Tri-una! P=na! In%erna%iona! >our !e R<anda In%erna%iona! Cri ina! Tri-una!

for R<anda
)*+T,( *AT+-*S *AT+-*S )*+,S

IN THE APPEALS CHAMBER

Before: Judge Theodor Meron, Presiding Judge Liu Daqun Judge Car e! Agius Judge "ha!ida Ra#hid "han Judge Ba$h%i&ar Tu' u$ha edo( Mr) Bongani Ma*o!a ++ ,e-ruar& ./+0

Regis%rar: Judge en% of:

A121STIN NDINDILI3IMANA ,RAN45IS67A8IER N91:5NEME3E INN5CENT SA2AH1T1

()

THE PR5SEC1T5R
Case No. ICTR-00-56-A ________________________________________________________________________________

S1MMAR3 5, THE J1D2EMENT

________________________________________________________________________________ Counse! for Augus%in Ndindi!i&i ana: Mr. Christopher Black Mr. Vincent Lurquin Counse! for ,ran;ois67a(ier N'u<one e&e: Mr. Charles A. Taku Ms. Beth S. Lyons Counse! for Inno#en% Sagahu%u: Mr. Fabien Segatwa Mr. Scott Martin Mr. ayne !or"ash The 5ffi#e of %he Prose#u%or: Mr. #assan Bubacar !allow Mr. !a$es !. Arguin Mr. Ab"oulaye Seye Mr. Abubacarr Ta$ba"ou Ms. The$bile M. Segoete Ms. Flori"a %abasinga Mr. Takeh Sen"&e Ms. Christiana Fo$enky Ms. Sunkarie Ballah'Conteh Ms. Betty Mbaba&i Mr. (eo Mbuto

..

The Appeals Cha$ber is sitting to"ay in accor"ance with /ule ..0 o1 the Tribunal2s /ules

o1 3roce"ure an" ,4i"ence in the case o1 The Prosecutor v. Augustin Ndindiliyimana, ran!ois"avier N#u$onemeye, and Innocent %agahutu. All parties5 inclu"ing the 3rosecution5 appeale" against the Trial !u"ge$ent ren"ere" in this case by Trial Cha$ber ++ o1 the Tribunal on .6 May 78.. an" issue" in writing on .6 !une 78... +n accor"ance with the Sche"uling -r"er o1 .9 *o4e$ber 78.:5 the Appeals Cha$ber will presently "eli4er the ;u"ge$ent in this case. 7. -n 6 February 78.<5 the Appeals Cha$ber issue" an or"er se4ering the case o1 Augustin

Bi&i$ungu5 who ha" been trie" with *"in"iliyi$ana5 *&uwone$eye5 an" Sagahutu5 an" whose appeal was hear" with theirs. The Appeals Cha$ber will "eli4er its ;u"ge$ent on Bi&i$ungu2s appeal an" the 3rosecution appeal relate" to his case in "ue course a1ter consi"ering the 1urther sub$issions or"ere". :. Following the practice o1 the Tribunal5 not e4ery point a""resse" in the ;u"ge$ent will be

$entione" in this su$$ary5 which 1ocuses only on central issues. This su$$ary "oes not constitute any part o1 the authoritati4e written ;u"ge$ent o1 the Appeals Cha$ber5 which will be 1ile" in writing in "ue course.

I) APPEAL 5, A121STIN NDINDILI3IMANA

<. *"in"iliyi$ana is the 1or$er Chie1 o1 Sta11 o1 the /wan"an gen"ar$erie. The Trial

Cha$ber con4icte" *"in"iliyi$ana as a superior 1or genoci"e an" e=ter$ination as a cri$e against hu$anity base" on the participation o1 gen"ar$es in an attack on %ansi 3arish. +t also 1oun" hi$ guilty as a superior 1or genoci"e an" $ur"er as a serious 4iolation o1 Article : co$$on to the >ene4a Con4entions an" o1 A""itional 3rotocol ++ in relation to cri$es co$$itte" by gen"ar$es at Saint An"r? College. The Trial Cha$ber also con4icte" *"in"iliyi$ana o1 $ur"er as a cri$e against hu$anity. The Trial Cha$ber sentence" *"in"iliyi$ana to a single sentence o1 ti$e ser4e" an" or"ere" his i$$e"iate release on .6 May 78... A) ,airness of %he Pro#eedings 9. *"in"iliyi$ana sub$its that the Trial Cha$ber 1aile" to pro4i"e su11icient re$e"ies in light

o1 the 3rosecution2s 4iolation o1 its "isclosure obligations pursuant to /ule @0 o1 the /ulesA that the Tribunal2s "ecisions concerning allege" prosecutorial $iscon"uct were in errorA an" that the procee"ings were un"uly "elaye". The Appeals Cha$ber 1in"s that *"in"iliyi$ana has 1aile" to "e$onstrate any error that ren"ere" his trial un1air. Accor"ingly5 it "is$isses these argu$ents.

B) "ansi Parish @. The Trial Cha$ber 1oun" that5 on 7. April .BB<5 gen"ar$es assigne" to guar"

*"in"iliyi$ana2s resi"ence in *yaruhengeri pro4i"e" weapons to an" assiste" Interaham$e in the attack at the nearby parish. The Trial Cha$ber 1urther hel" that the gen"ar$es statione" at *"in"iliyi$ana2s resi"ence were his subor"inates acting un"er his control5 an" that *"in"iliyi$ana knew or ha" reason to know that they ha" co$$itte" cri$es at %ansi 3arish5 but 1aile" to punish the$. 6. The Trial Cha$ber 1oun" that5 a1ter 6 April .BB<5 the operational co$$an" o4er the

