150.     The Appeals Chamber further recalls that “encouragement” is a form of conduct which may lead to criminal responsibility for aiding and abetting a crime.[1] The ICTY Appeals Chamber has held that “the encouragement or support need not be explicit; under certain circumstances, even the act of being present on the crime scene (or in its vicinity) as a ‘silent spectator’ can be construed as the tacit approval or encouragement of the crime.”[2] Ngirabatware points to the fact that he was not found to have been present when the attacks and killings of Tutsis were taking place. The Appeals Chamber finds Ngirabatware’s argument to be misguided. It follows from the Trial Chamber’s relevant finding that it did not consider Ngirabatware to be a “silent spectator” who tacitly approved and encouraged the crime by his mere presence and authority. Rather, the Trial Chamber found that the encouragement provided by Ngirabatware was explicit in that, as an influential figure in Nyamyumba Commune, he distributed weapons to the Interahamwe while exhorting them to kill Tutsis.[3] In such circumstances, whether Ngirabatware was present at the crime scene is inconsequential for his responsibility for aiding and abetting to arise.[4] In view of the evidence considered and relied upon by the Trial Chamber, Ngirabatware’s claim that the Interahamwe who were manning the roadblock and committed the killings were unaware of the encouragement he provided is similarly without merit.[5]

249.     The Appeals Chamber recalls that, in determining whether an accused was adequately put on notice of the nature and cause of the charges against him, the indictment must be considered as a whole.[1] Ngirabatware was charged with participation in a joint criminal enterprise with the common purpose to exterminate the Tutsis under Count 5 of the Indictment.[2] Count 6 of the Indictment charges Ngirabatware with rape as a natural and foreseeable consequence of the execution of the common purpose to exterminate the Tutsi civilian population.[3] Accordingly, despite the minor nuances in the language,[4] the nature of the common purpose under Count 5 of the Indictment is identical to that under Count 6. In fact, Count 5 and Count 6 are the only counts in the Indictment alleging that the common purpose of the joint criminal enterprise was the crime of extermination. A plain reading of the Indictment thus indicates that the common purpose of exterminating the Tutsi civilian population pleaded under Count 6 of the Indictment was linked to the charge of extermination contained in Count 5 of the Indictment. In these circumstances, the mention in the chapeau of Count 6 of the particulars concerning Ngirabatware’s participation in the joint criminal enterprise “as set forth above”[5] can be interpreted to refer solely to Ngirabatware’s alleged contribution to the joint criminal enterprise to commit extermination as set forth in Count 5 of the Indictment.

19.       The Appeals Chamber notes that, in its Rule 98bis Decision, the Trial Chamber correctly recalled the applicable law.[1] With respect to Counts 1 and 5 of the Indictment, the Trial Chamber found that there was “evidence which, if accepted, could satisfy a reasonable trier of fact of Ngirabatware’s guilt beyond a reasonable doubt”.[2] In the Trial Judgement, the Trial Chamber granted the Prosecution’s request to withdraw the charge of conspiracy to commit genocide under Count 1,[3] and acquitted Ngirabatware of extermination as a crime against humanity under Count 5 of the Indictment.[4] In arguing that this is indicative of an error in the standard of proof applied by the Trial Chamber in its Rule 98bis Decision, Ngirabatware conflates the various evidentiary thresholds. As recalled above, a judgement of acquittal shall only be entered pursuant to Rule 98bis of the ICTR Rules if the evidence is insufficient to sustain a conviction. At that stage a trial chamber is required to “assume that the prosecution’s evidence [is] entitled to credence unless incapable of belief” and “take the evidence at its highest”.[5] In contrast, pursuant to Rule 87 of the ICTR Rules, at the end of the trial a trial chamber may reach a finding of guilt only if it is satisfied that the guilt of the accused has been proved beyond reasonable doubt.

20.       The standard “‘beyond reasonable doubt’ connotes that the evidence establishes a particular point and it is beyond dispute that any reasonable alternative is possible.”[6] It requires that the trial chamber be satisfied that there is no reasonable explanation of the evidence other than the guilt of the accused.[7] Accordingly, a dismissal of a request for a judgement of acquittal on a particular count at the close of the Prosecution case-in-chief is not incompatible with an acquittal of the accused on that same count at the end of the trial. In the same vein, a Prosecution’s decision to withdraw a charge at the end of the trial does not demonstrate that the evidence was insufficient to sustain a conviction in relation to that charge at the close of the Prosecution case-in-chief.[8] Ngirabatware thus fails to show that the Trial Chamber erred in law or fact in failing to grant his Rule 98bis Motion in relation to Counts 1 and 5 of the Indictment.[9]

102.     The Appeals Chamber recalls that, pursuant to Rule 92bis(A) of the ICTR Rules, a trial chamber “may admit […] the evidence of a witness in the form of a written statement in lieu of written testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.” Pursuant to Rule 92bis(A)(ii) of the ICTR Rules, factors against admitting evidence in the form of a written statement include, inter alia, whether “there is an overriding public interest in the evidence in question being presented orally”. The ICTY Appeals Chamber has also held that:

Where the evidence is so pivotal to the prosecution case, and where the person whose acts and conduct the written statement describes is so proximate to the accused, the Trial Chamber may decide that it would not be fair to the accused to permit the evidence to be given in written form.[1] 

