36.In this ground of appeal, the Appellant alleges that the Trial Chamber violated his right to a fair trial during the examination and cross-examination of witnesses, on the one hand, and, on the other hand, in the manner in which the Chamber treated him at his hearing when he took the witness stand. [67]

37.The Appeals Chamber points out that the Appellant’s allegations relate mainly to the issue of bias on the part of the Trial Chamber, which allegedly assisted the Prosecution during its examination-in-chief and cross-examination of witnesses, including the Appellant himself, and treated Prosecution as well as Defence witnesses in a biased manner. For the Appellant, the Trial Judges were in breach of their duty to be impartial, which duty is provided for in Articles 12 and 20 of the Statute, Rule 85(B) of the Rules, as well as in the general principles of international law. The Appellant alleges that since the Trial Chamber was not seen to be impartial, as required by the above-mentioned provisions, his trial cannot be valid. According to him, the errors referred to supra invalidate all the convictions entered against him. The Appeals Chamber notes that the issue of a possible denial of the principle of equality of arms between the Appellant and the Prosecution is obliquely referred to in some of the allegations.

38.Before examining the allegations of violation of the Appellant’s right to a fair hearing, the Appeals Chamber deems it necessary to review the attendant principles that are directly at issue in this ground of appeal.

39.The Appeals Chamber recalls that impartiality is one of the duties that judges pledge themselves to uphold at the time they take up their duties; [68] and this applies throughout the judge’s term of office in the Tribunal. [69] This is a component of the right to a fair trial that is recognized in Articles 19 and 20 of the Statute. [70] The Appeals Chamber in the Akayesu Appeal Judgement endorsed the standards applicable to impartiality embodied in the Statute and the Rules, [71] as previously defined by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), [72] which pointed out:

“That there is a general rule that a Judge should not only be subjectively free from bias, but also that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias. On this basis, the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the Statute:

A. A Judge is not impartial if it is shown that actual bias exists.

B. There is an unacceptable appearance of bias if:

(i) a Judge is a party to the case, or has a financial or proprietary interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties.  Under these circumstances, a Judge’s disqualification from the case is automatic; or

(ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.”

40. With regard to the test of the “reasonable observer”, the ICTY Appeals Chamber held that: [73]

“[...] the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties that Judges swear to uphold.”

41. The very Appeals Chamber pointed out that the Judge should rule on cases according to what he deems to be the correct interpretation of the law, by ensuring that his behaviour does not give the impression to an unbiased and knowledgeable observer that he is not impartial. [74] Lastly, the ICTY Appeals Chamber held that: [75]

“The relevant question to be determined by the Appeals Chamber is whether the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the circumstances to make a reasonable judgement) would be that [a] Judge […] might not bring an impartial and unprejudiced mind to the issues arising in the case.”

42. The Appeals Chambers of ICTY and ICTR emphasized in Akayesu and Furundžija respectively that Judges of the International Tribunal must be presumed to be impartial, and, in the instant case, the Chamber endorses the test for admissibility of an allegation of partiality set forth in the Akayesu Appeal Judgement, wherein it was held that:

“[...] There is a presumption of impartiality which attaches to a Judge.  This presumption has been recognised in the jurisprudence of the International Tribunal, and has also been recognised in municipal law.

In the absence of evidence to the contrary, it must be assumed that the judges of the International Tribunal “can disabuse their minds of any irrelevant personal beliefs or predispositions.” It is for the Appellant to adduce sufficient evidence to satisfy the Appeals Chamber that the Judge in question was not impartial in his case. There is a high threshold to reach in order to rebut the presumption of impartiality.” [76]

“The Judges of this Tribunal and those of ICTY often try more than one case at the same time, which cases, given their very nature, concern issues which necessarily overlap. It is assumed, in the absence of evidence to the contrary, that by virtue of their training and experience, judges will rule fairly on the issues before them, relying solely and exclusively on the evidence adduced in the particular case.” [77]

43.The Appeals Chamber also recalls that the Appellant must set forth the arguments in support of his allegation of bias in a precise manner, and that the Appeals Chamber cannot entertain sweeping or abstract allegations that are neither substantiated nor detailed to rebut the presumption of impartiality. [78]

44.With regard to the principle of equality of arms between the Accused and the Prosecution, which is another component of the right to a fair trial in criminal law, it is stated, inter alia, in Article 20(4)(e) of the Statute that in the determination of any charge against the accused pursuant to the Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

“To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.”

45.Lastly, the Appeals Chamber recalls that the Presiding Trial Judge is presumed to have been performing, on behalf of the Trial Chamber, his duty to exercise sufficient control over the process of examination and cross-examination of witnesses, and that in this respect, it is the duty of the Trial Chamber and of the Presiding Judge, in particular, to ensure that cross-examination is not impeded by useless and irrelevant questions. [79]

46.The Appeals Chamber will now consider the Appellant’s ground of appeal arising from a violation of his right to a fair trial, and notes that the Appellant has not indicated whether in the instant case, his allegations of bias pertain to the first or the second component of the requirement of impartiality (i.e. whether there is actual or apparent bias). Although the Appellant reproaches Judges Kama, Pillay and Aspegren for having “prejudged” the case before the beginning of proceedings, his contention does not seem to be based on actual bias. In fact, his allegations are not based on financial interests or on interests that will lead to the promotion of the cause [80] (i.e. the first part of the second component of the requirement of impartiality). Consequently, after examining the Appellant’s arguments, it appears that the allegations of bias made by the Appellant have to do with an appearance of bias and are relevant to the test of the “reasonable observer” (i.e. the second part of the second component of the requirement of impartiality). [81]

47.The Appeals Chamber emphasizes that although the arguments put forward by the Appellant to support his allegation of bias are more numerous in the instant case than in Akayesu, the two cases have many key similarities in this respect, considering the nature of the allegation and the fact that the composition of the Trial Chamber was the same in both cases. That being the case, it is proper to apply to the instant case the same approach adopted in Akayesu, namely, placing the cases of allegation of bias identified by the Appellant in their proper context as appears from the trial record, so that the intent of the persons who made the impugned remarks may be understood, [82] and examining them in the light of the test of a reasonable observer.

