36. [T]he notion of proof of guilt beyond reasonable doubt must be retained in the operation of Rule 98bis(B). This was recognised by Trial Chamber II’s decision in Kunarac.  The test applied in that case was correctly stated to be “whether there is evidence (if accepted) upon which a reasonable tribunal of fact could convict - that is to say, evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question. If the evidence does not reach that standard, then the evidence is, to use the words of Rule 98bis(B), ‘insufficient to sustain a conviction’”.[1] […]

37. The next question is how should the test of guilt beyond reasonable doubt be applied in this situation. The Appeals Chamber considers that the reference in Rule 98bis to a situation in which “the evidence is insufficient to sustain a conviction” means a case in which, in the opinion of the Trial Chamber, the prosecution evidence, if believed,[2] is insufficient for any reasonable trier of fact to find that guilt has been proved beyond reasonable doubt. In this respect, the Appeals Chamber follows its recent holding in the Delalić appeal judgement, where it said: “[t]he test applied is whether there is evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question”.[3] The capacity[4] of the prosecution evidence (if accepted) to sustain a conviction beyond reasonable doubt by a reasonable trier of fact is the key concept; thus the test is not whether the trier would in fact arrive at a conviction beyond reasonable doubt on the prosecution evidence (if accepted) but whether it could.  At the close of the case for the prosecution, the Chamber may find that the prosecution evidence is sufficient to sustain a conviction beyond reasonable doubt and yet, even if no defence evidence is subsequently adduced, proceed to acquit at the end of the trial, if in its own view of the evidence, the prosecution has not in fact proved guilt beyond reasonable doubt.

See also paras. 33–35, 68.

19.       The Appeals Chamber notes that, in its Rule 98bis Decision, the Trial Chamber correctly recalled the applicable law.[1] With respect to Counts 1 and 5 of the Indictment, the Trial Chamber found that there was “evidence which, if accepted, could satisfy a reasonable trier of fact of Ngirabatware’s guilt beyond a reasonable doubt”.[2] In the Trial Judgement, the Trial Chamber granted the Prosecution’s request to withdraw the charge of conspiracy to commit genocide under Count 1,[3] and acquitted Ngirabatware of extermination as a crime against humanity under Count 5 of the Indictment.[4] In arguing that this is indicative of an error in the standard of proof applied by the Trial Chamber in its Rule 98bis Decision, Ngirabatware conflates the various evidentiary thresholds. As recalled above, a judgement of acquittal shall only be entered pursuant to Rule 98bis of the ICTR Rules if the evidence is insufficient to sustain a conviction. At that stage a trial chamber is required to “assume that the prosecution’s evidence [is] entitled to credence unless incapable of belief” and “take the evidence at its highest”.[5] In contrast, pursuant to Rule 87 of the ICTR Rules, at the end of the trial a trial chamber may reach a finding of guilt only if it is satisfied that the guilt of the accused has been proved beyond reasonable doubt.

20.       The standard “‘beyond reasonable doubt’ connotes that the evidence establishes a particular point and it is beyond dispute that any reasonable alternative is possible.”[6] It requires that the trial chamber be satisfied that there is no reasonable explanation of the evidence other than the guilt of the accused.[7] Accordingly, a dismissal of a request for a judgement of acquittal on a particular count at the close of the Prosecution case-in-chief is not incompatible with an acquittal of the accused on that same count at the end of the trial. In the same vein, a Prosecution’s decision to withdraw a charge at the end of the trial does not demonstrate that the evidence was insufficient to sustain a conviction in relation to that charge at the close of the Prosecution case-in-chief.[8] Ngirabatware thus fails to show that the Trial Chamber erred in law or fact in failing to grant his Rule 98bis Motion in relation to Counts 1 and 5 of the Indictment.[9]