$a;ority o1 gen"ar$erie units was trans1erre" to the /wan"an ar$y an" that *"in"iliyi$ana there1ore no longer e=ercise" e11ecti4e control o4er gen"ar$es who ha" been "eploye" to assist the ar$y in co$bat against the /3F. The Trial Cha$ber hel"5 howe4er5 that *"in"iliyi$ana retaine" 1ull de &ure authority o4er appro=i$ately 788 gen"ar$es not "eploye" to assist the ar$y in co$bat. ith respect to these gen"ar$es5 the Trial Cha$ber acknowle"ge" thatC *"in"iliyi$ana su11ere" 1ro$ a lack o1 resources an" 1ace" "i11iculties in co$$unicating with gen"ar$erie units on the groun"A his 1orce was in1iltrate" by e=tre$ists an" rogue ele$entsA an" his $aterial ability to control the gen"ar$es un"er his operational co$$an" "ecrease" as the war progresse". For these reasons5 the Trial Cha$ber consi"ere" that *"in"iliyi$ana "i" not e=ercise e11ecti4e control o4er all gen"ar$es un"er his operational co$$an" an" that his D$aterial ability to pre4ent an"Eor punish cri$es [F] 4arie" consi"erably between "i11erent gendarmerie unitsG. 0. At the ti$e o1 the attack at %ansi 3arish on 7. April .BB<5 *"in"iliyi$ana2s resi"ence in

*yaruhengeri was guar"e" by a nu$ber o1 gen"ar$es who ha" been "eploye" by the co$$an"er o1 the Butare gen"ar$erie unit base" on a personal request 1or protection by *"in"iliyi$ana2s wi1e. The Trial Cha$ber conclu"e" that *"in"iliyi$ana e=ercise" Dde 'acto authorityG o4er these gen"ar$es because they ha" been Dgathere"G by his wi1e an" *"in"iliyi$ana ha" Da"$itte"G at trial that he woul" ha4e known ha" they participate" in the attack at %ansi 3arish. +t also state" that the gen"ar$es belonge" to units un"er the operational co$$an" o1 the gen"ar$erie an" that their operation at %ansi 3arish entaile" a "egree o1 organi&ation an" there1ore 1oun" thatC D[i]t 1ollows 1ro$ *"in"iliyi$ana2s position as Chie1 o1 Sta11 o1 the (endarmerie that the gendarmes in question were his subor"inates un"er his e11ecti4e controlG. B. The Appeals Cha$ber 1in"s that the Trial Cha$ber 1aile" to e=plain the basis o1 its 1in"ing

that the gen"ar$es guar"ing *"in"iliyi$ana2s house ca$e 1ro$ a unit un"er his operational co$$an". Further$ore5 the Appeals Cha$ber 1in"s that5 base" on the e4i"ence re1erre" to in the

Trial !u"ge$ent an" on the recor"5 no reasonable trier o1 1act coul" ha4e conclu"e" that *"in"iliyi$ana ha" e11ecti4e control o4er these gen"ar$es. .8. ,4en i1 the gen"ar$es statione" at *"in"iliyi$ana2s resi"ence coul" ha4e been consi"ere"

his subor"inates5 the Trial Cha$ber "i" not a""ress any possible i$pact on this relationship 1lowing 1ro$ the 1act that a separate unit either o1 gen"ar$es or the 3resi"ential >uar" collecte" the group o1 gen"ar$es 1ro$ *"in"iliyi$ana2s ho$e shortly be1ore the attack at %ansi 3arish on 7. April .BB<. The Trial Cha$ber coul" not ha4e reasonably e=clu"e" the possibility that the gen"ar$es at the resi"ence acte" un"er the arri4ing group2s co$$an" an" or"ers at the ti$e o1 the co$$ission o1 cri$es at the parish an" that *"in"iliyi$ana there1ore lacke" the $aterial ability to pre4ent or punish their con"uct. ... Finally5 the Appeals Cha$ber also conclu"es that no reasonable trier o1 1act coul" ha4e

1oun" that the gen"ar$es statione" at *"in"iliyi$ana2s resi"ence in 1act participate" in the attack at %ansi 3arish gi4en the signi1icant "iscrepancies in the e4i"ence between the witnesses who obser4e" the gen"ar$es lea4ing the resi"ence an" the witness who ga4e e4i"ence concerning the participation o1 gen"ar$es in the attack on the parish. .7. For the 1oregoing reasons5 the Appeals Cha$ber 1in"s that the Trial Cha$ber erre" in

conclu"ing that *"in"iliyi$ana e=ercise" e11ecti4e control o4er the gen"ar$es guar"ing his resi"ence in *yaruhengeri at the ti$e o1 the attack against %ansi 3arish. Moreo4er5 the Appeals Cha$ber conclu"es that no reasonable trier o1 1act coul" ha4e in1erre" as the only reasonable conclusion that the gen"ar$es statione" at *"in"iliyi$ana2s resi"ence participate" in the attack. These errors in4ali"ate the Trial Cha$ber2s 1in"ing that *"in"iliyi$ana coul" be hel" liable un"er Article @H:I o1 the Statute 1or cri$es co$$itte" by gen"ar$es "uring the attack on %ansi 3arish. Accor"ingly5 the Appeals Cha$ber re4erses *"in"iliyi$ana2s con4iction in relation to the killing o1 Tutsi re1ugees at %ansi 3arish. C) Sain% Andr= Co!!ege .:. The Trial Cha$ber 1oun" that gen"ar$es 1ro$ the *ya$ira$bo Briga"e5 acting in

collaboration with Interaham$e5 carrie" out an attack at Saint An"r? College on .: April .BB<. +t 1urther hel" that the gen"ar$es in question were *"in"iliyi$ana2s subor"inates acting un"er his control5 an" that *"in"iliyi$ana knew or ha" reason to know that they ha" co$$itte" cri$es5 but 1aile" to punish the$.

.<.

