To be held criminally responsible for omissions under Article 6(1) of the ICTR Statute, the Accused must have had a duty to act. The Appeals Chamber noted that it is an open question whether this duty to act must derive from criminal law or whether any legal obligation to act is sufficient. In particular, the Appeals Chamber remarked that the issue has not been settled by the Blaškić Appeal Judgement, and found that it was not necessary to decide the issue in the present case (paras 334-335):

334. It is not disputed by the parties that an accused can be held criminally responsible for omissions under Article 6(1) of the Statute.[1] Neither do they dispute that any criminal responsibility for omissions requires an obligation to act. The issue is rather whether this obligation to act must stem from a rule of criminal law, or, as the Prosecution appears to contend, any legal obligation is sufficient. The Appeals Chamber notes that the Blaskić Appeal Judgement, on which the Prosecution relies in its Reply,[2] does not address this issue.[3]

335.    In the context of the present case, it is not necessary to discuss this issue further. The Trial Chamber based its conclusion on two different arguments: The duty of the prefect was not mandated by a rule of criminal law, and it was not clear what means were available to Bagambiki to fulfil this duty. The Appeals Chamber also notes the Separate Opinion of Judge Ostrovsky:

In my view, the Prosecutor simply failed to introduce sufficient evidence concerning what additional resources were available to the prefecture to stem the tide of violence and to provide greater protection to the refugees. On the basis of the totality of the reliable and credible evidence presented in this case, I am not convinced that Bagambiki, with the resources available to him, could do more for the protection of refugees in Cyangugu prefecture.[4]

The Prosecution has not indicated which possibilities were open to Bagambiki to fulfil his duties under the Rwandan domestic law. Thus, even if the failure to fulfil the duty of a Rwandan prefect to protect the population of his prefecture could entail responsibility under international criminal law, the Prosecution has not shown that the alleged error of the Trial Chamber invalidated its decision.