48.Three of the 42 allegations of bias raised in Part XI of the Defence Appeal Brief have, however, not been considered, in accordance with the standards for appellate review, [83] either because the Appellant has not specifically referred the Appeals Chamber to the parts of the trial record which, in his view, support his claim, [84] or because the Defence Appeal Brief [85] simply repeats the ground of appeal on this issue without stating reasons therefor. [86]

49. For the sake of clarity, the allegations of bias raised by the Appellant with regard to the examination-in-chief and cross-examination of witnesses other than the Appellant have been grouped together according to the witnesses to whom they refer, beginning with Prosecution witnesses, then Defence witnesses. Each allegation was considered separately. [87] A comparative analysis was made of the Judges’ attitude during the examination of a Prosecution witness or a Defence witness, when the context so required.

A. Treatment of witnesses other than the Appellant

1. Prosecution witnesses

50.The Appellant contends that one of the most disturbing interruptions by the Trial Chamber took place during the cross-examination of Witness CC. The Appellant points out that Witness CC, during his testimony before the Tribunal, radically departed from the account he gave in his prior statement to investigators, which account contained allegations of murder against Rutaganda. According to the Appellant, the witness, who was trying to reconcile his previous accounts, gave a third account of events to the Trial Chamber during cross-examination. The witness claimed that he had given the said third account to both investigators and the Prosecution, but this was categorically denied by the Prosecution. It was then, according to the Appellant, that Judge Kama, instead of commending the Prosecution’s honesty regarding the witness’s lack of credibility, admonished him for revealing his weapons to the opposing party, stressing that if that was the practice elsewhere, he, for his part, did not consider it appropriate, and hoped that the Prosecution had learned its lesson from the incident. The Appellant submits that Judge Kama also incomprehensibly attempted to find possible excuses for the witness by concluding:

“He is asked to say the truth because he has made several statements. He made a statement to the prosecutor, he made another statement today. We would have liked that the two statements be in agreement. Unfortunately there are contradictions. Is this his error or an error of interpretation? In any case, we realize that there are contradictions.” [88]

51. The Appeals Chamber recalls that it is necessary to situate Judge Kama’s remarks in their proper context. The purpose of the incident at the hearing brought about by Prosecuting Counsel was to inform the Trial Chamber that the witness had maintained, in a discussion with Counsel, and contrary to his testimony before the Tribunal, his initial account of events. It is also necessary to look at the entire exchange between the Judge and Counsel for the parties, instead of the extracts alone referred to by the Appellant. This is the approach to be expected of a reasonable observer. In this regard, the following extracts of the transcripts preceding the statements highlighted by the Appellant shed light on the allegation of bias made by him:

“[...] We’re not going to get into the discussion about the truth or not. [...] The Tribunal will decide whether he lied, partially lied, or whatever.” [89]

“Please allow the Tribunal to determine whether or not there was probative value of this testimony.”

“The witness made a solemn declaration according to which he promised to say the truth and only the truth, nothing but the truth. This declaration was made yesterday. We understand that with time and some trauma one may make errors, but we don’t understand why he should contradict himself or why he should not say the truth.”

“Counsel, once again, you are pleading now. I only want to discuss the incident.” [90]

“The witness has an obligation to tell the truth with the consequences that flow from false testimony. [There follows a quotation from Rule 91 of the Rules]. [...] Considering the complexity of the procedure, I think you may have to submit a motion for the Chamber to rule on that.” [91]

52. Having thus been placed in their context, the Judge’s remarks indeed reflect the Judge’s wish to be enlightened by Counsel for the parties on the nature of the incident occasioned by the Prosecution. The Judge did not evade the issue of credibility of the witness, but rather pieced together the information necessary to address the issue at the appropriate time, deferring consideration of the merits of this issue to a later stage in the proceedings, either during the deliberations after closing arguments have been made, or in the event that the Defence filed a motion founded on Rule 91(B) of the Rules. This approach translates the Trial Chamber’s concern to discover the truth, and it is obviously in this context that Judge Kama’s previously mentioned comment could be placed:

“Unfortunately, we realize that there are contradictions. Is that his error or the error of interpretation? In any case, we realize that there are contradictions.”

53. The Appeals Chamber is convinced that a reasonable and informed observer would examine the impugned remarks by Judge Kama while bearing in mind the above remarks made some seconds earlier, which remarks explicitly raise the issue of Witness CC’s credibility together with the attendant consequences of false testimony. With regard to the impugned remarks proper, the Appeals Chamber turned to the French version of the trial record, which is significantly different from the English version, [92] insofar as Judge Kama made the remarks in French. The remarks read as follows:

En revanche, je ne suis pas sûr que ce soit de la loyauté que le Parquet puisse livrer à l’autre partie ses armes. Dans mon système juridique, cela ne se fait pas. Si cela se fait ailleurs, c’est possible. Je ne pense pas que ce soit de la loyauté. Que moi le Parquet, je divulgue à l’adversaire une partie de mes armes, de mes entretiens! Si c’est une pratique ailleurs, nous l’acceptons. Je le signalais au passage.

