THE INTERNATIONAL CRIMINAL TRIBUNAL FOR

CASE NO.: ICTR-00-56-A APPEALS CHAMBER FRANÇOIS-XAVIER NZUWONEMEYE v. THE PROSECUTOR OF THE TRIBUNAL

TUESDAY, 11 FEBRUARY 2014 1402H APPEAL JUDGEMENT

Before the Judges: Judge Theodor Meron, Presiding Judge Liu Daqun Judge Carmel Agius Judge Khalida Rachid Khan Judge Bakhtiyar Tuzmukhamedov

For the Registry: Mr. Douglass Hansen Mr. John Tumati

For the Prosecution: Mr. Hassan Bubacar Jallow Mr. James Arguin Mr. Abubacarr Tambadou Ms. Thembile M. Segoete Mr. Takeh Sendze Ms. Christiana Fomenky Ms. Sunkarie Ballah-Conteh Ms. Betty Mbabazi Mr. Deo Mbuto

For the Accused Augustin Ndindiliyimana: Mr. Christopher Black Mr. Vincent Lurquin

For the Accused François-Xavier Nzuwonemeye: Mr. Charles Taku Ms. Beth Lyons

For the Accused Innocent Sagahutu: Mr. Fabien Segatwa Mr. Scott Martin

Court Reporter: Deirdre O'Mahony NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014

1 P R O C E E D I N G S 2

3 MR. PRESIDENT: 4 Good afternoon to everybody. 5

6 Registrar, would you please call the case. 7 MR HANSEN: 8 Thank you, Your Honour.

9

10 The Appeals Chamber of the International Criminal Tribunal for Rwanda, composed of Judge Meron, 11 presiding; Judge Liu, Judge Agius, Judge Khan, and Judge Tuzmukhamedov is now sitting in open

12 session today, Tuesday, the 11th of February 2014 for the delivery of the appeal judgement in the 13 matter of Augustin Ndindiliyimana, François-Xavier Nzuwonemeye and Innocent Sagahutu verses the 14 Prosecutor, Case No. ICTR-00-56-A.

15 MR. PRESIDENT: 16 Mr. Ndindiliyimana, can you follow the proceedings in a language you understand? 17 APPELLANT NDINDILIMANA:

18 Yes, sir, I can follow the proceedings in French. 19 MR. PRESIDENT: 20 Thank you.

21 22 Mr. Nzuwonemeye, can you follow the proceedings in a language you understand? 23 MR. TAKU:

24 May it please, Your Honours. Major Nzuwonemeye is not present yet today, but he instructed us to 25 represent him and to receive the judgement on his behalf.

26 MR. PRESIDENT:

27 Yes. Thank you. Indeed, I have just been informed that he will not be attending. His counsel, yourself, 28 is present. 29

30 Counsel, may I take it that your client, Mr. Nzuwonemeye, agrees to the judgement being rendered in 31 his absence? 32 MR. TAKU:

33 This is the instruction he gave us, Your Honour.

34 MR. PRESIDENT: 35 So you have been clearly instructed about this. Thank you.

36 MR TAKU: 37 Yes. He said we should be here to receive the judgement on his behalf. DEIRDRE O'MAHONY - ICTR - APPEALS CHAMBER - page 1 NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014

1 MR. PRESIDENT: 2 Thank you, Counsel.

3 4 Counsel for Mr. Sagahutu, please. 5

6 I'm terribly sorry. Mr. Sagahutu, can you hear the proceedings in a language that you understand? 7 APPELLANT SAGAHUTU: 8 Yes, Your Honour. I get you loud and clear.

9 MR. PRESIDENT:

10 Thank you very much. 11

12 For the Prosecutor, counsel representation. 13 MR. JALLOW: 14 Good afternoon, Mr. President, Your Honours. With me for the Prosecution are James Arguin,

15 chief of appeals; Abubacarr Tambadou; Thembile Segoete; Takeh Sendze, appeals counsel; and also 16 Christiana Fomenky; Sunkarie Ballah-Conteh; Betty Mbabazi and Deo Mbuto, all assistant appeals 17 counsel. As it pleases the Court.

18 MR. PRESIDENT: 19 Thank you, Mr. Jallow. 20

21 Thank you, all. 22 23 As the Registrar has announced a moment ago, the Appeals Chamber is sitting today in accordance

24 with Rule 118 of the Tribunal's Rules of Procedure and Evidence in the case of the 25 Prosecutor v. Augustin Ndindiliyimana, François-Xavier Nzuwonemeye, and Innocent Sagahutu. All

26 parties, including the Prosecution, appealed against the trial judgement rendered in this case by

27 Trial Chamber II of the Tribunal on 17 May 2011 and issued in writing on 17 June 2011. In accordance 28 with the scheduling order of 15 November 2013, the Appeals Chamber will presently deliver the 29 judgement in this case.

30 31 I recall that on 7 February 2014, the Appeals Chamber issued an order severing the case of 32 , who had been tried with Ndindiliyimana, Nzuwonemeye, and Sagahutu, and

33 whose appeal was heard with theirs. The Appeals Chamber will deliver its judgement on Bizimungu's

34 appeal and the Prosecution appeal related to his case in due course after considering the further 35 submissions ordered.

