Table of contents:
Element:
M.4.1. The perpetrator meant to engage in the conduct;
Prosecutor v. Grégoire Ndahimana, Case No. ICTR-01-68-A, Judgment (AC), 16 December 2013, paras. 181-185, 197:
"181. Witness ND6 testified to arriving at Nyange Parish around noon on 16 April 1994 and, because Ndungutse complained that Ndahimana was not at the parish, going to Ndahimana’s house with Ndungutse and a group of people shortly afterwards.468 The witness explained that Ndahimana was not present at his house and that he and his group went back to Nyange Church where he participated in the attack, which was starting.469 Witness ND6 stated that the attack against the church was prepared while he and his group were looking for Ndahimana, and that Ndahimana was not present during the attack.470 The Appeals Chamber notes, however, that Witness ND6’s version of events contradicts the corroborated testimonial evidence the Trial Chamber relied on to find that the attack was prepared in the morning of 16 April 1994 during a meeting held near Nyange Presbytery at which both Ndahimana and Ndungutse were present and that Ndahimana remained at Nyange Church until after the attack.471 The Appeals Chamber considers that a reasonable trier of fact could not accept as credible the uncorroborated testimony of Witness ND6 that Ndungutse was looking for Ndahimana on 16 April 1994 because Ndahimana was not at Nyange Church, while also accepting corroborated evidence that Ndahimana was present at Nyange Parish from the morning of 16 April 1994 and attended the morning meeting with Ndungutse.472 Against this background, the Appeals Chamber considers that the Trial Chamber erred in finding that Witness ND6’s evidence constituted credible evidence showing that Ndahimana was under threat.
468. Witness ND6, T. 27 January 2011 pp. 14-16, 26, 27. See also Trial Judgement, paras. 616, 702, 704.
469. Witness ND6, T. 27 January 2011 pp. 15, 26, 27. See also Trial Judgement, paras. 616, 655, 702.
470. Witness ND6, T. 27 January 2011 pp. 15, 16, 29.
471. See Witness CBR, T. 1 November 2010 pp. 23-25; Witness CBK, T. 3 November 2010 p. 17; Witness CNJ, T. 4 November 2010 pp. 57-60. See also Trial Judgement, paras. 571, 586, 591, 667-673.
472. Additionally, the Appeals Chamber observes that, even if ignoring this significant discrepancy between Witness ND6’s evidence and the corroborated evidence relied upon by the Trial Chamber to find that Ndahimana was present at the 16 April morning meeting and during the attack on Nyange Church, Witness ND6 was clear that he and Ndungutse did not see Ndahimana at his house or at Nyange Church. See Witness ND6, T. 27 January 2011 pp. 15, 16, 27-29; Trial Judgement, paras. 616, 702, 704. The Appeals Chamber therefore fails to see how Ndungutse’s instructions to Witness ND6 may have in any way influenced Ndahimana’s attendance at the morning meeting and destruction of the church.
182. Turning to Witnesses ND17 and BX3, who were found to corroborate that Ndahimana had reason to be concerned for his safety, the Appeals Chamber observes that, in an earlier part of the Trial Judgement, the Trial Chamber expressed doubts about the reliability of Witness BX3’s vague hearsay evidence and the credibility of Witness ND17’s testimony, which it found presented a risk of recent fabrication of evidence.473 The Trial Chamber concluded that their evidence that Ndahimana was hiding in the Convent on 16 April 1994 was not reasonably possibly true.474 Nonetheless, when discussing the evidence of Witnesses ND17 and BX3 on the issue of whether Ndahimana was targeted, the Trial Chamber stated: “[t]hat the alibi was not found reasonably possibly true does not mean that the entire testimonies of the alibi witnesses must be disregarded.”475
473. Trial Judgement, paras. 651-657.
474. Trial Judgement, para. 657.
475. Trial Judgement, para. 706, fn. 1330.
183. The Appeals Chamber agrees that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness’s testimony.476 In the present instance, however, the Appeals Chamber notes that Witness ND17’s evidence on the existence of threats serves as an explanation for Ndahimana’s hiding at the Convent.477 The evidence of Witness ND17 regarding Ndahimana being targeted is therefore inextricably linked to his evidence explaining why Ndahimana was in hiding on 16 April 1994, an aspect of his testimony which was not found to be “reasonably possibly true”.478 It was therefore not reasonable for the Trial Chamber to distinguish these two parts of his testimony and accept the former part as credible, while rejecting the latter part as not “reasonably possibly true”.
476. See, e.g., Bagosora and Nsengiyumva Appeal Judgement, para. 243; Ntawukulilyayo Appeal Judgement, para. 155; Munyakazi Appeal Judgement, para. 103.
477. See Witness ND17, T. 3 May 2011 p. 4 (closed session).
478. See Trial Judgement, para. 657.
184. Similarly, Witness BX3 testified that Ndahimana went into hiding because he was targeted.479 The witness’s evidence that Ndahimana was in hiding after 12 April 1994480 was nonetheless rejected by the Trial Chamber, which, based on corroborated evidence (including Ndahimana’s in part), concluded as proven beyond reasonable doubt that: Ndahimana attended meetings at Nyange Parish on 13 April 1994, 14 April 1994, 15 April 1994, and 16 April 1994;481 participated in a public funeral in Rufungo on 15 April 1994;482 was present during the destruction of Nyange Church on 16 April 1994 and shared drinks afterwards;483 and continued to exercise his functions as bourgmestre in April 1994, notably in issuing orders to communal policemen which were obeyed.484 In light of this, the Appeals Chamber considers that it was unreasonable for the Trial Chamber to accept as credible the evidence of Witnesses ND17 and BX3 that Ndahimana was under threat during the period in question.