The Trial Cha$ber conclu"e" that *"in"iliyi$ana e=ercise" Dde 'acto authorityG o4er the

gen"ar$es who participate" in the attack at Saint An"r? College on .: April .BB<5 reasoning thatC HiI the killings took place in %igali where *"in"iliyi$ana spent a large proportion o1 his ti$eA HiiI *"in"iliyi$ana Da"$itte"G at trial that he recei4e" reports 1ro$ his >eneral Sta11 regar"ing e4ents at the college an" issue" or"ers to his subor"inates operating at that location aroun" the ti$e o1 the attackA an" HiiiI *"in"iliyi$ana was aware that an e$ployee at Saint An"r? College who i$plicate" gen"ar$es 1ro$ the *ya$ira$bo Briga"e in the attack requeste" gen"ar$erie protection 1or the college on .< April .BB<. .9. The Trial Cha$ber 1urther hel" that Din light o1 the 1act that *"in"iliyi$ana recei4e"

in1or$ation an" issue" or"ers to his subor"inates regar"ing [Saint] An"r? College5 he $aintaine" co$$an" an" control o4er the gen"ar$es operating at that locationG. +t also state" that the gen"ar$es i$plicate" in the attack at Saint An"r? College belonge" to units un"er the operational co$$an" o1 the gen"ar$erie an" that their operation at the college entaile" a "egree o1 organi&ation. The Trial Cha$ber there1ore 1oun" thatC D[i]t 1ollows 1ro$ *"in"iliyi$ana2s position as Chie1 o1 Sta11 o1 the (endarmerie that the gendarmes in question were his subor"inates un"er his e11ecti4e controlG. .@. The Appeals Cha$ber 1in"s that the Trial Cha$ber 1aile" to e=plain the basis o1 its

conclusion that the *ya$ira$bo Briga"e re$aine" un"er *"in"iliyi$ana2s operational co$$an" in particular in 4iew o1 its 1in"ing that5 a1ter 6 April .BB<5 the operational co$$an" o4er the $a;ority o1 gen"ar$erie units was trans1erre" to the /wan"an ar$y. .6. The Appeals Cha$ber obser4es that the Trial Cha$ber consi"ere" cre"ible testi$ony that

in"icates that the ar$y was e=ercising authority o4er the *ya$ira$bo Briga"e which calls into question the reasonableness o1 the Trial Cha$ber2s in1erence that $e$bers o1 the briga"e acte" un"er *"in"iliyi$ana2s operational co$$an" an" e11ecti4e control at the ti$e o1 the attack at Saint An"r? College. .0. The Appeals Cha$ber also 1in"s that no reasonable trier o1 1act coul" ha4e relie" on the

other 1actors $entione" by the Trial Cha$ber to in1er that Mr. *"in"iliyi$ana e=ercise" e11ecti4e control o4er the *ya$ira$bo Briga"e. .B. Accor"ingly5 the Appeals Cha$ber 1in"s that the Trial Cha$ber erre" in conclu"ing that

*"in"iliyi$ana e=ercise" e11ecti4e control o4er the gen"ar$es 1ro$ the *ya$ira$bo Briga"e who participate" in the attack against Saint An"r? College on .: April .BB<. This error in4ali"ates the Trial Cha$ber2s 1in"ing that *"in"iliyi$ana coul" be hel" liable un"er Article @H:I o1 the Statute

<

1or cri$es co$$itte" by gen"ar$es "uring the attack. The Appeals Cha$ber re4erses his con4ictions in relation to the killing o1 Tutsi re1ugees at Saint An"r? College. D) Cu u!a%i(e Con(i#%ions 78. +n 4iew o1 the Appeals Cha$ber2s 1in"ings in relation to %ansi 3arish an" Saint An"r?

College5 the Appeals Cha$ber "is$isses as $oot Mr. *"in"iliyi$ana2s challenge to the cu$ulati4e con4ictions entere" by the Trial Cha$ber 1or these e4ents. E) Murder as a Cri e Agains% Hu ani%& 7.. +n its 4er"ict5 the Trial Cha$ber con4icte" *"in"iliyi$ana 1or $ur"er as a cri$e against

hu$anity un"er Count < o1 the +n"ict$ent. The Appeals Cha$ber notes that the 3rosecution with"rew a nu$ber o1 allegations against *"in"iliyi$ana un"erlying Count < o1 the +n"ict$ent at the en" o1 its case. The re$ain"er o1 the charges un"er this count was "is$isse" in the Trial !u"ge$ent. Consequently5 there was no basis upon which *"in"iliyi$ana coul" be con4icte" un"er Count < o1 the +n"ict$ent. The Appeals Cha$ber there1ore 1in"s that the Trial Cha$ber erre" in law by con4icting *"in"iliyi$ana un"er this count. Accor"ingly5 the Appeals Cha$ber re4erses his con4iction un"er Count < o1 the +n"ict$ent 1or $ur"er as a cri$e against hu$anity.

II) APPEALS 5, ,RAN45IS67A8IER N91:5NEME3E AND INN5CENT SA2AH1T1

77. *&uwone$eye is the 1or$er co$$an"er o1 the /econnaissance Battalion. Sagahutu

pre4iously ser4e" as the co$$an"er o1 Squa"ron A within the /econnaissance Battalion. 7:. The Trial Cha$ber con4icte" *&uwone$eye an" Sagahutu o1 or"ering an" ai"ing an"

abetting $ur"er as a cri$e against hu$anity an" as a serious 4iolation o1 Article : co$$on to the >ene4a Con4entions an" o1 A""itional 3rotocol ++ in relation to the killing o1 3ri$e Minister Agathe )wilingiyi$ana. +t 1urther 1oun" that they coul" be hel" responsible 1or this killing as superiors5 which it consi"ere" in relation to sentencing. 7<. The Trial Cha$ber also conclu"e" that *&uwone$eye was liable as a superior 1or $ur"er as

a cri$e against hu$anity an" as a serious 4iolation o1 Article : co$$on to the >ene4a Con4entions an" o1 A""itional 3rotocol ++ with respect to the killing o1 Belgian peacekeepers who were part o1 the )*AM+/ peacekeeping $ission. The Trial Cha$ber 1oun" Sagahutu liable as a superior 1or $ur"er as a cri$e against hu$anity in relation to the killing o1 the Belgian peacekeepers an" also con4icte" hi$ o1 or"ering an" ai"ing an" abetting $ur"er as a serious