36 37 Following the practice of the Tribunal, I will summarise the findings of the Appeals Chamber. Not every DEIRDRE O'MAHONY - ICTR - APPEALS CHAMBER - page 2 NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014

1 point addressed in the judgement will be mentioned in this summary, which focuses only on central 2 issues. This summary does not constitute any part of the authoritative written judgement of the

3 Appeals Chamber, which will be filed in writing in due course. 4 5 I will begin with the appeal of Ndindiliyimana. Ndindiliyimana is the former chief of staff of the Rwandan

6 gendarmerie. The Trial Chamber convicted Ndindiliyimana as a superior for and 7 extermination as a crime against humanity based on the participation of gendarmes in an attack on 8 Kansi Parish. It also found him guilty as a superior for genocide and murder as a serious violation of

9 Article 3 common to the Geneva Conventions and of Additional Protocol II in relation to crimes

10 committed by gendarmes at Saint André College. The Trial Chamber also convicted Ndindiliyimana of 11 murder as a crime against humanity. The Trial Chamber sentenced Ndindiliyimana to a single

12 sentence of time served and ordered his immediate release on 17 May 2011. 13 14 I will first address Ndindiliyimana's challenges to the fairness of the proceedings

15 16 Ndindiliyimana submits that the Trial Chamber failed to provide sufficient remedies in light of the 17 Prosecution's violation of its disclosure obligations pursuant to Rule 68 of the Rules; that the Tribunal's

18 decisions concerning alleged prosecutorial misconduct were in error; and that the proceedings were 19 unduly delayed. The Appeals Chamber finds that Ndindiliyimana has failed to demonstrate any error 20 that rendered his trial unfair. Accordingly, it dismisses these arguments.

21 22 I will now address Ndindiliyimana's challenges to his convictions in relation to the attack at 23 Kansi Parish. The Trial Chamber found that, on 21 April 1994, gendarmes assigned to guard

24 Ndindiliyimana's residence in Nyaruhengeri provided weapons to and assisted in the 25 attack at the nearby parish. The Trial Chamber further held that the gendarmes stationed at

26 Ndindiliyimana's residence were his subordinates acting under his control, and that Ndindiliyimana

27 knew or had reason to know that they had committed crimes at Kansi Parish, but failed to punish them. 28 29 The Trial Chamber found that, after 7 April 1994, the operational command over the majority of

30 gendarme units was transferred to the Rwandan army and that Ndindiliyimana therefore no longer 31 exercised effective control over gendarmes who had been deployed to assist the army in combat 32 against the RPF. The Trial Chamber held, however, that Ndindiliyimana retained full de jure authority

33 over approximately 200 gendarmes not deployed to assist the army in combat. With respect to these

34 gendarmes, the Trial Chamber acknowledged that: Ndindiliyimana suffered from a lack of resources 35 and faced difficulties in communicating with gendarmerie units on the ground; his force was infiltrated

36 by extremists and rogue elements; and his material ability to control the gendarmes under his 37 operational command decreased as the war progressed. For these reasons, the Trial Chamber DEIRDRE O'MAHONY - ICTR - APPEALS CHAMBER - page 3 NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014

1 considered that Ndindiliyimana did not exercise effective control over all gendarmes under his 2 operational command and that his "material ability to prevent and/or punish crimes [...] varied

3 considerably between different gendarmerie units." 4 5 At the time of the attack at Kansi Parish on 21 April 1994, Ndindiliyimana's residence in Nyaruhengeri

6 was guarded by a number of gendarmes who had been deployed by the commander of the Butare 7 gendarmerie unit based on a personal request for protection by Ndindiliyimana's wife. 8 The Trial Chamber concluded that Ndindiliyimana exercised "de facto authority" over these gendarmes

9 because they had been "gathered" by his wife and Ndindiliyimana had "admitted" at trial that he would

10 have known had they participated in the attack at Kansi Parish. It also stated that the gendarmes 11 belonged to units under the operational command of the gendarmerie and that their operation at

12 Kansi Parish entailed a degree of organisation and therefore found that: "[i]t follows from 13 Ndindiliyimana's position as chief of staff of the gendarmerie that the gendarmes in question were his 14 subordinates under his effective control."

15 16 The Appeals Chamber finds that the Trial Chamber failed to explain the basis of its finding that the 17 gendarmes guarding Ndindiliyimana's house came from a unit under his operational command.

18 Furthermore, the Appeals Chamber finds that, based on the evidence referred to in the trial judgement 19 and on the record, no reasonable trier of fact could have concluded that Ndindiliyimana had effective 20 control over these gendarmes.