54. The Judge’s remarks clearly show that, although he is surprised by the Prosecution’s attitude, he admits the validity of a practice that is different from that with which he is familiar. Of course, a well-informed observer could infer from the above remarks that Judge Kama misapprehended the content and scope of the Prosecution’s duties under the Statute and the Rules. On the other hand, the Appeals Chamber considers that such an observer cannot reasonably conclude that the Judge’s remarks reveal any bias whatsoever.

55.The same applies to the expression “on aurait souhaité que les déclarations concordent” (we would have liked that the two statements be in agreement), which, taken in isolation, would be confusing, but which, when placed in its context, shows further that the Judge was irritated at the witness’s attitude, rather than that he sided with the Prosecution.

56. The Appellant’s allegations of bias with regard to Witness AA’s testimony are mainly directed at Judge Kama. It seems proper to point out that AA testified in respect of the charges under paragraphs 17 to 19 of the Indictment, and that his testimony was deemed credible by the Trial Chamber.

57. On examination, some of the said allegations of bias are clearly based on an erroneous presentation by the Appellant of Judge Kama’s attitude during the examination of the witness. This is the case with the allegations set out in paragraphs 524 to 530 of the Defence Appeal Brief.

58. The Appellant in the first place characterizes Judge Kama’s attitude towards Witness AA as protective. He refers in particular to the fact that the Judge made sure that the trial record did not reflect the rude and uncooperative attitude of the witness, when he accused Counsel for the Appellant of lying. The Judge also apologized for the witness’s attitude, blaming it on his lack of education. [93] The trial record shows [94] that the above allegation is clearly unfounded. In fact, not only did the Judge underscore the discourteous attitude of the witness, and did not excuse him, he also did not condone it.  Rather, he presented the Tribunal’s excuses to the Defence on behalf of the witness, and issued a warning to the witness. In so doing, Judge Kama did not give preferential treatment to the witness, nor did he in any way show bias.

59. The Appellant next submits that Judge Kama interrupted his Counsel as she was about to start her cross-examination of Witness AA on the discrepancies between his written statement to investigators and his oral testimony in relation to the circumstances surrounding the death of Emmanuel Kayitare, that is, to know whether the victim had been struck on the head or on the neck. [95] According to the Appellant, the Judge himself proceeded to examine the witness until he received an answer that appeared to restore the credibility of the witness, namely that his statement may have been wrongly interpreted. Hence, the Judge allegedly remarked as follows: “Okay, that’s what I wanted to hear, that perhaps it is badly interpreted.”

60. The Appeals Chamber notes that in light of the trial record, [96] Judge Kama intervened in the cross-examination, thus assisting Counsel for the Appellant who was trying unsuccessfully to elicit a response from the witness. In this connection, Judge Kama’s question made it possible for a clear answer to come out. It also appears that the witness, of his own volition, alluded to the fact that his statements may have been poorly interpreted. Indeed, the Judge’s remark, taken in isolation, could be confusing. However, insofar as the justification in question comes straight from the witness himself and was not suggested to him by the Judge, the Appeals Chamber considers that the Judge’s remark, situated in its proper context, would not lead a reasonable observer to conclude that its author was biased. In any event, from the relevant passage of the trial judgement which reads: “[...] the Chamber is of the opinion that Witness AA’s inability to indicate whether the blow unleashed by the Accused cut off the head or neck of the victim cannot call into question the reliability of his testimony since it is difficult for a lay person to ascertain the respective limits of the head and the neck,” [97] the Appeals Chamber notes that the inconsistency raised by Counsel for the Appellant was duly taken into consideration by the Trial Chamber, and that the issue as to whether the Trial Chamber committed an error in finding this witness credible is distinct from the issue of bias.

61. The Appeals Chamber considers, in the light of the trial record, [98] that the Appellant’s assertion that the Judge subsequently attempted to lead Witness AA to state that he had mentioned to the investigators that Emmanuel Kayitare had been struck on the nape of the neck, and that the Trial Chamber was satisfied with a confused answer from the witness, namely that he was talking about the “head” rather than the “neck” or the “skull”, was even more unfounded. [99] In fact, the Judge merely asked the witness once more, in a reasonable manner, what he had told the investigators about the part of the body on which Emmanuel Kayitare had been struck, without suggesting an answer to the witness. The fact that AA’s answer in this regard was confused is irrelevant to the allegation of bias. The same applies to the allegation of bias raised in paragraph 528 of the Defence Appeal Brief, since Judge Kama in the instant case had reasonably sought to have clarification, without suggesting any answer whatsoever to the witness; or again in paragraph 529 of the Defence Appeal Brief, since the Judge clearly made a relevant interpretation of Witness AA’s testimony describing the population protecting Cyahafi as “splitting into two groups” to mean “antagonistic groups”. Indeed, it was necessary to come out of the impasse resulting from the fact that the witness was not answering the question from Counsel for the Appellant that was repeated four times, and aimed unsuccessfully at eliciting a clarification. [100] The Appellant’s description of Judge Kama’s attitude during the cross-examination of Witness AA as to the distance between his house and the persons he described as having been killed at Kimisagara [101] cannot stand up to scrutiny in light of the trial record. [102] In this instance, the Judge interrupted Counsel for Appellant’s belaboured intervention intended to clarify the point at issue, with a view to testing the credibility of the witness, by linking the information given by the witness the previous day with that given a few moments before Counsel’s intervention, and from which it is clear that the witness had observed the events from a distance of about 800 metres from his house situated on higher ground in Cyahafi, which gave him a better view of Kimisagara.

