249. As to Ntahobali’s contention that Exhibit P113 lacked sufficient probative value to be admitted under Rule 89(C) of the Rules, the Appeals Chambers considers that the mere fact that a statement is made by a co-accused does not ipso facto render the document’s contents so unreliable that it could not be admitted under Rule 89(C) of the Rules.[1]

See also para. 260.

1616.            The Appeals Chamber recalls that neither the Rules nor the jurisprudence of the Tribunal oblige a trial chamber to require a particular type of identification evidence[1] and that trial chambers have the discretion to consider cautiously and rely on hearsay evidence.[2] The Appeals Chamber further recalls that a witness’s prior knowledge of, or level of familiarity with, an accused is a relevant factor in the assessment of identification evidence; however, contrary to what Ntahobali suggests, the fact that a witness did not personally know an accused prior to the events does not necessarily undermine the reliability of his identification evidence.[3] In the present case, the Trial Chamber correctly recalled generally the law concerning reliance on hearsay evidence in an introductory section of the Trial Judgement and specifically when considering such evidence with respect to Ntahobali’s identification at the prefectoral office.[4] The Trial Chamber considered the hearsay nature of various witnesses’ identifications of Ntahobali at the prefectoral office and concluded that they were reliable for a variety of reasons.[5] Ntahobali’s general contentions concerning the Trial Chamber’s use of hearsay, which do not discuss this analysis,[6] fail to demonstrate that the Trial Chamber erred in this regard.

See also fn. 5590.

576. The Appeals Chamber underlines that trial chambers are tasked with determining the guilt or innocence of the accused and must do so in light of the entirety of the evidence admitted into the record and that neither the Statute nor the Rules prevent a trial chamber from relying on the testimony of the accused to convict that accused, unless the accused’s self-incriminating evidence was compelled in violation of Article 20(4)(g) of the Statute.[1] […]

391. The Appeals Chamber reiterates that “any violation, even if it entails a relative degree of prejudice, requires a proportionate remedy”.[1] The nature and form of the effective remedy should be proportional to the gravity of harm that is suffered.[2]

[…]

394. However, the Appeals Chamber does not find that the violation of the co‑Appellants’ right to be tried without undue delay and the prejudice they suffered were so serious or egregious as to justify a stay or the termination of the proceedings requested by Nyiramasuhuko, Ntahobali, Kanyabashi, Nteziryayo, and Ndayambaje.[3] Nevertheless, in light of the length of the undue delay, the Appeals Chamber is also not convinced that a formal recognition of the violation would constitute an effective remedy in the present case.

395. The Appeals Chamber observes that a reduction of sentence has been considered an effective remedy in cases where the breach of the fair trial rights resulted in the accused being detained impermissibly or for a longer period than necessary.[4] Financial compensation has also been envisioned in limited situations where the accused was ultimately not found guilty.[5] In the Rwamakuba case, where the accused was acquitted of all charges, a financial compensation was awarded to André Rwamakuba as part of an effective remedy for the violations of his rights to legal assistance and to initial appearance without delay.[6]

2516.            […] [I]t is apparent that the key source of Kanyabashi’s knowledge and the conduct by which he was alleged to have failed to prevent or punish the crimes on the basis of which he was convicted was materially different from the acts expressly pleaded in the Indictment. As such, the Appeals Chamber considers that the Trial Chamber’s findings were based upon a set of material facts different from those that were specifically pleaded in the Indictment, set forth in the Prosecution Pre-Trial Brief, and pursued throughout the trial. The Appeals Chamber finds that the Trial Chamber erred in convicting Kanyabashi based on material facts that were not pleaded by the Prosecution in the Indictment and at trial.

See also para. 2518.