21 22 Even if the gendarmes stationed at Ndindiliyimana's residence could have been considered his 23 subordinates, the Trial Chamber did not address any possible impact on this relationship flowing from

24 the fact that a separate unit either of gendarmes or the Presidential Guard collected the group of 25 gendarmes from Ndindiliyimana's home shortly before the attack at Kansi Parish on 21 April 1994. The

26 Trial Chamber could not have reasonably excluded the possibility that the gendarmes at the residence

27 acted under the arriving group's command and orders at the time of the commission of crimes at the 28 parish and that Ndindiliyimana therefore lacked the material ability to prevent or punish their conduct. 29

30 Finally, the Appeals Chamber also concludes that no reasonable trier of fact could have found that the 31 gendarmes stationed at Ndindiliyimana's residence in fact participated in the attack at Kansi Parish 32 given the significant discrepancies in the evidence between the witnesses who observed the

33 gendarmes leaving the residence and the witness who gave evidence concerning the participation of

34 gendarmes in the attack on the parish. 35

36 For the foregoing reasons, the Appeals Chamber finds that the Trial Chamber erred in concluding that 37 Ndindiliyimana exercised effective control over the gendarmes guarding his residence in Nyaruhengeri DEIRDRE O'MAHONY - ICTR - APPEALS CHAMBER - page 4 NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014

1 at the time of the attack against Kansi Parish. Moreover, the Appeals Chamber concludes that no 2 reasonable trier of fact could have inferred as the only reasonable conclusion that the gendarmes

3 stationed at Ndindiliyimana's residence participated in the attack. These errors invalidate the 4 Trial Chamber's finding that Ndindiliyimana could be held liable under Article 6(3) of the Statute for 5 crimes committed by gendarmes during the attack on Kansi Parish. Accordingly, the Appeals Chamber

6 reverses Ndindiliyimana's conviction in relation to the killing of Tutsi refugees at Kansi Parish. 7 8 I will now address Ndindiliyimana's challenges to his convictions in relation to the attack at

9 Saint André College. The Trial Chamber found that gendarmes from the Nyamirambo Brigade, acting

10 in collaboration with Interahamwe, carried out an attack at Saint André College on 13 April 1994. It 11 further held that the gendarmes in question were Ndindiliyimana's subordinates acting under his

12 control, and that Ndindiliyimana knew or had reason to know that they had committed crimes, but failed 13 to punish them. 14

15 The Trial Chamber concluded that Ndindiliyimana exercised "de facto authority" over the gendarmes 16 who participated in the attack at Saint André College on 13 April 1994, reasoning that: (i) the killings 17 took place in Kigali where Ndindiliyimana spent a large proportion of his time; (ii) Ndindiliyimana

18 "admitted" at trial that he received reports from his general staff regarding events at the college and 19 issued orders to his subordinates operating at that location around the time of the attack; and (iii) 20 Ndindiliyimana was aware that an employee at Saint André College who implicated gendarmes from

21 the Nyamirambo Brigade in the attack requested gendarmerie protection from the college on 22 14 April 1994. 23

24 The Trial Chamber further held that "in light of the fact that Ndindiliyimana received information and 25 issued orders to his subordinates regarding [Saint] André College, he maintained command and control

26 over the gendarmes operating at that location." It also stated that the gendarmes implicated in the

27 attack at Saint André College belonged to units under the operational command of the gendarmerie and 28 that their operation at the college entailed a degree of organisation. The Trial Chamber therefore 29 found: "[i]t follows from Ndindiliyimana's position as chief of staff of the gendarmerie that the

30 gendarmes in question were his subordinates under his effective control." 31 32 The Appeals Chamber finds that the Trial Chamber failed to explain the basis of its conclusion that the

33 Nyamirambo Brigade remained under Ndindiliyimana's operational command in particular in view of its

34 finding that, after 7 April 1994, the operational command over the majority of gendarmerie units was 35 transferred to the Rwandan army.

36 37 The Appeals Chamber observes that the Trial Chamber considered credible testimony that indicates DEIRDRE O'MAHONY - ICTR - APPEALS CHAMBER - page 5 NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014

1 that the army was exercising authority over the Nyamirambo Brigade which calls into question the 2 reasonableness of the Trial Chamber's inference that members of the brigade acted under

3 Ndindiliyimana's operational command and effective control at the time of the attack at 4 Saint André College. 5

6 The Appeals Chamber also finds that no reasonable trier of fact could have relied on the other factors 7 mentioned by the Trial Chamber to infer that Mr. Ndindiliyimana exercised effective control over the 8 Nyamirambo Brigade.

9

10 Accordingly, the Appeals Chamber finds that the Trial Chamber erred in concluding that Ndindiliyimana 11 exercised effective control over the gendarmes from the Nyamirambo Brigade who participated in the

12 attack against Saint André College on 13 April 1994. This error invalidates the Trial Chamber's finding 13 that Ndindiliyimana could be held liable under Article 6(3) of the Statute for crimes committed by 14 gendarmes during the attack. The Appeals Chamber reverses his convictions in relation to the killings

15 of Tutsi refugees at Saint André College. 16 17 In view of the Appeals Chamber's findings in relation to Kansi Parish and Saint André College, the

18 Appeals Chamber dismisses as moot Mr. Ndindiliyimana's challenge to the cumulative convictions 19 entered by the Trial Chamber for these events. 20

21 In its verdict, the Trial Chamber convicted Ndindiliyimana for murder as a crime against humanity under 22 Count 4 of the indictment. The Appeals Chamber notes that the Prosecution withdrew a number of 23 allegations against Ndindiliyimana underlying Count 4 of the indictment at the end of its case. The

24 remainder of the charges under this count was dismissed in the trial judgement. Consequently, there 25 was no basis upon which Ndindiliyimana could be convicted under Count 4 of the indictment. The

26 Appeals Chamber therefore finds that the Trial Chamber erred in law by convicting Ndindiliyimana

27 under this count. Accordingly, the Appeals Chamber reverses his conviction under Count 4 of the 28 indictment for murder as a crime against humanity. 29

30 I will now turn to the appeals of Nzuwonemeye and Sagahutu. Nzuwonemeye is the former 31 commander of the Reconnaissance Battalion. Sagahutu previously served as the commander of 32 Squadron A within the Reconnaissance Battalion.

