1. THE APPEALS CHAMBER of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January and 31 December 1994 (“the Appeals Chamber” and “the Tribunal” respectively) is seized of two appeals filed respectively by Georges Anderson Nderubumwe Rutaganda [1] on 5 January 2000 (“the Appeal” and “the Appellant” or “Rutaganda” respectively) and the Prosecutor [2] on 6 January 2000, against the Judgement and Sentence rendered by Trial Chamber I on 6 December 1999 in The Prosecutor v. Georges Anderson Nderubumwe Rutaganda (“the Judgement” or “the Trial Judgement” and “the Trial Chamber”).
2. Having considered the oral and written submissions of both parties, the Appeals Chamber
HEREBY RENDERS THE JUDGEMENT SET OUT BELOW.
3. The Appellant was tried by the Trial Chamber of the International Criminal Tribunal [3] on the strength of an indictment filed on 13 February 1996 and confirmed on 16 February 1996 (“the Indictment”). [4] The Indictment charged the Appellant with participating in the crimes committed in April, May and June 1994 in the préfectures of Kigali and Gitarama, Republic of Rwanda, namely:
- Distributing guns and other weapons to members of the Interahamwe in Nyarungenge commune, Kigali préfecture;
- Stationing members of the Interahamwe at a roadblock near his office at the Amgar garage in Kigali. The said Interahamwe members subsequently killed eight Tutsis;
- Directing men under his control to detain, then kill ten Tutsis, who had been separated at the Amgar roadblock;
-Participating in the attack at the École Technique Officielle (the “ETO school”) where thousands of unarmed Tutsis and some unarmed Hutus had sought refuge, which attack resulted in the deaths of a large number of Tutsis;
-Directing and participating in the massacres of the Nyanza gravel pit;
- Directing the Interahamwe to conduct a search for all Tutsis of Masango commune and to throw them into the river;
- Killing Emmanuel Kayitare;
- Ordering the bodies of victims to be buried in order to conceal his crimes from the international community.
4. The Indictment charged the Appellant, pursuant to Article 6(1) of the Statute of the International Tribunal (“the Statute”), with the following eight counts:
5. The Appellant entered an appearance on 30 May 1996, pursuant to Article 62 of the Rules of Procedure and Evidence (“the Rules”) and pleaded not guilty to all counts in the Indictment. His trial opened before the Trial Chamber on 18 March 1997 and ended on 17 June 1999. The Judgement and Sentence were rendered on 6 December 1999. The Appellant was found guilty on three counts in the Indictment pursuant to Article 6(1) of the Statute, namely:- Count 1—genocide—pursuant to Article 2(3)(a) of the Statute;
- Counts 2, 3, 5 and 7—extermination or murder, as the case may be—as crimes against humanity, pursuant to Article 3(a) and (b) of the Statute;
- Counts 4, 6 and 8—murder—as violations of Common Article 3 to the Geneva Conventions of 1949, [5] pursuant to Article 4(a) of the Statute.
-Counts 1 and 2—genocide and extermination respectively—as crimes against humanity, on the strength of acts connected with the distribution of weapons, the events which took place at the Amgar roadblock and at the ETO, as well as the murder of Emmanuel Kayitare;
- Count 7—murder—as a crime against humanity, based on the killing of Emmanuel Kayitare.
6. The Appellant was found not guilty on Counts 3 and 5, namely murder as a crime against humanity, and on Counts 4, 6 and 8, namely murder as violations of Common Article 3 to the Geneva Conventions. The Trial Chamber sentenced him to a single term of life imprisonment for all the charges brought against him.
