21. The Appeals Chamber recalls that a Trial Chamber has full discretion to assess the appropriate credibility and weight to be accorded to the testimony of a witness;[1] corroboration is one of many potential factors relevant to this assessment.[2] A Trial Chamber retains discretion to decide, in the circumstances of each case, whether corroboration of evidence is necessary and to rely on uncorroborated, but otherwise credible, witness testimony.[3]

[…]

24. Nevertheless, the Appeals Chamber recalls that two prima facie credible testimonies need not be identical in all aspects or describe the same fact in the same way in order to be corroborative.[4] Every witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.[5] It follows that corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.[6]

21. The Appeals Chamber recalls that a Trial Chamber has full discretion to assess the appropriate credibility and weight to be accorded to the testimony of a witness;[1] corroboration is one of many potential factors relevant to this assessment.[2] A Trial Chamber retains discretion to decide, in the circumstances of each case, whether corroboration of evidence is necessary and to rely on uncorroborated, but otherwise credible, witness testimony.[3]

[…]

24. Nevertheless, the Appeals Chamber recalls that two prima facie credible testimonies need not be identical in all aspects or describe the same fact in the same way in order to be corroborative.[4] Every witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.[5] It follows that corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.[6]

103. The Appeals Chamber recalls that the Prosecution bears the burden of establishing facts material to the guilt of an accused beyond reasonable doubt, and that suggesting that the Defence should present evidence proving the contrary would be an impermissible shift of such burden.[1] In this case, the Trial Chamber essentially took the view that the Defence evidence on the events at Gisagara market was not inconsistent with the Prosecution evidence. It reasoned that since two credible and reliable Prosecution witnesses saw Ntawukulilyayo at the market, the fact that the Defence witnesses did not see him or hear of his presence at the market did not necessarily suggest that he was not there.[2]

104. The Appeals Chamber finds no error in the Trial Chamber’s preference for positive eyewitness testimony, and does not consider that the Trial Chamber’s assessment of the Defence evidence in this regard suggests that Ntawukulilyayo was required to present witnesses who were able to negate the Prosecution evidence. The Trial Chamber found that “Witnesses AYQ and BAU provided convincing and consistent accounts of Ntawukulilyayo’s order to refugees to go to Kabuye hill.”[3] It then considered the evidence that Ntawukulilyayo presented to show that he was not at the market that day.[4] The Trial Chamber also considered Ntawukulilyayo’s evidence that the refugees had already left the market before he allegedly instructed them to move.[5] In the Appeals Chamber’s view, the fact that the Trial Chamber considered that such evidence was “of limited probative value”[6] and did “not raise doubt”[7] or “concerns”[8] about the Prosecution evidence does not constitute a reversal of the burden of proof.

58. One of the principal factors which led the Trial Chamber to deny the adjournment was that none of the witnesses due to testify during Nsengiyumva’s absence was adverse or particularly relevant to him.[1] The Appeals Chamber recalls that, in a decision in the Karemera et al. case rendered on 5 October 2007, it held that “[i]n the circumstances of a joint trial, it is irrelevant for the purpose of [determining whether to continue trial in absence of an accused due to no fault of his own] whether or not the witness’s testimony was likely to concern the alleged acts and conduct of a co-accused only”.[2] However, the Appeals Chamber considers that cogent reasons exist for departing from this particular aspect of the Karemera et al. Appeal Decision of 5 October 2007. The Appeals Chamber is of the view that, contrary to its statement in the Karemera et al. case, the relevance of a witness’s testimony to an accused is a factor which can be considered by the Trial Chamber in determining whether to continue trial in the absence of that accused. It considers that the statement in the Karemera et al. Appeal Decision of 5 October 2007 constitutes an unnecessary restriction on a Trial Chamber’s discretion to regulate the conduct of proceedings at trial depending on the needs and circumstances of each case. Accordingly, the Appeals Chamber considers that the Trial Chamber did not err in relying on this factor in reaching its initial Decision Denying Adjournment.

533. A review of the procedural history and the Trial Chamber’s conduct following the issuance of the Subpoena Decision indicates that the Trial Chamber did not require Gatsinzi to comply with its subpoena. There is nothing in Rule 54 of the Rules that makes it mandatory for the Trial Chamber to issue a subpoena. However, the Appeals Chamber considers that because it is a binding order, the decision to issue a subpoena triggers a responsibility on the Trial Chamber to ensure compliance therewith. As such, once the Trial Chamber decided that Gatsinzi’s testimony was necessary and of sufficient importance for the conduct of the trial to use coercive measures to assist Bagosora in obtaining it, it became incumbent upon the Trial Chamber to take every measure within its capacity to enforce its order in the event of non-compliance.[1]

534. In the Appeals Chamber’s view, Gatsinzi’s request for a video-link constituted a rejection of the explicit instruction of the Subpoena Decision that he personally appear before the Trial Chamber.[2] Contrary to the Trial Chamber’s position that “the conditions stipulated by the witness led to his non-appearance”,[3] the Appeals Chamber considers that it was the Trial Chamber’s failure to react to Gatsinzi’s conditions that led to his non-appearance. If the Trial Chamber reconsidered its Subpoena Decision, it should have done so explicitly, and with reasons.[4] It did not. Rather, the Trial Chamber repeatedly claimed that the subpoena remained in force, but took no steps to enforce it despite Bagosora’s repeated requests, which created confusion for Bagosora as to how to proceed.

