IX.  THE KILLING OF EMMANUEL KAYITARE

490.The Appellant put forwards several arguments in support of this ground of appeal, whereby he challenged the Trial Chamber’s factual findings as to his responsibility in the killing of Emmanuel Kayitare. The said arguments include both allegations of errors of law and fact and relate mainly to the assessment of the evidence presented at trial and the interpretation of the Indictment. The Appellant’s submissions on these issues are imprecise. The Appeals Chamber nonetheless considered all the written and oral arguments, and identified the alleged errors in support of this ground of appeal as follows:

(1)   errors of law and fact for having found, at paragraphs 336 [896] and 337 [897] of the Judgement, that the testimonies of Witnesses AA and U are mutually corrobative; [898]
(2)   errors of fact and law in the assessment of the testimonies of Witnesses AA and U; [899]
(3)   error of fact for failing to note that some of the facts alleged in the Indictment were not proved, or were contradicted by evidence presented at trial; [900]
(4)   errors of fact in the assessment of the evidence concerning the burial sites. [901]

491. The Appeals Chamber will now examine the errors alleged by the Appellant seriatim.

492.As concerns the errors relating to the assessment of the testimonies of Witnesses AA and U, the Appellant alleges that the Trial Chamber committed errors of law and fact by finding, on the one hand, that the said testimonies were mutually corroborative and, on the other hand, that they established beyond reasonable doubt that he killed Emmanuel Kayitare. [902] More specifically, Trial Chamber allegedly committed errors in its factual findings at paragraphs 336 and 337 of the Judgement. [903]

493.In light of the jurisprudence of the International Tribunal and the ICTY, the Trial Chamber is best placed to hear, assess and weigh the evidence presented at trial. [904] Therefore, it is for the Trial Chamber to establish whether a witness is credible or not. [905] Likewise, whether it will rely on one or more testimonies as proof of a material fact will depend on various factors that have to be assessed in the circumstances of each case. [906] It may be that a Trial Chamber would require the testimony of a witness to be corroborated, but according to the established practice of the ad hoc tribunals, that is not a requirement. [907] Where there are two conflicting testimonies, it falls to the Trial Chamber, before which the witness testified, to decide which of the testimonies has more weight. [908] As recalled earlier, unless the Appellant establishes that the Trial Chamber committed an error of law or fact warranting the Appeals Chamber’s intervention, the Appeals Chamber has to give a margin of deference to the Trial Chamber’s evaluation of the evidence presented at trial. [909]

494. In the instant case, the Appellant, first of all, contends that the Trial Chamber committed an error of law and fact by finding, at paragraph 336 of the Trial Judgement, that Witness AA’s testimony was “substantially corroborated” by Witness U. [910] Paragraph 336 of the Trial Judgement reads as follows:

“Based on AA’s testimony, as substantially corroborated by Witness U, the Chamber is satisfied beyond any reasonable doubt that, on 28 April 1994, the Interahamwe conducted a house-to-house search in the Agakingiro neighbourhood, asking people to show their identity cards. The Tutsi and people belonging to certain political parties were taken towards the “Hindi Mandal” temple, near Amgar garage. The Accused was present at the location where the people caught were gathered. He wore a military uniform, comprising a coat and trousers, and carried a rifle.” (Emphasis added).

The Appellant submits that, unlike Witness AA, Witness U: [911] testified to the events that occurred around 8 April 1994; never mentioned that people were asked to show their identity cards in a house-to-house search or that a search was conducted; never testified to “Tutsis” and “people belonging to certain political parties being taken towards the “Hindi Mandal” temple, near Amgar garage; and did not testify to the clothes that the Appellant wore.

495.The Prosecution’s Response did not cover all the discrepancies alleged by the Appellant. [912] The Prosecution admits, however, that Witness U gave a date different from that given by Witness AA, and that, since he was not present at the time of the searches, his account could not corroborate Witness AA’s on this point. [913]

496. The Appeals Chamber has considered Witness U’s testimony. In the light of its examination, the Appeals Chamber is of the view that, for most of the material facts referred to in paragraph 336 of the Trial Judgement, Witness U does not corroborate Witness AA.  Indeed, Witness U corroborates Witness AA only as to the location [914] and the Appellant’s presence at the said location, [915] while their respective accounts of the other material facts are not corroborative. These items do not constitute the substance of the material facts referred to in paragraph 336 of the Judgement. Consequently, the Appeals Chamber considers that it was unreasonable for the Trial Chamber to hold that Witness U’s testimony “substantially corroborated” Witness AA. The Trial Chamber thus committed an error of fact. The question as to whether this error leads to a miscarriage of justice will be examined subsequently.

