V. SPECIFIC ERRORS OF LAW AND FACT

A. Errors relating to the alibi

238.The Appellant raises a number of issues on the treatment of the alibi by the Trial Chamber, and submits that the Chamber erred in fact and in law. [382] The Appellant contends that the ultimate erroneous finding of the Trial Chamber that the alibi was concocted and an afterthought undermines not only his credibility and the convictions for the offences for which the alibi was presented, but also the integrity of the entire trial. [383] According to the Appellant, only a new trial can correct the prejudice he has suffered. [384] Many of these issues are thus also relevant to the grounds of appeal regarding the Trial Chamber’s findings on the distribution of weapons, the killings at Amgar garage, the massacres at the ETO and Nyanza, and the killing of Emmanuel Kayitare. Given the overlapping of the Appellant’s arguments and the need for clarity, the present section will be mainly devoted to determining whether the Trial Chamber erred in dismissing the Appellant’s alibi. If it is determined that there was an error on the part of the Trial Chamber, the Appeals Chamber will then consider the argument that this error generally undermined the Trial Chamber’s findings in the other relevant sections of the Judgement. Furthermore, the Appeals Chamber points out that it did not deem it necessary to address seriatim, on a case-by-case basis, all the issues raised by the Appellant regarding the alibi for the reasons advanced under paragraph 257 below.

239.The Appeals Chamber will now turn to one of the main arguments raised by the Appellant, namely, the finding by the Trial Chamber that no notice of an alibi had been given before or during trial. [385] The Appellant contends that the Trial Chamber erred in fact by ruling that “no record of a notice was filed at anytime, and that there is no record of such a notice in the judicial archives or within the judicial record.” [386] According to the Appellant, a notice of alibi had been given to the Prosecution, and specific reference had been made by Counsel for the Appellant of her intention to present an alibi for the charges relating to the massacres at the ETO and Nyanza. Moreover, the Appellant contends that, since Rule 67 of the Rules requires that the Defence notify only the Prosecution of its intent to enter a defence of alibi, the Trial Chamber erred in finding that there was no notice of alibi within the judicial record. [387] He makes specific reference to paragraphs 139, 297 and 298 of the Trial Judgement, which read as follows:

139. In her closing argument, Defence Counsel stated that a notice of alibi [had been filed]. The Chamber notes that no record of a notice of alibi was filed at any time, and that there is no record of such a notice in the judicial archives or within the judicial record. Notwithstanding this, the Trial Chamber finds it appropriate and necessary to examine the defence of alibi, pursuant to Rule 67 B) of the Rules which states that ‘Failure of the defence to provide such notice under this Rule shall not limit the right of the Accused to rely on the above defences.’ (Emphasis added)

297. The Chamber has considered the testimony of the Accused and Witness DDD, jointly, as their testimony is consistent and puts forward a defence of alibi, claiming that the Accused was en route to Masango on 11 April and was not present at the ETO, at Nyanza, or at any of the locations on the way to the ETO from Nyanza where Witness A, Witness H, Witness DD and Witness W testified that they saw him on that day. The Chamber notes that the alibi defence was not introduced until near the end of the trial, after the Prosecution rested its case. Neither the Accused nor Witness DDD mentioned the alibi at the time of the arrest of the Accused or during any of the pre-trial proceedings. (Emphasis added)

298. The Chamber particularly notes that Defence counsel did not mention the alibi of the Accused in her opening statement or in her cross-examination of any of the Prosecution witnesses who testified over a period of 18 months. Consequently, Witness A, Witness H, Witness DD and Witness W were never confronted with and given an opportunity to respond to the assertion that the Accused was not present on 11 April at the ETO or at Nyanza and that their testimony must therefore be false. The Chamber has found these Prosecution witnesses to be credible, and finds the extremely delayed revelation of an alibi defence to be suspect. The inference to be drawn is that this defence was an afterthought and that the account of dates was tailored by the Accused and Defence Witness DDD, following the conclusion of the Prosecution’s case. The only witness to support the alibi of the Accused is Witness DDD, and the Chamber is mindful that she has a personal interest in his protection. For these reasons, the Chamber does not accept the testimony of the Accused and Witness DDD that they were on the way to Masango on 11 April. (Emphasis added)

240.The procedure to be followed where an accused intends to enter an alibi in his defence is covered by Rule 67(A)(ii) and (B) of the Rules which provide inter alia that:

Subject to the provisions of Rules 53 and 69:
(A) As early as reasonably practicable and in any event prior to the commencement of the trial:
[...]

