67.     The right of an accused to a fair trial implies the principle of equality of arms between the Prosecution and the Defence[1]. The Appeals Chamber finds that the Trial Chamber rightly held that:

“The notion of equality of arms is laid down in Article 20 of the Statute. Specifically, Article 20(2) states, “… the accused shall be entitled to a fair and public hearing… Article 20(4) also provides, “…the accused shall be entitled to the following minimum guarantees, in full equality…,” then follows a series of rights that must be respected, including the right to a legal counsel and the right to have adequate time and facilities to prepare his or her defence.”[2]

[…]

69.     The Appeals Chamber observes in this regard that equality of arms between the Defence and the Prosecution does not necessarily amount to the material equality of possessing the same financial and/or personal resources[3]. In deciding on the scope of the principle of equality of arms, ICTY Appeals Chamber in Tadić held that “equality of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case”[4].

[…]

73.     The Appeals Chamber concurs with ICTY Appeals Chamber's position expressed in Tadić, that the principle of equality of arms does not apply to “conditions, outside the control of a court”,[5] that prevented a party from securing the attendance of certain witnesses. […]

106.    The Appeals Chamber considers that the defence of alibi implies that the person who raises it should establish before the Trial Chamber that objectively he was not in a position to commit the crime, particularly because he was in a place different from the one at which it was committed.  Rule 67 (A) (ii) of the Rules, same as the corresponding provision in ICTY Rules, covers the “Defence of alibi”. However, an alibi is based on evidence which the Accused intends to rely upon for an in-depth analysis of the Prosecution’s case in order to show that the Prosecution has failed to discharged the burden of proof that rests on it.  Now, since the Prosecution cannot anticipate the argument the Defence will raise, it is incumbent on the Defence to give the Prosecution notice of such argument. But this does not constitute an actual “defence”.  As ICTY Appeals Chamber pointed out in Čelebići:

“It is a common misuse of the word to describe an alibi as a “defence”.  If a defendant raises an alibi, he is merely denying that he was in a position to commit the crime with which he is charged.  That is not a defence in its true sense at all.  By raising that issue, the defendant does not more that require the Prosecution to eliminate the reasonable possibility that the alibi is true”.[1]  (Emphasis added)

107.    The Appeals Chamber stresses that this position was followed recently in the Foca case, where ICTY Trial Chamber held that

“The Prosecution bore the onus of establishing the facts alleged in the Indictment.  Having raised the issue of alibi, the accused bore no onus in establishing that alibi.  It was for the Prosecution to establish that, despite the evidence of the alibi, the facts alleged in the Indictment were nevertheless true”.[2]]

          The Appeals Chamber recalls that in conformity with the principle of presumption of innocence, as enunciated in the Judgement,[3] supra, it is the duty of the Prosecution to prove the guilt of the accused beyond reasonable doubt.

108.    […] [T]he Appeals Chamber recalls that in a criminal case, the accused’s role at the level of preparation of the case should not be confused with his role at the trial stage before the Trial Chamber.

109.    Indeed, the Appeals Chamber notes that Rule 67 (A) (ii) of the Rules of Procedure and Evidence provides that when the Defence intends to enter the defence of alibi, in addition to the duty to notify the Prosecutor thereof, the accused must also provide the evidence upon which he intends to rely to establish his alibi.[4] This rule, which applies at the level of case-preparation, only governs the reciprocal disclosure of evidence.

110.    The Appeals Chamber is therefore of the opinion that this provision places no onus of proof on the Defence, in that it does not require the Defence to prove the existence of the facts, but rather provides for disclosure of evidence in support of the alibi.  Thus, as reflected in Rule 67 referred to above, the Defence is required to disclose to the Prosecutor the place or places at which the accused claims to have been present at the time of the alleged crimes and, if it so desires, produce probative evidence tending to show that since the accused was at a particular location at a specific time, there was cause for reasonable doubt as to his presence at the scene of the crime at the alleged time.  The accused is therefore at liberty to provide the Prosecution with such evidence as may establish the credibility of the alibi raised.

111.    Consequently, it is the opinion of the Appeals Chamber that 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.

112.    […] The Appeals Chamber is aware of the fact that failure to prove an alibi must not be construed as an indication of the Accused’s guilt.[5] However, the Chamber affirms that the issue of disclosure of evidence falls within the preparation of the case and precedes the production of evidence at trial. If the Defence is not in a position to produce evidence of the accused’s whereabouts, it is, nevertheless, at liberty to disclose to the Prosecutor, and then produce before the Trial Chamber, all evidentiary material likely to raise doubts as to the accused’s responsibility for the crimes charged.  Accordingly, the Appeals Chamber holds that this cannot be considered as shifting the burden of proof at the trial.

113.    The Appeals Chamber recalls that at the trial stage, the Trial Chamber limited itself to assessing the evidence presented by the parties.  The Prosecutor must always prove the existence of the facts charged as well as the accused’s responsibility therefor.  The Defence, for its part, must produce evidence before the Chamber in support of its claims that the crimes charged cannot be imputed to the accused because of his alibi.  However, in that case, the burden of proof is not shouldered by the Defence. It is merely required to produce evidence likely to raise reasonable doubt regarding the case of the Prosecution.