4iolation o1 Article : co$$on to the >ene4a Con4entions an" o1 A""itional 3rotocol ++. The Trial Cha$ber sentence" *&uwone$eye an" Sagahutu each to a single ter$ o1 78 years o1 i$prison$ent. A) ,airness of %he Pro#eedings 79. *&uwone$eye asserts that he was "enie" the right to counsel an" the right to cross'

e=a$inationA that the Trial Cha$ber erre" in "enying requests 1or certi1ication to appeal "ecisionsA that the Trial Cha$ber erre" in its assess$ent o1 the 3rosecution2s "isclosure 4iolations an" grante" ine11ecti4e re$e"iesA that the Trial Cha$ber erre" in taking ;u"icial notice o1 the e=istence o1 a wi"esprea" an" syste$atic attack against a ci4ilian population an" a non'international ar$e" con1lictA an" that the Trial Cha$ber 4iolate" the protections set 1orth in /ules 07HAI an" 06HBI o1 the /ules. The Appeals Cha$ber 1in"s no error in the Trial Cha$ber2s rele4ant "eter$inations that woul" result in a $iscarriage o1 ;ustice or in4ali"ate the 4er"ict. B) No%i#e 7@. At the outset5 the Appeals Cha$ber "is$isses *&uwone$eye2s an" Sagahutu2s argu$ents

that there were errors regar"ing cu$ulati4e or alternati4e charging o1 1or$s o1 responsibility. 76. ith respect to the killing o1 the 3ri$e Minister5 the Appeals Cha$ber is not satis1ie" that

*&uwone$eye or Sagahutu ha4e "e$onstrate" that they lacke" notice o1 their responsibility 1or or"ering the cri$e. 70. Turning to ai"ing an" abetting5 the Trial Cha$ber 1oun" that *&uwone$eye ai"e" an"

abette" the killing o1 the 3ri$e Minister by or"ering the "eploy$ent o1 sol"iers o1 the /econnaissance Battalion to the 3ri$e Minister2s resi"ence in the $orning o1 6 April .BB<5 re$aining in contact with sol"iers at this location5 sen"ing supplies5 an" issuing operational instructions to the$. #owe4er5 none o1 these 1acts is $entione" in the +n"ict$ent. The paragraphs o1 the +n"ict$ent which relate speci1ically to *&uwone$eye2s an" Sagahutu2s responsibility 1or the killing o1 the 3ri$e Minister "o not i"enti1y any particular con"uct on *&uwone$eye2s part or mens rea necessary to establish the ele$ents 1or ai"ing an" abetting. *&uwone$eye coul" there1ore not ha4e known 1ro$ the +n"ict$ent that5 an" on which basis5 the 3rosecution sought to hol" hi$ responsible 1or ai"ing an" abetting the killing o1 the 3ri$e Minister. The +n"ict$ent was thus "e1ecti4e. 7B. Further$ore5 the "e1ect was not subsequently cure" by ti$ely5 clear5 an" consistent

in1or$ation. Various allegations in the 3re'Trial Brie1 relate" to this inci"ent neither in1or$e" *&uwone$eye by which con"uct he ai"e" an" abette" the cri$e nor that the 3rosecution "i" in 1act inten" to hol" hi$ responsible un"er this $o"e o1 liability. The Appeals Cha$ber 1urther notes that5

in its opening state$ent5 the 3rosecution $aintaine" that *&uwone$eye incurre" cri$inal liability 1or the cri$es charge" in the +n"ict$ent 1or other reasons. *ot e4en in its Closing Brie1 "i" the 3rosecution sub$it that any e4i"ence a""uce" at trial "e$onstrate" that *&uwone$eye assiste" the killing o1 the 3ri$e Minister. Thus5 up until the en" o1 the procee"ings5 the 3rosecution "i" not unequi4ocally in"icate that its theory o1 the case against *&uwone$eye was that he ai"e" an" abette" the killing o1 the 3ri$e Minister. +t there1ore co$es as no surprise that *&uwone$eye $a"e no atte$pt at trial to re1ute such an allegation. The Appeals Cha$ber 1in"s that the Trial Cha$ber erre" in con4icting *&uwone$eye 1or ai"ing an" abetting the 3ri$e Minister2s killing because he lacke" proper notice 1or this 1or$ o1 responsibility. Accor"ingly5 the Appeals Cha$ber re4erses his con4iction 1or ai"ing an" abetting $ur"er as a cri$e against hu$anity an" as a serious 4iolation o1 Article : co$$on to the >ene4a Con4entions an" o1 A""itional 3rotocol ++. :8. Although the +n"ict$ent was also "e1ecti4e in relation to plea"ing Sagahutu2s responsibility

1or ai"ing an" abetting the killing o1 the 3ri$e Minister5 the Appeals Cha$ber is not satis1ie" that Sagahutu has "e$onstrate" that his "e1ence was $aterially i$paire" by the "e1ects in the +n"ict$ent an" "is$isses his argu$ents. :.. The Appeals Cha$ber also re;ects *&uwone$eye2s sub$ission that he lacke" notice o1 the