(ii) The defence shall notify the Prosecutor of its intent to enter:

(a) The defence of alibi; in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi;
[...]

(B) Failure of the defence to provide such notice under this Rule shall not limit the right of the accused to rely on the above defences.

241.Rule 67(A)(ii) relates to the reciprocal disclosure of evidence at the pre-trial stage of the case and places upon the Defence the obligation to notify the Prosecution of its intent to enter a defence of alibi and to specify the evidence upon which it intends to rely to establish the alibi. [388] This allows the Prosecution to organise its evidence and to prepare its case prior to the commencement of the trial on the merits. As the Appeals Chamber explained in Kayishema and Ruzindana:

[...] the purpose of entering a defence of alibi or establishing it at the stage of reciprocal disclosure of evidence is only to enable the Prosecutor to consolidate evidence of the accused’s criminal responsibility with respect to the crimes charged. Thus during the trial, it is up to the accused to adopt a defence strategy enabling him to raise a doubt in the minds of the Judges as to his responsibility for the said crimes, and this, by adducing evidence to justify or prove the alibi. [389]

242.Rule 67(A)(ii) does not require the Defence to produce the probative evidence to be used to establish the accused’s whereabouts at the time of the commission of the offence. The extent and nature of the evidence that the Defence uses to cast doubt on the prosecution case is a matter of strategy which is for the Defence to decide. [390] The Appeals Chamber recalls that the strategy adopted by the person who raises an alibi may have an impact on a Trial Judge in reaching his or her conclusion. [391] Nevertheless, the requirements of Rule 67(A)(ii) are satisfied when the Defence has notified the Prosecution of the required particulars of the alibi, without necessarily producing the evidence.

243.To ensure a good administration of justice and efficient judicial proceedings, any notice of alibi should be tendered in a timely manner, ideally before the commencement of the trial. However, were the Defence to fail in this regard, Rule 67(B) provides that the Defence may still rely on evidence in support of an alibi at trial. Consequently, the obligations laid down by Rule 67 (A)(ii) must be read in conjunction with the caveat provided for by Rule 67(B). [392]

244.There is no requirement under Rule 67(A)(ii) for the Defence to notify the Chamber, in addition to the Prosecutor, of its intent to enter an alibi. A fortiori, the Defence is not required to provide the Chamber with details of the alibi witnesses and of the locations at which the accused is said to have been at the time the alleged crimes were committed. Prior to the commencement of the trial, the Defence is obliged to disclose alibi evidence only to the Prosecution and not to the Trial Chamber.

245. Considering the foregoing, unless one of the parties chooses to make the notice available to the Chamber or to file it with the Registry, there will be no written record of the notice within the case file at the pre-trial stage of the proceedings. It is only prior to the commencement of the Defence case that the Rules, specifically Rule 73ter (Pre-Defence Conference), require the Defence to provide details of its evidence to the Chamber. [393]

246.It is at this stage of the proceedings that the Trial Chamber will receive information relevant to the alibi. Although the Rules do not specify that a notice of alibi be provided, the materials filed in conformity with Rule 73ter should enable the Trial Chamber to avail itself of the Defence’s intention to enter an alibi. Furthermore, read together, the list of witnesses, the summary of their testimonies and the points in the indictment as to which they will testify, should provide the Chamber with particulars sufficient to determine the extent of the alibi.

247.The Appeals Chamber has reviewed the materials presented by the Appellant in support of his submission that a notice of alibi had been provided. Clearly, the existence of the notice of alibi was at issue during the Trial proceedings. The “Avis en vertu de l’article 67 a) (ii) du règlement de preuve et procédure – Défense d’alibi” [Notice pursuant to Rule 67(A)(ii) of the Rules of Procedure and Evidence – Defence of Alibi (the “Notice”)], said to have been filed by the then Co-Counsel for the Appellant on 15 February 1997, was produced by the Appellant for the purposes of this appeal. This would seem to suggest that the Appellant met the requirements of Rule 67(A)(ii) of the Rules. [394] In this document, the Appellant notified the Prosecutor of his intent to enter an alibi in relation to the crimes charged in paragraphs 10 and 16 of the Indictment, specifically with regard to the dates of 6 and 12 April 1994. Particulars of five witnesses the Appellant wanted to call, of whom three were said to be in the Tingi-Tingi refugee camp in Zaïre (now Democratic Republic of Congo), and details of the location of the Appellant for those two days, were provided.