1003.            […] The reporting of subordinates to a superior and rewards by a superior for doing so are indicia relevant to determining effective control but are not a necessary requirement.[1]

[…]

2568.            The Appeals Chamber recalls that the imposition of superior responsibility necessitates a pre‑existing superior-subordinate relationship between the accused and the perpetrators.[2] While proof that an accused is not only able to issue orders but that his orders are actually followed provides an example of effective control,[3] the Appeals Chamber has held that:

[t]he ability to exercise effective control in the sense of a material power to prevent or punish, which the Appeals Chamber considers to be a minimum requirement for the recognition of the superior-subordinate relationship, will almost invariably not be satisfied unless such a relationship of subordination exists. However, it is possible to imagine scenarios in which one of two persons of equal status or rank – such as two soldiers or two civilian prison guards – could in fact exercise ‘effective control’ over the other at least in the sense of a purely practical ability to prevent the conduct of the other by, for example, force of personality or physical strength. The Appeals Chamber does not consider the doctrine of command responsibility – which developed with an emphasis on persons who, by virtue of the position which they occupy, have authority over others – as having been intended to impose criminal liability on persons for the acts of other persons of completely equal status.[4]

[…]

2570.            The Appeals Chamber considers that the Trial Chamber’s findings that Kanyabashi ordered soldiers to shoot at Tutsis and that the soldiers obeyed this order may be demonstrative of the fact that Kanyabashi was in a position of authority or influence that could compel the commission of a crime through the execution of his orders.[5] As noted above, these findings could be indicative of the fact that Kanyabashi exercised effective control over the soldiers.[6] However, the Appeals Chamber finds that no reasonable trier of fact could have found that a single order from a civilian authority which was followed by soldiers demonstrated a pre-existing superior‑subordinate relationship, which, in turn, imposed a duty on that civilian authority to prevent the soldiers from committing crimes or to punish them for the crimes committed.[7]

1058.            […] The Appeals Chamber acknowledges the critical role investigators play to Defence investigations. […]

2123.            The Appeals Chamber recalls that the actus reus of extermination is the act of killing on a large scale.[1] This is what distinguishes the crime of extermination from the crime of murder.[2] The Appeals Chamber further recalls that “large scale” does not suggest a strict numerical approach with a minimum number of victims.[3] The assessment of “large scale” is made on a case-by-case basis, taking into account the circumstances in which the killings occurred.[4] Relevant factors include, inter alia, the time and place of the killings, the selection of the victims and the manner in which they were targeted, and whether the killings were aimed at the collective group rather than victims in their individual capacity.[5]

2124.            There can be no dispute that, “taken by themselves”, the individual killings of the Tutsi girl and Ruvurajabo at the Hotel Ihuliro roadblock in late April 1994 do not meet the “large scale” requirement. The Appeals Chamber, however, is not persuaded that the Trial Chamber erred in finding that these two killings, taken collectively with the other killings for which Ntahobali was convicted, “occurred on a large scale”.

2125.            In the Bagosora and Nsengiyumva Appeal Judgement, the Appeals Chamber considered that “the Trial Chamber was unreasonable to conclude that the ‘large scale’ requirement for extermination was satisfied based on a collective consideration of events committed in different prefectures, in different circumstances, by different perpetrators, and over a period of two months.”[6] The Appeals Chamber observes that, by contrast, the two killings perpetrated at the Hotel Ihuliro roadblock were perpetrated in the same commune, in similar circumstances, by the same category of perpetrators, and approximately at the same time as the numerous killings perpetrated at the locations near the IRST, at or near the EER, and the killings of Tutsis abducted from the Butare Prefecture Office.[7] For all these events, the Trial Chamber concluded that the victims were all or predominantly of Tutsi ethnicity and were not targeted in their individual capacity but as part of a collective aim to exterminate the Tutsis.[8]

2126.            In the circumstances of this case, the Appeals Chamber finds no error in the Trial Chamber’s collective consideration of the events in relation of which Ntahobali was convicted to find him guilty of extermination as a crime against humanity for the killings perpetrated at the Hotel Ihuliro roadblock and all other killings for which he remains convicted. […]

[…]

