161.    […] The Appeals Chamber notes that criminal intent (mens rea) must not be confused with motive and that, in respect of genocide, personal motive does not exclude criminal responsibility providing that the acts proscribed in Article 2(2)(a) through to (e) were committed “with intent to destroy, in whole or in part a national, ethnical, racial or religious group”.[1]

151.    The Appeals Chamber understands the Trial Chamber’s reasoning to be that, if a doubt exists in the interpretation of a statute, the doubt must be interpreted in favour of the accused. The Trial Chamber considered that “meurtre” is not the same as “killing”.[1] However, having regard to the operative part of Article 2(2) of the Statute, it found that “there is virtually no difference” between the two terms as the term “killing” is linked to the intent to destroy in whole or in part.[2] The Appeals Chamber accepts this view, but states that if the word “virtually” is interpreted in a manner that suggests a difference, though minimal, between the two terms, it would construe them both as referring to intentional but not necessarily premeditated murder, this being, in its view, the meaning to be assigned to the word “meurtre”. […]

165.    The Appeals Chamber recalls that Article 22(2) provides that a Judgement “shall be accompanied by a reasoned opinion in writing”.[1] ICTY Appeals Chamber has, in its interpretation of the corresponding provision in ICTY Statute,[2] drawn from the case-law developed under the European Convention on Human Rights. In conformity with this jurisprudence, the extent to which a court is to provide a reasoned opinion must be determined on a case by case basis and courts are generally “not obliged to give a detailed answer to every argument”.[3] The Appeals Chamber concurs with this understanding of the requirement of providing a reasoned opinion in writing, as laid down in Article 22 of the Statute and considers that it is sufficient for the Trial Chamber to explain its position on the main issues raised. […]

See also paras. 214, 245 and 267.

186.    […] Ruzindana […] raises the specific issue of a material element required to establish responsibility for committing killings, namely “resulting death”.

187.    On the aspect of the legal element of “committing” referred to in Article 6 (1) of the Statute, the Appeals Chamber in the Tadić Appeal Judgement had occasion to consider an identical provision in Article 7 (1) of ICTY Statute and stated that:

This provision covers first and foremost the physical perpetration of a crime by the offender himself, or the culpable omission of an act that was mandated by a rule of criminal law.[1]

          The Appeals Chamber accepts this statement as accurate. Thus, any finding of direct commission requires the direct personal or physical participation of the accused in the actual acts which constitute a crime under the Statute, together with the requisite knowledge. For the present purposes, the Appeals Chamber sees no further necessity to attempt a detailed definition of what constitutes individual responsibility for the element of “committing” under Article 6 (1) of the Statute. It suffices to observe that according to the jurisprudence discussed, the element of “resulting death” is not an indispensable factor or element to be established in proving individual responsibility under Article 6(1) of the Statute. […]

[…]

190.    […] As discussed above, the issue of resulting death is not a legal element in the determination of criminal responsibility under Article 6(1) of the Statute; it can be an evidential factor in the proof of such a responsibility. Accordingly, the Appeals Chamber is satisfied that it was open to the Trial Chamber to assess the evidence before it in order to establish whether death resulted. […]

115.    […] [I]t is the duty of the trial Judges to hear, assess and weigh the evidence adduced by the parties at the hearing.[1] The Trial Chamber thus determines if a witness is credible and if the evidence presented is reliable.[2]

[…]

129.    The Appeals Chamber affirms once again that it is incumbent on the Trial Chamber to assess the credibility of a witness as well as the reliability of the evidence given by the parties.  Therefore, the Appeals Chamber cannot and must not set aside the Trial Judge’s findings except when a reasonable court would not have relied on the evidence for its decision or when the assessment of the evidence is completely erroneous.  The Appeals Chamber stresses that it is the duty of the Trial Chamber to determine the probative value of each exhibit or witness testimony, based on their relevance and credibility.

[…]

187.    […] As held by the Appeals Chamber in the Tadić Appeal Judgement,[3] the Aleksovski Appeal Judgement[4] and the Čelebići Appeal Judgement,[5] the Trial Chamber is best placed to hear, assess and weigh the evidence, including witness testimonies presented at trial. Whether a Trial Chamber will rely upon a single witness testimony as proof of a material fact, will depend on various factors that have to be assessed in light of the circumstances of each case. The Appeals Chamber therefore has to give a margin of deference to the Trial Chamber’s evaluation of the evidence presented at trial.