33

34 The Trial Chamber convicted Nzuwonemeye and Sagahutu of ordering and aiding and abetting murder 35 as a crime against humanity and as a serious violation of Article 3 common to the Geneva Conventions

36 and of Additional Protocol II in relation to the killing of Prime Minister . It further 37 found that they could be held responsible for this killing as superiors, which it considered in relation to DEIRDRE O'MAHONY - ICTR - APPEALS CHAMBER - page 6 NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014

1 sentencing. 2

3 The Trial Chamber also concluded that Nzuwonemeye was liable as a superior for murder as a crime 4 against humanity and as a serious violation of Article 3 common to the Geneva Conventions and of 5 Additional Protocol II with respect to the killing of Belgian peacekeepers who were part of the UNAMIR

6 peacekeeping mission. The Trial Chamber found Sagahutu liable as a superior for murder as a crime 7 against humanity in relation to the killing of the Belgian peacekeepers and also convicted him of 8 ordering and aiding and abetting murder as a serious violation of Article 3 common to the

9 Geneva Conventions and of Additional Protocol II. The Trial Chamber sentenced Nzuwonemeye and

10 Sagahutu each to a single term of 20 years of imprisonment. 11

12 I turn first to Nzuwonemeye's challenges to the fairness of the proceedings. Nzuwonemeye asserts 13 that he was denied the right to counsel and the right to cross-examination; that the Trial Chamber erred 14 in denying requests for certification to appeal decisions; that the Trial Chamber erred in its assessment

15 of the Prosecution's disclosure violations and granted ineffective remedies; that the Trial Chamber 16 erred in taking judicial notice of the existence of a widespread and systematic attack against a civilian 17 population and a non-international armed conflict; and that the Trial Chamber violated the protections

18 set forth in Rules 82(A) and 87(B) of the Rules. The Appeals Chamber finds no error in the 19 Trial Chamber's relevant determinations that would result in a miscarriage of justice or invalidate the 20 verdict.

21 22 I will next address Nzuwonemeye's and Sagahutu's challenges to the notice that they received of 23 charges.

24 25 At the outset, the Appeals Chamber dismisses Nzuwonemeye's and Sagahutu's arguments that there

26 were errors regarding cumulative or alternative charging of forms of responsibility.

27 28 With respect to the killing of the prime minister, the Appeals Chamber is not satisfied that 29 Nzuwonemeye or Sagahutu have demonstrated that they lacked notice of their responsibility for

30 ordering the crime. 31 32 Turning to aiding and abetting, the Trial Chamber found that Nzuwonemeye aided and abetted the

33 killing of the prime minister by ordering the deployment of soldiers of the Reconnaissance Battalion to

34 the prime minister's residence in the morning of 7 April 1994, remaining in contact with soldiers at this 35 location, sending supplies, and issuing operational instructions to them. However, none of these facts

36 is mentioned in the indictment. The paragraphs of the indictment which relate specifically to 37 Nzuwonemeye's and Sagahutu's responsibility for the killing of the prime minister do not identify any DEIRDRE O'MAHONY - ICTR - APPEALS CHAMBER - page 7 NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014

1 particular conduct on Nzuwonemeye's part or mens rea necessary to establish the elements for aiding 2 and abetting. Nzuwonemeye could therefore not have known from the indictment that, and on which

3 basis, the Prosecution sought to hold him responsible for aiding and abetting the killing of the 4 prime minister. The indictment was thus defective. 5

6 Furthermore, the defect was not subsequently cured by timely, clear, and consistent information. 7 Various allegations in the pre-trial brief related to this incident neither informed Nzuwonemeye by which 8 conduct he aided and abetted the crime nor that the Prosecution did in fact intend to hold him

9 responsible under this mode of liability. The Appeals Chamber further notes that, in its opening

10 statement, the Prosecution maintained that Nzuwonemeye incurred criminal liability for the crimes 11 charged in the indictment for other reasons. Not even in its closing brief did the Prosecution submit that

12 any evidence adduced at trial demonstrated that Nzuwonemeye assisted the killing of the 13 prime minister. Thus, up until the end of the proceedings, the Prosecution did not unequivocally 14 indicate that its theory of the case against Nzuwonemeye was that he aided and abetted the killing of

15 the prime minister. It therefore comes as no surprise that Nzuwonemeye made no attempt at trial to 16 refute such an allegation. The Appeals Chamber finds that the Trial Chamber erred in convicting 17 Nzuwonemeye for aiding and abetting the prime minister's killing because he lacked proper notice for

18 this form of responsibility. Accordingly, the Appeals Chamber reverses his conviction for aiding and 19 abetting murder as a crime against humanity and as a serious violation of Article 3 common to the 20 Geneva Conventions and of Additional Protocol II.

