in paragraph 399 that:

[] As a result, the Chamber is satisfied beyond any reasonable doubt that, at the time of the commission of all the above-mentioned acts which in its opinion are proven, the Accused had indeed the intent to destroy the Tutsi group as such.

Hence, even assuming that the Trial Chamber committed an error in its assessment of the general context in paragraph 400 of its Judgement, which error has, in fact, has not been established in this instance, such error did not lead to a miscarriage of justice.

555. For all these reasons, the Appeals Chamber considers that the Appellant’s alternative argument is devoid of merit and will therefore not examine the arguments relating thereto. This sub-ground is hereby dismissed.


[967] Rutaganda’s Brief, p. 1076/H and para. 663.
[968] Supplemental Document, pp. 40 and 41, para. 21.
[969] In this section, the Appeals Chamber uses both terms interchangeably.
[970] See Akayesu Trial Judgement, para. 523: “On the issue of determining the offender's specific intent, the Chamber considers that intent is a mental factor which is difficult, even impossible, to determine. This is the reason why, in the absence of a confession from the accused, his intent can be inferred from a certain number of presumptions of fact. The Chamber considers that it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act .”
[971] Rutaganda’s Brief, paras. 677 to 681 and 684; Rutaganda’s Reply, paras. 12.04 to 12.09, 12.11 and 12.15. According to the Appellant, the “test in Kayishema/Ruzindana” “preserves” the mens rea and presumption of innocence requirements.
[972] According to the Appellant, the Appeals Chamber in Kayishema/Ruzindana indeed “implicitly disapproved” of the approach in Akayesu (Rutaganda’s Reply, paras. 12.12 and 12.13). With respect to the test, see Kayishema/Ruzindana Trial Judgement, para. 93: “Regarding the assessment of the requisite intent, the Trial Chamber acknowledges that it may be difficult to find explicit manifestations of intent by the perpetrators. The perpetrators’ actions, including circumstantial evience, however may provide sufficient evidence of intent. The Commission of Experts in their Final Report on the situation in Rwanda also noted this difficulty. Their Report suggested that the necessary element of intent can be inferred from sufficient facts, such as the number of group members affected. The Chamber finds that the intent can be inferred either from words or deeds and may be demonstrated by a pattern of purposeful action. In particular, the Chamber considers evidence such as the physical targeting of the group of their property; the use of derogatory language toward members of the targeted group; the weapons employed and the extent of bodily injury; the methodical way of planning; the systematic manner of killing. Furthermore, the number of victims from the groups is also important. In the Report of the Sub-Commission on Genocide, the Special Rapporteur stated that “the relative proportionate scale of the actual or attempted destruction of a group, by any act listed in Articles II and III of the Genocide Convention, is strong evidence to prove the necessary intent to destroy a group in whole or in part.” (Footnotes omitted).
[973] Rutaganda’s Reply, paras. 12.04 to 12.09, 12.11 and 12.15.
[974] T(A), 4 July 2002, pp. 149, 163 and 164; Supplemental Document, para. 21. “[] the particular acts charged from the general context of the perpetration of acts by others”.  The Appeals Chamber emphasizes that this interpretation constitutes a rephrasal, by the Appellant, of the Trial Judgement. The relevant passage of the Judgement reads as follows: “[] The Chamber considers that it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others.” (See Trial Jugement, para. 398).
[975] Rutaganda’s Reply, paras. 12.09 and 12.17.
[976] Ibid., para. 12.17.
[977] Rutaganda’s Brief, para. 681 and 684; Rutaganda’s Reply, para. 12.11. The Appellant also refers the Appeals Chamber to the “parallel” arguments he developed in Rutaganda’s Response to the Prosecution Appeal Brief, but does not indicate the relevant paragraphs.
[978] Rutaganda’s Brief, para. 685.
[979] Ibid., para. 685; Supplemental Document, pp. 40 and 41.
[980] Article 4(2) of the ICTY Statute corresponds to Article 2(2) of the ICTR Statute.
[981] Jelisic Appeal Judgement, para. 45: “The intent to accomplish certain specified types of destruction”.
[982] Ibid., para. 46.
[983] Kayishema/Ruzindana Appeal Judgement, para. 159.
[984] Kayishema/Ruzindana Appeal Judgement, para. 159; Jelisic Appeal Judgement, para. 47.
[985] Kayishema/Ruzindana Appeal Judgement., para. 159.
[986] Jelisic and Kayishema/Ruzindana, respectively.
[987] Jelisic Appeal Judgement, para. 47.
[988] Ibid, para. 48.
[989] Ibid., para. 48.
[990] Kayishema/Ruzindana Appeal Judgement, para. 160.
[991] Trial Judgement, para. 400.
[992] Ibid., para. 399.
[993] Supplemental Document, p. 41, para. 21(1).
[994] Ibid., p. 41.
[995] Rutaganda’s Brief, para. 686 and Rutaganda’s Reply, para. 12.19.
[996] Kayishema/Ruzindana Appeal Judgement, para. 143.
[997] Ibid., para. 143 citing Tadic Appeal Judgement, para. 64.
[998] See, inter alia, Musema Appeal Judgement, para. 17.
[999] See, inter alia, Kupreski Appeal Judgement, para. 30.
[1000] Rutaganda’s Brief, para. 686(a).
[1001] Ibid., para. 686(a)(i).
[1002] Ibid, para. 686(a)(ii).
[1003] Ibid, para. 686(a)(iii).
[1004] Ibid, para. 686(a)(iv).
[1005] Ibid, para. 686(a)(ix).
[1006] Ibid, para. 686(a)(v).
[1007] Ibid, para. 686(a)(vi).
[1008] Ibid, para. 686(a)(vii).
[1009] Ibid, para. 686(a)(x).
[1010] Ibid, para. 686(a)(viii).
[1011] Musema Appeal Judgement, para. 18 citing Celebici Appeal Judgement, para. 481.
[1012] Musema Appeal Judgement, para. 19 citing Celebici Appeal Judgement, para. 483.
[1013] Musema Appeal Judgement., para. 21; Celebici Appeal Judgement, para. 498.
[1014] Trial Judgement, para. 255.
[1015] Ibid., paras. 220 and 221.
[1016] Trial Judgement, para. 471.
[1017] See mainly T, 17 June 1999, pp. 10 to 13, 22 and 23, 43 and 44, and 102 and 103.
[1018] Rutaganda’s Brief, para. 686(c).
[1019] Ibid., paras. 686(c), and 686(c)(ii) and (iii).
[1020] Ibid, para. 686(c)(i).
[1021] Ibid, para. 686(c)(ii).
[1022] Ibid, para. 686(c)(iii).
[1023] Ibid, para. 686(c)(ii).
[1024] Trial Judgement, para. 385, in fine.
[1025] Ibid., para. 385, in fine.
[1026] Rutaganda’s Brief, para. 686(c)(ii).
[1027] Ibid., para. 686(c)(ii).
[1028] Ibid., para. 686(c)(ii).
[1029] The Appeals Chamber notes that the evidence presented at trial tends to show that the Abakombozi were not exclusively Hutus (see, for example, T, 11 March 1998).
[1030] Furundzija Appeal Judgement, para. 37 cited, inter alia, in the Musema Appeal Judgement, Footnote No. 24, and Kunarac Appeal Judgement, para. 39.
[1031] Rutaganda’s Brief, para. 686(c)(iii).
[1032] Paras. 6 to 8 of the Indictment state that:

6.  In each paragraph charging crimes against humanity, crimes punishable by Article 3 of the Statute of the  Tribunal, the alleged acts were committed as part of a widespread or systematic attack against a civilian population on political, ethnic or racial grounds.
7.  At all times relevant to this Indictment, a state of internal armed conflict existed in Rwanda.
8.  The victims referred to in this Indictment were, at all relevant times, persons taking no active part in the hostilities.

[1033] Trial Judgement, para. 369; Rutaganda’s Brief, para. 686(c)(vi).
[1034] Trial Judgement, paras. 371 and 372.
[1035] Ibid.
[1036] Rutaganda’s Brief, para. 686(c)(iv).
[1037] Ibid., para. 686(c)(iv).
[1038] Rutaganda’s Brief, p. 1076/H, para. 687.
[1039] Ibid., para. 686.
[1040] Supplemental Document, p. 41, para. 21(2).
[1041] Ibid., p. 41, para. 21(2); Rutaganda’s Brief, paras. 687 and 692; Rutaganda’s Reply, paras. 12.23 and 12.24(3).
[1042] Rutaganda’s Brief, p. 1075/H.
[1043] Supplemental Document, p. 41 and Rutaganda’s Reply, paras. 12.22 and 12.24(3).
[1044] Supplemental Document, p. 41.
[1045] Supplemental Document, p. 41 and Rutaganda’s Brief, para. 687.
[1046] Trial Judgement, para. 399.