62. The Appellant also submits that Judge Kama intervened during the cross-examination of Witness AA, which intervention affected the strategy adopted by Counsel for the Appellant who was trying to point out a contradiction between AA’s testimony and his written statement regarding the number of weapons in his possession at the time of the killing of Emmanuel Kayitare. The Appellant contends that the Judge intervened to ask the witness to state the number of weapons in question, and suggested to him that he had several weapons, including grenades, whereas these had not been mentioned previously by the witness. [103] The trial record [104] shows that Judge Kama intervened in order to re-phrase a question that Witness AA did not seem to understand. It is true that the witness, who had not voluntarily mentioned that the Appellant had grenades hanging from his belt, only did so in response to Judge Kama’s question. There is no provision in the Rules that prohibits Judges from asking questions in order to contribute to discovering the truth or to try to corroborate or contradict the facts in issue. In the instant case, the existence of grenades was specifically referred to in paragraph 14 of the Indictment, and had been mentioned by Witnesses BB, Q and T. A reasonable observer should have been informed of this aspect of the proceedings before the Tribunal.

63. The Appellant also contends that Judge Kama cast aside his role as Judge and donned the cap of the prosecution in order to have Witness AA make a statement about the status and role of the Appellant within the Interahamwe Movement in the course of his cross-examination. He also reproaches the Judge for informing the witness about the statements of other witnesses on this subject. [105] The trial record shows [106] that the witness had already mentioned that he knew the position occupied by Rutaganda in the hierarchy. On this point, Judge Kama merely repeated the witness’s remarks. It is true that Judge Kama sought more than Counsel to determine precisely what the witness knew about the position occupied by Rutaganda. As has already been recalled, the Rules allow Judges to ask questions, and Judges have a wide discretion to contribute to the discovery of the truth, including the power to confront one witness with the testimony of another. In the case at bar, the position of Rutaganda on the ladder of authority was a fundamental aspect of the facts in issue. It seems normal that the Judges should give their full attention to this issue. Once situated in its context, Judge Kama’s question appears legitimate to a reasonable observer.

64.Lastly, the Appellant submits that during the cross-examination of Witness AA, his Counsel was prevented from continuing with her attempt to explore the contradictions between several statements by the witness. [107] The trial record [108] shows that the witness had, on the one hand, testified that Emmanuel Kayitare had tried unsuccessfully to run away, and, on the other hand, that he had been caught at the end of a race of which he indicated the starting and finishing points. The Appeals Chamber notes that the witness actually contradicted himself at this point, whereupon Judge Kama’s intervention may be said to have been excessive. Nevertheless, when it is situated in the right context, his attitude seems to result more from an imprecise recollection of the content of the testimony in question than from a deliberate attitude on the part of the Judge. The Appeals Chamber considers that an erroneous interruption is quite distinct from a biased attitude. [109] The Appeals Chamber notes in the instant case that the interruption, which is rather unfortunate, is not biased. Moreover, the Appellant has failed to show that Judge Kama’s interruption would have led a reasonable observer to have serious doubt about the impartiality of its author.

65. The Appeals Chamber fails to see in what way Judge Kama’s remarks that the scar, which the witness showed the Chamber at the request of Counsel for the Appellant, is situated in the heart area would be such as to show a biased attitude on the part of the Judge. [110] Furthermore, the Appellant does not show that he had been prevented, as he alleged, from pursuing his cross-examination of Witness H on the issue of his wound. Nor is the Appellant’s assertion [111] that Judge Kama interrupted the cross-examination of Witness H on the events that took place at ETO and Nyanza founded. In fact, the trial record establishes that the Judge waited for the witness to finish answering the question from Counsel for the Appellant before trying to clarify, without putting pressure on the witness, the issue as to whether the Interahamwe launched the attacks before or after the departure of UNAMIR soldiers.

66. The allegation that Judge Kama tried to link the Appellant via the Interahamwe Movement to the events at Nyanza, thus buttressing the Prosecution’s argument during the examination of Witness A, does not seem to be founded. [112] Indeed, the trial record [113] shows that Counsel for the Appellant, of her own volition, used the term “Interahamwe”. In this instance, a reasonable observer would not have concluded that Judge Kama’s intervention was unwarranted or biased in favour of the Prosecution.

67. The Appeals Chamber considers as equally unfounded the Appellant’s assertion that Judge Kama bolsters the Prosecution case by having Witness A state that his definition of the war corresponds with the crimes perpetrated by Hutu militia, whereas Counsel for the Appellant was referring to the war between RPF invaders and Rwanda. [114] The trial record shows [115] that the witness, of his own volition, in answering Counsel for the Appellant’s questions, situates the start of the “war” at 6 April 1994. Furthermore, while it is correct to state that Witness A’s definition was given by him in response to Judge Kama’s questions, it does not appear, in any event, that the Judge’s questions would have led a reasonable observer to conclude that his interruption was biased.