248.The trial record shows that the Prosecution was unsure whether it had received the Notice. However, in a written declaration, dated 12 April 2000, a then member of the Prosecution, Mr. Pierre Richard Prosper, stated that he had been made aware in late February or early March 1997 of Counsel for the Appellant’s intention to enter a defence of alibi on behalf of the Appellant. The written declaration shows that the Notice provided sufficient details to cause the Prosecution to review relevant evidence and to disclose further materials to the Appellant, at least as pertained to 6 April 1994.

249. The question of an alibi was also raised during the Rule 73ter Pre-Defence Conference of 16 September 1998 held after the close of the Prosecution case. At this conference, Counsel for the Appellant filed her list of witnesses, with pseudonyms and a summary of their intended testimony. [395] The Prosecution asked whether three particular witnesses were to testify to an alibi, as the list indicated that the three witnesses, namely, DT, DU and DDD, were expected to testify about the activities of the Appellant on 11 and 12 April 1994. [396]

250. In response, Counsel for the Appellant noted that she had already provided a written answer to the query, and recalled that, in conformity with the Rules, she had communicated a notice of alibi to the Prosecution in February or March 1997. [397] Thereafter, the Prosecution indicated that it would try to find the notice, but took the matter no further. [398]

251.Moreover, the Appeals Chamber notes that the Appellant also referred on a number of occasions to alibi witnesses he intended to call during the proceedings. Thus on 4 March 1997, during the hearing of the Defence’s Extremely Urgent Request for a Teleconference Deposition, [399] Counsel for the Appellant stated that she had identified three witnesses “specifically because they were alibi witnesses”. [400] In her opening arguments on 18 March 1997, Counsel for the Appellant suggested that it might be impossible, in view of the prevailing situation in then Zaïre and despite her best efforts and those of the Tribunal, to call, amongst others, three alibi witnesses. [401] Likewise, on both 13 June 1997 and during closing arguments, the Appellant indicated that a notice of alibi had been given for 6 April 1994. [402]

252. Moreover, on 6 March 1997, the Trial Chamber itself referred to the alibi in granting the above-cited Defence’s Urgent Request:

WHEREAS the Defence submitted that the delay in examining its request constitutes, in its mind, a violation of the rights of the accused to a fair trial particularly rights allowing him to call defence and alibi witnesses. [403]

253.Lastly, the Trial Chamber also acknowledged that time was needed to find alibi witnesses, which factor necessitated adjourning proceedings. [404] The Trial Chamber similarly granted a Prosecution adjournment request to prepare the cross-examination of a potential alibi witness. [405]

254.For the foregoing reasons, it can therefore be concluded that prior to the commencement of the trial, the Appellant had in fact given a Notice of alibi to the Prosecution for the 6 and 12 April 1994. The Trial Chamber therefore erred in finding that there was no notice of alibi for this period. This error, however, did not occasion a miscarriage of justice, as it did not prevent the Appellant from relying on the alibi at trial.

255.However, as regards the alibi for 11 April 1994, the Appeals Chamber finds that the Trial Chamber did not err in finding that no notice was given to the Prosecution. Although in the Appellant’s opening arguments he made known his intention to call witnesses in support of his alibi of 11 April 1994, the Appeals Chamber holds that, placed in context, it cannot be said that such an act constitutes a clear notice of alibi. [406] The Trial Chamber did not therefore err in finding in paragraph 298 of the Judgement that Counsel for the Appellant had not mentioned the alibi in her opening arguments. [407] In the Notice of alibi dated 15 February 1997, the Appellant identifies three potential alibi witnesses, whose testimonies relate to the whereabouts of the Appellant on 12 April 1994. Neither Witness DDD nor the date of 11 April 1994 is mentioned, although this did not prevent the Appellant from relying on her evidence relating to this date. The Trial Chamber duly considered the evidence and rejected it. [408]