21 22 Although the indictment was also defective in relation to pleading Sagahutu's responsibility for aiding 23 and abetting the killing of the prime minister, the Appeals Chamber is not satisfied that Sagahutu has

24 demonstrated that his defence was materially impaired by the defects in the indictment and dismisses 25 his arguments.

26

27 The Appeals Chamber also rejects Nzuwonemeye's submission that he lacked notice of the material 28 facts necessary to plead his superior responsibility for the prime minister. 29

30 However, with respect to the pleading of Nzuwonemeye's responsibility as a superior for the killing of 31 the Belgian peacekeepers, the Appeals Chamber observes that Nzuwonemeye was convicted because 32 his immediate subordinate, Sagahutu, instructed Corporals Nzeyimana and Masonga to put down the

33 resistance by the captured peacekeepers at Camp Kigali and for this purpose provided or approved the

34 use of an MGL from his office. 35

36 The indictment, however, does not plead any specific conduct by which Nzuwonemeye could have 37 been found to have known of the involvement of his soldiers in the attack against the Belgian DEIRDRE O'MAHONY - ICTR - APPEALS CHAMBER - page 8 NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014

1 peacekeepers and failed to take punitive measures. The pre-trial brief is similarly deficient. Moreover, 2 the Prosecution made no mention of Nzuwonemeye's responsibility as a superior or, in fact, under any

3 other mode of liability, for the killing of the Belgian peacekeepers. In addition, when the Prosecution 4 finally did elaborate on Nzuwonemeye's superior responsibility at the end of trial, it argued a different 5 case than that which was ultimately accepted by the Trial Chamber.

6 7 Accordingly, the Appeals Chamber finds that the Trial Chamber erred in holding Nzuwonemeye 8 responsible as a superior in relation to the killing of the Belgian peacekeepers. Nzuwonemeye's

9 convictions in relation to this event must therefore be reversed.

10 11 With respect to Sagahutu, the Appeals Chamber finds that he has not demonstrated that he lacked

12 notice regarding his superior responsibility for the killing of the Belgian peacekeepers. Likewise, the 13 Appeals Chamber has dismissed Sagahutu's arguments concerning the defective pleading of his 14 ordering and aiding and abetting liability with respect to these killings.

15 16 Turning to the legal elements of the crimes, Nzuwonemeye and Sagahutu challenge the 17 Trial Chamber's findings on the chapeau elements for murder as a crime against humanity and as a

18 serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II. The 19 Appeals Chamber finds that Nzuwonemeye and Sagahutu have failed to demonstrate that the 20 Trial Chamber erred in its assessment of these elements.

21 22 I will now address Nzuwonemeye's and Sagahutu's challenges to their responsibility for the killing of the 23 prime minister. The Trial Chamber found that, on 7 April 1994, various units of the Rwandan army,

24 including soldiers of the Reconnaissance Battalion, attacked the prime minister's residence and killed 25 her in what the Trial Chamber described as an organised military operation conducted with the

26 authorisation of senior military officers.

27 28 Specifically, the Trial Chamber concluded that Nzuwonemeye ordered Sagahutu to deploy an armoured 29 unit from the Reconnaissance Battalion to reinforce elements of the Presidential Guard at the

30 prime minister's residence. The Trial Chamber found that Sagahutu complied with this order and that 31 an armoured vehicle was stationed between 150 and 200 metres from the residence. The 32 Trial Chamber also credited evidence from several witnesses who heard Corporal Fiacre Afrika, a

33 member of Squadron A of the Reconnaissance Battalion, boast about his role in the killing of the

34 prime minister. The Trial Chamber also found, in light of the well-coordinated nature of the operation, 35 that evidence suggesting that a soldier from the École superieur militaire (ESM) killed the

36 prime minister, would not absolve Nzuwonemeye or Sagahutu of their subordinates' involvement in the 37 operation that led to her death. The Trial Chamber further found that, during the course of the DEIRDRE O'MAHONY - ICTR - APPEALS CHAMBER - page 9 NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014

1 operation, Nzuwonemeye and Sagahutu remained in contact with the troops on the ground, sent them 2 supplies and issued operational instructions. The Trial Chamber found that the

3 Reconnaissance Battalion soldiers who participated in the killing acted on the orders and with the 4 knowledge of Nzuwonemeye and Sagahutu given the organised nature of the attack, their role as 5 commanders, and the fact that they remained abreast of the situation.

6 7 The Appeals Chamber observes that the Trial Chamber did not make express findings on the mens rea 8 and actus reus related to Nzuwonemeye's and Sagahutu's liability for ordering the killing or Sagahutu's

9 responsibility for aiding and abetting the crime. This amounts to a failure to provide a reasoned opinion.