68.The Appellant also reproaches Judge Kama for intervening to prevent Counsel for the Appellant from challenging the credibility of Witness A as well as the inconsistency of his testimony. Thus, when Counsel for the Appellant was asking the witness whether UNAMIR soldiers were at the roadblock erected at the ETO school, she was interrupted by Judge Kama who took off on a different tangent, and suggested to the witness that something must have prevented him from leaving the school. [116]

95. For the sake of clarity, the Appeals Chamber has grouped the arguments put forward by the Appellant under this ground as follows: first, that the Presiding Judge apparently manifested his mistrust of the Appellant even before he took the stand as a witness; second, that the Trial Chamber imposed a time limit on the parties that was too strict, and that reminding them incessantly about this created a hostile atmosphere for the Appellant; third, that the Trial Chamber intervened during the examination-in-chief of the Appellant as well as during his cross-examination, thus giving the impression that it was “aligning itself with the Prosecution”; fourth, that the Trial Chamber intervened to cut off the Appellant’s testimony. [165]

96.The Appellant submits [166] that the Presiding Judge showed mistrust towards him even before he began his testimony, by making the following remarks about his duty to tell the truth:

Je ne vous ferais pas les recommandations que d’usage (sic), que vous connaissez bien. Vous avez juré de dire la vérité, essayez autant que faire se peut de dire la vérité, puisque c’est le règlement du Tribunal qui veut qu’un accusé prête serment, ce n’est pas la même chose dans d’autres systèmes. [167] (Emphasis added). (“I am not going to make the usual recommendations that the Tribunal makes because you know them very well.  You have stated that you will speak the truth and we expect that you are going to speak the truth.  It is the requirement of the Tribunal for the witness to make the solemn declaration which you have made and this is our tradition and I do not know what it is in other places.”) (Transcript, 8 April 1999, p. 6)

The Appeals Chamber does not share the Prosecution’s view [168] that the impugned remark is a standard warning given to all witnesses by the Trial Chamber prior to their testimony. Even then, the Appeals Chamber is convinced that this remark would not reasonably lead an informed observer to conclude that the Judge was not impartial. Indeed, the above sentence that follows Judge Kama’s remark clearly shows that the remark is not made out of preconceived suspicion in respect of the Appellant, but because the Judge comes from a legal system where a witness is not required to make a solemn declaration to tell the truth before he is examined. [169]

97. The Appellant submits [170] first that the unacceptable limits imposed by the Trial Chamber on the duration of his testimony not only undermined his ability to make his defence effectively, but also revealed an appearance of bias on the part of the Judges. He points out that his testimony opened on the seventy-eighth day of the trial, whereas only a quarter of the hearing days were allotted to the presentation of the Defence case (fourteen days as against forty-three days for the presentation of the Prosecution case). Even then, the Trial Chamber is alleged to have immediately subjected his testimony to pressing and repeated time constraints, [171] which in the end limited it to a little over three days only [172] instead of the five days requested by the Defence, and created a tense and hostile atmosphere throughout the testimony.

98. In this regard, the Appeals Chamber points out first of all, as does the Prosecution, [173] that the examination of the Appellant took place after additional time was granted him from 19 March to 5 April 1999 for the preparation of his defence, followed by an additional day on 7 April for him to consult with his Counsel. With regard to the examination proper, the Appeals Chamber recalls that the Appellant’s examination-in-chief by his Counsel commenced on 8 April 1999 [174] and continued on 9 [175] , 21 [176] and 22 April 1999. [177] Cross-examination of the Appellant by the Prosecution opened on 22 [178] and closed on 23 April 1999. [179]

99.From a reading of the trial record, [180] there is no denying that the Presiding Judge restricted the Appellant’s testimony all too often to strict and repeated time limits, indicating that he expected Counsel for the parties to be brief and to the point when asking their questions, and that he expected similar stringency in the Appellant’s answers. Nevertheless, the trial record also shows that the Presiding Trial Judge, in his successive remarks concerning the duration and method of examination, actually applied both stringency and flexibility, and the choice of Appellant’s Counsel to conduct the examination as she thought fit was not affected in substance. The Appellant in fact had considerable latitude to say what he had to say.

100.An examination of one of the examples cited by the Appellant, which includes a reminder by the Presiding Judge about the Trial Chamber’s wish regarding the duration of his testimony, and a request to his Counsel to ask questions connected with the Indictment, [181] perfectly illustrates the foregoing. The impugned remark by Judge Kama should first be placed in its context as appears from the trial record, namely, that it was made on the third day of the examination-in-chief of the Appellant by his Counsel. The Appellant’s testimony opened on 8 April 1999 and focused on his family, his father’s important role, [182] relations between the different ethnic groups in Rwanda, [183] the Appellant’s educational background, [184] his professional life, [185] his marriage and details relating to his family life, [186] a description of his company head office and details on the Amgar secteur, [187] political parties in Rwanda, [188] the Appellant’s material situation and his contacts with the entire Rwandan society, [189] his life in associations, [190] the RPF attack in October 1990 and its repercussions on Rwandan society, [191] political life, multiparty politics, the regional implantation of parties, the place of MRND and the Appellant’s membership of this party, [192] the Interahamwe za MRND Movement. [193] The examination of the Appellant by his Counsel about the Interahamwe za MRND Movement continued on 9 April and 21 April, including the period after the intervention mentioned above. [194]

101.The Appeals Chamber recalls first of all that the Trial Chamber only intervened to seek further details in the Appellant’s answers after the Appellant had spoken for long on issues of a general nature, without directly addressing the acts for which he was indicted. In that context, the request by the Presiding Judge of the Trial Chamber aimed at steering the examination closest to the acts for which he was indicted seems to be warranted. The Appeals Chamber also notes that the attitude of Appellant’s Counsel, when the Presiding Judge expressed his opinion that the part of the examination relating to the Interahamwe za MRND Movement was closed and asked her to continue with the rest, reveals that she did not feel bound by that appraisal, given that she continued the examination of the Appellant on the same subject as she had planned, without attracting any hostile reaction from the Trial Chamber. Furthermore, it should be pointed out, as does the Prosecution, [195] that the interruption in no way prevented the Appellant from continuing his testimony for as long as he wanted on general issues before going to the details of his activities on the days referred to in the Indictment.