[…]

222.    As regards the impugned demeanour of certain witnesses which should have “reasonably” caused the Trial Chamber to disqualify them, the Appeals Chamber is of the view that the trial judges are in the most appropriate position to assess the credibility of a testimony and the demeanor of a witness at a hearing. […]

[…]

230.    Moreover, it is for the trier of fact to assess the probative value of a testimony, such discretionary power also covering the manner in which the Trial Chamber decides to deal with apparent contradictions. […]

[…]

319.    […] [I]t is neither possible nor proper to draw up an exhaustive list of criteria for the assessment of evidence, given the specific circumstances of each case and the duty of the judge to rule on each case in an impartial and independent manner.[6] The Appeals Chamber concurs with the argument of the Trial Chamber that it is “for the Trial Chamber to decide upon the reliability of the witness’ testimony in light of its presentation in court and after its subjection to cross-examination.”[7]

[…]

325.    […] The Appeals Chamber affirms that in a case where there are two conflicting testimonies, it falls to the Trial Chamber, before which the witnesses testified, to decide which of the testimonies has more weight.

210.    The Appeals Chamber emphasizes that once having heard testimonial evidence as proffered by the parties, it is up to the Trial Chamber to decide, by a reasoned opinion, to accept or to reject, in whole or in part, the testimony of an expert witness, provided the reasons for its decision are reasonable.[1] In this regard, the Appeals Chamber notes that the assessment of the credibility of evidence given by an expert falls clearly to the trier of fact.

294.    Article 6(3) of the Statute on “Individual criminal responsibility”, provides that:

The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

          With respect to the nature of the superior-subordinate relationship, the Appeals Chamber refers to the relevant principles expressed in the Čelebići Appeal Judgement in relation to the identical provision in Article 7(3) of ICTY Statute, as follows:

(i)         [A] superior is “one who possesses the power or authority in either a de jure or a de facto form to prevent a subordinate’s crime or to punish the perpetrators of the crime after the crime is committed”.[1] Thus, “[t]he power or authority to prevent or to punish does not solely arise from de jure authority conferred through official appointment.”[2]

(ii)         “In determining questions of responsibility it is necessary to look to effective exercise of power or control and not to formal titles. […]. In general the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced. [T]he ability to exercise effective control is necessary for the establishment of de facto command or superior responsibility and […] the absence of formal appointment is not fatal to a finding of criminal responsibility, provided certain conditions are met.”[3]

(iii)        “The showing of effective control is required in cases involving both de jure and de facto superiors.”

          This Appeals Chamber accepts these statements and notes that the Trial Chamber, in its Judgement, applied a similar approach when it found that:

[E]ven where a clear hierarchy based upon de jure authority is not present, this does not prevent the finding of command responsibility. Equally, as we shall examine below, the mere existence of de jure power does not always necessitate the imposition of command responsibility. The culpability that this doctrine gives rise to must ultimately be predicated upon the power that the superior exercises over his subordinates in a given situation.[5]

Thus, “as long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control”.[6] Therefore, Kayishema’s argument that without de jure authority, there can be no subordinate and hence, no de facto authority, is misconceived. This question turns on whether the superior had effective control over the persons committing the alleged crimes. The existence of effective control may be related to the question whether the accused had de jure authority. However, it need not be; such control or authority can have a de facto or a de jure character.[7]

350.    […] The particularly gruesome manner in which the victim, Beatrice, was killed, is an aggravating circumstance. The fact that this act of killing also supported a conviction for the crime of genocide, because it was part of the policy of genocide within Kibuye préfecture, does not prevent a separate finding that the manner in which it was carried out gave rise to an aggravating circumstance. 

361.    […] [P]erpetrating a crime in a manner which brings about irreparable harm to the victims and their families may also be considered an aggravation. When an individual commits a crime, there are differing degrees of physical and psychological harm to the victim which may result. Some types of harm are more severe than others. Certain forms of physical harm, for instance, are irreparable, particularly in the case of mutilation. The Trial Chamber found that Kayishema’s acts inflicted irreparable harm not only to the victims, but also to their families. This constituted an aggravating circumstance to be taken into account in sentencing. […]

367.    […] The Appeals Chamber remarks that there is no hierarchy of crimes under the Statute, and that all of the crimes specified therein are “serious violations of international humanitarian law”,[1] capable of attracting the same sentence. The actual sentence imposed depends, of course, upon the evaluation of the various factors referred to in the Statute and the Rules. The Appeals Chamber finds that the Trial Chamber’s description of genocide as the “crime of crimes” was at the level of general appreciation, and did not impact on the sentence it imposed. Furthermore, upon examining the statements of the Trial Chamber, it is evident that the primary thrust of its finding as to the gravity of the offences relates to the fact that genocide in itself is a crime that is extremely grave. Such an observation is correct, and for these reasons, there was no error in its finding on this point.