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.

384. The Appeals Chamber recalls that, for a conviction as a superior pursuant to Article 6(3) of the Statute, it is not necessary for an accused to have had the same intent as the perpetrator of the criminal act; it suffices to prove that the accused knew or had reason to know that the subordinate was about to commit such act or had done so.[1] The Trial Chamber was therefore not required to establish that Nsengiyumva shared his subordinates’ intent to find that he could be held responsible as a superior. It follows that the Trial Chamber did not err in finding that Nsengiyumva was liable as a superior without considering evidence suggesting that he might not have had such intent.

510. The Appeals Chamber is concerned that the Trial Chamber failed to explicitly consider whether Bagosora had the material ability to punish culpable subordinates in the Trial Judgement. The Appeals Chamber considers that this amounts to a failure to provide a reasoned opinion. Nonetheless, the Appeals Chamber recalls that even where a superior personally lacks disciplinary or sanctioning powers, the duty can be fulfilled by reporting the crimes to the competent authorities to trigger investigation or disciplinary action.[1] In light of Bagosora’s senior position in the Ministry of Defence, and his access to senior military officers, as demonstrated by his attendance at meetings with them, even if he did not have direct sanctioning powers, he nonetheless had the ability to report the incidents to the relevant military officers to trigger investigations.

683. The Appeals Chamber recalls that the duty to punish will be fulfilled when necessary and reasonable measures to punish perpetrators have been taken.[2] What measures fulfil an accused’s duty to punish will be determined in relation to his material ability to take such measures.[3] In certain circumstances, although the necessary and reasonable measures may have been taken, the result may fall short of the punishment of the perpetrators.[4] Accordingly, the Appeals Chamber considers that the Trial Chamber’s statement that “[t]here is absolutely no evidence that the perpetrators were punished afterwards” was insufficient, in itself, to establish that Bagosora failed to fulfil his duty to punish the crimes of which he was convicted. The Appeals Chamber considers that, given the absence of any further reasoning supporting the conclusion that Bagosora failed to fulfil his duty to punish culpable subordinates, the Trial Chamber failed to provide a reasoned opinion. In these circumstances, the Appeals Chamber has reviewed the Trial Chamber’s factual findings and the relevant evidence on the record to determine whether a reasonable trier of fact could have found beyond reasonable doubt that Bagosora failed to take reasonable and necessary measures to punish his subordinates for the crimes committed.[…]

8. The Appeal Chamber further recalls that on appeal, a fact qualifying for judicial notice under Rule 94 of the Rules is not automatically admitted and must meet the requirements provided for by Rule 115 of the Rules.[1] The Appeals Chamber emphasizes in this regard that Rule 94 of the Rules is not a mechanism that may be employed to circumvent the general rules governing the admissibility of evidence.[2]

13. The Trial Chamber also erred in concluding that there was no need to amend the Amended Indictment because the Prosecution indicated in its Response to the Preliminary Motion that it intended to rely on the basic and extended forms of JCE and because additional details could be provided in the Pre-Trial Brief.[1] It is accepted that defects in the indictment can be cured later by timely, clear, and consistent information detailing the factual basis underpinning the charge.[2] However, the indictment is the primary accusatory instrument[3] and the Prosecution has been warned in the past that the practice of failing to allege known material facts in the indictment is unacceptable.[4] Consequently, in a case such as the present, where defects in the indictment surface at the pre-trial stage, the Prosecution cannot refrain from amending the indictment by arguing that it will correct existing defects through its Pre-Trial Brief.[5]

39. The Appeals Chamber rejects the Prosecution’s argument that the Trial Chamber properly denied Uwinkindi’s Preliminary Motion because additional details are contained in a disclosed witness statement and because the Prosecution suggested that paragraph 10 of the Amended Indictment could be further amended in light of this material. As stated above, the indictment is the primary accusatory instrument.[6] Furthermore, the Appeals Chamber has repeatedly held that the mere service of witness statements or potential exhibits by the Prosecution pursuant to disclosure requirements does not suffice to inform the Defence of material facts that the Prosecution intends to prove at trial.[7]