M.3. The perpetrator had effective authority and control over the subordinates.

M.3.1.1. Evidence of superior authority

Prosecutor v. Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphone Nteziryayo, Joseph Kanyabashi and Élie Ndayambaje, Case No. ICTR-98-42-A, Judgement (AC), 14 December 2015, paras. 996-1004,2512-2520,2533-2542:

"996. Contrary to Nyiramasuhuko’s submissions, the Trial Chamber discussed the nature of her authority over the Interahamwe, including the superior-subordinate relationship between them.²³³⁰ Although the Trial Chamber did not expressly set out the basis on which this superior-subordinate relationship existed prior to each attack at the prefectoral office in relation to which it found her responsible, the Appeals Chamber considers that the pre-existing and hierarchical nature of the relationship between Nyiramasuhuko and the Interahamwe is implicit in its findings as demonstrated by the Trial Chamber’s reliance on Nyiramasuhuko’s repeated prominent role in the attacks reflected, notably, by the fact that she “brought” the Interahamwe to the prefectoral officeand issued them orders to rape, abduct, and kill Tutsi refugees, with which they complied.²³³¹ In addition, the Trial Chamber’s findings throughout the Trial Judgement also reveal that the Interahamwe considered Nyiramasuhuko as an authority figure and the direct evidence of her central role in leading them in the attacks at the prefectoral office is further supported by the influential status in Rwandan society she held at the time through her capacity as a government minister in both the Interim Government and its predecessor and her role as the elected representative of Butare Prefecture to the MRND National Committee.²³³²

2330. Trial Judgement, paras. 5884, 6088.

2331. Trial Judgement, paras. 2644, 2702, 2738, 2781(i), (iii), (v), 5867, 5873, 5874, 5876, 5884, 6088.

2332. Trial Judgement, paras. 8, 11, 244, 5669, 5676-5678. The Trial Chamber also stated that “Nyiramasuhuko was widely known as the Minister in charge of Women’s Affairs and therefore would likely be recognisable.” See ibid., para. 2698.

997. In this respect, the Appeals Chamber considers that it was unnecessary for the Trial Chamber to determine that the Interahamwe involved in the attacks were necessarily directly connected to the MRND party because Nyiramasuhuko’s stature in Rwandan society in general, including her position within the MRND party, provided only supplemental support to the direct evidence of her superior-subordinate relationship with the Interahamwe who complied with her orders during attacks at the prefectoral office.

998. Concerning Nyiramasuhuko’s challenges to the finding that she wielded effective control over these Interahamwe, the Appeals Chamber rejects the assertion that the Trial Chamber violated her right to a reasoned opinion on the basis that it relied on “the evidence in its entirety” in arriving at its conclusion. It is clear that, through its reference to its reliance on the entirety of the evidence, the Trial Chamber merely intended to indicate that it reached its findings beyond reasonable doubt on the basis of the totality of the evidence adduced in accordance with the jurisprudence of the Tribunal.²³³³

2333. See Bagosora and Nsengiyumva Appeal Judgement, para. 450; Nahimana et al. Appeal Judgement, para. 789; Ntagerura et al. Appeal Judgement, paras. 172-175, 399.

999. The Trial Chamber considered that Nyiramasuhuko’s effective control over the Interahamwe at the prefectoral office “was evidenced by the fact that she brought them” there.²³³⁴ The evidence relied upon by the Trial Chamber shows that Nyiramasuhuko’s transportation of the Interahamwe to and from the prefectoral office was an integral part of the attacks. In particular, the Trial Chamber noted that Witnesses TA, SS, FAP, SU, and QBP testified not only that Nyiramasuhuko arrived at the prefectoral office alongside the Interahamwe,²³³⁵ but that immediately after their arrival, she issued them orders to rape, abduct, and kill with which theycomplied, as she supervised and directed the attacks, standing against the vehicle as Tutsis were loaded into it and pointing out individuals to abduct.²³³⁶ Given the methodical and repeated nature of the attacks against the Tutsi refugees at the prefectoral office, it is evident from a contextual reading of this evidence and the Trial Chamber’s findings that Nyiramasuhuko did not merely accompany the Interahamwe to the prefectoral office, but that she brought them there with the intention of effecting the attacks, and that they did so without dissent. In this respect, the Appeals Chamber considers it immaterial whether Nyiramasuhuko was driving the vehicle.²³³⁷

2334. Trial Judgement, para. 6088 (emphasis added).

2335. The Trial Chamber expressly found that Nyiramasuhuko arrived at the prefectoral office with Interahamwe and Ntahobali during the Mid-May Attack and Night of Three Attacks. See Trial Judgement, paras. 2644, 2738, 2781(i), (iii), 5867, 5869, 5873. See also ibid., paras. 2178, 2253, 2266, 2284, 2287, 2289, 2302, 2307, 2687, 2693, 2696, 2704, 2706, 2708-2711, 2732, 2765.

