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]

23. The Appeals Chamber recalls that, pursuant to Article 22 of the Statute, “[t]he judgement shall be rendered by a majority of the judges of the Trial Chamber, and shall be delivered by the Trial Chamber in public. It shall be accompanied by a reasoned opinion in writing, to which separate or dissenting opinions may be appended”. Similarly, Rules 88(A) and (C) of the Rules of Procedure and Evidence of the Tribunal (“Rules”) provide that “[t]he judgement shall be pronounced in public”, “rendered by a majority of the Judges”, and “accompanied or followed as soon as possible by a reasoned opinion in writing”.

24. In the present case, the Trial Judgement was rendered unanimously and delivered in public on 18 December 2008. It was followed by a written reasoned opinion on 9 February 2009. On the day of the delivery of the Trial Judgement, the Trial Chamber pronounced its verdict and sentence, and provided an oral summary of the judgement, highlighting key findings. It specified that:

The judgement amounts to several hundred pages. The Chamber will now read out its summary. Only the key findings can be highlighted here. The full text of the judgement will be available in the coming days after the conclusion of the editorial process. It contains many incidents where the Prosecution did not prove its case. A French translation will be provided in due course. This summary is not binding. Only the written judgement is authoritative.[1]

25. While the oral summary of the Trial Chamber’s findings was not authoritative, the verdicts and sentences pronounced on 18 December 2008 were. The reasoned opinion which followed was simply a written version of the judgement. The Appeals Chamber considers it to be clear from the statement noted above that the written reasoned opinion was complete at the time of the delivery of the judgement on 18 December 2008 and that what followed was merely the completion of the editorial process.[2] Nsengiyumva does not demonstrate that Judge Reddy failed to fulfil his judicial duties in this case prior to the expiration of his mandate on 31 December 2008.

394. Extermination as a crime against humanity under Article 3(b) of the Statute is the act of killing on a large scale,[1] committed within the context of a widespread or systematic attack against any civilian population on national, political, ethnic, racial, or religious grounds.[2]

396. The […] Appeals Chamber considers 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. Each of the incidents which formed the basis of Nsengiyumva’s convictions presented distinct features and could not be said to constitute one and the same incident.[1] As such, they could not be considered to constitute one and the same crime sharing the same actus reus.

397. The Appeals Chamber notes that the Trial Chamber nonetheless suggested that some of the killings of which the co-Accused were convicted “in themselves” satisfied the requirement of killing on a large scale.[1] However, the Trial Chamber failed to make any factual findings as to whether the killings perpetrated in Gisenyi town on 7 April 1994 met the requisite threshold of having been committed “on a large scale” in themselves.[2] With respect to the killings in Gisenyi town, the Trial Chamber’s findings are limited to stating that “targeted attacks against Tutsis and suspected accomplices” were perpetrated.[3] The Appeals Chamber is concerned that the Trial Chamber did not make any specific findings on this fundamental element of the crime of extermination.

398. Nevertheless, the Appeals Chamber considers that the facts as found by the Trial Chamber and the evidence it relied upon support a finding beyond reasonable doubt that the killings in Gisenyi town were perpetrated on a large scale. The Appeals Chamber notes with respect to the Gisenyi town killings that the Trial Chamber accepted and relied upon Prosecution Witness DO’s evidence that the victims included: a Tutsi teacher and his daughter; Hutus suspected of being accomplices, such as Daniel Rwabijongo, as well as Assoumani Kajanja and his Tutsi wife; Gilbert and another Tutsi man hiding in a compound with him; and a Tutsi woman named Mukabutare and her daughter.[4] Witness DO testified that there were several other groups of assailants apart from the one he was assigned to that were perpetrating parallel killings throughout Gisenyi town at the same time.[5] In the Appeals Chamber’s view, these killings are qualifiable as having occurred on a large scale.

