86. The Appeals Chamber recalls that a Trial Chamber has the discretion to accept a witness’s evidence, notwithstanding inconsistencies between the said evidence and his or her previous statements, as it is up to the Trial Chamber to determine whether an alleged inconsistency is sufficient to cast doubt on the evidence of the witness concerned.[1] […]

207. The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or amongst witnesses’ testimonies.[2] It is within the discretion of the Trial Chamber to evaluate any such inconsistencies, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence.[3]

29. The Appeals Chamber has previously emphasized that “[t]he charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to the accused”.[1] An indictment which fails to duly set forth the specific material facts underpinning the charges against the accused is defective.[2] The defect may be cured if the Prosecution provides the accused with timely, clear, and consistent information detailing the factual basis underpinning the charge. However, a clear distinction has to be drawn between vagueness in an indictment and an indictment omitting certain charges altogether.[4] While it is possible, as stated above, to remedy the vagueness of an indictment, omitted charges can be incorporated into the indictment only by a formal amendment pursuant to Rule 50 of the Rules.[5] Finally, in reaching its judgement, a Trial Chamber can only convict the accused of crimes that are charged in the indictment.[6]

119. […] When the Defence is of the view that the Prosecution introduces evidence of material facts of which it had no notice, it can make an objection to the admission of such evidence for lack of notice.[1] If the Trial Chamber agrees with the Defence that insufficient notice was given, the Trial Chamber may exclude the challenged evidence in relation to the unpleaded material facts, require the Prosecution to amend the indictment, grant an adjournment to allow the Defence adequate time to respond to the additional allegations, or take other measures to preserve the rights of the accused to a fair trial.[2] With respect to this last measure, the Appeals Chamber recalls that a Trial Chamber can also find the particular evidence inadmissible to prove a material fact of which the accused was not on notice, but admissible with respect to other allegations sufficiently pleaded.[3]

160. As the Trial Chamber correctly observed, where the number of victims is large, each and every victim need not be identified in the indictment.[1] While the Trial Chamber noted that there was no evidence adduced regarding the specific number of deaths resulting from the abductions from the Saint Léon Minor Seminary, the repetitive nature of the abductions and the fact that at least one bus was used to remove the identified refugees suggests that there was a significant number of victims.[2] In this context, the Appeals Chamber considers that the identification of the victims as Tutsi refugees taken from the Saint Léon Minor Seminary was sufficiently precise to allow Rukundo to prepare his defence.

260. The Appeals Chamber is not persuaded by the Prosecution’s assertion that the Gacumbitsi Appeal Judgement stands for the proposition that where an accused is convicted for genocide and his participation is that of a primary perpetrator or a leader, the sentence ought to be imprisonment for life, except where there are significant mitigating circumstances. The Gacumbitsi Appeal Judgement merely noted that in most of the other cases in which those convicted for genocide have received less than a life sentence, there were significant mitigating circumstances.[1] It made no statement that this was a generalized rule to be followed. Rather, it recalled that the sentence should first and foremost be commensurate with the gravity of the offences and the degree of liability of the convicted person.[2] Just as there is no category of cases within the jurisdiction of the Tribunal where the imposition of life imprisonment is per se barred, there is also no category of cases where it is per se mandated. Each case remains to be examined on its own individual facts.

261. Furthermore, with respect to the Prosecution’s submission that the Trial Chamber erred in limiting life sentences to certain senior authorities and lower level authorities who committed crimes with particular zeal, the Appeals Chamber considers that the Prosecution misconstrues the Trial Judgement. The Trial Chamber did not limit the imposition of life sentences to these two groups of perpetrators. It merely noted that these were instances in which life sentences had been imposed.[3]

133. The Appeals Chamber recalls that the Trial Chamber “shall exercise control over the mode and order of interrogating witnesses”[1] and that it therefore enjoys considerable discretion in setting the parameters of cross-examination.[2] Nonetheless, Article 20(4) of the Statute does provide the right to cross-examine a witness.

134. While Rukundo had the opportunity to cross-examine Witness BLP when he first gave testimony at trial, he was given no such opportunity to examine him upon the issue of his alleged recantation. The Appeals Chamber considers that, in light of the serious implications of recantation of testimony, the parties should have been given the opportunity to cross-examine Witness BLP on the issue of his alleged recantation. In this regard, the Appeals Chamber has previously noted the particular usefulness of cross-examination as a tool for discerning whether a witness’s testimony has been improperly influenced.[3] Furthermore, the Appeals Chamber recalls that the Trial Chamber indicated on a number of occasions that the parties would be given the opportunity to cross-examine Witness BLP, but ultimately no opportunity was afforded to them. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in law in failing to allow Rukundo the opportunity to cross-examine Witness BLP upon the issue of his recantation.

147. The Appeals Chamber recalls that decisions relating to the general conduct of trial proceedings are matters within the discretion of Trial Chambers[4] and that they exercise control over the mode and order of interrogating witnesses.[5]

18. Rule 68 of the Rules provides, inter alia, that the Prosecution “shall, as soon as practicable, disclose to the Defence any material, which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence.”[1] The Appeals Chamber recalls that the Prosecution’s obligation to disclose exculpatory material is essential to a fair trial.[2] The Appeals Chamber has always interpreted this obligation broadly.[3] To establish a violation of the Rule 68 disclosure obligation, the defence must establish that additional material is in the possession of the Prosecution and present a prima facie case that the material is exculpatory.[4] If the defence satisfies the trial chamber that the Prosecution has failed to comply with its Rule 68 obligations, then the trial chamber must examine whether the defence has been prejudiced by that failure before considering whether a remedy is appropriate.[5]