102. The second passage cited by the Appellant [196] also offers the opportunity to assess the true extent of the reminder by the Presiding Judge of the time allotted for his testimony. [197] The impugned remarks by the Presiding Judge clearly show that the wish expressed by the Trial Chamber concerning the limitation on the duration of the Appellant’s testimony was not inflexible. With regard to the swift reaction by the Presiding Judge to the reminder by Counsel for the Appellant about her client’s right to an effective defence, the Appeals Chamber considers that it is definitely excessive in this instance, but this alone would not lead a reasonable observer to doubt the impartiality of the Presiding Judge. Upon examination, the Appeals Chamber considers that the other arguments raised by the Appellant on this point, when placed within their context, are equally unfounded. [198] The Appeals Chamber is of the opinion that, despite the insistent nature of the calls to order by the Presiding Judge of the Trial Chamber regarding the duration of the Appellant’s examination, the Appellant does not demonstrate that he was actually obstructed from presenting his defence, and he was able to speak as he wished.

103. Second, the Appellant submits that, in addition to the time constraints referred to above, there were repeated interventions by the Presiding Judge intended to shorten the testimony of the Appellant on points considered to be crucial to the Appellant’s defence.

104. With regard to the conditions and formalities fulfilled by the Appellant for acquiring a firearm for his father, who, like him, was a victim of threats, [199] the trial record clearly shows [200] that the Appellant was able to express himself in detail on the various points. The first intervention by Judge Kama, which came after a considerable period of time (to wit, no less than four pages of transcript recording the Appellant’s spontaneous testimony), clearly falls under the ambit of the Presiding Judge’s duty to steer testimony that is getting lost in non-essential detail. The second intervention was aimed at interrupting repetitive questions from the Defence. In that context, the interventions in question cannot be considered as denoting a biased attitude on the part of Judge Kama, or as having thwarted the Defence on a crucial point.

105. With regard to Judge Kama’s intervention aimed at focusing the Appellant’s testimony concerning his schedule on 6 April 1994, the Appellant considers as biased the fact that the Presiding Judge reminds him that he had pledged to summarize his testimony. [201] Once more, it is necessary to put this intervention in context, namely, that the Appellant had just finished testifying at length and in detail about his schedule on 6 [202] , 7 [203] , 8 [204] and 9 [205] April 1994, and that he had just testified, without being interrupted by the Trial Chamber, about 10 April 1994 [206] when the Presiding Judge asked him not to dwell on details and to summarize his remarks. The Appellant’s testimony pertaining to 10 April actually went ahead without incident after this justified interruption by the Presiding Judge, which is proof that it was not perturbed by the said interruption. [207]

106.With regard to the contention that the Appellant had not proved that he did not participate in the meetings at Masango, whereas the Trial Chamber finally concluded that he had, [208] the Appeals Chamber points out that the Appellant’s presentation is biased and cannot stand up to scrutiny. Indeed, the impugned remark by Judge Kama [209] was aimed at obtaining a precise answer from the Appellant to the question put to him by his Counsel to know whether he had heard anything about meetings when he was at Masango. This remark seems warranted in the sense that the Appellant began his answer to this specific question with an evasive statement, namely: “First, normally for any meeting to take place, if it is a communal meeting, it is the communal official who should ask for authorization.” It is then that the Presiding Judge intervened: “The question is, did (sic) talk about meetings at Masango?” to which the Appellant replied: “No”, and the Presiding Judge added “Let’s go more quickly now and lose less time. So is no. Next question.” The Appellant confirmed: “no” and the Presiding Judge added “So is no.” To which the Appellant replied “no” once more. It is only at this point that the Presiding Judge requested Appellant’s Counsel to move on to the next question: “Did you participate in any other meeting at Masango, Mr. Rutaganda?” to which the Appellant replied “Never.” The next exchange between the Appellant and his Counsel remains within the context of Masango, namely, possible participation by the Appellant in the killings of Tutsis at Masango. Under these conditions, it appears clearly that the Presiding Judge’s remarks did not prevent the Appellant from expressing himself as he thought fit and from putting forward his argument on the issue.

107.Concerning the allegation that the Presiding Judge considered the Trial Chamber as having sufficiently understood the material assistance the Appellant gave to Tutsis, and the fact that the assistance in question was given for nothing in return, and that he thus refused to hear the details of the assistance the Appellant gave to a Tutsi named Rutuku, [210] it should be pointed out that this remark was made after the Appellant had previously given a long explanation on the issue. [211] In that context, the Appeals Chamber is of the opinion that Judge Kama’s remark, in which he considered that a sufficient number of examples had been given by the Appellant on this subject, does not seem to exceed his role as Presiding Judge.

108. On all these different points, the Appeals Chamber considers that the way in which the Appellant depicts the attitude of the Trial Chamber does not reflect the general attitude resulting from a complete reading of the relevant parts of the trial record, namely, that the Applicant was completely at liberty to express himself, and that the Trial Chamber intervened only to cut short long digressions in response to questions, or to ask for clarification.

109.The Appellant illustrates this allegation with examples of “cross-examination” by the Trial Chamber which occurred during his examination-in-chief by Counsel for the Appellant as well as during cross-examination by the Prosecution.