79. The Appeals Chamber recalls that the conduct of trial proceedings, including decisions on protective measures and disclosure, is a matter which falls within the discretion of Trial Chambers. This discretion encompasses the ability of a Trial Chamber to revisit its previous decisions. In this regard, it recalls that Rule 69(A) of the Rules explicitly provides that the Trial Chamber may order the non-disclosure of the identity of a victim or witness “until the Chamber decides otherwise”. Accordingly, the fact that there was already an existing protective measures order in Nsengiyumva’s case which the Trial Chamber replaced does not in itself amount to an error. Nonetheless, the Appeals Chamber will now consider whether the Decision on Protective Measures of 7 December 2001[[2]] was in conformity with the Rules.

81. In its Decision on Protective Measures of 7 December 2001, the Trial Chamber acknowledged that the plain language of Rule 69(C) of the Rules required the Prosecution to disclose all protected witnesses’ identifying data prior to the commencement of trial.[3] Nevertheless, it concluded that a departure from the plain language of the Rule was justified by the objective of providing meaningful protection for victims and witnesses.[4] Following consultation with the Witnesses and Victims Support Section of the Prosecution (“WVSS-P”), it found that this unit was unable to place under its protection all the witnesses in the case at the same time.[5] It considered that neither the mandate of witness protection nor the necessity of ensuring that the accused had sufficient time to prepare his defence could be sacrificed and reasoned that “a proper balance must be struck to determine what amount of advance disclosure is strictly necessary to serve the twin aims of Rule 69”.[6] The Trial Chamber concluded that to require the Prosecution to disclose unredacted witness statements and protected witnesses’ identifying data prior to the commencement of trial was “ill advised because it would unnecessarily tax any real notion of witness protection without advancing the Accused’s right to effective cross-examination in any meaningful way”.[7]

82. Although the disclosure requirements under Rule 66 of the Rules are subject to Rule 69, the Appeals Chamber recalls that while a Trial Chamber may order the non-disclosure of the identity of a victim or witness who may be in danger or at risk pursuant to Rule 69(A) of the Rules, it must first establish the existence of exceptional circumstances. In the Decision on Protective Measures of 7 December 2001, the Trial Chamber referred to “the existence of the exceptional circumstance”,[8] without elaborating on what it considered to amount to the exceptional circumstance justifying the non-disclosure of the victims’ and witnesses’ identity. The Appeals Chamber notes, however, that the Trial Chamber recalled that it had consulted with WVSS-P[9] and considered that WVSS-P had informed the Trial Chamber that it lacked the capacity and resources to place all the witnesses under protection at the same time.[10] The Appeals Chamber understands that the Trial Chamber considered that this inability to provide protection to all the witnesses at the same time amounted to an exceptional circumstance warranting the delayed disclosure of the identity of the witnesses. The Appeals Chamber does not find error in this approach.

83. Nevertheless, the Appeals Chamber considers that the Trial Chamber erred in ordering the Prosecution to disclose the identity of protected victims and witnesses and their unredacted statements no later than 35 days before the expected date of their testimony. While a Trial Chamber has discretion pursuant to Rule 69(A) of the Rules regarding the ordering of protective measures where it has established the existence of exceptional circumstances, the Appeals Chamber recalls that this discretion is still constrained by the scope of the Rules. In this regard, it notes that at the time of the decision, Rule 69(C) of the Rules provided that “the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the prosecution and the defence”.[11]

84. Furthermore, the Appeals Chamber does not consider that, as stated by the Trial Chamber, such disregard for the explicit provision of the Rules was necessary for the protection of witnesses.[12] It notes that in the previous witness protection decision in the Nsengiyumva case prior to the joinder, the Trial Chamber had ordered the temporary redaction of identifying information until witnesses were brought under the protection of the Tribunal, but had nonetheless required that the Defence be provided with unredacted witnesses statements “within sufficient time prior to the trial in order to allow the Defence a sufficient amount of time to prepare itself”.[13] At no point did the Trial Chamber indicate that any problems had arisen from this previous arrangement justifying a more restrictive disclosure schedule.