497.Secondly, the Appellant relies on paragraph 337 of the Trial Judgement for his contention that the Trial Chamber committed an error of law and fact in finding that the testimonies of Witness AA and U were mutually corroborative as regards “the circumstances surrounding the killing of Emmanuel Kayitare by the Appellant”. [916] Paragraph 337 of the Trial Judgement reads as follows:

[…] after considering the respective testimonies of Witnesses AA and U, the Chamber is satisfied that they are corroborative as regards the circumstances surrounding the killing of Emmanuel Kayitare, a Tutsi. (Emphasis added)

498.The Appellant asserts that the testimonies on the killing of Emmanuel Kayitare are not corroborative, but rather contradictory on 12 points. The points in respect of which the Appellant alleges the existence of inconsistencies can be summarized as follows : (1) the date of the killing, (2) the time of the killing (3) the time of day during which the killing occurred; (4) the place of the killing; (5) the question as to whether he was already at the location where the victims were gathered; (6) the incident immediately preceding the killing; (7) the incident immediately following the killing; (8) the weapons he was carrying at the time of the killing; (9) the origin of the machete used for the killing; 10) the clothes he wore at the time of the killing; 11) the part of Emmanuel Kayitare’s body that was hit; 12) whether a young Hutu rescued Witness AA after the killing.

499. In its Response, the Prosecution admits that certain discrepancies exist, but does not specify which ones. [917] The Prosecution maintains that, in any event, the Appeals Chamber was right in finding that the accounts were corroborative of each other. [918]

500.The Appeals Chamber considered the testimonies of Witnesses AA [919] and U [920] in their entirety. Based on its analysis, the Appeals Chamber is of the opinion that, of the 12 examples cited by the Appellant, two are unfounded, [921] three show that the testimonies are not corrobative of each other, and seven reveal significant discrepancies. The Appeals Chamber’s observations in respect of the lack of corroboration and the existence of discrepancies are as follows:

-   the testimonies are contradictory with respect to the date of the killing: Witness AA testified that Emmanuel Kayitare was killed on 28 April 1994; [922]  Witness U testified that the killing occurred two days after President Habyarimana’s plane was shot down, during the night of 6 April 1994; [923]

- the testimonies are inconsistent as to the time of the killing and the time of day during which the killing occurred: Witness AA witnessed an incident which occurred around 10 a.m; [924]  Witness U testified that Emmanuel Kayitare was killed after 3 o’clock in the afternoon; [925]

-  the testimonies are contradictory on the question as to whether Rutaganda was already at the location when the victims were gathered on the day of the killing: Witness AA testified that Rutaganda was already there when Emmanuel Kayitare was brought; [926]  Witness U testified that Rutaganda arrived at the location together with the victims, including Emmanuel Kayitare; [927]  

- the testimonies are contradictory with respect to the incident immediately preceding the killing: Witness AA testified that Rutaganda grabbed Emmanuel Kayitare and killed him at the moment when the latter was attempting to flee, but was recognized and called by a man called “Cekeri”; [928]  Witness U, for his part, testified that Emmanuel Kayitare and “Venant” were tied together with their shirts when the latter was brought to the location, and that Rutaganda untied the shirts and said “I'm going to give you an example of how you should work” before killing Emmanuel Kayitare; [929]

- the testimonies are not corroborative with respect to the incident that occurred immediately after the killing: Witness U testified that Rutaganda immediately shot at the man named “Venant” with his Kalachnikov, after killing Emmanuel Kayitare; [930]  Witness AA did not testify to any such thing; [931]

-  the testimonies contradict each other as regards the weapons Rutaganda was carrying at the time of the killing: Witness AA testified that the Appellant was carrying a pistol and grenades, but no machete; [932]  Witness U testified that Rutaganda had a machete hanging from his belt and a Kalachnikov on his shoulder – which he sometimes refers to as a “rifle”; [933]

-  the testimonies are inconsistent as to the where the machete used for the killing came from: according to Witness AA, the Appellant killed Emmanuel Kayitare with the machete he got from the man named “Cekeri”; [934]  while Witness U testified that Rutaganda used the machete that was hanging from his belt; [935]

-  the testimonies are not corroborative as to the clothes Rutaganda wore at the time of the killing: Witness AA testified that Rutaganda wore a military uniform; [936]  Witness U testified that Rutaganda was with a group of Interahamwe, and that “[some of them] were wearing military uniforms and others were dressed in civilian clothing”, without otherwise specifying what  outfit Rutaganda was wearing; [937]

-  the testimonies are not corroborative as to which part of Emmanuel Kayitare’s body was hit: Witness AA testified that the victim was struck on the nape of the neck; [938]  Witness U testified that the victim was struck on the head and the blow “split his head in two”. [939]

501.The Appeals Chamber holds the view that the lack of corroboration and the aforementioned discrepancies, for the most part, relate to important aspects of the criminal conduct for which the Appellant is indicted, as described in paragraph 18 of the Indictment. As recalled earlier, where there are two conflicting testimonies, it falls to the Trial Chamber before which the witness testified to decide which of the testimonies has more weight [940] and/or whether the discrepancies are such as would cast reasonable doubt and/or establish that the alleged acts did not occur.