256. Although Rule 67 does not require that the Chamber be notified of the defence of alibi, the Appeals Chamber does not find that it was unreasonable for the Trial Chamber to have concluded, as pertains to 11 April, that there was no record of the alibi. Moreover, given that the alibi was not disclosed to prosecution witnesses, it was not unreasonable for the Trial Chamber to note that the alibi was not introduced at any stage during the pre-trial proceedings but kept until the end of the trial. [409]

257.The Appellant puts forward a certain number of other arguments in support of his main allegation that the Trial Chamber erred in rejecting his alibi and in finding that it was concocted. [410] He contends that in disbelieving the evidence relating to 11 April, the Trial Chamber was influenced by its view that no alibi notice had been served on the Prosecution. [411] Furthermore, he alleges that the Trial Chamber committed an error of law by holding against him the fact that, at the time of his arrest, neither the Appellant nor Witness DDD mentioned an alibi for 11 and 12 April 1994. [412] Lastly, the Trial Chamber allegedly committed an error of law in doubting the Appellant’s credibility because of the tactical decisions or omissions of Counsel for the Appellant. [413] The Appeals Chamber holds that it is not necessary to address these other allegations seriatim. Indeed, the findings by the Trial Chamber recalled supra did not prevent the Appellant from raising the alibi and presenting evidence in support thereof during the proceedings. Paragraph 139 of the Trial Judgement clearly expresses the position adopted by the Trial Chamber:

139. In her closing argument, Defence Counsel stated that a notice of alibi [had been filed]. The Chamber notes that no record of a notice of alibi was filed at any time, and that there is no record of such a notice in the judicial archives or within the judicial record. Notwithstanding this, the Trial Chamber finds it appropriate and necessary to examine the defence of alibi, pursuant to Rule 67(B) of the Rules which states that:

“Failure of the defence to provide such notice under this Rule shall not limit the right of the Accused to rely on the above defences.” (Emphasis added)

258. The Trial Chamber then summarised the alibi evidence in Section 3.2 of the Judgement. [414] Lastly, in paragraph 174 of the Judgement, the Chamber indicates that it “considers the defence of alibi, after having reviewed the Prosecutor’s case in the factual findings on the relevant paragraphs of the Indictment.”

259.The Judgement shows clearly that the Trial Chamber duly considered the entire alibi evidence relied on by the Appellant, notwithstanding the findings in paragraphs 139, 297 and 298 of the Judgement. The Judgement also shows clearly that the finding that the Accused was present and participated in the events of 11 April 1994 was amply sustained by the evidence. Several eye-witnesses saw the Appellant participating on the relevant occasions in the activities in question. The Trial Chamber found the witnesses to be credible and to have presented consistent evidence. Unless the Appellant establishes in his ground of appeal relating to the killings at the ETO and at Nyanza that the Trial Chamber erred in its assessment of the witnesses’ testimony and credibility, the Appeals Chamber must find their testimony reliable. In any event, the Appeals Chamber considers that, with regard to this ground of appeal, the Trial Chamber never acted unreasonably by not attaching probative value to the evidence called by the Appellant to show that, at the relevant times on 11 April 1994, he was not at the scene of the crimes charged. Even supposing that the errors of law and fact relied on by the Appellant as summarized in paragraph 257 were founded, they would not be such as to invalidate the findings of the Trial Chamber or to occasion a miscarriage of justice. Indeed, the Appeals Chamber is of the opinion that the assessment of alibi evidence by the Trial Chamber was clearly of paramount importance. The assessment was not tainted by error and the evidence presented formed a good basis for the Trial Chamber’s decision.

260.Lastly, the Appeals Chamber notes that, although the Appellant contends that because the Trial Chamber found “Mr Rutaganda was a liar”, all of the convictions are tainted, [415] the Appellant does not adduce further specific arguments or examples in support of this general contention.