85. In light of the foregoing, the Appeals Chamber considers that the Trial Chamber erred in ordering the Prosecution to disclose the identity of protected victims and witnesses and their unredacted statements no later than 35 days before the expected date of their testimony, rather than prior to the trial, as then provided by the Rules. […]

See also para. 80.

150. The Appeals Chamber recalls that a broad date range, in and of itself, does not invalidate a paragraph of an indictment.[1] 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 with which the accused is charged.[2] Obviously, there may be instances where the sheer scale of the alleged crimes makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes.[3]

151. Nonetheless, in the present case, given that the Nyundo Parish attacks occurred during three specific consecutive days at the beginning of April 1994, the Appeals Chamber considers that by pleading a time-frame of almost three months, the Indictment was vague and overly broad with respect to the dates of the attacks. The Appeals Chamber therefore considers that the Indictment was defective in relation to the allegations pertaining to Nyundo Parish. It therefore turns to consider whether this defect in the Indictment was cured.

729. […] The Appeals Chamber underscores that the desecration of Prime Minister Uwilingiyimana’s corpse constituted a profound assault on human dignity meriting unreserved condemnation under international law.[1] Such crimes strike at the core of national and human identity. However, the Appeals Chamber finds, Judge Pocar dissenting, that Bagosora was not charged on this basis, and thus cannot be held legally responsible for this act.

415. Similarly, the Appeals Chamber finds that the Trial Chamber did not err in entering convictions for both murder as a crime against humanity (Article 3 of the Statute) and violence to life as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Article 4 of the Statute) on the basis of Nsengiyumva’s role in the killings in Gisenyi town. It recalls that a conviction under Article 4 of the Statute has a materially distinct element not required for a conviction under Article 3 of the Statute, namely the existence of a nexus between the alleged crimes and the armed conflict satisfying the requirements of common Article 3 of the Geneva Conventions and Article 1 of Additional Protocol II.[1] Likewise, a conviction under Article 3 of the Statute requires proof of a materially distinct element not required under Article 4 of the Statute, namely proof of a widespread or systematic attack against a civilian population.[2]

226. The Appeals Chamber also reiterates that hearsay evidence from an expert witness is admissible as long as it has probative value and remains within the proper purview of expert evidence.[1] Witness Des Forges provided testimony as an expert on, inter alia, the historical and political developments leading up to the genocide.[2] The Appeals Chamber considers that her testimony on the civil defence system fell within the ambit of her professional expertise on the historical and political framework of the crimes committed in 1994 in Rwanda. […] Further, as is usual for the establishment of historical facts, Witness Des Forges relied on a variety of sources for her conclusions.[3] This may include hearsay information.

277. The Appeals Chamber recalls that ordering under Article 6(1) of the Statute requires that a person in a position of authority instruct another person to commit an offence.[1] As previously held, “the actus reus of ordering cannot be established in the absence of a prior positive act because the very notion of ‘instructing’, pivotal to the understanding of the question of ‘ordering’, requires ‘a positive action by the person in a position of authority’”.[2]

283. The Appeals Chamber considers that, in the absence of any evidence that Nsengiyumva gave any instructions,[3] the mere involvement of three soldiers in civilian attire under his command[4] and the existence of a pattern of crimes being committed in and around his area of control immediately after the death of the President could not lead a reasonable trier of fact to find that the only reasonable inference was that Nsengiyumva ordered the killings perpetrated in Gisenyi town on 7 April 1994.

323. The Appeals Chamber finds that in the absence of evidence of military involvement and coordination between the military and the civilian attackers, the mere fact that the killing took place in Gisenyi town the day following President Habyarimana’s death is insufficient for a reasonable trier of fact to find that the only reasonable inference was that the unidentified civilian assailants acted upon Nsengiyumva’s orders. […]

571. Turning to the Trial Chamber’s finding that Bagosora ordered the killing of Maharangari, the Appeals Chamber observes that the Trial Chamber’s factual findings do not support its legal conclusion. In its factual findings, the Trial Chamber concluded that:

Bagosora had authority over the Rwandan army at the time of the attack […]. There is no credible evidence directly showing that Bagosora was aware of the murder of Maharangari. However, given the widespread killing throughout Kigali perpetrated by or with the assistance of military personnel, including the targeted killings on the morning of 7 April […], the Chamber is satisfied that Bagosora was aware that personnel under his authority were participating in killings.[5]

While the Trial Chamber discussed Bagosora’s awareness of the killing of Maharangari and Bagosora’s superior position, at no point did it discuss evidence that Bagosora ordered the crimes. The Trial Chamber’s factual findings therefore appear to correspond only to those which would normally be entered in relation to superior responsibility.