502. In the instant case, not only did the Trial Chamber find the testimonies of Witnesses AA and U to be equally credible, [941] but it also concluded that they were corroborative of each other as regards the circumstances surrounding the killing of Emmanuel Kayitare by the Appellant. In the light of its analysis, the Appeals Chamber does not share that view, and considers that it was unreasonable for the Trial Chamber to find the testimonies mutually corroborative. It appears that the Trial Chamber thus committed an error of fact.

503. The Appeals Chamber will, at this juncture, determine whether the errors of fact committed in paragraphs 336 and 337 of the Trial Judgement occasioned a miscarriage of justice in the instant case.

504. It has been reaffirmed that corroboration, as such, is not required in order to establish a material fact. [942] Nevertheless, the impugned Trial Judgement reveals that before making its factual findings, the Trial Chamber first determined whether the Prosecution evidence was corroborative. The Judgement does not contain any specific reasons for this decision. For its part, the Appeals Chamber did not have the opportunity to hear the Witnesses AA and U and/or to examine them; it is therefore not in a position to determine, inter alia, which of the two testimonies has more weight. Moreover, an examination of the impugned Judgement does not enable the Appeals Chamber to know whether the Trial Chamber would have entered the same findings if it had not found the testimonies to be corrobative. [943]

505. Under such circumstances, the Appeals Chamber, in accordance with the established practice of the Tribunal, cannot substitute its own finding for that of the Trial Chamber. [944] It is settled case-law that an appeal is not a de novo review. [945] Based on this principle, therefore, it does not fall to the Appeals Chamber to conduct a de novo trial of the Appellant as regards the killing of Emmanuel Kayitare and/or to determine whether a different assessment of the evidence presented at trial would have sustained a finding guilt. According to the standards applicable on appeal, the Appeals Chamber must enter a judgement of acquittal “if an appellant is able to establish that no reasonable tribunal of fact could have reached a conclusion of guilt upon the evidence before it.” [946] Considering the Judgement in the instant case, such a standard requires the Appeals Chamber to assess the evidence presented at trial as an indivisible whole.

506.In the case at bar, the Appeals Chamber considers that no tribunal of fact could have reached the conclusion, as did the Trial Chamber, that the testimonies of Witnesses AA and U were corroborative and that, considered together, they established the Appellant’s guilt beyond any reasonable doubt in respect of paragraph 18 of the Indictment. The Trial Chamber’s factual and legal findings in relation to the killing of Emmanuel Kayitare must therefore be set aside. The Appeals Chamber notes that this leads to the acquittal of the Appellant on Count 7 of the Indictment, namely, murder as crime against humanity. However, the invalidation of those findings does not affect the reasons for the conviction for the crime of genocide.

507. As the Trial Chamber’s factual conclusions have been set aside, the Appeals Chamber considers that there is no need to further review the other arguments raised by the Appellant in support of the present ground of appeal. The question as to whether the acquittal on Count 7 affects the single sentence of life imprisonment is considered in Part XIII of the present Judgement.