(a) Examination-in-chief

110. First, with regard to the structure of the Interahamwe za MRND Movement, the Appellant criticizes the questioning to which he was subjected by Judge Kama and Judge Aspegren. The questioning, comprising 50 questions, is alleged to have taken place after his Counsel had asked him only three questions on this central point in his defence. The Appellant contends that the Judges’ questions denote scepticism on their part in relation to his answers on the following points: there was no budget, therefore there was no function for the treasurer; the fact that the Interahamwe za MRND Movement was incapable of growing into anything more than an embryo in a few years; his description of the nature of meetings held by the Movement; the fact of the Movement evolving into a youth wing without being orchestrated by the five members of the think-tank; questions aimed at having him admit that he had functions that empowered him to chair meetings in the absence of the president; that there must have been written documents defining the powers of each person; that the Movement was, de facto, able to act outside the party, and was engaged in Kuhahooza-type actions, which involved violence and/or threats aimed at forcing new members to join the Movement. [212]

111. In this instance, the Appeals Chamber notes that the Appellant’s testimony about the Interahamwe za MRND Movement took up nearly thirty pages of the trial record, before the start of the series of questions and answers objected to by the Appellant. The Appeals Chamber recalls that it is up to the Judges to ask any questions that they deem necessary for the clarification of testimonies and for the discovery of the truth. A reading of the relevant section of the trial record would not warrant an assertion, as that made by the Appellant, that the Trial Chamber exceeded its role. Many as the questions put by Judge Kama and Judge Aspegren may be, they do not denote bias or any special scepticism, but are rather aimed at eliciting clarifications following the Appellant’s lengthy testimony on the subject. The same applies to the alleged expression of scepticism by the Presiding Judge about the Appellant’s participation in the activities of the Movement, [213] and to the questions that followed. Concerning the repetition of certain questions by Judge Aspegren, the Appeals Chamber is of the opinion that this would have been necessitated by the often evasive or irrelevant answers given by the Appellant. Lastly, the Appeals Chamber notes that Counsel for the Appellant herself admitted the legitimate nature of the said questions that she had intended to address. [214]

112.Second, with regard to Judge Kama’s reaction to the question as to whether the Appellant was “okay”, [215] which question was put to him by his Counsel after the series of questions referred to above, and interpreted by the Trial Chamber as a criticism on the part of Counsel, the Appeals Chamber considers that this reflects the irritation of the Presiding Trial Judge caused by the Defence question, but does not denote bias against the Appellant. Moreover, it finally proved to be without consequence.

113. Third, with regard to the Presiding Judge’s remark to the Appellant, in which he allegedly mentioned the premises occupied by MRND in Kigali as one of the meeting places of the National Committee of the Interahamwe za MRND Movement, since he had just admitted that this was the case, the Appeals Chamber is of the opinion that this remark was not particularly judicious, but that it does not illustrate, contrary to the Appellant’s assertions, a biased attitude on the part of Judge Kama.

114.Fourth, with regard to the Appellant’s assertion that Judge Kama did his best to buttress the Prosecution’s argument by having him admit that he had chosen to join MNRD because this was the ruling party, the Appeals Chamber considers that this contention is unfounded. Indeed, inasmuch as the long passage cited by the Appellant [216] follows the assertion by the Appellant himself that he was not ready to be a militant in the opposition, and that he joined the National Committee of the Interahamwe za MRND Movement in order to find protection against diverse pressures, the conclusion reached by Judge Kama as to the Appellant’s motives seems logical and unbiased. In any event, the Appeals Chamber notes that the long exchange in question and the insistence by the Judge in this instance were favourable to the Appellant, and permitted him to qualify and clarify his testimony on the proposal of his Counsel, as shown by the part of the trial record not cited by the Appellant. [217]

115.Fifth, with regard to the request by the Presiding Judge aimed at obtaining from the Appellant an indication of the ethnic group to which the persons arrested in 1990 for their alleged complicity with RPF belonged, the Appeals Chamber considers the question relevant in the context of the trial. With regard to Judge Kama’s comment, namely, “That’s the answer I was seeking”, which follows the Appellant’s answer that there were both Tutsis and Hutus among those arrested, but that, according to him, the majority were Tutsis, the Appeals Chamber considers that, although the expression used is unfortunate in that it could lead to confusion, a reasonable observer who had followed the hearings and especially the Judge’s efforts to obtain clear and concise answers would conclude that, in the instant case, this was the manner in which the Presiding Judge expressed his satisfaction in obtaining a precise answer to his question.

116. With regard to all the remarks of this nature, the Appellant has failed to demonstrate that there is an ulterior motive or bias in favour of the Prosecution’s argument on the part of Judge Kama when he questions the Appellant on his material situation, and the Appeals Chamber notes that these are not borne out by the remarks in question. [218]

117.First, with regard to the examination of the Appellant on the issue as to whether the Interahamwe za MRND Movement was prepared to use force to protect MRND militants, it is clear from a reading of the relevant passage of the trial record that Judge Kama did no more than re-phrase the Prosecution’s question, thus eliciting a more precise answer from the Appellant on the situation on the ground. The Appellant also criticizes the Judge’s remarks, namely, “that is what we wanted to hear”, commenting on the Appellant’s answer which confirmed that members were able to react locally when they were attacked. On this point, the Appeals Chamber notes, as does the Prosecution, that it is typical of Judge Kama to make this type of remark which translates his satisfaction upon obtaining a precise answer to any question, whether from the Appellant or from any other witness, and considers that the interruption would not lead a reasonable observer who had followed the hearings to conclude that the Judge was biased.