428. The Appeals Chamber recalls that it has reversed Nsengiyumva’s convictions for the killing of Alphonse Kabiligi, as well as the killings at Nyundo Parish, MudendeUniversity, and Bisesero. It has also set aside the finding that Nsengiyumva was responsible for ordering the Gisenyi town killings pursuant to Article 6(1) of the Statute, finding him, Judges Meron and Robinson dissenting, criminally responsible as a superior instead. Consequently, Nsengiyumva’s role as a superior, as well as the large number of Tutsi victims during the course of the attacks at Nyundo Parish, MudendeUniversity, and Bisesero can no longer be held against him as aggravating factors. In addition, the Appeals Chamber has reversed Nsengiyumva’s conviction for murder as a crime against humanity.

429. The Appeals Chamber considers that the reversal of nearly all of Nsengiyumva’s convictions represents a significant reduction in his culpability and calls for a revision of his sentence. The Appeals Chamber notes, however, that Nsengiyumva remains guilty of genocide, extermination, and persecution as crimes against humanity, as well as violence to life as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II for the killings perpetrated in Gisenyi town on 7 April 1994. These are extremely serious crimes.

430. Therefore, the Appeals Chamber sets aside Nsengiyumva’s sentence of imprisonment for the remainder of his life and, Judges Meron and Robinson dissenting, sentences him to a term of 15 years of imprisonment.

739. The Appeals Chamber recalls that it has vacated all of Bagosora’s convictions for murder as a crime against humanity under Count 4 of the Bagosora Indictment.[1] It has also reversed Bagosora’s convictions pursuant to Article 6(1) of the Statute for the killing of Augustin Maharangari, and his convictions pursuant to Article 6(3) of the Statute for the killing of Alphonse Kabiligi, the killings of the Belgian peacekeepers murdered before his visit to Camp Kigali, and the killings in Gisenyi town, at Nyundo Parish, and at Mudende University. Furthermore, the Appeals Chamber has set aside the finding that Bagosora was responsible under Article 6(1) of the Statute for ordering crimes committed at Kigali area roadblocks. It has nonetheless found him responsible as a superior pursuant to Article 6(3) of the Statute for those crimes. Finally, the Appeals Chamber has reversed, Judge Pocar dissenting, Bagosora’s conviction for crimes against humanity (other inhumane acts) pursuant to Article 6(3) of the Statute for the defilement of the corpse of Prime Minister Agathe Uwilingiyimana.

740. The Appeals Chamber considers that the fact that Bagosora is no longer found guilty pursuant to Article 6(1) of the Statute does not reduce his culpability. The Appeals Chamber stresses in this regard that, in the circumstances of this case, superior responsibility under Article 6(3) of the Statute is not to be seen as less grave than criminal responsibility under Article 6(1) of the Statute. However, the Appeals Chamber, Judges Pocar and Liu dissenting, considers that the reversal of Bagosora’s convictions for the killings of the peacekeepers murdered before his visit to Camp Kigali, Augustin Maharangari, Alphonse Kabiligi, and the killings perpetrated in Gisenyi town, at Nyundo Parish, and at Mudende University, as well as for the defilement of the corpse of the Prime Minister result in a reduction of his overall culpability which calls for a reduction of his sentence.

741. The Appeals Chamber, Judges Pocar and Liu dissenting, therefore grants Bagosora’s Sixth Ground of Appeal, sets aside his sentence of imprisonment for the remainder of his life, and sentences him to a term of 35 years of imprisonment.