10 11 A review of the Trial Chamber's findings and the evidence it credited reveal that the Trial Chamber only

12 concluded that Nzuwonemeye and Sagahutu sent Reconnaissance Battalion soldiers to the vicinity of 13 the prime minister's residence to reinforce the Presidential Guard, without concluding that the purpose 14 of this deployment at the time it was made was to kill the prime minister. The trial judgement refers to

15 no evidence suggesting that, at the time of the deployment of Reconnaissance Battalion soldiers to the 16 vicinity of the prime minister's residence, Nzuwonemeye and Sagahutu were aware of an operation to 17 kill the prime minister. To the contrary, the Trial Chamber considered as a "reasonable inference" that

18 "Nzuwonemeye may have ordered Sagahutu to reinforce the Presidential Guard soldiers at the 19 residence of the prime minister in order to prevent her from reaching the radio station where she was 20 expected to deliver a radio speech calling for calm in the country." This conclusion does not

21 necessarily indicate that, in deploying Reconnaissance Battalion soldiers to reinforce the 22 Presidential Guard at the prime minister's residence, Nzuwonemeye and Sagahutu intended that the 23 prime minister be killed or were aware of the substantial likelihood that this might occur in the execution

24 of the order. 25

26 In addition, the Appeals Chamber observes that none of the evidence cited by the Trial Chamber

27 reflects that Nzuwonemeye and Sagahutu issued an order to Reconnaissance Battalion soldiers to kill 28 the prime minister. The Trial Chamber's findings and the evidence it relied upon in making them are 29 consistent with the Trial Chamber's own consideration that Reconnaissance Battalion soldiers may

30 have been deployed for the purpose of preventing the prime minister from giving a radio address. 31 32 The Trial Chamber also failed to identify what conduct by the Reconnaissance Battalion members had

33 a "direct and substantial effect" on the killing of the prime minister. In this regard, the Trial Chamber

34 stated that Reconnaissance Battalion soldiers under Nzuwonemeye's and Sagahutu's command 35 "participated in the attack on and killing of" the prime minister. The Appeals Chamber observes that the

36 only evidence that a Reconnaissance Battalion soldier physically participated in the killing of the 37 prime minister is indirect. However, the Trial Chamber did not discredit evidence that an ESM soldier DEIRDRE O'MAHONY - ICTR - APPEALS CHAMBER - page 10 NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014

1 shot the prime minister. Presented with direct evidence that a soldier from ESM shot the prime minister 2 and indirect evidence that a Reconnaissance Battalion soldier had claimed that he had done so, no

3 reasonable trier of fact could have concluded that the Reconnaissance Battalion soldier shot the 4 prime minister. 5

6 Moreover, the Trial Chamber's statement that certain witnesses "provided eyewitness testimony that 7 [Reconnaissance] Battalion soldiers were involved in the attack that led to the killing of the 8 prime minister" is not reasonably supported by their testimonies. Even accepting the Prosecution

9 evidence that Reconnaissance Battalion soldiers were posted in the vicinity of the prime minister's

10 residence, the record shows that not all Rwandan army soldiers who were in the vicinity of the 11 prime minister's residence were searching for her or contributed to her killing.

12 13 The Appeals Chamber concludes that the Trial Chamber failed to make sufficient findings to establish 14 the elements necessary to establish Nzuwonemeye and Sagahutu's liability for ordering the killing of

15 the prime minister. Moreover, no reasonable trier of fact could have found that 16 Reconnaissance Battalion soldiers "participated in the attack on and killing of" the prime minister on the 17 basis of the trial record. The Appeals Chamber, therefore, reverses Nzuwonemeye's and Sagahutu's

18 convictions for murder as a crime against humanity and as a serious violation of Article 3 common to 19 the Geneva Conventions and of Additional Protocol II on the basis of ordering and aiding and abetting 20 the killing of the prime minister. These conclusions also invalidate the Trial Chamber's finding that they

21 could bear superior responsibility for the killing. 22 23 Turning to Sagahutu's responsibility for the killing of the Belgian peacekeepers, the Trial Chamber

24 convicted Sagahutu in relation to this event as a superior for murder as a crime against humanity and 25 for ordering and aiding and abetting for murder as a serious violation of Article 3 common to the

26 Geneva Conventions and of Additional Protocol II. In entering these convictions, the Trial Chamber

27 concluded that Sagahutu issued an order to Corporal Nzeyimana or to Corporals Nzeyimana and 28 Masonga from the Reconnaissance Battalion to put down the Belgian peacekeepers' resistance and for 29 this purpose either provided a multi-grenade launcher (MGL) from his office or consented to the use of

30 the weapon. The Trial Chamber further found that Corporals Nzeyimana and Masonga actively 31 participated in what it characterised as the second and concluding phase of the attack against the 32 Belgian peacekeepers and that they used the MGL to fire at the peacekeepers.

33

34 The Appeals Chamber finds that the Trial Chamber did not err in finding that Sagahutu instructed 35 Corporal Nzeyimana to put down the Belgian peacekeepers' resistance and for this purpose either

36 provided an MGL or consented to the use of this weapon, which was taken from his office. It also did 37 not err in finding that this MGL was in fact used during the attack. The Trial Chamber, however, did err DEIRDRE O'MAHONY - ICTR - APPEALS CHAMBER - page 11 NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014

1 in its assessment of the evidence that Corporal Masonga was involved in the attack and that 2 Corporal Nzeyimana in fact fired on the Belgian peacekeepers.