$aterial 1acts necessary to plea" his superior responsibility 1or the 3ri$e Minister. :7. #owe4er5 with respect to the plea"ing o1 *&uwone$eye2s responsibility as a superior 1or

the killing o1 the Belgian peacekeepers5 the Appeals Cha$ber obser4es that *&uwone$eye was con4icte" because his i$$e"iate subor"inate5 Sagahutu5 instructe" Corporals *&eyi$ana an" Masonga to put "own the resistance by the capture" peacekeepers at Ca$p %igali an" 1or this purpose pro4i"e" or appro4e" the use o1 an M>L 1ro$ his o11ice. ::. The +n"ict$ent5 howe4er5 "oes not plea" any speci1ic con"uct by which *&uwone$eye

coul" ha4e been 1oun" to ha4e known o1 the in4ol4e$ent o1 his sol"iers in the attack against the Belgian peacekeepers an" 1aile" to take puniti4e $easures. The 3re'Trial Brie1 is si$ilarly "e1icient. Moreo4er5 the 3rosecution $a"e no $ention o1 *&uwone$eye2s responsibility as a superior or5 in 1act5 un"er any other $o"e o1 liability5 1or the killing o1 the Belgian peacekeepers. +n a""ition5 when the 3rosecution 1inally "i" elaborate on *&uwone$eye2s superior responsibility at the en" o1 trial5 it argue" a "i11erent case than that which was ulti$ately accepte" by the Trial Cha$ber. :<. Accor"ingly5 the Appeals Cha$ber 1in"s that the Trial Cha$ber erre" in hol"ing

*&uwone$eye responsible as a superior in relation to the killing o1 the Belgian peacekeepers. *&uwone$eye2s con4ictions in relation to this e4ent $ust there1ore be re4erse".

:9.

ith respect to Sagahutu5 the Appeals Cha$ber 1in"s that he has not "e$onstrate" that he

lacke" notice regar"ing his superior responsibility 1or the killing o1 the Belgian peacekeepers. Likewise5 the Appeals Cha$ber has "i$isse" Sagahutu2s argu$ents concerning the "e1ecti4e plea"ing o1 his or"ering an" ai"ing an" abetting liability with repect to these killings. C) Lega! E!e en%s of %he Cri es :@. *&uwone$eye an" Sagahutu challenge the Trial Cha$ber2s 1in"ings on the cha)eau

ele$ents 1or $ur"er as a cri$e against hu$anity an" as a serious 4iolation o1 Article : co$$on to the >ene4a Con4entions an" o1 A""itional 3rotocol ++. The Appeals Cha$ber 1in"s that *&uwone$eye an" Sagahutu ha4e 1aile" to "e$onstrate that the Trial Cha$ber erre" in its assess$ent o1 these ele$ents. D) "i!!ing of %he Pri e Minis%er :6. The Trial Cha$ber 1oun" that5 on 6 April .BB<5 4arious units o1 the /wan"an ar$y5

inclu"ing sol"iers o1 the /econnaissance Battalion5 attacke" the 3ri$e Minister2s resi"ence an" kille" her in what the Trial Cha$ber "escribe" as an organi&e" $ilitary operation con"ucte" with the authori&ation o1 senior $ilitary o11icers. :0. Speci1ically5 the Trial Cha$ber conclu"e" that *&uwone$eye or"ere" Sagahutu to "eploy

an ar$oure" unit 1ro$ the /econnaissance Battalion to rein1orce ele$ents o1 the 3resi"ential >uar" at the 3ri$e Minister2s resi"ence. The Trial Cha$ber 1oun" that Sagahutu co$plie" with this or"er an" that an ar$oure" 4ehicle was statione" between .98 an" 788 $etres 1ro$ the resi"ence. The Trial Cha$ber also cre"ite" e4i"ence 1ro$ se4eral witnesses who hear" Corporal Fiacre A1rika5 a $e$ber o1 the Squa"ron A o1 the /econnaissance Battalion5 boast about his role in the killing o1 the 3ri$e Minister. The Trial Cha$ber also 1oun"5 in light o1 the well'coor"inate" nature o1 the operation5 that e4i"ence suggesting that a sol"ier 1ro$ the *cole su)erieur militaire HD,SMGI kille" the 3ri$e Minister5 woul" not absol4e *&uwone$eye or Sagahutu o1 their subor"inates2 in4ol4e$ent in the operation that le" to her "eath. The Trial Cha$ber 1urther 1oun" that5 "uring the course o1 the operation5 *&uwone$eye an" Sagahutu re$aine" in contact with the troops on the groun"5 sent the$ supplies5 an" issue" operational instructions. The Trial Cha$ber 1oun" that the /econnaissance Battalion sol"iers who participate" in the killing acte" on the or"ers an" with the knowle"ge o1 *&uwone$eye an" Sagahutu gi4en the organi&e" nature o1 the attack5 their role as co$$an"ers5 an" the 1act that they re$aine" abreast o1 the situation. :B. The Appeals Cha$ber obser4es that the Trial Cha$ber "i" not $ake e=press 1in"ings on the

mens rea an" actus reus relate" to *&uwone$eye2s an" Sagahutu2s liability 1or or"ering the killing

or Sagahutu2s responsibility 1or ai"ing an" abetting the cri$e. This a$ounts to a 1ailure to pro4i"e a reasone" opinion. <8. A re4iew o1 the Trial Cha$ber2s 1in"ings an" the e4i"ence it cre"ite" re4eal that the Trial

