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.

74. […] the Appeals Chamber cannot find any merit in the Appellant’s argument that the Indictment fails to refer to any sort of “organization” among these individuals. It is well established that a JCE need not be previously arranged or formulated and may materialise extemporaneously.[1] Since “organization” is not an element of JCE, it need not be pleaded in the Indictment.

77. The Appeals Chamber recalls that while the JCE categories are mutually incompatible to the extent that a defendant may not be convicted of multiple categories based on the same conduct, an indictment may charge a defendant cumulatively with multiple categories.[2] The Appeals Chamber notes that the Appellant was convicted for his participation in a JCE based on the first category, and therefore restricts its inquiry to whether he was put on notice that the Prosecution intended to rely on that specific category.[3] In this regard, the Appeals Chamber recalls that the three categories of JCE vary only with respect to the mens rea element, not with regard to the actus reus.[4] Accordingly, an accused will have sufficient notice of the category of JCE with which he is being charged where the indictment pleads the mens rea element of the respective category.

see also “Other Issues of Particular Interest” below citing para. 78 for application to the circumstances of the case.

296. The Appeals Chamber agrees with the Prosecution that physical presence at the time a crime is committed by the physical perpetrator is not required for liability to be incurred by a participant in a JCE.[1] However, as conceded by the Prosecution,[2] it may be taken as an indicator of a co-perpetrator’s contribution. Here, the Trial Chamber considered that there was “no direct evidence of the presence of Simba” at Cyanika Parish.[3] This appears to have been relevant primarily as a basis for the Trial Chamber’s finding that there was no evidence to support the idea that he shared the intent to participate in the common purpose of killing Tutsi there.[4] After finding generally that a common purpose existed to kill Tutsi at the three sites, it found that the Appellant shared the common purpose of killing Tutsi at Murambi Technical School and Kaduha Parish, but expressed its doubt that he equally shared the common purpose of killing Tutsi at Cyanika Parish.[5] As explained by the Trial Chamber, this doubt arose from the fact that there was “no direct evidence linking the Appellant to Cyanika Parish or indicating that he knew and accepted that it would also form part of the operation”.[6] It is apparent from this language that the Trial Chamber’s consideration of this issue focused on his intent to participate in the common purpose to kill the Tutsi at this site.[7] Therefore the Trial Chamber’s inquiry was broader than mere physical presence. The Appeals Chamber sees no error in this approach.

328. The Appeals Chamber recalls that neither the Statute nor the Rules exhaustively define the factors which may be considered as mitigating factors.[1] Consequently, under the jurisprudence of this Tribunal, “what constitutes a mitigating circumstance is a matter for the Trial Chamber to determine in the exercise of its discretion.”[2] The burden of proof which must be met by an accused with regard to mitigating circumstances is not, as with aggravating circumstances, proof beyond reasonable doubt,[3] but proof on the balance of probabilities – the circumstance in question must exist or have existed “more probably than not”.[4] Once a Trial Chamber determines that certain evidence constitutes a mitigating circumstance, the decision as to the weight to be accorded to that mitigating circumstance also lies within the wide discretion afforded to the Trial Chamber at sentencing.[5]

143. […] While a trier of fact is not obliged to detail every step of its reasoning, in view of its concerns regarding the credibility of Witness KXX and its decision to accept his testimony only where corroborated,[1] the Trial Chamber was compelled to explain why it relied on the uncorroborated account of Witness KXX instead of Witness YH’s testimony with regard to the time of the Appellant’s arrival at Kaduha Parish. The Appeals Chamber will consider below whether, and if necessary, to what extent, the Trial Chamber’s error affects its findings relating to the Appellant’s participation in the attacks at MurambiTechnicalSchool and Kaduha Parish on 21 April 1994 within the time frame emerging from the relevant testimonies.

152. Turning to the issue of distance and driving time, the Appeals Chamber recalls that a Trial Chamber has the obligation to provide a reasoned opinion,[2] but is not required to articulate the reasoning in detail.[3] Although certain evidence may not have been referred to by a Trial Chamber, in the particular circumstances of a given case it may nevertheless be reasonable to assume that the Trial Chamber took it into account.[4] There is no guiding principle on the question to determine the extent to which a Trial Chamber is obliged to set out its reasons for accepting or rejecting a particular testimony.[5]

155. […] the Trial Chamber failed to expressly discuss the Defence evidence to the effect that it was impossible for the Appellant to travel from MurambiTechnicalSchool to Kaduha Parish within this time-frame. The issue was clearly controversial and the evidence presented by the parties in this respect was contradictory. The Trial Chamber should have been clearer in finding that the Appellant was at both MurambiTechnicalSchool and Kaduha Parish, which the Trial Chamber deemed geographically proximate, thereby rejecting his argument regarding impossibility. However, the failure to be more explicit does not indicate the lack of a reasoned judgement, particularly in light of the approximate nature of the evidence offered by Witnesses KSY, YH and AJT1 as discussed in subsequent paragraphs.

Pursuant to Rule 108 of the Rules, the Appeals Chamber summarily dismissed a number of Prosecution arguments on the ground that they exceeded the scope of its Notice of Appeal: (i) that the Trial Chamber erred in applying mens rea for the first category of JCE (Decision on ´Prosecutor’s Motion for Variation of the Notice of Appeal Pursuant to Rule 108’ of  17 August 2006); (ii) that the Trial Chamber erred in not taking into account the Appellant’s sadism and zeal as an aggravating factor (para. 319); (iii) that the Trial Chamber erred in According Weight in Mitigation to the Selective Assistance Provided by the Appellant to Members of his Family (paras 325-326); (iv) that the Sentence is Inconsistent with the Tribunal’s Sentencing Practice (para. 238); (v) that the Sentence is Inconsistent with the Rwanda’s Sentencing Practice (Decision on ´Prosecutor’s Motion for Variation of the Notice of Appeal Pursuant to Rule 108’ of 17 August 2006).

31. Turning to the Appellant’s contention in relation to Witness YH,[1] the Appeals Chamber recalls that the Prosecutor has independent authority to initiate investigations on statutory crimes and to assess whether the information forms a sufficient basis to proceed against persons suspected of having committed such crimes.[2] However, Rule 91(B)(i) of the Rules specifically provides that “[i]f a Chamber has strong grounds for believing that a witness has knowingly and wilfully given false testimony, it may direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for false testimony”. Such action lies within the discretion of the Trial Chamber and is contingent on its conviction that a witness “has knowingly and wilfully given false testimony”.[3] On the other hand, a credibility determination may be based, but does not necessarily depend, on a judicial finding that a witness has given false testimony.[4]

32. The Appeals Chamber stresses that the mere existence of discrepancies between a witness’s testimony and his earlier statements does not constitute strong grounds for believing that a witness may have knowingly and wilfully given false testimony.[5] […]

33. In any event, the Appeals Chamber is only required to grant relief for a violation of the Rules where a party has objected in a timely manner and has suffered material prejudice.[6] The Appellant clearly fails to show how the Oral Decision of 23 September 2004 has prejudiced him. The Appeals Chamber recalls that an investigation for false testimony is only ancillary to proceedings and does not necessarily affect the rights of an accused.