3 4 With respect to Sagahutu's responsibility for ordering the killings, the Appeals Chamber is satisfied that 5 his instruction to put down the resistance amounted to an order to kill the Belgian peacekeepers.

6 However, there is no evidence that the person who received the order from Sagahutu to kill -- 7 Corporal Nzeyimana -- personally carried out the crime. Furthermore, there is no evidence that any 8 Belgian peacekeeper died from wounds inflicted by this weapon. There are also no findings or

9 evidence that Sagahutu was in a position of authority vis-à-vis the person who fired the MGL against

10 the UNAMIR building or the individuals who killed the last peacekeepers. Under these circumstances, 11 the Appeals Chamber considers that no reasonable trier of fact could have concluded that Sagahutu's

12 order to Corporal Nzeyimana had a direct and substantial effect on the killing of the Belgian 13 peacekeepers. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in convicting 14 Sagahutu of ordering the crimes.

15 16 The Appeals Chamber, however, is satisfied that the Trial Chamber's findings are sufficient to establish 17 Sagahutu's responsibility for aiding and abetting the killings. As previously noted, the evidence shows

18 that the Trial Chamber reasonably interpreted Sagahutu's instruction to Corporal Nzeyimana as an 19 order to kill the last of the Belgian peacekeepers and for this purpose allowed the corporal to take an 20 MGL from his office. For purposes of aiding and abetting, it is immaterial that there is no evidence that

21 any peacekeeper died from injuries inflicted by the MGL that Sagahutu provided. The assistance of an 22 aider and abettor need not serve as a condition precedent for the crime. The overall reasoning in the 23 trial judgement indicates that Sagahutu was held responsible because he assisted the attack against

24 the Belgian peacekeepers by providing one of the weapons used and not because someone was killed 25 with this particular weapon.

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27 The Appeals Chamber also rejects Sagahutu's challenges to his superior responsibility for the role his 28 subordinate played in assisting in the attack. 29

30 Accordingly, the Appeals Chamber reverses Sagahutu's conviction for murder as a crime against 31 humanity and as a serious violation of Article III common to the Geneva Conventions and 32 Additional Protocol II on the basis of ordering the killing of the Belgian peacekeepers. Sagahutu's

33 remaining convictions for these crimes based on aiding and abetting, and as a superior remain

34 undisturbed 35

36 I will now turn to the Prosecution's appeal. 37 DEIRDRE O'MAHONY - ICTR - APPEALS CHAMBER - page 12 NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014

1 The Prosecution appeals against the Trial Chamber's conclusion that it had insufficient evidence to 2 convict Ndindiliyimana for failing to prevent the crimes which occurred at Kansi Parish and

3 Saint André College. The Appeals Chamber has reversed Ndindiliyimana's convictions in relation to 4 the events at Kansi Parish and Saint André College because the Trial Chamber erred in finding that 5 Ndindiliyimana had effective control over the perpetrators. Accordingly, the Prosecution's submissions

6 are dismissed as moot. 7 8 At trial, the Prosecution sought to hold Ndindiliyimana responsible as a superior for the actions of

9 gendarmes in relation to the killing of Tutsi refugees removed from Centre d'Études des Langues

10 Africaines (CELA) on or about 22 April 1994. The Trial Chamber found that 40 civilians, the majority of 11 whom were Tutsi, were taken from CELA to the gendarmerie's Muhima Brigade ostensibly for

12 questioning. There, the civilians were briefly detained before being turned over to the Interahamwe, 13 who took them towards Rugege where at least 10 of the civilians were killed by the Interahamwe at a 14 roadblock. The Trial Chamber concluded that the gendarmes at the Muhima Brigade were complicit in

15 the crimes against the civilians removed from CELA. However, it was not satisfied that Ndindiliyimana 16 knew or had reason to know of the complicity of the gendarmes in the crimes and dismissed this 17 charge. The Prosecution submits that the Trial Chamber erred in failing to convict Ndindiliyimana for

18 the crimes against the civilians removed from CELA. The Appeals Chamber finds that the Prosecution 19 has not demonstrated that the Trial Chamber erred in its application of the standard for assessing 20 Ndindiliyimana's mens rea in relation to the crimes or in its application of the standard of proof. Finally,

21 the Prosecution has failed to demonstrate any error in the Trial Chamber's assessment of the evidence. 22 Accordingly, it is not shown that the Trial Chamber erred in not convicting Ndindiliyimana of these 23 crimes.

24 25 The Appeals Chamber will next discuss the sentencing appeal in relation to Sagahutu. The

26 Prosecution's sentencing appeals against Ndindiliyimana and Nzuwonemeye are moot.

27 28 The Appeals Chamber recalls that the Trial Chamber sentenced Sagahutu to 20 years of imprisonment. 29 Both Sagahutu and the Prosecution appealed. The Appeals Chamber is not satisfied, however, that

30 their challenges to the Trial Chamber's consideration of the sentence demonstrate that it acted outside 31 the scope of its sentencing discretion. The impact of the Appeals Chamber's findings on Sagahutu's 32 sentence will be noted in the disposition.