3910.            It is unclear whether the individual killing of the eight abducted Tutsi women and girls Witness QAR testified about could be considered to meet the “large scale” requirement.[9] In any event, the Appeals Chamber finds that the Trial Chamber did not err in finding that, taken collectively with the killings perpetrated at Mugombwa Church and Kabuye Hill for which Ndayambaje was also convicted, the killing of the group of abducted women and girls “occurred on a large scale”. The Appeals Chamber observes that the killing of the abducted women and girls was perpetrated in the same commune as the Mugombwa Church massacre and not far from the Kabuye Hill attacks,[10] that Ndayambaje similarly encouraged by his presence or his words the assailants to perpetrate the crimes,[11] and that the victims were not targeted in their individual capacity but as part of a collective aim to exterminate the Tutsis.[12] The instant situation therefore differs from the situation addressed in the Bagosora and Nsengiyumva Appeal Judgement which Ndayambaje relies upon in support of his contention that the “large scale” requirement was not met regarding the killings of the abducted women and girls.[13]

See also para. 3309.

1011.            […] [T]he Trial Chamber found that, at the beginning of June 1994, Nyiramasuhuko came to the Cyarwa-Sumo Sector, Ngoma Commune, and distributed condoms for the Interahamwe to be used in the raping and killing of Tutsi women in that sector.[1] The Trial Chamber further found that Nyiramasuhuko gave the following order to the woman to whom she distributed the condoms: “[g]o and distribute these condoms to your young men, so that they use them to rape Tutsi women and to protect themselves from AIDS, and after having raped them they should kill all of them. Let no Tutsi woman survive because they take away our husbands.”[2]

1012.            […] [T]he Trial Chamber found that “this circumstantial evidence shows Nyiramasuhuko’s intent to destroy, in whole or in substantial part, the Tutsi group”[3] and relied in part on this evidence to find that Nyiramasuhuko possessed the specific intent to commit genocide in relation to other events.[4]

[…]

1029.            With respect to Nyiramasuhuko’s argument that, although genocidal intent can be inferred, it cannot be split from the actus reus and must be assessed with respect to the specific alleged crime, at the alleged time, and in the circumstances alleged, the Appeals Chamber recalls that genocidal intent may be inferred, inter alia, from evidence of other culpable acts systematically directed against the same group.[5] […]

1030.            The Appeals Chamber notes that Nyiramasuhuko’s distribution of condoms and statement evincing her intent to target Tutsi women occurred in the beginning of June 1994. In light of the time elapsed between the Mid-May Attack and this incident, this incident alone could not effectively demonstrate Nyiramasuhuko’s specific intent when ordering killings of Tutsis at the prefectoral office during the Mid‑May Attack.[6] However, as highlighted previously, the Trial Judgement reflects that the finding of Nyiramasuhuko’s genocidal intent when ordering killings at the prefectoral office during the Mid-May Attack – and the Night of Three Attacks – was predicated on her role in the attack that occurred then and there.[7] In addition, the Trial Chamber also relied on additional circumstantial evidence that Nyiramasuhuko possessed the specific intent to commit genocide from 19 April 1994, when she tacitly approved Kambanda’s and Sindikubwabo’s Speeches during Nsabimana’s Swearing-In Ceremony. Nyiramasuhuko has not demonstrated that the Trial Chamber erred in this regard. To the extent that the Trial Chamber relied on Nyiramasuhuko’s distribution of condoms and statement evincing her intent to target Tutsi women as additional circumstantial evidence of Nyiramasuhuko’s genocidal intent, the Appeals Chamber finds no error in this approach.

77. The Appeals Chamber recalls that the actus reus for the first and third categories of JCE liability consists of: (i) a plurality of persons; (ii) the existence of a common plan, design, or purpose which amounts to or involves the commission of a crime provided for in the Statute; and (iii) the participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute.[1] The mens rea element for the first category of JCE liability is the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators).[2] For the third category, it is the intention to participate in and further the criminal activity or the criminal purpose of a group and to contribute to the JCE or in any event to the commission of a crime by the group. In addition, responsibility for a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case: (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group; and (ii) the accused willingly took that risk.[3]