485. The Appeals Chamber adds that, for the purposes of Article 6(3) of the Statute, the “commission” of a crime by a subordinate must be understood in a broad sense. In the Blagojević and Jokić Appeal Judgement, the ICTY Appeals Chamber confirmed that an accused may be held responsible as a superior not only where a subordinate committed a crime referred to in the Statute of ICTY, but also where a subordinate planned, instigated or otherwise aided and abetted in the planning, preparation or execution of such a crime: […][1]

486. The Appeals Chamber endorses this reasoning and holds that an accused may be held responsible as a superior under Article 6(3) of the Statute where a subordinate “planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute”,[2] provided, of course, that all the other elements of such responsibility have been established.

625. […] The test for effective control is not the possession of de jure authority, but rather the material ability to prevent or punish the proven offences. Possession of de jure authority may obviously imply such material ability, but it is neither necessary nor sufficient to prove effective control. […]

791. Under Article 6(3) of the Statute, the mens rea of superior responsibility is established when the accused “knew or had reason to know” that his subordinate was about to commit or had committed a criminal act.[1] The “reason to know” standard is met when the accused had “some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates”; such information need not provide specific details of the unlawful acts committed or about to be committed by his subordinates.[2] The Appellant is therefore wrong when he contends that direct personal knowledge, or full and perfect awareness of the criminal discourse, was required in order to establish his superior responsibility. The Appellant cites no precedent and provides no authority to support his assertion that the crime of direct and public incitement requires direct personal knowledge of what is being said. The Appeals Chamber rejects this submission.

840. […]In this respect, the Appeals Chamber stresses that the fact that no crime was denounced at the time or that the Ministry of Information did not describe the broadcasts as criminal is irrelevant: the Appellant had at a minimum reason to know that there was a significant risk that RTLM journalists would incite the commission of serious crimes against the Tutsi, or that they had already done so.

182. Under Rule 90(F) of the Rules, the Trial Chamber “shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to: (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time”. The Appeals Chamber recalls that the Trial Chamber has discretion to determine the modalities of examination-in-chief, cross-examination and re-examination so as to accord with the purposes of Rule 90(F). In this regard, it should be emphasised 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.[1]

When addressing a submission concerning the modalities of examination, cross-examination or re-examination of witnesses, the Appeals Chamber must ascertain whether the Trial Chamber properly exercised its discretion and, if not, whether the accused’s defence was substantially affected.[2]

47. The right of an accused to be tried before an impartial tribunal is an integral component of his right to a fair trial as provided in Articles 19 and 20 of the Statute.[1] Furthermore, Article 12 of the Statute cites impartiality as one of the essential qualities of any Tribunal Judge, while Rule 14(A) of the Rules provides that, before taking up his duties, each Judge shall make a solemn declaration that he will perform his duties and exercise his powers “impartially and conscientiously”. The requirement of impartiality is again recalled in Rule 15(A) of the Rules, which provides that “[a] judge may not sit in any case in which he has a personal interest or concerning which he has or has had any association which might affect his impartiality”.

48. The Appeals Chamber reiterates that there is a presumption of impartiality which attaches to any Judge of the Tribunal and which cannot be easily rebutted.[2] In the absence of evidence to the contrary, it must be assumed that the Judges “can disabuse their minds of any irrelevant personal beliefs or predispositions”.[3] Therefore, it is for the appellant doubting the impartiality of a Judge to adduce reliable and sufficient evidence to the Appeals Chamber to rebut this presumption of impartiality.[4]  [See also para. 183 of the Appeal Judgement]

49. In the Akayesu Appeal Judgement, the Appeals Chamber recalled the criteria set out by the ICTY Appeals Chamber regarding the obligation of impartiality incumbent upon a Judge:

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.[5]

50. The test of the reasonable observer, properly informed, refers to “an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality, apprised also of the fact that impartiality is one of the duties that Judges swear to uphold”.[6] The Appeals Chamber must therefore determine whether such a hypothetical fair-minded observer, acting in good faith, would accept that a Judge might not bring an impartial and unprejudiced mind to the issues arising in the case.[7]

78. The Appeals Chamber recalls that the Judges of this Tribunal and those of the ICTY are sometimes involved in several trials which, by their very nature, cover issues that overlap. It is assumed, in the absence of evidence to the contrary, that, by virtue of their training and experience, the Judges will rule fairly on the issues before them, relying solely and exclusively on the evidence adduced in the particular case.[8] The Appeals Chamber agrees with the ICTY Bureau that “a judge is not disqualified from hearing two or more criminal trials arising out of the same series of events, where he is exposed to evidence relating to these events in both cases”.[9] [See also para. 84 et seq. of the Appeal Judgement]

See also Hadžihasanović Appeal Judgement, para. 78.