261.Placed in context, it is clear that the findings of the Trial Chamber that the alibi was concocted and an afterthought related specifically to the alibi for 11 April 1994, in respect of which there was no notice of alibi. The Appeals Chamber reiterates its finding that the Trial Chamber never erred by not admitting the Appellant’s alibi for that date. Furthermore, there are no grounds for believing that these findings had any effect on the Trial Chamber’s considerations of defence evidence elsewhere in the Judgement. For the above reasons, the Chamber dismisses the ground of appeal relating to the general treatment of the alibi.

B.  Errors relating to the admissibility of the Tingi-Tingi witness statements

262.The Appellant contends that the Trial Chamber erred in law in its Decision on the Defence’s Motion for Leave to have 14 Written Witness Statements Admitted as Evidence (the “Decision Refusing Admission of Statements”), [416] wherein the Chamber refused to admit statements from witnesses in the Tingi-Tingi refugee camp in Zaïre (the “Statements” and the “Tingi-Tingi camp” respectively). He also submits that the Trial Chamber applied the wrong test for the admission of hearsay evidence by requiring the Defence to establish reliability and authenticity of the statements. He further argues that the Trial Chamber also erred by preventing the Defence from establishing a foundation for the reliability of statements through the testimony of witness DD. Lastly, the Appellant submits that the Trial Chamber failed to apply the rules of admissibility of evidence according to the fairness and justice of the circumstances of the case. [417]

263. The Appellant questions the decision not to admit 14 witness statements that he sought to have admitted into evidence during the trial. In his submissions before the Trial Chamber, the Appellant explained that the 14 statements had been made by potential defence witnesses, all of whom had disappeared on 2 March 1997, following an attack on the Tingi-Tingi camp. Counsel for the Appellant indicated to the Trial Chamber that, despite the investigations, surviving witnesses could not practicably be found, and that, to her knowledge, two witnesses were dead. She sought therefore to have the statements admitted as indirect hearsay evidence. She concluded that her request for the admission of the statements depended on the need to repair the prejudice suffered due to the loss of the witnesses. [418]

264. The first argument of the Appellant before the Appeals Chamber is that the Trial Chamber erred by requiring him at trial to establish the reliability of the statements. According to the Appellant, Rule 89 of the Rules only requires that sufficient indicia of reliability be present so as to determine admissibility. [419] In response to this argument, the Prosecution submits that the Trial Chamber proceeded correctly in evaluating the admissibility of the statements and that, in the circumstances of the case, the Chamber had the discretion not to admit them. [420]

265.Although the Rules of both the ICTR and the ICTY reflect a preference for direct, live and in-court testimony, Rule 89(C) of the Rules allows a Chamber “to admit any relevant evidence which it deems to have probative value.” [421] As has previously been noted, this provision grants a Trial Chamber a broad discretion in assessing admissibility of evidence and, in particular, to admit relevant out-of-court statements which a Trial Chamber considers probative. [422]

266.It is well established case-law that the reliability of a statement is relevant to its admissibility, and that where a piece of evidence is lacking in terms of indicia of reliability it may be deemed inadmissible. [423] As the Appeals Chamber has previously indicated, the threshold to be met before ruling that evidence is inadmissible is high. It must be shown that the evidence is so lacking in terms of the indicia of reliability as to be devoid of any probative value. [424] In the opinion of the Appeals Chamber, this should not be interpreted to mean that definite proof of reliability is necessary for the evidence to be admitted. According to the Appeals Chamber, provisional proof of reliability on the basis of sufficient indicia is enough at the admissibility stage. [425]

267.Contrary to the allegations of the Appellant, the Trial Chamber did not apply an improper standard for admissibility of hearsay evidence. Indeed, the Trial Chamber was quite forthright in paragraph 17 of the Decision refusing leave to admit witness statements when it affirmed: “In the opinion of the Tribunal, the Defence has provided little or no information which provides indicia as to reliability, voluntariness, truthfulness and trustworthiness of the statements. The limited information which has been presented by Defence Counsel is insufficient to establish the reliability and authenticity of the written statement.” [426]

268.Furthermore, a review of the record reveals that the Trial Chamber inquired as to how the statements were obtained and considered fully the little information provided by the Appellant’s Counsel, who informed the Chamber that the statements, some hand written, others typed, had been taken in 1996 by the then Lead Counsel, although the precise circumstances under which they were taken were unclear. [427] Counsel for the Appellant was unable to provide any further details and explained that she was not present in 1996 at the time the statements were taken. [428]

