313. The Appeals Chamber has affirmed Ntabakuze’s convictions pursuant to Article 6(3) of the Statute for genocide, extermination and persecution as crimes against humanity, and violence to life as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II based on the participation of members of the Para-Commando Battalion in the killings perpetrated at Nyanza hill on 11 April 1994 and at IAMSEA around 15 April 1994.

314. The Appeals Chamber recalls, however, that it has reversed Ntabakuze’s convictions pursuant to Article 6(3) of the Statute for preventing the refugees killed at Nyanza hill from seeking sanctuary on 11 April 1994 and, Judges Pocar and Liu dissenting, for the killings perpetrated in Kabeza on 7 and 8 April 1994. It has also found that the Trial Chamber erred in holding Ntabakuze responsible as a superior for the criminal conduct of militiamen. In addition, the Appeals Chamber has reversed Ntabakuze’s convictions for murder as a crime against humanity.

315. The Appeals Chamber, Judges Pocar and Liu dissenting, considers that the reversal of Ntabakuze’s convictions for preventing the refugees killed at Nyanza hill from seeking sanctuary and for the killings perpetrated in Kabeza on 7 and 8 April 1994 results in a reduction of his overall culpability which calls for a reduction of his sentence.

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.

12.     Where the nature of the error demonstrated is such that the Appeals Chamber is replacing the sentence with another which, in its view, the original Trial Chamber should have imposed, further evidence will not ordinarily be admitted.[1]  Such a course was followed by the Appeals Chamber in Prosecutor v Aleksovski,[2] in which the prosecution successfully argued that the sentence imposed by the Trial Chamber was manifestly inadequate because it gave insufficient weight to the gravity of the accused’s conduct and failed to treat his position as commander as an aggravating feature in relation to his responsibility under Article 7.1 of the Statute. Without hearing the parties further and without further evidence, the Appeals Chamber was able to revise the sentence imposed by increasing it.

13.     In Prosecutor v Kupreškić,[3] the Appeals Chamber had admitted additional evidence in the appeal by the appellant Vladimir Šantić against his conviction.  It reduced the sentence imposed upon that appellant because (i) the Trial Chamber in sentencing him had erroneously taken into account a fact which had not been established, (ii) the additional evidence on conviction demonstrated that Šantić had now, at least in part, accepted his guilt, and (iii) he had provided substantial co-operation to the prosecution after his conviction.  The Appeals Chamber stressed the absence of any de novo review, and it did not suggest that the appellant’s late acceptance of his guilt would have been admissible had it not become apparent from evidence otherwise admissible in the appeal.  The last consideration (co-operation after conviction) is expressly made relevant to sentencing by Rule 101(B)(ii), despite the absence of a de novo review of sentence.  The Appeals Chamber held that evidence of such co-operation was thereby made admissible, in appropriate cases, in a sentence appeal.[4]  The Appeals Chamber also held that, as all relevant information was already before it, it was unnecessary to remit the matter to a Trial Chamber,[5] having earlier stated that it had power to remit to a Trial Chamber the hearing of additional evidence which had been tendered pursuant to Rule 115.[6]  No other evidence falling within Rule 101(B) was adduced before the Appeals Chamber.