508.Under this ground of appeal, the Appellant submits that the Trial Chamber prejudged him as guilty of the acts alleged in the Indictment, on the grounds that he was vice-president of the Interahamwe za MRND National Committee. The Appellant contends that the Trial Chamber erred by:

(1)  failing to distinguish between the Interahamwe za MRND and the Interahamwe movements;
(2) assuming that the Interahamwe za MRND continued to exist after 6 April 1994 and played a role in the atrocities, contrary to the available evidence; and
(3) concluding that Rutaganda was in a position of responsibility in the Interahamwe movement, in the absence of evidence. [947]

509.Paragraph 2 of the Indictment states, inter alia, that on 6 April 1994, the Appellant was serving as second vice-president of the National Committee of the Interahamwe, the youth militia of the MRND (Interahamwe za MRND). The Appellant contends that the Interahamwe za MRND ceased to exist after 6 April 1994. He alleges that after that time, the term “Interahamwe” was no longer linked to the Interahamwe za MRND movement and became a term applied to persons who joined in the massacres and/or who fought the RPF. It is the argument of the Appellant that the Trial Chamber erred both by not distinguishing between the Interahamwe za MRND and Interahamwe, contrary to the evidence presented at trial, and by assuming that the Interahamwe za MRND continued to exist after 6 April 1994. [948] According to the Appellant, each of those errors contributed to the convictions against him, as his alleged position of authority in the Interahamwe created an “atmosphere of guilt”, leading the Trial Chamber to pre-judge his guilt for the crimes referred to in the Indictment. [949] The Appeals Chamber notes that paragraph 399 of the Trial Judgement is the only passage cited by the Appellant in support of these allegations.

510. The Prosecution submits, inter alia, that under this ground of appeal, the Appellant is seeking a trial de novo and that he has failed to show any errors on the part of the Trial Chamber. [950] It contends that paragraph 399 of the Trial Judgement is relevant not to the position of authority of the Appellant, but to the Trial Chamber’s findings on whether the Appellant had the requisite specific intent to commit genocide. [951] The Prosecution maintains that notwithstanding, the Trial Chamber did not err in finding that, on the evidence, the Appellant was in a position of authority during the events referred to in the Indictment. [952]

511. The Appeals Chamber notes that in the light of its examination of the Appellant’s arguments in their entirety, the excerpts from the transcripts the Appellant has cited [953] show that substantial evidence relating to the Interahamwe and/or the Interahamwe za MRND movements was presented during the trial. Contrary to the submissions of the Appellant, [954] the Trial Judgement shows that the Trial Chamber considered such evidence, particularly the evidence tending to show that the meaning of the term Interahamwe, and the role of the movement, changed in the course of the year 1994. The Appeals Chamber notes that the Trial Judgement referred to the Appellant’s contention that the term Interahamwe attained a negative connotation and came to be used to describe, in popular usage, after 6 April 1994, a large or loosely organized militia which is said to have fought against the RPF. [955] Likewise, the Judgement recalled the testimony of a Prosecution expert witness whereby “the Interahamwe evolved from the youth wing of a political party into a militia”. [956] However, the Appellant contends, [957] the Judgement contains no factual finding as to whether there was a distinction between the Interahamwe and the Interahamwe za MRND, or whether the Interahamwe za MRND movement continued to exist after 6 April 1994.

512. The Appeals Chamber recalls that with regard to errors of fact, the appealing party must show both the error that was committed and the miscarriage of justice resulting there from. [958]  It is therefore futile on appeal to repeat arguments that failed at trial, unless it can be demonstrated that the dismissal of such arguments actually resulted in an error. With respect to miscarriage of justice, the Appeals Chamber has already specified that the Appellant must show that it was critical to the verdict reached by the Trial Chamber [959] or that the assessment of the evidence was totally erroneous, [960] and that, therefore, flagrant injustice resulted there from.

513.In the instant case, although the Indictment refers to the Appellant’s position within the Interahamwe za MRND movement, the Appeals Chamber notes that the Appellant was not indicted or tried for crimes committed by Interahamwe or Interahamwe za MRND members, or for having prepared or organized the genocide as second vice-president of the National Committee of the MRND youth wing. It clearly emerges from both the Indictment [961] and the Trial Judgement [962] that the Appellant was indicted, tried and convicted for his personal participation in the alleged acts. The question as to whether the Interahamwe za MRND movement is different from the group of attackers designated in the Trial Judgement by the term “Interahamwe” is of no relevance in the instant case. Indeed, it emerges from the Trial Chamber’s factual findings, and the reasons for the convictions, that the Appellant’s criminal responsibility does not derive from his official position in any movement, or from acts committed by Interahamwe members. In this instance, the Appellant is held responsible for his direct participation in the acts charged.

514.Accordingly, the questions as to whether the Appellant actually held a position of authority within the Interahamwe after 6 April 1994 or whether Interahamwe za MRND movement existed after that time are of no moment. With the exception of the reference to paragraph 399 of the Trial Judgement (under Part XI), the Trial Chamber did not take into account the Appellant’s position of authority in its factual and legal findings. The Appeals Chamber, therefore, rejects the Appellant’s contention that the Trial Chamber committed an error of fact by failing to distinguish between the Interahamwe and the Interahamwe za MRND movements in its Judgement, and by assuming that the Interahamwe za MRND movement existed after 6 April 1994 and played a role in the atrocities.

515. With respect to the contention that the Trial Chamber found, in the absence of proof, that the Appellant held a position of responsibility within the Interahamwe, [963] the Appeals Chamber notes that, contrary to the Appellant’s submissions, the Trial Judgement reveals that he had actual influence on the attackers referred to as the Interahamwe in the Trial Judgement. [964] Considering that on the evidence presented at trial, the Appellant had actual influence on the Interahamwe attackers, thereby giving him, de facto, a position of authority, the question as to whether or not the position of influence was due to his official position within the Interahamwe za MRND movement is of no moment.

516.The Appeals Chamber also notes that the Trial Chamber took account of the Appellant’s position of authority only for the purpose of assessing his state of mind in participating in the crimes underlying his conviction for genocide. [965] Therefore, the position of authority did not weigh in the Trial Chamber’s decision to convict him for extermination as crime against humanity. With respect to the conviction for genocide, the Appeals Chamber observes that the question as to whether the Trial Chamber erred by referring to the position of authority in its analysis of the dolus specialis, [966] was also raised in the ground of appeal in respect of genocide.

517. For these reasons, the Appeals Chamber rejects the Appellant’s contention that the Trial Chamber committed an error of fact in finding, in the absence of proof, that he held a position of authority within the Interahamwe movement, and refers the Appellant to its findings in relation to paragraph 399 of the Trial Judgement, under Part XI of the present Judgement.

518. In light of the aforementioned conclusions, the Appeals Chamber holds that the ground of appeal concerning the Interahamwe za MRND must fail.