B. Appeal proceedings7.Rutaganda initially appealed against all the convictions handed down against him, and against the single term of life imprisonment. He however withdrew his appeal against the sentence during the hearing of the appeal. [6]
8.The Prosecution, on its part, raised two grounds of appeal against acquittal pronounced in respect of Counts 4, 6 and 8 of the Indictment, namely murder as violations of Common Article 3 to the Geneva Conventions. The Prosecution, however, withdrew its second ground of appeal following the rendering of the Appeal Judgement in Akayesu. [7]
9. The
Appeals Chamber heard both parties on their respective appeals in a public
hearing held at the seat of the International Tribunal, Arusha,
10. Furthermore, although the Rules make no provision for these procedures, the Appellant filed several motions for disclosure and admission of additional evidence, pursuant to Rules 66, 68 and/or 115 of the Rules, after appeal hearings had begun. [8] The Appeals Chamber exceptionally granted one of such motions in part on 19 February 2003 by granting the Appellant leave, pursuant to Rule 115 of the Rules, to present additional evidence concerning the convictions for genocide and extermination as crimes against humanity. [9] The Appeals Chamber further held that, for the purposes of determining whether the evidence so adduced demonstrated that the impugned convictions had occasioned a miscarriage of justice, it was necessary to call a witness to appear. This was accordingly effected by decision of 24 February 2003, pursuant to Rules 98 and 107 of the Rules. [10]
11. The witness in question and the parties’ new arguments on appeal were heard during proceedings [11] held at the seat of the International Criminal Tribunal for the former Yugoslavia (ICTY) on 28 February 2003. [12] This Appeal Judgement will rule on the appeals filed by Rutaganda and by the Prosecutor, as well as on the new arguments on appeal relating to the additional evidence.
C. Grounds of appeal12. With regard first to Rutaganda’s appeal, the Appeals Chamber recalls that the Notice of Appeal filed on 5 January 2000 comprised more than 170 points of appeal. Counsel for the Appellant subsequently filed exceptionally voluminous briefs, which, however, never embraced all the points referred to in the Notice of Appeal. Considering, especially, that the grounds of appeal brought before the Appeals Chamber did not clearly set forth the points raised in the Appellant’s filings, and that, in general, these filings did not comply with the formal standards applicable to appellate review, [13] the Appeals Chamber rendered, on 26 April 2002, a decision ordering clarification and scheduling forthcoming hearings, wherein it ordered the Appellant to file a new document comprising a clear and concise enumeration of the grounds of appeal. [14] The Appellant filed the supplemental document on 3 June 2002 (the “Supplemental Defence Document”) [15] and, on the one hand, withdrew some points of appeal and, on the other hand, reorganized his allegations into 21 distinct arguments on appeal. The Appeals Chamber grouped the said arguments under nine distinct grounds of appeal [16] that may be summarized as follows:
- Allegations relating to violation of the right to a fair trial, particularly in the alleged biased conduct of the examination and cross-examination of witnesses, and in the treatment given to Rutaganda’s testimony. This ground of appeal is examined under Part III of this Appeal Judgement;
-Allegations of general errors of law relating to the assessment and treatment of evidence pertaining in particular to the right to cross-examination, the right to raise objections, hearsay evidence, expert evidence, burden of proof, prior witness statements, witness credibility, the impact of trauma and socio-cultural factors, and the proper conservation of the trial record. This ground of appeal is examined under Part IV of this Appeal Judgement;
- Allegations of specific errors of law and fact concerning alibi evidence, the admissibility of written statements of certain witnesses and the cross-examination of Rutaganda. This ground of appeal is examined under Part V of this Appeal Judgement;
-Allegations of errors of law and fact in the factual findings on the distribution of weapons. This ground of appeal is examined under Part VI of this Appeal Judgement;
-Allegations of errors of law and fact in the factual findings on the crimes committed at the Amgar garage. This ground of appeal is examined under Part VII of this Appeal Judgement;
-Allegations of errors of law and fact in the factual findings on the ETO school and Nyanza massacres, and an allegation of miscarriage of justice resulting from the presentation of additional evidence on appeal. This ground of appeal, as well as the new arguments relating to the additional evidence, is examined under Part VIII of this Appeal Judgement;
- Allegations of errors of law and fact in the factual findings on the murder of Emmanuel Kayitare. This ground of appeal is examined under Part IX of this Appeal Judgement;
- Allegations of errors of fact relating to the Interahamwe Movement and to Rutaganda’s role in the Interahamwe za MRND Movement. This ground of appeal is examined under Part X of this Appeal Judgement;
- Allegations of errors of law and fact in the factual and legal findings on the crime of genocide. This ground of appeal is examined under Part XI of this Appeal Judgement.
13. Assuming the foregoing grounds of appeal were granted in part or in whole, Rutaganda requests the Appeals Chamber, as the case may be, to acquit him of the convictions entered against him, order a trial de novo, and/or reconsider whether the sentence pronounced is still appropriate in the circumstances. [17]
14.The Prosecution’s appeal comprises a single ground of appeal [18] in which the Prosecution submits that the Trial Chamber committed an error of fact in holding that the nexus between the acts with which Rutaganda is charged and the armed conflict had not been established beyond reasonable doubt. The Prosecution’s appeal is examined under Part XII of this Appeal Judgement.