922. The Appeals Chamber rejects the Appelants’ arguments on this point. It is well established that, while it may be helpful to prove the existence of a policy or plan, that is not a legal element of crimes against humanity.[1] The same applies to “substantial resources”. Contrary to what certain early Tribunal judgements might be taken to imply,[2] “substantial resources” do not constitute a legal element of crimes against humanity. It is the widespread or systematic attack which must be proved.

284. […] Turning to the question of whether the Trial Chamber erred in taking his stature into account as an aggravating circumstance, the Appeals Chamber recalls that it is settled in the jurisprudence of the Tribunal and the ICTY that a superior position in itself does not constitute an aggravating factor. Rather, it is the abuse of such position which may be considered as an aggravating factor.[1]

285. A review of the Trial Chamber’s findings on this point reveals that it not only took into account the Appellant’s stature, but also the influence he derived from his stature[2] and the use he made of his influence by lending encouragement and approval to the participants in the killings.[3] The Appeals Chamber finds that the Trial Chamber thus implicitly found that the Appellant abused his position and influence in order to facilitate the commission of the crimes. Accordingly, the Appeals Chamber finds no discernable error in the Trial Chamber’s findings. Therefore this sub-ground of appeal is dismissed.

309. The Trial Chamber found that the influence the Appellant derived from his stature made it likely that others would follow his example, and that this was an aggravating factor.[4] The Appeals Chamber recalls that the Trial Chamber implicitly found that the Appellant abused this influence.[5]

310. This interpretation is supported by the Trial Chamber’s findings that the Appellant participated in the attack against Murambi Technical School and Kaduha Parish by lending encouragement and approval to the attackers and that, since the Appellant was a respected national figure in Rwandan society and well-known in his native region (Gikongoro), the assailants at those places would have viewed his presence during the attacks as approval of their conduct, particularly after his invocation of government support.[6] In so doing, the Trial Chamber did not distinguish between his formal or de facto authority and influence, but limited itself to established facts. The Trial Chamber therefore did fully take into account as aggravating factors the Appellant’s stature in Rwanda society, as well as the abuse of the influence he derived from it.

132. The Appeals Chamber recalls that it has already dismissed the argument that as a matter of law documentary evidence should be preferred to oral testimony.[1] Here the Appellant further submits that because the Prosecution presented a document in evidence in another case before the Tribunal, it must be authentic, probative and subject to judicial notice.[2] The Appeals Chamber rejects this argument as a matter of principle: the probative value of a document may be assessed differently in different cases, depending on the circumstances. In the instant case, the Trial Chamber considered Exhibit D147,[3] a document allegedly showing the location of Rwandan Army officers as of 5 March 1994, and found that, in the context of the events which followed the death of the President of Rwanda, the locations of officers in mid-April 1994 could have been different from those mentioned in this document.[4] The Appellant has failed to demonstrate that no reasonable Trial Chamber could have reached the same conclusion. Accordingly, this sub-ground of appeal is dismissed.

The Appellant asserted that the rule for assessing evidence ranks documentary evidence above oral evidence.[1]

103. […] Contrary to the Appellant’s submissions, there is a general,[2] though not absolute,[3] preference for live testimony before this Tribunal. […] This is consistent with Rule 90(A) of the Rules which states in part that witnesses shall, in principle, be heard directly. As the primary trier of fact, it is the Trial Chamber that has the main responsibility to resolve any inconsistencies that may arise within and/or amongst witnesses’ testimonies. It is within the discretion of the Trial Chamber to evaluate any inconsistencies, to consider whether the evidence taken as a whole is reliable and credible and to accept or reject the “fundamental features” of the evidence. It may do this by relying on live testimony or documentary evidence.[4]

26. The Appellant […] contests the Trial Chamber’s finding that he possessed the requisite mens rea for genocide arguing that the Trial Chamber inferred his intent from his alleged presence at the crime sites alongside the assailants whose intent was to kill the Tutsi under a “spontaneous” JCE.[1] In his view, for the crime of genocide to occur, the intent to commit genocide must be formed prior to the commission of genocidal acts.[2] The Appeals Chamber finds no merit in this submission. The inquiry is not whether the specific intent was formed prior to the commission of the acts, but whether at the moment of commission the perpetrators possessed the necessary intent. The Trial Chamber correctly considered whether the Appellant and the physical perpetrators possessed genocidal intent at the time of the massacres.[3] The Appellant’s argument on this point is therefore without merit.