81. The Appeals Chamber further recalls that minor inconsistencies commonly occur in witness testimony without rendering the testimony unreliable and that it is within the discretion of the Trial Chamber to evaluate such inconsistencies and to consider whether the evidence as a whole is credible, without explaining its decision in every detail.[1]

221. In its Decision of 11 September 2007, the Trial Chamber recalled:

the general principle articulated in Rule 90(A) [is] that “witnesses shall [...] be heard directly by the Chamber.” Nonetheless, the Chamber has the discretion to hear testimony by video-link in lieu of physical appearance for purposes of witness protection under Rule 75, or where it is in the interests of justice to do so. In determining the interests of justice, the Chamber has to assess the importance of the testimony, the inability or unwillingness of the witness to travel to Arusha, and whether a good reason has been adduced for that inability and unwillingness. The burden of proof lies with the party making the request.[1]

[…] This standard is consistent with the approach taken by the Appeals Chamber.[2]

40. The Appeals Chamber considers that the trial chamber is best placed to determine both the modalities for disclosure of material intended for use in cross-examination and also the amount of time that is sufficient for an accused to prepare his defence based on the specifics of such disclosure.[1] In this case, the Trial Chamber stated its preference for disclosure prior to cross-examination, and, when this did not occur, it assessed any possible prejudice to Kalimanzira.[2] The Appeals Chamber can identify no error in the Trial Chamber’s approach. […]

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]

74. The Appeals Chamber recalls that “an aider and abettor carries out acts specifically directed to assist, encourage, or lend moral support to the perpetration of a certain specific crime, which have a substantial effect on the perpetration of the crime.”[1] The Appeals Chamber has explained that “[a]n accused can be convicted for aiding and abetting a crime when it is established that his conduct amounted to tacit approval and encouragement of the crime and that such conduct substantially contributed to the crime.”[2] Where this form of aiding and abetting has been a basis of a conviction, “it has been the authority of the accused combined with his presence on (or very near to) the crime scene, especially if considered together with his prior conduct, which all together allow the conclusion that the accused’s conduct amounts to official sanction of the crime and thus substantially contributes to it.”[3]

75. In view of Kalimanzira’s position as directeur de cabinet of the Ministry of Interior, it was reasonable for the Trial Chamber to determine that his silent presence during Ndayamabaje’s inflammatory speech would have offered tacit approval of its message. The basis of Kalimanzira’s conviction, however, rests on the Trial Chamber’s conclusion that Kalimanzira’s tacit approval not only sanctioned Ndayambaje’s message, but in fact substantially contributed to killings which occurred after the ceremony.[4]

96. The Appeals Chamber recalls that in assessing witness testimony, “it falls to the Trial Chamber to take the approach it considers most appropriate for the assessment of evidence.”[1] A trial chamber “is […]] not obliged in its judgement to recount and justify its findings in relation to every submission made at trial.”[2] In addition, “neither the Rules nor the jurisprudence of the Tribunal oblige[]] [a] Trial Chamber to require a particular type of identification evidence.”[3] However, identifications made in difficult circumstances, such as darkness, obstructed view, or traumatic events,[4] require careful and cautious analysis by a trial chamber.[5] In addition, in-court identification evidence should be assigned “little or no credence” given the signals that can identify an accused aside from prior acquaintance.[6]

155. The Appeals Chamber recalls that a person may be found guilty of direct and public incitement to commit genocide, pursuant to Article 2(3)(c) of the Statute, if he or she directly and publicly incited the commission of genocide (actus reus) and had the intent to directly and publicly incite others to commit genocide (mens rea).[1] Applying these principles to Jean-Bosco Barayagwiza’s conviction in the Nahimana et al. case for direct and public incitement to commit genocide, the Appeals Chamber determined that supervising a specific group of individuals manning a roadblock does not constitute public incitement to commit genocide, explaining that:

the supervision of roadblocks cannot form the basis for the Appellant’s conviction for direct and public incitement to commit genocide; while such supervision could be regarded as instigation to commit genocide, it cannot constitute public incitement, since only the individuals manning the roadblocks would have been the recipients of the message and not the general public.[2]

156. Contrary to the Prosecution’s suggestion, the approach adopted by the Appeals Chamber in the Nahimana et al. Judgement is in accordance with relevant Tribunal jurisprudence and other sources of interpretation, including World War II judgements and the travaux préparatoires of the Genocide Convention. More specifically, the Appeals Chamber observes that, with the exception of the Kalimanzira Trial Judgement, all convictions before the Tribunal for direct and public incitement to commit genocide involve speeches made to large, fully public assemblies, messages disseminated by the media, and communications made through a public address system over a broad public area.[3] These convictions involved audiences which were by definition much broader than the groups of individuals manning the Jaguar and Kajyanama roadblocks, who formed Kalimanzira’s audience.