118.Second, with regard to the examination of the Appellant on the subject of the letter in which the Interahamwe za MRND Movement denounced the partiality of UNAMIR, the Appellant reproaches Judge Kama and Judge Aspegren for asking a series of questions showing, according to him, their bias in favour of the Prosecution’s argument. After considering the relevant passages of the trial record, the Appeals Chamber considers that the questions fall entirely within the ambit of the Judge’s duty to contribute to the discovery of the truth, which implies, especially at the cross-examination phase, the possibility of testing witness credibility. The Appeals Chamber notes in passing that the said questions in no way unsettled the Appellant, as can be seen from his answers.

119. Third, with regard to the Prosecution’s examination of the Appellant on MNRD, which the Prosecution presented as the Party of the President (Habyarimana), the Appeals Chamber points out that when placed in context, [220] Judge Kama’s questions are once more aimed at obtaining greater clarification from the Appellant, who, at this point, gave the impression of playing with words. Concerning, in particular, the remark contested by the Appellant, the Appeals Chamber notes that in the French version, it is ascribed to the Prosecution and not to Judge Kama:

“Me Stewart: Je pense que la question était claire, et Monsieur Rutaganda ne veut pas reconnaître que c'était son parti, il n'y a pas de problème. C'est pas là (sic) où je veux aller.”

[“Mr. Stewart: I think that the question was clear and Mr. Rutaganda does not want to take cognisance of his party. Mr. President: No problem. That is not where I am heading.” (T, 22 April 1999, p. 113)]

120. Fourth, with regard to the examination of the Appellant on whether or not the Interahamwe had a uniform, part of the trial record cited [221] shows clearly that the persistent questions put by Judge Aspegren are aimed at obtaining a comment from the Appellant, not on his own assessment as to whether the Interahamwe had a uniform, taking into account the inside knowledge he has of the Movement, but on the impression created on each and everyone by the photographs presented as exhibits by the Prosecution in which members could be seen wearing similar uniforms. In the context of the trial, namely, the evidence of prosecution witnesses that made reference to the existence of uniforms, the Appeals Chamber considers that the question does not seem to be unwarranted, especially after the Appellant has had the time to testify in detail on this issue.

121. Fifth, with regard to the closing questions put by the Presiding Judge to the Appellant, the Appellant does not demonstrate that they had no other purpose than to “lay a trap” for him to incriminate himself. With respect to an accusation of this nature, the Appeals Chamber cannot content itself with hasty allegations not supported by the passage cited by the Appellant. [222]

122. According to the Appellant, these interventions by the Trial Chamber were made during his examination-in-chief and cross-examination. The contention by the Appellant that, in this way, he was treated in a discriminatory manner does not stand up to scrutiny in light of the examples presented to the Appeals Chamber. [223]

123. First, the Appellant reproaches Judge Kama for his intervention asking him not to embark on interpretations about the origin of the “réseau Zéro” (the “Zero Network”). Although it is irrefutable that in the course of the trial certain questions put to other witnesses and to the Appellant himself may have led them to speculate or to hypothesize, the same is not true in this instance, given that the Appellant had just answered the Prosecution’s question concerning his knowledge of the network, which he had read about in the newspapers. The Judge’s intervention in this case seems justified and reveals no discriminatory character.

124. Second, the Appellant contests Judge Kama’s intervention during his cross-examination on the issue of RTLM Radio. On the one hand, the Presiding Judge allegedly had doubts about the origin of the Appellant’s knowledge that RPF gave an interview on this radio station, whereas the Trial Chamber did not subject Prosecution witnesses to this kind of credibility test. [224] The Appeals Chamber considers, upon reading the questions put by the Presiding Judge, that the questions were simply aimed at clarifying whether the Appellant had heard the interview in question, or whether it had been reported to him. The question was all the more warranted because the beginning of the Appellant’s answer on the subject denoted uncertainty on his part. Furthermore, the Trial Chamber in no way prevented the Appellant from answering. On the other hand, the Appellant contends that the Presiding Judge interrupted him during his cross-examination by the Prosecution on the issue of Félicien Kabuga’s holdings in the RTLM Project. [225] Upon scrutiny, Judge Kama’s intervention seems to indicate his impatience vis-à-vis the cautious approach taken by the Appellant who had previously given details during the examination-in-chief on the subject in question. Obviously, the Judge’s intervention does not seem to be judicious in the circumstances, given that the Appellant was apparently preparing to state that he had no personal knowledge of the point at issue and that the Judge had just enjoined him a few moments before not to go into conjectures. Much as such signs of impatience are regrettable, to which should be added another sign shown by Judge Kama during the Appellant’s testimony on the impact of the war on MRND, [226] they do not denote hostility towards the Appellant, but rather irritation due to the length of the trial and the difficulty in bringing it to an end within a reasonable time. These signs cannot as such establish a biased or discriminatory attitude on the part of the Presiding Trial Judge.

125. In view of the foregoing, the Appeals Chamber considers that the arguments put forward by the Appellant in support of his submission of biased and discriminatory treatment of his testimony by the Trial Chamber are unfounded. Concerning especially the allegations about the attitude of the Presiding Trial Judge, these should be interpreted within the context of the national legal system to which he belongs. Even if, after these reserves, some attitudes may be considered as regrettable, the Appellant has not established that they would lead a reasonable and informed observer to doubt the impartiality of the Presiding Judge of the Trial Chamber. This ground of appeal is accordingly dismissed.