138.    […] [The Trial Chamber] further opined (and the Appeals Chamber agrees) that even though a genocidal plan is not a constituent element of the crime of genocide, the existence of such a plan would be strong evidence of the specific intent requirement for the crime of genocide.[1]

163.    The Appeals Chamber notes that a “persistent pattern of conduct” is not a legal ingredient of the crime of genocide as defined in Article 2 of the Statute […].

169.    Article 2 of the Statute provides that “[g]enocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as …”, the relevant acts in the instant case being genocide by killing members of the group and causing serious bodily or mental harm to members of the group. The Appeals Chamber finds that there is no legal ingredient in Article 2 of the Statute, which requires the establishment of a nexus between the manner in which a genocide was carried out and the personal circumstances of an accused. Similarly, the provision does not require proof that an accused had certain means at his disposal to prepare and commit genocide. The financial situation of an accused would normally not be of major importance to the question of whether he could be held liable for genocide.

170.    Furthermore, genocide is not a crime that can only be committed by certain categories of persons.  As evidenced by history, it is a crime which has been committed by the low-level executioner and the high-level planner or instigator alike. […]

154.    […] [T]he Appeals Chamber concurs with the opinion of ICTY Appeals Chamber that the testimony of a witness on a material fact may be accepted as evidence without the need for corroboration.[1]

[…]

322.    The Appeals Chamber reiterates[2] that accepting as evidence the uncorroborated testimony of a witness does not in itself constitute an error.[3]

See also para. 187.

185.    Article 6(1) of the Statute provides that a person who “planned, instigated, ordered, committed, or otherwise aided and abetted in the planning, preparation or execution of a crime … shall be individually responsible for the crime.” This provision reflects the criminal law principle that criminal liability is not incurred solely by individuals who physically commit a crime, but may also extend to those who participate in and contribute to a crime in various ways, when such participation is sufficiently connected to the crime, following principles of accomplice liability. Article 6 (1) may thus be regarded as intending to ensure that all those who either engage directly in the perpetration of a crime under the Statute, or otherwise contribute to its perpetration, are held accountable.[1]

186.    The Appeals Chamber notes that the Trial Chamber did, earlier in the Judgement, discuss the general principles relating to criminal responsibility under Article 6 (1) of the Statute. The relevant paragraph of the Trial Judgement reads:

The Trial Chamber is of the opinion that, as was submitted by the Prosecution, there is a further two stage test which must be satisfied in order to establish individual criminal responsibility under Article 6 (1). This test required the demonstration of (i) participation, that is that the accused’s conduct contributed to the commission of an illegal act, and (ii) knowledge or intent, that is awareness by the actor of his participation in a crime.[2]

          The Appeals Chamber finds that this statement corresponds to the elements of individual criminal responsibility as set out, as follows, by the jurisprudence[3] of this Tribunal and that of ICTY:

1. The requisite actus reus for such responsibility is constituted by an act of participation which in fact contributes to, or has an effect on, the commission of the crime. Hence, this participation must have a direct and substantial effect on the commission of the illegal act; and
2. The corresponding intent, or mens rea, is indicated by the requirement that the act of participation be performed with knowledge that it will assist the principal in the commission of the criminal act.

[…]

[…]

189.    […] individual responsibility under Article 6 (1) of the Statute attaches not only to direct physical participation by the accused in the commission of the crime, but also to acts of participation which in fact contribute to, or have an effect on, the commission of the crime. […]

198.    In line with the relevant international case law, referred to in the foregoing analysis, a person may be held criminally liable for any conduct, where it is determined that he participated knowingly in the commission of a crime, if his participation directly and substantially contributed to the perpetration of the crime.[1] The intent to participate in the commission of a crime may thus be inferred from the accused’s participation, particularly from his aiding and abetting. Ultimately, and as acknowledged by the Trial Chamber, there must on the part of the Accused be a clear awareness that this participation will lead to the commission of a crime.”[2] That intention may be inferred from a number of facts,[3] the assessment of which falls to the Trial Chamber. […]

201.    On the specific question of the passive presence of the Accused at the crime sites,[1] the Trial Chamber held that:

“[…] an approving spectator who is held in such respect by the other perpetrators that his presence encourages them in their conduct, may be guilty of complicity in a crime against humanity”.[2]

Thus, the Trial Chamber found that a person’s role in the commission of the proscribed act need not be tangible.[3] Even where the presence of the Accused need not be a condition sine qua non, he may still incur individual responsibility provided he is aware of the possible effect of his presence (albeit passive) on the commission of the crime. In the case at bar, the Trial Chamber held that the Accused’s failure to oppose the killing constituted a form of tacit encouragement in light of his position of authority.[4] The Trial Chamber therefore found, based on the evidence presented by the parties, that the participation of the Accused, through encouragement and support afforded to the principals of the crimes committed at the various massacre sites, had been established beyond reasonable doubt.[5]

202.    The Appeals Chamber is satisfied that the Trial Chamber did not err in law or in fact in finding that the Accused did possess the criminal intent, and that consequently his presence, albeit passive, considering his position of authority, was tantamount to tacit encouragement.

327.    […] [T]he Appeals Chamber finds that the witnesses’ personal knowledge of Ruzindana is not a prerequisite for identification.[1]

328.    As noted by the Trial Chamber, “prior knowledge of those identified is another factor that the Trial Chamber may take into account in considering the reliability of witness’ testimonies.”[2] The fact that some of the witnesses did not personally know the accused prior to the events is not at all a sufficient reason to invalidate the testimony of a witness who identified the Accused.[3]