187. […] It is well established that trial chambers have the discretion to accept some but reject other parts of a witness’s testimony.[1] The Appeals Chamber therefore dismisses Kanyarukiga’s assertion that the Trial Chamber was precluded from relying on Witness CDL with respect to the 16 April 1994 meeting because it rejected other parts of his evidence. The Trial Chamber’s rejection of portions of his testimony rather demonstrates that it was fully aware of credibility concerns relating to this witness and that it adopted a cautious approach to his evidence.

76. The Trial Chamber referred to the conversation when assessing Kanyarukiga’s actus reus of planning.[1] Moreover, the Trial Chamber concluded in this context that it was “satisfied beyond reasonable doubt that Gaspard Kanyarukiga, Grégoire Ndahimana, Fulgence Kayishema, Télesphore Ndungutse, Joseph Habiyambere and others planned the destruction of the Nyange [c]hurch on 15 and 16 April 1994 and that the church was destroyed on the afternoon of 16 April 1994, killing those inside.”[2] Accordingly, in the Trial Chamber’s view, Kanyarukiga planned the destruction of the church on both days, his criminal conduct on 15 April 1994 consisting of his conversation with Kayishema.[3] This conversation thus amounted to a material fact that, along with others, underpinned Kanyarukiga’s conviction for planning. Recalling that when the accused is charged with planning, the Prosecution is required to identify the “particular acts” or the “particular course of conduct” on the part of the accused which forms the basis for the charge in question,[4] the Appeals Chamber finds that the conversation should have been pleaded in the Amended Indictment. In this respect, the Amended Indictment was defective.

77. However, as will be discussed below, Kanyarukiga was also held responsible for participating in a meeting at the Nyange parish on the morning of 16 April 1994 where the demolition of the Nyange church was discussed and agreed to as well as for making a remark after the meeting about the need to destroy the church. This conduct was adequately pleaded in the Amended Indictment and is a sufficient basis for Kanyarukiga’s convictions. Therefore, by partly relying on Kanyarukiga’s conversation on 15 April 1994, the Trial Chamber did not commit an error which would invalidate the verdict. The Appeals Chamber therefore declines to consider the issue further[5] and will instead simply disregard the conversation as a basis for Kanyarukiga’s liability.

150. The Appeals Chamber recalls the finding in the Zigiranyirazo Appeal Judgement that “evidence concerning specific travel details taken after several years can only be of limited assistance in establishing the time and exact itinerary” of a trip taken in April 1994.[1] However, it also recalls that, in the circumstances of that case, the observations of the Trial Chamber on the site visit were found to be a relevant factor in assessing the credibility of the alibi.[2] As such, although it is true that observations from a site visit taken several years after an event may only be of limited assistance, their relevance will depend on the circumstances of each case. Therefore, the Appeals Chamber does not find that the Trial Chamber erred in law by comparing its observations during the site visit with the evidence of the alibi witnesses. The Appeals Chamber will therefore turn to consider whether the Trial Chamber was reasonable in this comparison.

262. The Appeals Chamber notes that motive, as opposed to mens rea, is not an element of any crime.[1] The question whether Kanyarukiga lacked a motive to participate in the crimes for which he was convicted thus does not have the potential to invalidate the verdict and the Appeals Chamber declines to consider it.[2]

264. The Trial Chamber considered that “for an accused to be convicted of ‘committing’ pursuant to a theory of [joint criminal enterprise], it must be established that he or she participated in the execution of the common plan or purpose of the enterprise”.[1] The Trial Chamber reasoned that, while Kanyarukiga participated in the planning of the destruction of the Nyange church, there was no evidence to suggest that he ordered, instigated, encouraged, or provided material assistance to the attackers.[2] Accordingly, it concluded that the evidence was insufficient to establish that Kanyarukiga “significantly contributed to the execution or commission of the crimes charged.”[3]

267. The Appeals Chamber notes that the Prosecution does not seek the invalidation of the Trial Judgement, but merely requests clarification on an issue of general importance to the development of the Tribunal’s case law.[4] The Appeals Chamber recalls that the Statute empowers it to hear appeals concerning an alleged error on a question of law “invalidating the decision”.[5] While, in exceptional circumstances, the Appeals Chamber has discretion to hear appeals where a party has raised a legal issue that would not invalidate the judgement,[6] it declines to do so in this case.[7]

80. Notice that the Prosecution intended to rely on this series of events to underpin the charge of other inhumane acts was only provided at the close of the trial, in the Prosecution Closing Brief.[1] Considering that the basic purpose of informing an accused clearly of the charges against him is so that he may prepare his defence, the Appeals Chamber reiterates that notification in closing submissions cannot constitute proper notice.[2]

111. The Prosecution submits that “if Ntabakuze still had any doubt about his Article 6(3) liability over the acts of the militiamen, the Trial Chamber’s Rule 98 bis decision highlighted […] his liability”.[3] In its Decision on Motions for Judgement of Acquittal, the Trial Chamber indeed stated that “[t]he evidence […] of the relationship between the four Accused and the Interahamwe could, if believed, establish a relationship of ‘effective control’ over the Interahamwe”.[4] However, this statement was made after the close of the Prosecution’s case and, in these circumstances, cannot be deemed to constitute timely notice.