19. The Trial Chamber determined that the material at issue was in the possession of the Prosecution, but that Kalimanzira did not demonstrate that it was exculpatory.[6] Although the Trial Chamber correctly articulated the test for assessing disclosure violations,[7] the Appeals Chamber finds that it inappropriately applied an elevated standard in assessing whether the material was exculpatory within the meaning of Rule 68 of the Rules. Specifically, the Trial Chamber noted that the witnesses in the Nyiramasuhuko et al. case did not mention seeing Kalimanzira at Kabuye hill.[8] It observed that no questions were asked about him, and the transcripts, thus, “[did] not contradict the evidence adduced in the Kalimanzira trial,”[9] asserting that the failure “to make mention of Kalimanzira’s presence at Kabuye hill during the period at issue does not mean that Kalimanzira could not have been there.”[10]

20. The Trial Chamber’s analysis appears to focus on the potentially low probative value of the Nyiramasuhuko et al. evidence. While that is certainly a relevant consideration in assessing whether an accused was prejudiced by late or non-disclosure of Rule 68 material, the Appeals Chamber recalls that the defence does not bear the burden of “contradict[ing]]” the Prosecution’s evidence.[11] It need only raise a reasonable doubt as to the accused’s participation in a crime.[12] In addition, in order to establish a violation of disclosure obligations under Rule 68 of the Rules, the defence need only show that the material is prima facie or “potentially” exculpatory.[13] The Appeals Chamber considers that Kalimanzira did demonstrate that the absence of any reference to him in the relevant Nyiramasuhuko et al. testimony is potentially exculpatory. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in law in assessing whether the transcripts were in fact exculpatory in order to determine if a breach of the disclosure obligations under Rule 68 of the Rules occurred.

32. The Appeals Chamber can identify no error in the Trial Chamber’s decision not to postpone the commencement of trial in the absence of Kalimanzira’s lead counsel. As the Trial Chamber noted, the purpose of a co-counsel is not only to assist the lead counsel but indeed to conduct the case in order to allow the proceedings to continue in the event of an unforeseeable absence of the lead counsel. A review of the record reflects that the Trial Chamber was mindful of the additional difficulties that this situation imposed on the Defence and accommodated these by, inter alia, postponing the cross-examination of the first five witnesses.[1]

33. Significantly, Kalimanzira does not allege that Ms. Guissé’s performance was ineffective. Indeed, as noted above, the Trial Chamber acknowledged her competence both at the outset of the session and after its conclusion. Furthermore, the record indicates that Ms. Guissé was in fact in consultation with Mr. Vercken during the first trial session and sought his instruction.[2] Kalimanzira also did not seek the recall of any of the witnesses for further cross-examination on the basis of Ms. Guissé’s performance after Mr. Vercken’s return.

34. As to the disparity between the Prosecution and the Defence teams during this period, the Appeals Chamber has held that “the equality of arms principle requires a judicial body to ensure that neither party is put at a disadvantage when presenting its case.”[3] This principle does not require, however, material equality between the parties in terms of financial or human resources.[4] Therefore, there is no merit in Kalimanzira’s submission that his rights were violated simply because the Prosecution had a larger team of lawyers during this period.

56. Rule 67(A)(ii)(a) of the Rules requires the defence to notify the Prosecution before the commencement of trial of its intent to enter a defence of alibi. As the Trial Chamber noted, Kalimanzira intimated at his initial appearance and in his Pre-Trial Brief that he was in GitaramaPrefecture for much of the period covered by the Indictment.[1] However, as the Trial Chamber correctly determined,[2] this information did not conform to Rule 67(A)(ii)(a) of the Rules, which requires that “the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi.” The Appeals Chamber has held that the manner in which an alibi is presented may impact its credibility.[3] Therefore, it was within the Trial Chamber’s discretion to take this into account in assessing the alibi evidence in this case.

86. The Appeals Chamber has explained that an “aider and abettor commit[s]] acts specifically aimed at assisting, encouraging, or lending moral support for the perpetration of a specific crime, and that this support ha[s] a substantial effect on the perpetration of the crime.”[1] Whether a particular contribution qualifies as “substantial” is a “fact-based inquiry”; such assistance need not “serve as condition precedent for the commission of the crime.”[2] With regard to the mens rea required for aiding and abetting, the Appeals Chamber has held that “[t]]he requisite mental element [...]] is knowledge that the acts performed assist the commission of the specific crime of the principal perpetrator.”[3] Specific intent crimes such as genocide require that “the aider and abettor must know of the principal perpetrator’s specific intent.”[4]

87. Kalimanzira’s contention that the Trial Chamber erred in finding that he made a substantial contribution to the killings at Kabuye hill is not convincing. The Trial Chamber reasonably concluded that he substantially contributed to the massacre by encouraging Tutsis to seek refuge at Kabuye hill and by providing armed reinforcements to those trying to kill the Tutsis there. Kalimanzira’s assertion that he did not substantially aid the assault on Kabuye hill rests on his claim that no credible witnesses who were also principal perpetrators placed him there.[5] However, this claim does not take into account the evidence provided by Tutsi survivors of the attacks. It was on the basis of their testimonies that the Trial Chamber placed him at Kabuye hill on 23 April 1994.[6] The Appeals Chamber recalls that it is not necessary for a principal perpetrator to be aware of the aider and abettor’s contribution.[7] It further recalls the Trial Chamber’s finding that the attacks at Kabuye hill involved a large number of individuals over a broad terrain and long period of time.[8] In this context, it was reasonable for the Trial Chamber to conclude that Kalimanzira provided substantial assistance to the massacre at Kabuye hill even if this assistance was not known to principal perpetrators who testified before it.[9]