[1]
As amended pursuant to Decision (1. Motion for Inadmissibility
of the Prosecutor’s Notice of Appeal; 2. Motion to Amend Appellant’s
Notice of Appeal; 3. Motion to Extend the Time-limits for Filing the Prosecution’s
Notice of Appeal) of
[2]
Ibid. The Pre-hearing Judge threw out
the Motion for Inadmissibility of the Prosecutor’s Notice of Appeal
filed by the Appellant on
[3] The Trial Chamber which heard this case was composed of Judge Kama (presiding), Judge Aspegren and Judge Pillay.
[4] The Indictment is set forth in paragraph 4 of the Trial Judgement.
[5] The Trial Chamber noted in the Judgement that the Prosecutor had chosen to restrict the counts to violation of Common Article 3 to the Geneva Conventions only (Trial Judgement, para 434). The Trial Chamber nevertheless held that, for it to make a finding of guilt for any one of counts 4, 6 and 8 of the Indictment, the Chamber must be satisfied that the material requirements of Common Article 3 and Additional Protocol II had been met (Trial Judgement, para. 435).
[6]
T(A),
[7]
Notice abandoning Ground two (2) of the Prosecution’s
notice of appeal dated
[8] “Defence motion for an order varying the grounds of appeal pursuant to Rule 107bis and Rules 114 and 116 of the Rules of Procedure and Evidence; for disclosure pursuant to Rules 66 B) and 68 of the Rules of Procedure and Evidence; for a rehearing of oral argument in the Appeal pursuant to Article 24 of the Statute of the International Tribunal for Rwanda, and for the admission of additional evidence pursuant to Rule 115 A and B of the Rules of Procedure and Evidence, as well as a Request for extension of the page limit applicable to motions, of the Statute of the International Tribunal for Rwanda, and for the admission of additional evidence pursuant to Rule 115 A and B of the Rules of Procedure and Evidence, as well as a Request for extension of the page limit applicable to motions”, filed on 4 November 2002; “Urgent Defence motion for disclosure pursuant to Rules 66 (B) and 68 of the Rules of Procedure and Evidence, and for a reconsideration of deadlines imposed in Judge Jorda’s Order of December 12, 2002”, filed on 18 December 2002; “Consolidated Defence motion for an order varying the grounds of appeal pursuant to Rule 107bis and Rules 114 and 116 of the Rules of Procedure and Evidence ; for a rehearing of oral argument in the appeal pursuant to Article 24 of the Statute of the International Tribunal for Rwanda, and for the admission of additional evidence pursuant to Rules 115(A) and (B) of the Rules of Procedure and Evidence, as well as request for extension of the page limit applicable to motions”, 3 January 2003.
[9]
Decision on the consolidated Defence motion
for an order varying the grounds of appeal, for the rehearing of oral arguments in the appeal and for the
admission of additional evidence, and scheduling order, dated
[10]
Ibid.; Summons to appear in court, dated
[11] Some of the proceedings were conducted behind closed doors during this hearing.
[12] For details of the motions filed after the appeal hearing, see Annex A of this Appeal Judgement.
[13] As defined in the case-law of the ad hoc tribunals.
[14]
Decision Ordering Clarification, and Scheduling Forthcoming
Hearings,
[15]
Grounds of Appeal, Supplemental Defence Document
Pursuant to the Order of the Honorable Judge Claude Jorda, Pre-Hearing Judge
dated 26 April 2002, filed on
[16]
The Appeals Chamber points out that the arguments
referred to in the Notice of Appeal but not included in the Defence Appeal
Brief and the Supplemental Defence Document have not been considered in this
Appeal Judgement. The practice of the Appeals Chamber has in fact been to
acknowledge that “an
appeal, which consists of a Notice of Appeal that lists the grounds of appeal
but is not supported by an Appellant’s brief, is rendered devoid of
all the arguments and authorities.” (see in particular Decision (Motion
to have the Prosecution’s Notice of Appeal Declared Inadmissible) The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A,
[17] Defence Appeal Brief, Part XIV.
[18]
Notice Abandoning Ground Two (2) of the Prosecution’s
Notice of Appeal dated 5 January 2000, filed on