157. The Tribunal’s jurisprudence is consistent with that of the International Military Tribunal at Nuremberg. The latter considered incitement to, inter alia, murder and extermination, involving widely circulated speeches and articles, rather than speeches to relatively small and closed groups.[4]

158. Moreover, the Appeals Chamber recalls that the language of Article 2 of the Tribunal’s Statute tracks the language of the Genocide Convention. A review of the travaux préparatoires of the Genocide Convention confirms that public incitement to genocide pertains to mass communications.  The travaux préparatoires indicate that the Sixth Committee chose to specifically revise the definition of genocide in order to remove private incitement, understood as more subtle forms of communication such as conversations, private meetings, or messages,[5] from its ambit.[6] Instead, the crime was limited to “direct and public incitement to commit genocide,” understood as incitement “in public speeches or in the press, through the radio, the cinema or other ways of reaching the public.”[7]    

159. Having established that the relevant holding of the Nahimana et al. Appeal Judgement is consistent with the Tribunal’s jurisprudence and other relevant precedents, the Appeals Chamber turns to consider whether the precedent set in the Nahimana et al. case is applicable to Kalimanzira’s convictions. A review of the former reveals that the underlying factual basis of Barayagwiza’s initial conviction by Trial Chamber I of the Tribunal involved speaking to militiamen at roadblocks from his vehicle and telling them to kill Tutsis and others without certain party membership cards.[8] In addition, the key witness for this event gave evidence that Barayagwiza supervised three roadblocks in the area and heard that Barayagwiza was responsible for ensuring that Tutsis were being killed at them.[9] The facts underlying Kalimanzira’s convictions are similar to those in the Nahimana et al. Appeal Judgement. As was the case for Barayagwiza, Kalimanzira’s actions did not involve any form of mass communication such as a public speech. Instead, the nature of his presence and exchanges with those at the roadblocks are more in line with a “conversation” which is consistent with the definition of private incitement found in the travaux préparatoires of the Genocide Convention. Thus it is clear that the Nahimana et al. Appeal Judgement is directly applicable to Kalimanzira’s convictions with respect to the Jaguar and Kajyanama roadblocks.

180. The Appeals Chamber recalls that Rule 90(A) of the Rules provides that witnesses shall be heard by the trial chamber. Prior out-of-court witness statements are normally relevant only as necessary for the trial chamber to assess credibility.[1] Witness statements used for this purpose normally bear the witness’s signature or some other indicator that their content reflects what the witness said.[2] A will-say statement, however, differs from a typical statement given by a witness. In the practice of the Tribunal, will-say statements are primarily communications from one party to another and the trial chamber concerning aspects of a witness’s anticipated testimony that were not mentioned in previously-disclosed witness statements.[3] Will-say statements are generally communicated by counsel upon learning of new details during the preparation of a witness for examination,[4] and are not necessarily acknowledged by the witness. Therefore, will-say statements have no probative value except to the extent that the witness confirms their content. In the instant case, Witness AKK explicitly repudiated the content of the unsigned will-say statement, the contents of which were allegedly unknown to her.[5] Given the lack of any explanation for why it was nonetheless acceptable to rely on the unsigned and repudiated will-say statement, the Appeals Chamber finds that the Trial Chamber erred in law in relying on the will-say statement to discredit aspects of Witness AKK’s testimony.

218. In discussing the forms of responsibility under Article 6(1) of the Statute, the Trial Chamber stated that “‘[c]ommitting’ implies, primarily, physically perpetrating a crime.”[1] The Appeals Chamber can identify no error in this definition. The formulation is similar to the one articulated in the Nahimana et al. Appeal Judgement.[2] Indeed, the Trial Chamber’s use of the term “primarily” to qualify its definition of committing as physical perpetration illustrates that it did not limit the scope of its inquiry.[3] This stands in contrast to the definition used by the trial chamber in the Seromba case, which the Appeals Chamber found too restrictive.[4] The fact that the Trial Chamber did not explicitly recall the additional clarification of this well-settled principle provided by the Gacumbitsi and Seromba Appeal Judgements does not mean that these clarifications were not considered.

219. It follows from the Gacumbitsi and Seromba Appeal Judgements that physical perpetration need not only mean physical killing and that other acts can constitute direct participation in the actus reus of the crime.[5] The question is whether an accused’s conduct “was as much an integral part of the genocide as were the killings which it enabled.”[6] Bearing this in mind, the Appeals Chamber is not convinced that the Trial Chamber’s conclusion that Kalimanzira’s conduct was best characterized as aiding and abetting was unreasonable. The Trial Chamber did not find that he supervised or directed the attack at Kabuye hill. Instead, it concluded that he lured Tutsis to Kabuye hill and brought armed reinforcements.[7]

220. In other cases, trial chambers have qualified bringing assailants to a killing site as aiding and abetting.[8] In the circumstances of this case, the Appeals Chamber is not convinced that Kalimanzira’s tacit approval of Sub-Prefect Ntawukulilyayo’s call for Tutsis to go to Kabuye hill, and his leading assailants to Kabuye hill,[9] are sufficient to require that the legal qualification of his overall conduct be elevated to “committing”. Furthermore, the fact that the Trial Chamber found that Kalimanzira possessed genocidal intent,[10] rather than simply knowledge of the principal perpetrators’ mens rea,[11] does not in itself compel the conclusion that the Trial Chamber erred in finding that aiding and abetting most accurately described Kalimanzira’s conduct. The Appeals Chamber recalls that it is not unusual for a trial chamber to find that an individual convicted only of aiding and abetting possesses genocidal intent.[12]

229. The Appeals Chamber agrees that the crimes’ commission in Kalimanzira’s own prefecture and not at the national level is not a relevant fact for the purpose of assessing their gravity. The genocide that was committed in Rwanda between 6 April 1994 and 17 July 1994, which resulted in the killings of hundreds of thousands of Tutsis, is indivisible.[1] […]