269. In view of the foregoing, it is apparent that the information made available to the Trial Chamber as to the circumstances in which the statements were taken was very limited. In the opinion of the Appeals Chamber, the Trial Chamber did not err in deciding that the information did not present sufficient indicia of reliability. Few details, if any, were available to the Trial Chamber in relation to the circumstances in which the statements were taken, the identity of the interviewers, the nature of the questioning, and whether the witnesses had spoken under oath or solemn declaration. [429] Without further details, the Trial Chamber had the inherent discretion not to admit the statements. Considering that the Trial Chamber did not commit the alleged error of law in its decision refusing to admit the statements, the Appeals Chamber dismisses the Appellant’s allegations that the Trial Chamber committed an error of law that had the potential to invalidate the Judgement.

270. In relation to the second argument, the Appellant contends that the Trial Chamber also erred by cutting off the inquiries of his Counsel about the authenticity of the statements during the testimony of Witness DD. The Appellant contends that the Presiding Judge prevented Counsel from pursuing the examination despite the fact that she had stated that she had five more questions in relation to the statement. The Appellant submits that he thereby prevented the Defence from establishing a foundation for the reliability of the statements. The Appellant submits that the Decision refusing to admit the statements was unfair, given that it was the Trial Chamber that prevented him from meeting the requirement of reliability. [430]

271.The trial record shows that the Presiding Judge indeed allowed Counsel for the Appellant to pursue her line of inquiry regarding the reliability of the statements. [431] On being interrupted by the Presiding Judge on the issue of the relevance of the questions, Counsel for the Appellant explained that she was establishing a foundation for potential hearsay evidence, namely, witness statements, to be introduced at a later date. Counsel for the Appellant was permitted to continue with her questions until the Presiding Judge enquired about the number of questions remaining. Counsel indicated that she had possibly five more questions, but confirmed that she had finished with the subject. Further questioning concerned matters linked to the witness’s return to Rwanda. [432] Thus, although the Presiding Judge sought to accelerate the examination of Witness DD, the Appellant was not prevented from fully pursuing his line of inquiry in relation to the Tingi-Tingi camp witness statements.

272.Consequently, the Appeals Chamber considers as baseless the Appellant’s argument that the Presiding Judge prevented him from establishing a foundation for the statements. Since the allegation of error of law cannot stand, the second argument is accordingly dismissed.

273.As a third argument, the Appellant submits that the Trial Chamber failed to apply the rules of admissibility required by the fairness and justice of the given circumstances, thus committing an error of law. [433] The Appellant argues that the statements were crucial defence evidence and that the necessity for presenting them in hearsay form was partly caused by the delay in hearing the Defence’s “Extremely Urgent Request for a Teleconference Deposition.” [434] The Appellant also suggests that much less exacting standards for the admission of hearsay were imposed on the Prosecution than on the Appellant. In its response, the Prosecution argues that the Appellant has failed to identify any relevant or material procedural inequality and that the issue of the teleconference motion is immaterial to the admissibility of the statements. [435]

274.Although the Appellant’s filings are not clear, the Appeals Chamber is of the opinion that they raise two distinct questions here. The first is whether, given the exceptional nature of the Tingi-Tingi statements, the Trial Chamber acted with due fairness and in the interests of justice by not admitting them. The second question is whether, during the trial, the Trial Chamber was more lenient with the Prosecutor when determining the admissibility of hearsay evidence.

275.Regarding the first question, the Appellant contends that, following the loss of the witnesses, the Trial Chamber should have been more receptive to the hearsay evidence, given that the admission of the statements would be the only way their evidence could be brought to light. As aforesaid, Rule 89(C) grants a Trial Chamber a wide discretion to admit relevant evidence that it deems to have probative value. Thus, in considering whether to admit potential evidence, in particular evidence which could in any way be exculpatory or mitigating, a Trial Chamber should remain alive to the given circumstances and realities of the case in the exercise of its discretion. [436]

276. The Appeals Chamber notes that the ICTY Appeals Chamber in Kordić considered that Rule 89(C) of the Rules of that Tribunal must also be interpreted so that safeguards are provided to ensure that the Trial Chamber can be satisfied that the evidence is reliable. [437] The Appeals Chamber concurs with that interpretation and is consequently of the opinion that the discretion granted the Trial Chamber under Rule 89(C) should be counterbalanced with the caution required in admitting hearsay evidence.