123. The Appeals Chamber recalls that in respect of [failure to prevent or punish], in many cases it will be sufficient to plead that the accused did not take any necessary and reasonable measures to prevent or punish the commission of criminal acts.[1] This stems from the fact that the accused’s failure to prevent or punish may often be inferred from the continuing or widespread nature of the violations committed by his subordinates as alleged in the indictment.[2]

125. [A] review of the Indictment reflects that the Prosecution did not explicitly plead Ntabakuze’s failure to prevent or punish the crimes of his subordinates. However, the Appeals Chamber observes that paragraph 6.18 of the Indictment, which was specifically relied on in support of Ntabakuze’s superior responsibility, pleads that the crimes alleged in the Indictment were carried out on his orders and directives. This, in the Appeals Chamber’s opinion, gave notice to Ntabakuze that he was alleged to have failed to take the necessary measures to prevent or punish the crimes. Further notice was provided through the allegations of repeated and continuing crimes by Ntabakuze’s subordinates from the Para-Commando Battalion,[3] and the allegation at paragraph 6.44 of the Indictment that “[c]ertain units of the Para‑Commando, Reconnaissance and Presidential Guard battalions were the most implicated in these crimes”.[4]

Footnote 88:            The Appeals Chamber notes that the Prosecution appears to submit that, given the widespread nature of the massacres, and the involvement of virtually every unit of the army in perpetrating them in multiple locations throughout Kigali and other prefectures, it was “legitimate” for the Indictment to only provide examples of some locations where massacres occurred. See [Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Prosecutor’s Brief in Response to Aloys Ntabakuze’s Appeal, 7 September 2009 (“Prosecution Response Brief”)], para. 31. See also AT. 27 September 2011 p. 39. The Appeals Chamber considers this argument to be ill-founded. The Appeals Chamber has previously stated that “the facts relevant to the acts of those others for whose acts the accused is alleged to be responsible as a superior [...]] will usually be stated with less precision because the detail[s] of those acts are often unknown, and because the acts themselves are often not very much in issue”. See Muvunyi Appeal Judgement of 29 August 2008, para. 58, citing Ntagerura et al. Appeal Judgement, para. 26, fn. 82, quoting Blaškić Appeal Judgement, para. 218. However, the indictment must plead the criminal conduct of the subordinates for whom the accused is alleged to be responsible. See infra, para. 100. At a minimum, this includes pleading the location and approximate date of the alleged criminal acts and the means by which they were committed when this information is in possession of the Prosecution.

284. The Appeals Chamber notes that, in determining the sentence, the Trial Chamber expressly took into account Ntabakuze’s family situation and his lengthy public service to his country as a military officer, as well as his social, educational, and professional background.[1] The Trial Chamber, however, concluded that the gravity of the crimes and the aggravating factors greatly outweighed these mitigating factors.[2] The Appeals Chamber recalls that in general only little weight is afforded to the family situation of the convicted person in the absence of exceptional family circumstances.[3] Similarly, the lack of a previous criminal record and a purported likelihood of successful rehabilitation are common characteristics among many convicted persons which are accorded little weight, if any, in mitigation in the absence of exceptional circumstances.[4] As for Ntabakuze’s “exemplary” military career, the Appeals Chamber also considers that it was in the Trial Chamber’s discretion not to accord this factor any mitigating value in the absence of particular reasons for doing so. Ntabakuze does not submit that exceptional circumstances obliged the Trial Chamber to accord special value to any of the factors listed above.

296. […] The Appeals Chamber reiterates that in most cases the good character of a convicted person carries little weight in the determination of the sentence.[1] Ntabakuze does not submit any argument demonstrating a discernible error in the Trial Chamber’s assessment. His contention in this respect is therefore rejected.

282. The Appeals Chamber considers that the fact that Ntabakuze was acquitted of all charges against him pursuant to Article 6(1) of the Statute and was solely convicted pursuant to Article 6(3) of the Statute is not subject to consideration as a mitigating factor. The form of liability is not an individual circumstance of the accused but the objective definition of his participation in the criminal conduct. Further, failure to prevent or punish subordinates’ crimes constitutes the culpable conduct under Article 6(3) of the Statute and the absence of conviction under Article 6(1) of the Statute does not reduce that culpability.[1] The Appeals Chamber finds that the Trial Chamber was therefore correct in not considering in mitigation the fact that Ntabakuze was not convicted pursuant to Article 6(1) of the Statute and, accordingly, rejects Ntabakuze’s argument in this respect.