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34 I would now like to ask Mr. Ndindiliyimana and Mr. Sagahutu to stand while I read the full text of the 35 Appeals Chamber's disposition in this case.

36 37 For the foregoing reasons, the Appeals Chamber, pursuant to Article 24 of the Statute and Rule 118 of DEIRDRE O'MAHONY - ICTR - APPEALS CHAMBER - page 13 NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014

1 the Rules; noting the written submissions of the parties and their oral arguments presented at the 2 appeal hearing on 7 to 10 May 2013; sitting in open session; with respect to Ndindiliyimana's appeal

3 grants Ndindiliyimana's first, second, and fourth ground of appeal, in part, reverses his convictions for 4 genocide and extermination as a crime against humanity in relation to the attack on Kansi Parish on 5 21 April 1994, as well as his convictions for genocide and murder as a serious violation of Article 3

6 common to the Geneva Conventions and of Additional Protocol II in relation to the attack at 7 Saint André College on 13 April 1994, and enters a verdict of acquittal under Counts 2, 5, and 7 of the 8 indictment; grants Ndindiliyimana's tenth ground of appeal and reverses his conviction for murder as a

9 crime against humanity, and enters a verdict of acquittal under Count 4 of the indictment; dismisses

10 Ndindiliyimana's appeal in all other respects. 11

12 With respect to François-Xavier Nzuwonemeye's appeal: Grants Nzuwonemeye's first, third, and sixth 13 ground of appeal, in part, reverses his convictions for murder as a crime against humanity and as a 14 serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II on the

15 basis of ordering and aiding and abetting the killing of the prime minister and as a superior in relation to 16 the killing of the Belgian peacekeepers, and enters a verdict of acquittal under Counts 4 and 7 of the 17 indictment; dismisses Nzuwonemeye's appeal in all other respects.

18 19 With respect to Innocent Sagahutu's appeal: Grants Sagahutu's second to fifth grounds of appeal, in 20 part, and reverses his convictions for murder as a crime against humanity and as a serious violation of

21 Article 3 common to the Geneva Conventions and of Additional Protocol II on the basis of ordering and 22 aiding and abetting the killing of the prime minister; grants Sagahutu's eighth to tenth grounds of 23 appeal, in part, and reverses his conviction for murder as a crime against humanity and as a serious

24 violation of Article 3 common to the Geneva Conventions and of Additional Protocol II on the basis of 25 ordering the killing of the Belgian peacekeepers and on the basis of Corporal Masonga's participation in

26 the attack; dismisses Sagahutu's appeal in all other respects; affirms Sagahutu's convictions for murder

27 as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II on 28 the basis of aiding and abetting the killing of Belgian peacekeepers and as a superior for murder as a 29 crime against humanity in relation to the killing of Belgian peacekeepers; reduces,

30 Judge Tuzmukhamedov dissenting, the sentence of 20 years of imprisonment imposed on Sagahutu by 31 the Trial Chamber to 15 years of imprisonment, subject to credit being given under Rules 101(C) and 32 107 of the Rules for the period he has already spent in detention since his arrest on 15 February 2000;

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34 With respect to the Prosecution's appeal: Dismisses the Prosecution's appeal as it relates to 35 Ndindiliyimana, Nzuwonemeye, and Sagahutu; rules that this judgement shall be enforced immediately

36 pursuant to Rule 119 of the Rules; orders, in accordance with Rules 99(A) and 107 of the Rules, the 37 immediate release of Nzuwonemeye, and directs the Registrar to make the necessary arrangements; DEIRDRE O'MAHONY - ICTR - APPEALS CHAMBER - page 14 NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014

1 and orders that, in accordance with Rule 103(C) and Rule 107 of the Rules, Sagahutu is to remain in 2 the custody of the Tribunal pending the finalisation of arrangements for his transfer to the State where

3 his sentence will be served. 4 5 You may be seated.

6 7 The Appeals Chamber will issue its written judgement in due course, and it will be served on the 8 parties.

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10 This concludes the appellate proceedings of Ndindiliyimana, Nzuwonemeye, and Sagahutu. 11

12 The Appeals Chamber will now rise. 13

14 (Court adjourned at 1507H)

15 (Pages 1 to 15 by Deirdre O'Mahony)

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37 DEIRDRE O'MAHONY - ICTR - APPEALS CHAMBER - page 15 NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014

1 2 3 C E R T I F I C A T E 4 5 I, Deirdre O'Mahony, Official Court Reporter for the International Criminal Tribunal for Rwanda, do 6 hereby certify that the foregoing proceedings in the above-entitled cause were taken at the time and 7 place as stated; that it was taken in shorthand (stenotype) and thereafter transcribed by computer; 8 that the foregoing pages contain a true and correct transcription of said proceedings to the best of my 9 ability and understanding. 10 11 12 I further certify that I am not of counsel nor related to any of the parties to this cause and that 13 I am in nowise interested in the result of said cause. 14 15 16 17 ______Deirdre O'Mahony 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37

ICTR – APPEALS CHAMBER