Cha$ber only conclu"e" that *&uwone$eye an" Sagahutu sent /econnaissance Battalion sol"iers to the 4icinity o1 the 3ri$e Minister2s resi"ence to rein1orce the 3resi"ential >uar"5 without conclu"ing that the purpose o1 this "eploy$ent at the ti$e it was $a"e was to kill the 3ri$e Minister. The Trial !u"ge$ent re1ers to no e4i"ence suggesting that5 at the ti$e o1 the "eploy$ent o1 /econnaissance Battalion sol"iers to the 4icinity o1 the 3ri$e Minister2s resi"ence5 *&uwone$eye an" Sagahutu were aware o1 an operation to kill the 3ri$e Minister. To the contrary5 the Trial Cha$ber consi"ere" as a Dreasonable in1erenceG that D*&uwone$eye $ay ha4e or"ere" Sagahutu to rein1orce the 3resi"ential >uar" sol"iers at the resi"ence o1 the 3ri$e Minister in or"er to pre4ent her 1ro$ reaching the ra"io station where she was e=pecte" to "eli4er a ra"io speech calling 1or cal$ in the countryG. This conclusion "oes not necessarily in"icate that5 in "eploying /econnaissance Battalion sol"iers to rein1orce the 3resi"ential >uar" at the 3ri$e Minister2s resi"ence5 *&uwone$eye an" Sagahutu inten"e" that the 3ri$e Minister be kille" or were aware o1 the substantial likelihoo" that this $ight occur in the e=ecution o1 the or"er. <.. +n a""ition5 the Appeals Cha$ber obser4es that none o1 the e4i"ence cite" by the Trial

Cha$ber re1lects that *&uwone$eye an" Sagahutu issue" an or"er to /econnaissance Battalion sol"iers to kill the 3ri$e Minister. The Trial Cha$ber2s 1in"ings an" the e4i"ence it relie" upon in $aking the$ are consistent with the Trial Cha$ber2s own consi"eration that /econnaissance Battalion sol"iers $ay ha4e been "eploye" 1or the purpose o1 pre4enting the 3ri$e Minister 1ro$ gi4ing a ra"io a""ress. <7. The Trial Cha$ber also 1aile" to i"enti1y what con"uct by the /econnaissance Battalion

$e$bers ha" a D"irect an" substantial e11ectG on the killing o1 the 3ri$e Minister. +n this regar"5 the Trial Cha$ber state" that /econnaissance Battalion sol"iers un"er *&uwone$eye2s an" Sagahutu2s co$$an" Dparticipate" in the attack on an" killing o1G the 3ri$e Minister. The Appeals Cha$ber obser4es that the only e4i"ence that a /econnaissance Battalion sol"ier physically participate" in the killing o1 the 3ri$e Minister is in"irect. #owe4er5 the Trial Cha$ber "i" not "iscre"it e4i"ence that an ,SM sol"ier shot the 3ri$e Minister. 3resente" with "irect e4i"ence that a sol"ier 1ro$ ,SM shot the 3ri$e Minister an" the in"irect e4i"ence that a /econnaissance Battalion sol"ier ha" clai$e" that he ha" "one so5 no reasonable trier o1 1act coul" ha4e conclu"e" that the /econnaissance Battalion sol"ier shot the 3ri$e Minister. <:. Moreo4er5 the Trial Cha$ber2s state$ent that certain witnesses Dpro4i"e" eyewitness

testi$ony that [/econnaissance] Battalion sol"iers were in4ol4e" in the attack that le" to the killing

o1 the 3ri$e MinisterG is not reasonably supporte" by their testi$onies. ,4en accepting the 3rosecution e4i"ence that /econnaissance Battalion sol"iers were poste" in the 4icinity o1 the 3ri$e Minister2s resi"ence5 the recor" shows that not all /wan"an ar$y sol"iers who were in the 4icinity o1 the 3ri$e Minister2s resi"ence were searching 1or her or contribute" to her killing. <<. The Appeals Cha$ber conclu"es that the Trial Cha$ber 1aile" to $ake su11icient 1in"ings to

establish the ele$ents necessary to establish *&uwone$eye2s an" Sagahutu2s liability 1or or"ering the killing o1 the 3ri$e Minister. Moreo4er5 no reasonable trier o1 1act coul" ha4e 1oun" that /econnaissance Battalion sol"iers Dparticipate" in the attack on an" killing o1G the 3ri$e Minister on the basis o1 the trial recor". The Appeals Cha$ber5 there1ore5 re4erses *&uwone$eye2s an" Sagahutu2s con4ictions 1or $ur"er as a cri$e against hu$anity an" as a serious 4iolation o1 Article : co$$on to the >ene4a Con4entions an" o1 A""itional 3rotocol ++ on the basis o1 or"ering an" ai"ing an" abetting the killing o1 the 3ri$e Minister. These conclusions also in4ali"ate the Trial Cha$ber2s 1in"ing that they coul" bear superior responsibility 1or the killing. E) "i!!ing of %he Be!gian Pea#e$ee>ers <9. The Trial Cha$ber con4icte" Sagahutu in relation to this e4ent as a superior 1or $ur"er as a

cri$e against hu$anity an" 1or or"ering an" ai"ing an" abetting 1or $ur"er as a serious 4iolation o1 Article : co$$on to the >ene4a Con4entions an" o1 A""itional 3rotocol ++. +n entering these con4ictions5 the Trial Cha$ber conclu"e" that Sagahutu issue" an or"er to Corporal *&eyi$ana or to Corporals *&eyi$ana an" Masonga 1ro$ the /econnaissance Battalion to put "own the Belgian peacekeepers2 resistance an" 1or this purpose either pro4i"e" a $ulti'grena"e launcher HDM>LGI 1ro$ his o11ice or consente" to the use o1 this weapon. The Trial Cha$ber 1urther 1oun" that Corporals *&eyi$ana an" Masonga acti4ely participate" in what it characteri&e" as the secon" an" conclu"ing phase o1 the attack against the Belgian peacekeepers an" that they use" the M>L to 1ire at the peacekeepers. <@. The Appeals Cha$ber 1in"s that the Trial Cha$ber "i" not err in 1in"ing that Sagahutu

instructe" Corporal *&eyi$ana to put "own the Belgian peacekeepers2 resistance an" 1or this purpose either pro4i"e" an M>L or consente" to the use o1 this weapon5 which was taken 1ro$ his o11ice. +t also "i" not err in 1in"ing that this M>L was in 1act use" "uring the attack. The Trial Cha$ber5 howe4er5 "i" err in its assess$ent o1 the e4i"ence that Corporal Masonga was in4ol4e" in the attack an" that Corporal *&eyi$ana in 1act 1ire" on the Belgian peacekeepers. The Appeals Cha$ber 1urther conclu"es that the Trial Cha$ber "i" not err in 1in"ing that the M>L use" in the attack contribute" to the "eath o1 at least two Belgian peacekeepers.