[896] Rutaganda’s Brief, para. 451.
 [897] Ibid., paras. 452 to 454.
 [898] T(A), 4 July 2002, pp.100 to 103; Supplemental Document, paras. 18(1) and 18(7); Rutaganda’s Brief, pp. 1240 to 1237 and 1230 to 1227; Rutaganda’s Brief, 1895 to 1893; Notice of Appeal, paras. 72 to 74.
[899] Supplemental Document, paras. 18(2) to 18(5) and 18(10); Rutaganda Brief, pp. 1237 to 229, 1324, 1320 to 1317; Rutaganda’s Reply, paras. 1893 to 1888; Notice of Appeal, paras. 72 and 75.
[900] Supplemental Document, paras. 18(8) and (9); Rutaganda’s Brief, pp. 1242 and 1241; Rutaganda’s Reply, pp. 1897 and 1896; Notice of Appeal, paras. 72 and 73.
[901] Supplemental Document, para. 18(6); Rutaganda’s Brief, p. 1225; Notice of Appeal, paras. 72,  and 76-79.
[902] T(A), 4 July 2002, pp.103 to 106; Supplemental Document, paras. 18(1) and 18(7); Rutaganda’s Brief, p. 1240 to 1237 and 1230 to 1227; Rutaganda’s Reply, 1895 to 1893; Appeal Brief, paras. 72 and 74.
 [903] Rutaganda’s Brief, paras. 451 to 454.
 [904] Kayishema and Ruzindana Appeal Judgement, para. 187.
 [905] Musema Appeal Judgement, para. 18; Akayesu Appeal Judgement, para. 242.
 [906] Musema Appeal Judgement, para. 90; Kayishema and Ruzindana Appeal Judgement, para. 187;  Akayesu Appeal Judgement, para. 132; Aleksovski Appeal Judgement, para. 63; Tadic Appeal Judgement, para. 65; Celebici Appeal Judgement, para. 506.
[907] Musema Appeal Judgement, para. 36, citing the Kayishema and Ruzindana Appeal Judgement, paras. 154 and 229; Aleksovski Appeal Judgement, para. 62; Tadic Appeal Judgement, para. 65, and Celebici Appeal Judgement, paras. 492 and 506. See also Kunarac Appeal Judgement, para. 268.
 [908] Kayishema and Ruzindana Appeal Judgement, para. 325.
 [909] Kayishema and Ruzindana Appeal Judgement, para. 187.
 [910] T(A), 4 July 2002, pp.102 to 106; Supplemental Document, para. 18(1); Rutaganda’s Brief, pp. 1240 to 1237; Rutaganda’s Brief, pp. 1895 to 1893.
[911] Rutaganda’s Brief, paras. 450 and 451.
 [912] Prosecution’s Response, para. 8.17.
 [913] Prosecution’s Response, para. 8.18.
 [914] Witness U also testified to the events that occurred “near the Amgar garage” (T, 10 October 1997, pp. 14, 13 and 27).
[915] T, 10 October 1997, pp. 9, 11, 44 and 45.
 [916] T, 4 July, pp.103 to 106; Supplemental Document, para. 18(7); Rutaganda’s Brief, pp. 1240 to 1237; Rutaganda’s Reply, pp. 1895 to 1893.
[917] Prosecution’s Response, para. 8.20.
 [918] Prosecution’s Response, para. 8.20.
 [919] T, 6 and 7 October 1997.
 [920] T, 10 October 1997.
 [921] The allegations in paras. 498(4) and 498(12), supra.
 [922] T, 6 October 1997, p. 48, 51 and 62; T, 7 October 1997, pp. 35 and 36, 54 and 74.
 [923] T, 10 October 1997, pp. 8 and 9, 15 and 28.
 [924] T, 6 October 1997, pp. 48; T, 7 October 1997, p. 26.
 [925] T, 10 October 1997, pp. 7 and 8.
 [926] T, 6 October 1997, pp. 49 and 129.
 [927] T, 10 October 1997, pp. 8, 10, 40 and 41.
 [928] T, 6 October 1997, p. 51.
 [929] T, 10 October 1997, p. 10.
 [930] T, 10 October 1997, pp. 10, 11, 37 and 38.
 [931] T, 6 October 1997 and  T, 7 October 1997.
 [932] T, 6 October 1997, pp. 51 to 56; T, 7 October 1997, pp. 33 and 34.
 [933] T, 10 October 1997, pp. 10, 11 and  37.
 [934] T, 6 October 1997, p. 53; T, 7 October 1997, pp. 30 and 31.
 [935] T, 10 October 1997, p. 10.
 [936] T, 6 October 1997, p. 53 and 64.
 [937] T, 10 October 1997, p. 5.
 [938] T, 6 October 1997, p. 56; T, 7 October 1997, pp. 41 to 53.
 [939] T, 10 October 1997, pp. 10, 37 and 38.
 [940] Kayishema and Ruzindana Appeal Judgement, para. 325.
 [941] Trial Judgement, paras 195 and 334.
 [942] Kunarac Appeal Judgement, para. 268. See also Kayishema and Ruzindana Appeal Judgement, para. 322.
 [943] In paragraph 344 of the Trial Jugement, the Trial Chamber ends its analysis by stating: “[…] on the basis of the testimonies of Witnesses AA and U, the Chamber finds that it has been established beyond any reasonable doubt that the Accused struck Emmanuel Kayitare with a machete and that the latter died instantly.”
 [944] Akayesu Appeal Judgement, para. 178, citing Celebici Appeal Judgement, paras. 434 and 435.
 [945] See, inter alia, Musema Appeal Judgement, para. 17 and Kunarac Appeal Judgement, para. 36.
[946] Akayesu Appeal Judgement, para. 178, citing Celebici Appeal Judgement, paras. 434 and 435.