479. Witness BX3, T. 23 February 2011 pp. 14, 15 (closed session), p. 36.
480. Witness BX3, T. 23 February 2011 p. 36.
481. Trial Judgement, paras. 11, 13, 14, 17, 282, 297, 563, 564, 673, 710, 753, 754, 756, 806, 813.
482. Trial Judgement, paras. 17, 526.
483. Trial Judgement, paras. 23, 24, 686, 689, 695, 754, 764, 798.
484. See Trial Judgement, paras. 743-747, 762.
185. Based on the foregoing, the Appeals Chamber concludes that it was unreasonable for the Trial Chamber to find that Witnesses ND6, ND17, and BX3 provided credible evidence that Ndahimana was under threat during the period in question. Ndahimana also fails to substantiate his assertion on appeal that there was ample evidence to that effect on the record.485 In the absence of credible evidence that Ndahimana was under threat, the Appeals Chamber finds that the Trial Chamber erred in concluding that Ndahimana’s presence at Nyange Church on 16 April 1994 might have been motivated by duress, in particular where Ndahimana himself did not suggest at trial that this was the case.486
485. See Ndahimana Response Brief, paras. 13, 73.
486. The Appeals Chamber recalls that Ndahimana’s position at trial was that he was not present at Nyange Church on 16 April 1994, not that he attended the relevant meeting and was present during the killings because he was under threat or duress. See Ndahimana Pre-Defence Brief, paras. 112, 113, 116, 134. See also Ndahimana Closing Brief, paras. 29-32, 389."
"197. The Appeals Chamber has found above that it was not reasonable for the Trial Chamber to find that Ndahimana’s presence at Nyange Church on 16 April 1994 might have been motivated by duress.520 This was the only alternative reasonable inference expressly identified by the Trial Chamber to rule out the inference that Ndahimana had genocidal intent. In light of the evidence discussed in the two preceding paragraphs, the Appeals Chamber fails to see any conclusion that could reasonably be reached from the totality of the evidence, other than that Ndahimana shared the requisite specific intent of the other JCE members. Based on the evidence on the record, the Appeals Chamber considers that Ndahimana did not merely act with the knowledge that his acts would assist in the killings of the Tutsi refugees, but also with the intent to exterminate the Tutsis of Kivumu Commune to destroy them as a group. Accordingly, the Appeals Chamber sets aside the Trial Chamber’s finding that Ndahimana did not share the intent to further the JCE common purpose to exterminate the Tutsis of Kivumu Commune with the specific intent to destroy them as a group and finds that he possessed such intent.
520. See supra, paras. 184, 185.”
M.4.2. The perpetrator meant to cause the consequence of crime; OR
M.4.3. The perpetrator was aware that the consequence will occur in the ordinary course of events.
Prosecutor v. Ndahimana, Case No. ICTR-01-68-A, Judgement (AC), 16 December 2013, para. 159:
"159. Likewise, Ndahimana fails to demonstrate that it was unreasonable for the Trial Chamber to conclude, despite the absence of direct evidence on the matter, that he knew that the physical destruction of the church using a bulldozer would cause the deaths of the Tutsis who had sought refuge in the church. 412 In the view of the Appeals Chamber, this conclusion was the only reasonable inference that could be drawn from the evidence that Ndahimana: (i) knew that the destruction of the church was decided for the purpose of killing the Tutsis who had locked themselves in; (ii) knew that a bulldozer would be used to that effect; (iii) knew that Tutsi refugees remained in the church; and (iv) was present during the destruction of the church and the killings of the refugees".413
412 See Ndahimana Notice of Appeal, para. 62.
413 See Trial Judgement, paras. 673-675, 686, 689, 753, 756, 806, 807, 828.
Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, para. 351:
"351. It is generally alleged that the Accused aided and abetted the crimes charged in the Indictment. In its Closing Brief, the Prosecution limits this allegation to crimes that were committed by the Šešeljevci and explains in greater detail that the Accused had abetted the crimes they committed through his propaganda and by recruiting and deploying them. The Prosecution further argues that the Accused was aware of the real likelihood that the crimes would be committed as “he in fact intended their commission.”"
M.4.4. The perpetrator was aware of the circumstance of the crime.
Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-01-A, Judgement (AC), 26 September 2013, para. 538:
"538. The Trial Chamber had before it significant evidence establishing public knowledge of the crimes committed by the RUF/AFRC, and Taylor’s knowledge of those crimes in particular. The Trial Chamber carefully assessed Taylor’s testimony as to his knowledge, including his admission that by April 1998 anyone providing support to the RUF/AFRC "would be supporting a group engaged in a campaign of atrocities against the civilian population."1629 The Trial Chamber recognised that Taylor’s admission related to a particular time,1630 and it specifically considered Taylor’s denial that he knew that the RUF/AFRC was committing crimes in Sierra Leone before that time.1631 It found that, based on the information available to Taylor from his daily security briefings, his direct participation in the ECOWAS Committee of Five, his prior knowledge of the RUF’s criminal activities and the international community’s reaction to the situation in Sierra Leone, the only reasonable inference was that as early as August 1997 Taylor had the same knowledge of the Operational Strategy as he admitted to having in April 1998." 1632
1629 Trial Judgment, para. 6884. See also Trial Judgment, para. 6805, citing Transcript, Charles Ghankay Taylor, 25 November 2009, p. 32395.
1630 Contra Taylor Appeal, para. 416.
1631 See Trial Judgment, para. 6877.
1632 Trial Judgment, paras 6882, 6885, 6949. See generally Trial Judgment, paras 6794-6886 (Knowledge of the Accused).