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<6.

ith respect to Sagahutu2s responsibility 1or or"ering the killings5 the Appeals Cha$ber is

satis1ie" that his instruction to put "own the resistance a$ounte" to an or"er to kill the Belgian peacekeepers. #owe4er5 there is no e4i"ence that the person who recei4e" the or"er 1ro$ Sagahutu to kill J Corporal *&eyi$ana J personally carrie" out the cri$e. Further$ore5 there is no e4i"ence that any Belgian peacekeeper "ie" 1ro$ woun"s in1licte" by this weapon. There are also no 1in"ings or e4i"ence that Sagahutu was in a position o1 authority vis-+-vis the person who 1ire" the M>L against the )*AM+/ buil"ing or the in"i4i"uals who kille" the last peacekeepers. )n"er these circu$stances5 the Appeals Cha$ber consi"ers that no reasonable trier o1 1act coul" ha4e conclu"e" that Sagahutu2s or"er to Corporal *&eyi$ana ha" a "irect an" substantial e11ect on the killing o1 the Belgian peacekeepers. Accor"ingly5 the Appeals Cha$ber 1in"s that the Trial Cha$ber erre" in con4icting Sagahutu o1 or"ering the cri$es. <0. The Appeals Cha$ber5 howe4er5 is satis1ie" that the Trial Cha$ber 1in"ings are su11icient to

establish Sagahutu2s responsibility 1or ai"ing an" abetting the killings. As pre4iously note"5 the e4i"ence shows that the Trial Cha$ber reasonably interprete" Sagahutu2s instruction to Corporal *&eyi$ana as an or"er to kill the last o1 the Belgian peacekeepers an" 1or this purpose allowe" the corporal to take an M>L 1ro$ his o11ice. For purposes o1 ai"ing an" abetting5 it is i$$aterial that there is no e4i"ence that any peacekeeper "ie" 1ro$ in;uries in1licte" by the M>L that Sagahutu pro4i"e". The assistance o1 an ai"er an" abettor nee" not ser4e as a con"ition prece"ent 1or the cri$e. The o4erall reasoning in the Trial !u"ge$ent in"icates that Sagahutu was hel" responsible because he assiste" the attac, against the Belgian peacekeepers by pro4i"ing one o1 the weapons use" an" not because so$eone was kille" with this particular weapon. <B. The Appeals Cha$ber also re;ects Sagahutu2s challenges to his superior responsibility 1or

the role his subor"inate playe" in assisting in the attack. 98. Accor"ingly5 the Appeals Cha$ber re4erses Sagahutu2s con4iction 1or $ur"er as a cri$e

against hu$anity an" as a serious 4iolation o1 Article : co$$on to the >ene4a con4entions an" A""itional 3rotocol ++ on the basis o1 or"ering the killing o1 the Belgian peacekeepers. Sagahutu2s re$aining con4ictions 1or these cri$es base" on ai"ing an" abetting5 an" as a superior re$ain un"isturbe".

III) APPEAL 5, THE PR5SEC1TI5N

A) "ansi Parish and Sain% Andr= Co!!ege 9.. The 3rosecution appeals against the Trial Cha$ber2s conclusion that it ha" insu11icient

e4i"ence to con4ict *"in"iliyi$ana 1or 1ailing to pre4ent the cri$es which occurre" at %ansi 3arish

..

an" Saint An"r? College. The Appeals Cha$ber has re4erse" *"in"iliyi$ana2s con4ictions in relation to the e4ents at %ansi 3arish an" Saint An"r? College because the Trial Cha$ber erre" in 1in"ing that *"in"iliyi$ana ha" e11ecti4e control o4er the perpetrators. Accor"ingly5 the 3rosecution2s sub$issions are "is$isse" as $oot. B) Cen%re d?=%ude des !angues afri#aines 97. At trial5 the 3rosecution sought to hol" *"in"iliyi$ana responsible as a superior 1or the

actions o1 gen"ar$es in relation to the killing o1 Tutsi re1ugees re$o4e" 1ro$ Centre d-.tude des langues a'ricaines HDC,LAGI on or about 77 April .BB<. The Trial Cha$ber 1oun" that <8 ci4ilians5 the $a;ority o1 who$ were Tutsi5 were taken 1ro$ C,LA to the gen"ar$erie2s Muhi$a Briga"e ostensibly 1or questioning. There5 the ci4ilians were brie1ly "etaine" be1ore being turne" o4er to the Interaham$e5 who took the$ towar"s /ugege where at least .8 o1 the ci4ilians were kille" by the Interaham$e at a roa"block. The Trial Cha$ber conclu"e" that the gen"ar$es at the Muhi$a Briga"e were co$plicit in the cri$es against the ci4ilians re$o4e" 1ro$ C,LA. #owe4er5 it was not satis1ie" that *"in"iliyi$ana knew or ha" reason to know o1 the co$plicity o1 the gen"ar$es in the cri$es "is$isse" this charge. The 3rosecution sub$its that the Trial Cha$ber erre" in 1ailing to con4ict *"in"iliyi$ana 1or the cri$es against the ci4ilians re$o4e" 1ro$ C,LA. The Appeals Cha$ber 1in"s that the 3rosecution has not "e$onstrate" that the Trial Cha$ber erre" in its application o1 the stan"ar" 1or assessing *"in"iliyi$ana2s mens rea in relation to the cri$es or in its application o1 the stan"ar" o1 proo1. Finally5 the 3rosecution has 1aile" to "e$onstrate any error in the Trial Cha$ber2s assess$ent o1 the e4i"ence. Accor"ingly5 it has not shown that the Trial Cha$ber erre" in not con4icting *"in"iliyi$ana o1 these cri$es.

