564. Although neither Party raised the issue, the Appeals Chamber notes that the Trial Chamber’s language in rendering its convictions against Renzaho may give the impression that it entered double convictions under Articles 6(1) and 6(3) of the Statute. The Appeals Chamber recalls that it is inappropriate to convict an accused for a specific count under both Article 6(1) and Article 6(3) of the Statute.[1] When, for the same count and the same set of facts, the accused’s responsibility is pleaded pursuant to both provisions and the accused could be found liable under both, the Trial Chamber should enter a conviction on the basis of Article 6(1) of the Statute alone and consider the superior position of the accused as an aggravating circumstance in sentencing.[2]

565. The Trial Chamber found Renzaho guilty of genocide under Article 6(1) of the Statute for aiding and abetting as well as ordering the killing of Tutsis at roadblocks throughout Kigali from April to July 1994; for aiding and abetting and ordering killings at CELA on 22 April 1994; and for his orders in relation to crimes committed at Sainte Famille on 17 June 1994.[3] The Trial Chamber also found Renzaho “liable” as a superior for these crimes,[4] indicating that it would take this liability into account in sentencing.[5]

566. The Trial Chamber also found Renzaho guilty of murder as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II under Article 6(1) of the Statute for ordering the killing of at least 17 Tutsi men at Sainte Famille church on 17 June 1994.[6] The Trial Chamber found Renzaho “liable” as a superior for these murders as well.[7] The Trial Chamber indicated that it would take Renzaho’s liability as a superior into account in sentencing.[8]

567. In addition, the Trial Chamber found Renzaho guilty of murder as a crime against humanity under Article 6(1) of the Statute for aiding and abetting and ordering the killing of Charles, Wilson, and Déglote Rwanga, who had been removed from CELA on 22 April 1994.[9] The Trial Chamber likewise found Renzaho “guilty” as a superior based on Article 6(3) of Statute, for the killing of Charles, Wilson, and Déglote Rwanga as well as the other mostly Tutsi men removed from CELA on that date.[10] The Trial Chamber indicated in connection with these crimes that it would take Renzaho’s liability as a superior into account in sentencing. [11]

568. While it is clear that the Trial Chamber considered Renzaho’s superior position as an aggravating circumstance,[12] the Appeals Chamber considers that the Trial Chamber should have refrained from using language which is suggestive of double convictions based on both Articles 6(1) and 6(3) of the Statute. Nevertheless, the Appeals Chamber is not convinced that the Trial Chamber impermissibly convicted Renzaho twice for the same facts where it found him to be “liable” as a superior. Likewise, and despite the unfortunate use of the term “guilty” when finding Renzaho liable as a superior for murder as a crime against humanity for the killings of Charles, Wilson, and Déglote Rwanga, the Appeals Chamber is not convinced that the Trial Chamber impermissibly convicted Renzaho twice for the same facts.[13]

487. The Appeals Chamber recalls that it is inappropriate to convict an accused for a specific count under both Article 6(1) and Article 6(3) of the Statute. When, for the same count and the same set of facts, the accused’s responsibility is pleaded pursuant to both Articles and the accused could be found liable under both provisions, the Trial Chamber should rather enter a conviction on the basis of Article 6(1) of the Statute alone and consider the superior position of the accused as an aggravating circumstance.[1] [See also para. 667 of the Appeal Judgement]

41. The Appeals Chamber considers that the Trial Chamber did not hold Atif Krdžić criminally responsible for commission by omission. At a minimum, the actus reus of commission by omission requires an elevated degree of “concrete influence”.[1] Such was not the case here, where the Trial Chamber merely found that Atif Krdžić’s absence from the detention facilities “coincide[d] with more killings and more maltreatment”.[2] Furthermore, the Trial Chamber clearly distinguished Atif Krdžić from the principal perpetrators who physically committed the crimes.[3]

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]

477.    As correctly recalled by the Trial Chamber, acts other than physical perpetration can constitute direct participation in the actus reus of a crime.[1] The question is whether an accused’s conduct “was as much an integral part of the genocide as were the killings which it enabled”.[2] In the cases where the Appeals Chamber has concluded that an accused’s role constituted an integral part of the crimes, the accused were present at the scene of the crime and participated, supervised, directed, played a leading role, or otherwise fully exercised influence over the perpetrators.[3] However, in this case, the Trial Chamber did not find that Nzabonimana was present during the attack and, further, did not find that he supervised, played a leading role, or fully exercised influence over the perpetrators.

478.    Consequently, the Prosecution has failed to demonstrate that the Trial Chamber erred in not concluding that Nzabonimana committed genocide and extermination, or alternatively murder, as a crime against humanity at the Nyabikenke commune office.