277. It seems that the Appellant attributes much of the responsibility for the loss of the witnesses to the delay by the Tribunal in hearing the Defence’s Extremely Urgent Request for a Teleconference Deposition (Rule 71 of the ICTR Rules of Procedure and Evidence), filed on 17 February 1997. [438] The Appeals Chamber notes that the Appellant raised similar arguments before the Chamber during the hearing of his motion for the admission of the statements. Specifically, the Appellant submitted that he was seeking admission of the statements as reparation for the “irreparable prejudice” caused by the loss of the witnesses. [439] During the hearing, the Trial Chamber was made aware of all the steps taken by the Appellant and the difficulties he encountered following the taking of the statements and in tracing the witnesses. Moreover, the Appellant gave reasons for filing his motion mid-way through the Defence case.

278.In the opinion of the Appeals Chamber, the Appellant has not shown that, by not admitting the statements, the Trial Chamber failed to take into consideration these exceptional circumstances or that the Chamber did not accord the appropriate leniency. Moreover, as the Appeals Chamber noted above, the statements were found to possess little or no indicia of reliability, and, hence, at the admissibility stage, were devoid of probative value. Consequently, despite the exceptional circumstances, the Trial Chamber did not err in rejecting the Defence’s request to admit the Tingi-Tingi camp witness statements.

279.Concerning the second question, the Appellant contends that the Trial Chamber erred in imposing more rigid requirements for the admissibility of hearsay evidence on the Appellant than on the Prosecution. In particular, the Appellant states that at no time did the Trial Chamber exact the same standard for the admissibility of hearsay evidence on the Prosecution as it did in respect of the Tingi-Tingi camp witness statements. [440] The Appeals Chamber notes that this argument is general and unsupported by specific examples. That being the case, the argument cannot stand. Given also that it has not been shown that the Trial Chamber erred by imposing an erroneous standard for the admissibility of the statements, the Appeals Chamber finds that this argument, as a whole, should be dismissed accordingly.

280. The Appellant submits that the Trial Chamber erred in law by allowing the Prosecution to use three non-disclosed documents during his cross-examination. The documents at issue are pictures taken from a book in the ICTR library, an Agence France Press (AFP) newspaper clipping, and the Articles of Association of Radio Télévision Libre Mille Collines (RTLM) showing the initial shareholders. [441] The Appellant argues that as these documents were not disclosed during the Prosecution case, the Prosecution was effectively permitted to split its case. In addition, according to the Appellant, the documents were admitted as hearsay evidence without an inquiry being made as to their reliability. Lastly, the Appellant argues that the Trial Chamber failed to apply the principle of equality of arms. In support of this submission, the Appellant cites a specific example to show that a different standard was imposed on him. The Appellant concludes that the prejudice suffered calls for a re-trial. [442]

281. The Prosecution submits that the arguments of the Appellant are baseless. It contends that the documents, deemed relevant to the cross-examination by the Trial Chamber, were not subject to disclosure and that no prejudice was suffered by the Appellant through the use of the documents. [443]

282. The record shows that at the start of the cross-examination of the Appellant, the Prosecution presented the Chamber with a file containing documents that it intended to use during cross-examination. The three documents cited by the Appellant were also within the file, and had not been previously disclosed to the Defence. The Trial Chamber permitted the Prosecution to tender them, but, in order to allow the Appellant time to familiarise himself with the materials, postponed questioning on them until the next day.

283. The issue the Appeals Chamber must first settle is whether, given that the materials had not been previously disclosed in conformity with Rule 66 or 68 [444] of the Rules, the Trial Chamber erred by allowing the Prosecution to use the materials during the cross-examination and, if so, whether this error is such as to invalidate the Judgement.