I8) SENTENCIN2
9:. The Appeals Cha$ber will ne=t "iscuss the sentencing appeal in relation to Sagahutu. The

3rosecution2s sentencing appeals against *"in"iliyi$ana an" *&uwone$eye are $oot. 9<. The Appeals Cha$ber recalls that the Trial Cha$ber sentence" Sagahutu to 78 years o1

i$prison$ent. Both Sagahutu an" the 3rosecution appeale". The Appeals Cha$ber is not satis1ie"5 howe4er5 that their challenges to the Trial Cha$ber2s consi"eration o1 the sentence "e$onstrate that it acte" outsi"e the scope o1 its sentencing "iscretion. The i$pact o1 the Appeals Cha$bers 1in"ings on Sagahutu2s sentence will be note" in the "isposition.

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8) DISP5SITI5N
99. For the 1oregoing reasons5 THE APPEALS CHAMBER5

P1RS1ANT to Article 7< o1 the Statute an" /ule ..0 o1 the /ulesA N5TIN2 the written sub$issions o1 the parties an" their oral argu$ents presente" at the appeal hearing on 6 to .8 May 78.:A SITTIN2 in open sessionA :ITH RESPECT T5 A121STIN NDINDILI3IMANA?S APPEAL 2RANTS *"in"iliyi$ana2s First5 Secon"5 an" Fourth >roun"s o1 Appeal5 in part5 RE8ERSES his con4ictions 1or genoci"e an" e=ter$ination as a cri$e against hu$anity in relation to the attack on %ansi 3arish on 7. April .BB<5 as well as his con4ictions 1or genoci"e an" $ur"er as a serious 4iolation o1 Article : co$$on to the >ene4a Con4entions an" o1 A""itional 3rotocol ++ in relation to the attack at Saint An"r? College on .: April .BB<5 an" ENTERS a 4er"ict o1 acquittal un"er Counts 75 95 an" 6 o1 the +n"ict$entA 2RANTS *"in"iliyi$ana2s Tenth >roun" o1 Appeal5 RE8ERSES his con4iction 1or $ur"er as a cri$e against hu$anity5 an" ENTERS a 4er"ict o1 acquittal un"er Count < o1 the +n"ict$entA DISMISSES *"in"iliyi$ana2s appeal in all other respectsA :ITH RESPECT T5 ,RAN45IS67A8IER N91:5NEME3E?S APPEAL 2RANTS *&uwone$eye2s First5 Thir"5 an" Si=th >roun"s o1 Appeal5 in part5 RE8ERSES his con4ictions 1or $ur"er as a cri$e against hu$anity an" as a serious 4iolation o1 Article : co$$on to the >ene4a Con4entions an" o1 A""itional 3rotocol ++ on the basis o1 or"ering an" ai"ing an" abetting the killing o1 the 3ri$e Minister an" as a superior in relation to the killing o1 the Belgian peacekeepers5 an" ENTERS a 4er"ict o1 acquittal un"er Counts < an" 6 o1 the +n"ict$entA DISMISSES *&uwone$eye2s appeal in all other respectsA :ITH RESPECT T5 INN5CENT SA2AH1T1?S APPEAL 2RANTS Sagahutu2s Secon" to Fi1th >roun"s o1 Appeal5 in part5 an" RE8ERSES his con4ictions 1or $ur"er as a cri$e against hu$anity an" as a serious 4iolation o1 Article : co$$on to the >ene4a Con4entions an" o1 A""itional 3rotocol ++ on the basis o1 or"ering an" ai"ing an" abetting the killing o1 the 3ri$e MinisterA

.:

2RANTS Sagahutu2s ,ighth to Tenth >roun"s o1 Appeal5 in part5 an" RE8ERSES his con4iction 1or $ur"er as a cri$e against hu$anity an" as a serious 4iolation o1 Article : co$$on to the >ene4a Con4entions an" o1 A""itional 3rotocol ++ on the basis o1 or"ering the killing o1 the Belgian peacekeepers an" on the basis Corporal Masonga2s participation in the attackA DISMISSES Sagahutu2s appeal in all other respectsA A,,IRMS Sagahutu2s con4ictions 1or $ur"er as a serious 4iolation o1 Article : co$$on to the >ene4a Con4entions an" o1 A""itional 3rotocol ++ on the basis o1 ai"ing an" abetting the killing o1 Belgian peacekeepers an" as a superior 1or $ur"er as a cri$e against hu$anity in relation to the killing o1 Belgian peacekeepersA RED1CES5 !u"ge Tu&$ukha$e"o4 "issenting5 the sentence o1 78 years o1 i$prison$ent i$pose" on Sagahutu by the Trial Cha$ber to .9 years o1 i$prison$ent5 sub;ect to cre"it being gi4en un"er /ules .8.HCI an" .86 o1 the /ules 1or the perio" he has alrea"y spent in "etention since his arrest on .9 February 7888A :ITH RESPECT T5 THE PR5SEC1TI5N?S APPEAL DISMISSES the 3rosecution2s appeal as it relates to *"in"iliyi$ana5 *&uwone$eye5 an" SagahutuA R1LES that this !u"ge$ent shall be en1orce" i$$e"iately pursuant to /ule ..B o1 the /ulesA 5RDERS5 in accor"ance with /ules BBHAI an" .86 o1 the /ules5 the i$$e"iate release o1 *&uwone$eye5 an" DIRECTS the /egistrar to $ake the necessary arrange$entsA an" 5RDERS that5 in accor"ance with /ule .8:HCI an" /ule .86 o1 the /ules5 Sagahutu is to re$ain in the custo"y o1 the Tribunal pen"ing the 1inali&ation o1 arrange$ents 1or his trans1er to the State where his sentence will be ser4e".

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