535. In addition, the Trial Chamber’s indication in its 2 May 2007 Decision that Bagosora had the opportunity to make an application for a video-link but chose not to do so,[5] erroneously presumes that this was the only option open to Bagosora to secure Gatsinzi’s testimony. Bagosora chose to seek enforcement of the subpoena as it stood, initiation of contempt proceedings in case of continued non-compliance, and a stay of proceedings until the matter was resolved.[6] Instead, the Trial Chamber continuously failed to definitively answer Bagosora’s requests in any form, and then found against him at a late stage in the proceedings because he did not pursue a different course of action.

536. The Appeals Chamber finds nothing to justify the Trial Chamber’s failure to instruct the Registrar to inform Gatsinzi that his conditions were not acceptable. If the Trial Chamber was not ready to enforce the subpoena, it should have clarified its refusal to Bagosora earlier, called Gatsinzi as a Chamber witness, or proprio motu ordered the testimony to be heard by video-link despite Bagosora’s disagreement with such modalities. Bagosora’s rejection of the conditions imposed by Gatsinzi could not reasonably have been interpreted by the Trial Chamber as a waiver of his desire to have Gatsinzi testify altogether. Bagosora has never faltered in asserting the material importance of Gatsinzi’s testimony to his defence, and the Trial Chamber explicitly acknowledged this to be so.[7]

537. The Appeals Chamber is mindful of the Trial Chamber’s discretion under Rule 85 of the Rules to limit the presentation of evidence “in the interests of justice”. In this case, however, because the lapses in time between the 2 May 2007 and 23 May 2007 Decisions in relation to the 10 October 2006 Motion[[8]] were attributable to the Trial Chamber, the Appeals Chamber considers that the Trial Chamber abused its discretion when it considered the “late stage” and “the conclusion of evidentiary proceedings” as its sole basis for finding it “in the interests of justice to conclude this trial and to proceed with closing arguments” without hearing Gatsinzi’s testimony.[9]

Furthermore, the Appeals Chamber found that the Trial Chamber’s failure to enforce the subpoena against Gatsinzi amounted to a violation of Bagosora’s right to a fair trial, but that any prejudice he suffered as a result of such violation was remedied by the fact that Gatsinzi was ultimately heard on appeal. Though Gatsinzi’s testimony would preferably have been heard at trial, the Appeals Chamber determined that this would have done little in fact to assist Bagosora’s defence. Such determination was reached after considering all the evidence on the record, which showed that crucial elements to which Gatsinzi was expected to testify had already been introduced into evidence by other means, thereby affording Bagosora the opportunity to address them at trial. More importantly, however, the Appeals Chamber noted that during his live testimony on appeal, Gatsinzi did not testify in Bagosora’s favour, and that his testimony suffered a number of deficiencies in terms of credibility and reliability. See paras. 543-546.

132. The Appeals Chamber recalls that a decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct charged.[1] The Trial Chamber correctly stated that where an accused “is alleged to have given precise orders for the killing of specific individuals, the obligation to provide precisions as to the circumstances thereof is as its highest”.[2] In the present case, the Prosecution was, at the time of the filing of the Indictment,[3] in a position to provide information that was obviously valuable to the preparation of Nsengiyumva’s defence by naming the victim, and should have done so.[4] The Indictment was therefore defective in respect of the identity of this victim, as well as the time and place of this particular event.

389. An enumerated crime under Article 3 of the Statute constitutes a crime against humanity if it is proven to have been committed as part of a widespread or systematic attack against a civilian population on national, political, ethnic, racial or religious grounds.[1] The term “widespread” refers to the large scale nature of the attack and the number of victims, whereas the term “systematic” refers to “the organised nature of the acts of violence and the improbability of their random occurrence”.[2] With respect to the mens rea, the perpetrator must have acted with knowledge of the broader context of the attack, and with knowledge that his acts (or omissions) formed part of the widespread or systematic attack against the civilian population.[3]

390. The Trial Chamber correctly articulated these required elements of crimes against humanity[4] and, contrary to Nsengiyumva’s contention, provided a reasoned opinion for its conclusion that the totality of the evidence established that these required elements were met.[5] Nsengiyumva’s argument that the Trial Chamber erred in “taking the country of Rwanda as one crime scene” implies that, in order to qualify as crimes against humanity, the attacks in Gisenyi should have been shown to have been widespread or systematic independently of attacks taking place elsewhere in Rwanda. Such a suggestion is, however, erroneous, as the requirement is that the attacks be committed within a broader context, that is, as part of a widespread or systematic attack.[6] Nsengiyumva fails to show that the Trial Chamber erred in holding that this requirement was satisfied.