284. Considering that the photographs, the press clipping and the Articles of Association of RTLM bordered on issues that had been raised by the Appellant during examination-in-chief, the Appeals Chamber considers that the Trial Chamber had the discretion to admit them during the cross-examination of the Appellant. Moreover, the documents in question were not documents the Prosecution was required to disclose under Rule 66(A) or permit the inspection thereof under Rule 66(B) of the Rules. Lastly, since the documents did not seem to be of an exculpatory nature for the Appellant, the Prosecution was under no obligation to disclose them to the Appellant under Rule 68 of the Rules. The allegation by the Appellant that the Prosecution did not discharge its burden of disclosure [445] is thus unsubstantiated.

285.The Appellant contests the use and admission of photographs taken from a publication entitled Rwanda, les médias du génocide. The 9 photographs show the Interahamwe at an allegedly peaceful demonstration in support of the Nzanzimana government, various Rwandan personalities including the then President Juvénal Habyarimana, “moto taxis”, the Appellant wearing an MRND cap and the Appellant and the Interahamwe at the MRND extraordinary congress held in July 1993. [446] The record shows that the Prosecution indicated during the trial that it obtained the publication from the ICTR library for use in the cross-examination of the Appellant. [447]

286. The trial record shows that during the examination-in-chief, the Appellant also spoke of the “moto taxis”, referred to as the “Interahamwe taxi”, [448] and of his attempt to initiate with others the holding of a possible Interahamwe za MRND congress, which was subsequently relegated behind the MRND party congress. [449] In addition, the Appellant indicated during his examination that he wore an MRND hat when he attended meetings and that he had participated in MRND rallies; [450] and, throughout his examination, the Appellant spoke generally about the structure, activities and purpose of the Interahamwe za MRND.

287. Therefore, in the opinion of the Appeals Chamber, the Appellant has not demonstrated that the Trial Chamber erred by admitting the photographs contained in the publication entitled Rwanda, les médias du génocide, which would afford the Prosecution the opportunity to rebut the allegations made by the Appellant during his cross-examination. In any event, were it established that the photographs should not have been admitted, the Appeals Chamber would still be of the opinion  that the Appellant has not demonstrated that he suffered any prejudice by their admission or that they had an impact on the Judgement.

288. As regards the AFP clipping dated 14 May 1994 and relating to statements ascribed to Robert Kajuga, Chairman of the Interahamwe za MRND, [451] and the Articles of Association of RTLM with the list of initial shareholders, [452] the Appeals Chamber finds that the Trial Chamber had the inherent discretion to admit them.

289.In seeking to have the documents admitted prior to cross-examination, the Prosecution contended that it intended to use them in response to matters raised during the Appellant’s examination-in-chief. The record supports this argument. The Appellant testified about Robert Kajuga in the course of his examination, and stated that he had never heard anything discriminatory from Kajuga. [453] Likewise, concerning RTLM, during his examination-in-chief, the Appellant testified about his investment in the station, and gave details and names of other shareholders. [454]

290. The Appeals Chamber finds, therefore, that it has not been established that the Trial Chamber erred in admitting the press clipping and the Articles of Association of RTLM.

291.It should be recalled that the Trial Chamber accorded the Appellant sufficient time to familiarise himself with the photographs, the press clipping and the Articles of Association. However, Counsel for the Appellant did not avail herself of the opportunity to re-examine the Appellant on the photographs or on the Articles of Association. Notwithstanding, during cross-examination by the Prosecution on the photographs, the Presiding Judge indicated that the author’s comments should be treated with caution. [455] As regards the press clipping, the Appeals Chamber notes that the Appellant called into question the authorship of the article and underscored that the statements contained therein were attributable solely to the Chairman of the Interahamwe. [456] The Appellant has not shown that the Trial Chamber failed to consider these factors when admitting the materials and when assessing their impact on his testimony.

292. Lastly, the Appeals Chamber notes that the Appellant has not put forward any convincing argument to show that the documents were unreliable or that the Trial Chamber violated the doctrine of equality of arms. Consequently, the Appeals Chamber dismisses the arguments of the Appellant that the Trial Chamber erred in law by admitting the said documents at that stage in the trial, and by violating the doctrine of equality of arms.

293. Having rejected, for the foregoing reasons, the arguments pertaining to the alibi, the errors relating to the Tingi-Tingi witness statements and the collateral documents used in the cross-examination of Rutaganda, the Appeals Chamber dismisses the Appellant’s ground of appeal relating to specific errors of law and fact.