2336. See, e.g., Trial Judgement, paras. 2628, 2687, 2688, 2693, 2696, 2698, 2706, 2708, 2709, 2711, 2732, 2766, 2781(iii), (v), 5867, 5873. See also ibid., paras. 2178, 2181, 2251, 2253-2255, 2268, 2284, 2285, 2287, 2289, 2304, 2307, 2308.

2337. In this respect, the Appeals Chamber finds that paragraph 69 of the Kamuhanda Appeal Judgement does not demand another conclusion, contrary to Nyiramasuhuko’s argument that, in this paragraph, “the Appeals Chamber states the evidence that a person is a passenger in a vehicle is not evidence that that person took attackers to the crime scene.” See AT. 15 April 2015 p. 8.

1000. In addition to Nyiramasuhuko’s transportation of the Interahamwe to the prefectoral office to carry out the attacks, the Trial Chamber also relied on their compliance with her orders to rape, abduct, and kill Tutsi refugees as demonstrative of her effective control over the Interahamwe.²³³⁸ The Appeals Chamber recalls that a superior’s ability to issue binding orders that are complied with by subordinates is one of the indicators of effective control generally relied upon in the jurisprudence of the Tribunal.²³³⁹

2338. Trial Judgement, paras. 5884, 6088.

2339. Karemera and Ngirumpatse Appeal Judgement, para. 260; Nizeyimana Appeal Judgement, para. 202; Ndahimana Appeal Judgement, para. 54, fn. 139; Kajelijeli Appeal Judgement, paras. 90, 91; Kayishema and Ruzindana Appeal Judgement, para. 299. See also Strugar Appeal Judgement, para. 256; Had`ihasanović and Kubura Appeal Judgement, para. 199; Halilović Appeal Judgement, paras. 204, 207.

1001. Nyiramasuhuko does not show that, given the context of the multiple attacks at the prefectoral office, during which she was present and played a leading role, it was unreasonable for the Trial Chamber to consider the Interahamwe’s repeated compliance with her orders highly probative of their superior-subordinate relationship and of her effective control over them. Nyiramasuhuko’s argument that the Interahamwe’s compliance with her orders during the attacks was, on its own, insufficient to prove that she exercised effective control ignores that this was not the only factor relied on by the Trial Chamber. As recalled above, the Trial Chamber relied on evidence that Nyiramasuhuko played a decisive and pivotal role in the attacks by bringing the Interahamwe to the prefectoral office, and by issuing them orders. In its factual findings, the Trial Chamber also highlighted evidence that Nyiramasuhuko directed and supervised the Interahamweas they carried out her orders, sometimes providing them with specific instructions as the attacks unfolded.²³⁴⁰

2340 See Trial Judgement, paras. 2628, 2687, 2688, 2693, 2696, 2706, 2708, 2709, 2711, 2732, 2766, 2781(iii), (v), 5867, 5973. See also ibid., paras. 2178, 2181, 2251, 2253-2255, 2268, 2284, 2285, 2287, 2289, 2304, 2307, 2308.

1002. The Appeals Chamber is not convinced by Nyiramasuhuko’s assertion that Witness FAP testified that Interahamwe disobeyed her order to rape during one of the attacks at the prefectoral office. Witness FAP expressly testified that, during the first attack of the Night of Three Attacks, Nyiramasuhuko ordered the Interahamwe to rape Tutsi women and that they carried out her orders.²³⁴¹ Witness FAP testified that, during subsequent attacks that night, Nyiramasuhuko issued orders to the Interahamwe to rape Tutsi women and that the Interahamwe loaded the Tutsis onto the vehicle but did not rape them on the spot.²³⁴² However, this does not necessarily indicate that the Interahamwe did not follow Nyiramasuhuko’s order but reflects only that the women were not raped at the prefectoral office itself on those occasions. The Appeals Chamber notes that Witness FAP explained that Nyiramasuhuko’s instructions to select young women and young girls and to rape them before killing them were the catalyst for the abduction of the Tutsis.²³⁴³ Nyiramasuhuko’s argument that the Trial Chamber failed to properly consider Witness FAP’s evidence that Interahamwe disobeyed one of her orders is therefore without merit.²³⁴⁴

2341. Witness FAP, T. 11 March 2003 pp. 59, 60.

2342. Witness FAP, T. 11 March 2003 pp. 60, 61.

2343. Witness FAP, T. 11 March 2003 pp. 60, 61, T. 13 March 2003 p. 9.

2344. See Nyiramasuhuko Appeal Brief, paras. 929, 932. Since the Appeals Chamber rejects her contention that Witness FAP’s testimony reflects that the Interahamwe disobeyed Nyiramasuhuko’s orders, Nyiramasuhuko’s assertion that the Prosecution failed to lead evidence that Nyiramasuhuko punished the Interahamwe when they disobeyed her orders, as described by Witness FAP, is similarly dismissed. See ibid., paras. 753, 754.

