Notion(s) Filing Case
Appeal Judgement - 18.12.2014 NGIRABATWARE Augustin

150.     The Appeals Chamber further recalls that “encouragement” is a form of conduct which may lead to criminal responsibility for aiding and abetting a crime.[1] The ICTY Appeals Chamber has held that “the encouragement or support need not be explicit; under certain circumstances, even the act of being present on the crime scene (or in its vicinity) as a ‘silent spectator’ can be construed as the tacit approval or encouragement of the crime.”[2] Ngirabatware points to the fact that he was not found to have been present when the attacks and killings of Tutsis were taking place. The Appeals Chamber finds Ngirabatware’s argument to be misguided. It follows from the Trial Chamber’s relevant finding that it did not consider Ngirabatware to be a “silent spectator” who tacitly approved and encouraged the crime by his mere presence and authority. Rather, the Trial Chamber found that the encouragement provided by Ngirabatware was explicit in that, as an influential figure in Nyamyumba Commune, he distributed weapons to the Interahamwe while exhorting them to kill Tutsis.[3] In such circumstances, whether Ngirabatware was present at the crime scene is inconsequential for his responsibility for aiding and abetting to arise.[4] In view of the evidence considered and relied upon by the Trial Chamber, Ngirabatware’s claim that the Interahamwe who were manning the roadblock and committed the killings were unaware of the encouragement he provided is similarly without merit.[5]

[1] Br|anin Appeal Judgement, para. 277, referring to Tadi} Appeal Judgement, para. 229, Aleksovski Appeal Judgement, para. 162, Vasiljević Appeal Judgement, para. 102, Bla{ki} Appeal Judgement, para. 48, Kvočka et al. Appeal Judgement, para. 89, Simi} Appeal Judgement, para. 85. See also Kalimanzira Appeal Judgement, para. 74; Muvunyi I Appeal Judgement, para. 80; Kayishema and Ruzindana Appeal Judgement, paras. 201-202.

[2] Br|anin Appeal Judgement, para. 277, referring to Aleksovski Trial Judgement, para. 87, Kayishema and Ruzindana Appeal Judgement, paras. 201-202; Akayesu Trial Judgement, para. 706; Bagilishema Trial Judgement, para. 36; Furundžija Trial Judgement, para. 207.

[3] See Trial Judgement, para. 1337. Cf. Renzaho Appeal Judgement, para. 337.

[4] See Mrk{i} and [ljivan~anin Appeal Judgement, para. 81 (“The actus reus of aiding and abetting a crime may occur before, during, or after the principal crime has been perpetrated, and the location at which the actus reus takes place may be removed from the location of the principal crime.”).

[5] The Appeals Chamber is also not persuaded by Ngirabatware’s claim that he lacked sufficient notice that the distribution of weapons had encouraged the killings of Tutsis. See Appeal Brief, para. 40. Paragraph 16 of the Indictment explicitly alleged that Ngirabatware distributed weapons thereby aiding and abetting the killings of Tutsis. 

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