416. The Appeals Chamber recalls, however, that cumulative convictions for extermination and murder as crimes against humanity based on the same set of facts are not permissible because, whereas extermination requires the materially distinct element that the killings occur on a mass scale, murder does not contain an element materially distinct from extermination.[1] The Trial Chamber therefore erred in law in entering cumulative convictions for murder and extermination as crimes against humanity for the killings in Gisenyi town. Since the offence of extermination contains an additional materially distinct element,[2] which is present in the instant case,[3] the Appeals Chamber concludes that Nsengiyumva’s convictions for extermination entered under Count 6 of the Nsengiyumva Indictment should be upheld while his convictions for murder as a crime against humanity under Count 5 should be vacated.

736. Bagosora did not formally raise any error vis-à-vis his cumulative convictions for murder and extermination as crimes against humanity. However, the Appeals Chamber recalls its holding above in connection with Nsengiyumva’s appeal that cumulative convictions for extermination and murder as crimes against humanity based on the same set of facts are not permissible because murder as a crime against humanity does not contain a materially distinct element from extermination as a crime against humanity.[4] Accordingly, the Appeals Chamber finds, proprio motu, that the Trial Chamber erred in law in convicting Bagosora of both murder and extermination as crimes against humanity based on the same facts. In this context, the Appeals Chamber recalls that the more specific provision should be upheld.[5] Consequently, the Appeals Chamber concludes that Bagosora’s conviction for murder as a crime against humanity under Count 4 of the Bagosora Indictment pursuant to Article 6(3) of the Statute should be reversed, while his conviction for extermination under Count 6 of the Bagosora Indictment should be affirmed.

414. The Appeals Chamber notes that the permissibility of cumulative convictions for the crimes of murder as a crime against humanity and persecution as a crime against humanity has been specifically considered by the Appeals Chamber.[1] The Appeals Chamber has found that the crime of persecution requires a materially distinct element to be proven that is not present as an element in the crime of murder, namely proof that an act or omission discriminates in fact and that the act or omission was committed with specific intent to discriminate.[2] The crime of murder was also held to require proof of a materially distinct element that is not required to be proven in establishing the crime of persecution, namely proof of the death of one or more persons.[3] Therefore, cumulative convictions for murder and persecution as crimes against humanity were found to be permissible.[4] The Appeals Chamber accordingly finds that the Trial Chamber did not err in convicting Nsengiyumva for both murder and persecution as crimes against humanity for the killings in Gisenyi town.[5]

416. The Appeals Chamber recalls, however, that cumulative convictions for extermination and murder as crimes against humanity based on the same set of facts are not permissible because, whereas extermination requires the materially distinct element that the killings occur on a mass scale, murder does not contain an element materially distinct from extermination.[1] The Trial Chamber therefore erred in law in entering cumulative convictions for murder and extermination as crimes against humanity for the killings in Gisenyi town. Since the offence of extermination contains an additional materially distinct element,[2] which is present in the instant case,[3] the Appeals Chamber concludes that Nsengiyumva’s convictions for extermination entered under Count 6 of the Nsengiyumva Indictment should be upheld while his convictions for murder as a crime against humanity under Count 5 should be vacated.

735. The Appeals Chamber confirms that cumulative convictions for extermination and persecution as crimes against humanity based on the same set of facts are permissible since each offence has a materially distinct element not contained in the other.[6] Extermination requires proof that the accused caused the death of a large number of people, while persecution necessitates evidence that an act or omission was in fact discriminatory and that the act or omission was perpetrated with the specific intent to discriminate.[7].

736. Bagosora did not formally raise any error vis-à-vis his cumulative convictions for murder and extermination as crimes against humanity. However, the Appeals Chamber recalls its holding above in connection with Nsengiyumva’s appeal that cumulative convictions for extermination and murder as crimes against humanity based on the same set of facts are not permissible because murder as a crime against humanity does not contain a materially distinct element from extermination as a crime against humanity.[1] Accordingly, the Appeals Chamber finds, proprio motu, that the Trial Chamber erred in law in convicting Bagosora of both murder and extermination as crimes against humanity based on the same facts. In this context, the Appeals Chamber recalls that the more specific provision should be upheld.[2] Consequently, the Appeals Chamber concludes that Bagosora’s conviction for murder as a crime against humanity under Count 4 of the Bagosora Indictment pursuant to Article 6(3) of the Statute should be reversed, while his conviction for extermination under Count 6 of the Bagosora Indictment should be affirmed.

225. […] the Appeals Chamber recalls that expert witnesses are ordinarily afforded significant latitude to offer opinions within their expertise; their views need not be based upon first-hand knowledge or experience.[1] In general, an expert witness lacks personal familiarity with the particular case and offers a view based on his or her specialised knowledge regarding a technical, scientific, or otherwise discrete set of ideas or concepts that is expected to lie outside the lay person’s ken.[2]