103.     The Appeals Chamber observes that the statements of Witnesses DWAN-48 and DWAN-78 relate to the acts of Witness ANAN as opposed to those of Ngirabatware.[2] The Appeals Chamber finds therefore that the Trial Chamber’s interpretation of matters going to proof of “the acts and conduct of the accused” is inconsistent with the clear distinction in the jurisprudence between the acts and conduct of the accused, as charged in the indictment, and the acts and conduct of others.[3] It is only the former that is excluded from the procedure laid down in Rule 92bis of the ICTR Rules which provides that only matters other than the acts and conduct of the accused can be admitted in written form. [4]

104. In any event, the Trial Chamber’s additional reason for denying admission of the proposed evidence in written form is compatible with Rule 92bis(A)(ii) of the ICTR Rules. The Appeals Chamber is satisfied that the Trial Chamber acted within its discretion in determining that there was an overriding public interest for such serious allegations, imputing to Witness ANAN conduct potentially undermining the integrity of the proceedings as a whole, to be presented orally. Ngirabatware has failed to demonstrate that he made any effort to call these witnesses to testify or that he had good reason for not doing so. Moreover, rather than articulating an error in the Trial Chamber’s reasoning, Ngirabatware merely focuses on the purported importance of the proposed evidence. Such arguments are clearly insufficient to discharge his burden on appeal. Ngirabatware’s submissions in this regard are therefore dismissed.

In this decision, the Appeals Chamber dealt with a motion by the Defence for Vujadin Popović, seeking the admission, as additional evidence on appeal, of his statement given pursuant to Rule 92 ter of the Rules of Procedure and Evidence of the Tribunal and his testimony on 5 and 6 November 2013 in the case of Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T.

CONSIDERING that Popović could have exercised his right to testify in his own defence at trial;[1]

41.     The Appeals Chamber recalls that, in relation to the credibility of Mugiraneza’s 1999 and 2014 statements and Nyiramasuhuko’s 2010 Testimony, it is required to ascertain whether the proposed evidence appears to be reasonably capable of belief or reliance, and need not at this stage make a finding as to the weight to be accorded to it.[1] The identification of the provenance of the evidence is important in this regard.[2] […]

15. […] The Appeals Chamber recalls the well-established practice at this Tribunal that allegations of partiality of trial judges are dealt with in the course of the normal appellate process, i.e., in the appeal judgement.[1] The Appeals Chamber further recalls that it has already made a determination, in the present case, that it will make its own assessment of the issues relating to the alleged partiality of Judge Harhoff in the course of the normal appellate process.[2]

16. With respect to the Applicants’ first argument, the Appeals Chamber recalls its previous finding that there has been no “general finding” or “final determination” regarding Judge Harhoff’s alleged partiality in this case and that thus there is no basis for a claim of “ongoing prejudice” during the appeal proceedings.[3] The fairness and validity of the Trial Judgement is yet to be determined by the Appeals Chamber. The Appeals Chamber therefore rejects the Applicants’ argument that the appeal proceedings are themselves improper and unfair because the Trial Judgement is invalid. In relation to the Applicants’ arguments that the Grounds of Appeal are “credible” based on the Appeals Chamber’s decision to admit the Letter as additional evidence on appeal, the Appeals Chamber notes that this decision was made in the context of, and is limited to Rule 115 of the Rules. The Appeals Chamber emphasises its previous conclusion that the Rule 115 Decision “pertain[s]] strictly to the admissibility [of the Letter ]] and not to the merits of the appeals filed by the parties”.^[4] The Appeals Chamber further emphasises that the credibility and merits of the appeals filed by the parties will be determined in due course by the Appeals Chamber. It is therefore not necessary to depart from the Tribunal’s well-established practice[5] on the basis that these proceedings “[flow] […] from an invalid Trial Judgement” as alleged by the Applicants.[6] The Applicants’ arguments in this regard are therefore without merit.

17. Regarding the Applicants’ second and third arguments, the Appeals Chamber notes that under Articles 20(1) and 21(4)(c) of the Statute, the Appeals Chamber has the primary obligation to ensure that a person convicted by a Trial Chamber has a fair and expeditious process on appeal. The Appeals Chamber is now seised of the fully briefed appeals. It is considering them and will deliver its judgement in due course.[7] The Appeals Chamber observes that the Applicants’ arguments of judicial economy and potential undue delay in the proceedings are based on a speculative premise as to the outcome of the appeals as a whole.[8] However, as previously emphasised, the outcome of the appeals lodged by the parties will be determined in the appeal judgement.[9] Therefore, the Appeals Chamber is not satisfied that “possible remedies” which might be ordered by it merit a departure from the practice of this Tribunal. The Appeals Chamber further emphasises that proceeding through the normal appellate process in the present case does not prejudice the Applicants. For these reasons, the Appeals Chamber is not convinced that judicial economy or the interests of justice require it to depart from the normal appellate process, i.e. considering the appeals as whole.

18. Consequently, the Appeals Chamber finds no justification to expedite adjudication of the Grounds of Appeal. 

Fn. 709. The Appeals Chamber recalls in this regard that the right to cross-examination is not absolute. See, e.g., Prosecutor v. Milan Martić, Case No. IT-95-11-AR73.2, Decision on Appeal Against the Trial Chamber’s Decision on the Evidence of Witness Milan Babić, 14 September 2006, para. 12.

101. […] [T]hat a fact is mentioned during a witness’s testimony but omitted from the same witness’s statement does not necessarily imply a material inconsistency,[1] […].

202. […] While a superior need not have ordered or authorized a crime to be convicted pursuant to Article 6(3) of the Statute,[1] proof that an accused is able to issue orders and that his orders are actually followed, are indicators of effective control.[2] […]