1003. The Appeals Chamber is also unpersuaded by Nyiramasuhuko’s assertion that the Prosecution’s failure to adduce evidence that the Interahamwe reported daily to Nyiramasuhuko, or that she rewarded them, raised reasonable doubt as to her effective control over them. The reporting of subordinates to a superior and rewards by a superior for doing so are indicia relevant to determining effective control but are not a necessary requirement.²³⁴⁵

2345. The Appeals Chamber recalls that, in the Kajelijeli Appeal Judgement, the Appeals Chamber upheld the Trial Chamber’s reliance, with respect to establishing Kajelijeli’s de facto superior position over Interahamwe, on evidence that the Interahamwe reported to him the details of the massacres they participated in following his instructions to kill Tutsis and orders to dress up and start work. However, the Interahamwe’s daily reporting was only considered as one of several relevant evidentiary indicia of authority in the circumstances of the case and was not considered a necessary element for the establishment of superior authority in general. See Kajelijeli Appeal Judgement, para. 90. See also Ndahimana Appeal Judgement, para. 53, referring to Blaškić Appeal Judgement, para. 69.

1004. Therefore, the Appeals Chamber finds that Nyiramasuhuko has failed to demonstrate that the Trial Chamber erred in concluding that she had a superior-subordinate relationship with, and effective control over, the Interahamwe to whom she issued orders at the prefectoral office."

"2512. The Appeals Chamber observes that, read in isolation, paragraphs 6.32 and 6.33 of the Indictment do not prima facie appear to allege Kanyabashi’s superior responsibility for the killings perpetrated at Kabakobwa Hill but, rather, his responsibility for ordering the killings pursuant to Article 6(1) of the Statute. The Appeals Chamber recalls, however, that in determining whether an accused was adequately put on notice of the nature and cause of the charges against him, theindictment must be considered as a whole.⁵⁸³¹ When reading paragraphs 6.32 and 6.33 together with the charging section of the Indictment, it becomes clear that Kanyabashi was charged under Counts 2, 6, 7, and 9 in relation to the Kabakobwa Hill massacre pursuant to superior responsibility since paragraphs 6.32 and 6.33 were indicated as being pursued under these counts solely under Article 6(3) of the Statute.⁵⁸³²

5831. See, e.g., Ntabakuze Appeal Judgement, para. 65; Bagosora and Nsengiyumva Appeal Judgement, para. 182; Gacumbitsi Appeal Judgement, para. 123.

5832. See Kanyabashi Indictment, pp. 41-45. The Appeals Chamber notes that, while originally charging Kanyabashi under Counts 2, 6, 7, and 9 in relation to the Kabakobwa Hill massacre pursuant to both Articles 6(1) and 6(3) of the Statute, the Prosecution amended the indictment on 2 November 2000 to charge Kanyabashi solely pursuant to Article 6(3) of the Statute in this respect. Compare The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-I, Amended Indictment As Per the Decision of Trial Chamber II of August 12 1999, 12 August 1999 (“Kanyabashi Amended Indictment”), pp. 42-48 with The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-I, Amended Indictment As Per the Decision of Trial Chamber II of August 12 1999 and 31 May 2000, 2 November 2000 (“Kanyabashi Third Amended Indictment”), pp. 41-45. TheProsecution’s amendment resulted from the Trial Chamber’s order that the Prosecution clearly distinguish the acts for which Kanyabashi incurred criminal responsibility under Article 6(1) of the Statute from those for which he incurred criminal responsibility under Article 6(3) of the Statute since, in the view of the Trial Chamber, “the same facts cannot simultaneously give rise to the two types of responsibility”. See 31 May 2000 Decision, paras. 5.9, 5.11, p. 8. The Appeals Chamber emphasises that cumulative charging is permissible. See Simba Appeal Judgement, para. 276; Semanza Appeal Judgement, paras. 308, 309; Musema Appeal Judgement, paras. 369, 370; Čelebići Appeal Judgement, para. 400.

2513. Considering the Indictment as a whole, the Appeals Chamber is of the view that it was neither vague nor ambiguous regarding Kanyabashi’s alleged superior responsibility in relation to the killings perpetrated at Kabakobwa Hill on 22 April 1994. Paragraphs 6.32 and 6.33 of the Indictment, read together with paragraphs 4.2, 4.3 and 6.65, plead with precision all relevant material facts supporting the charge against Kanyabashi regarding the Kabakobwa Hill massacre. Paragraph 6.32 of the Indictment, in particular, expressly identifies the source of Kanyabashi’s criminal responsibility in the orders that he gave to the members of the Ngoma commune police to eliminate the Tutsi refugees at Kabakobwa Hill.⁵⁸³³ Paragraph 6.65 of the Indictment sets out that Kanyabashi knew that massacres of the civilian population were being committed and took no measures to stop them.

5833. See also Kanyabashi Indictment, para. 6.29 (“Ngoma commune was the site of numerous massacres, in which Joseph Kanyabashi was either directly involved or in which his subordinates as set out in paragraph 6.32 below, acting under his orders, were implicated.”) (emphasis added).

2514. The Prosecution reiterated its case as set forth in paragraph 6.32 of the Indictment in its pre-trial brief,⁵⁸³⁴ presented evidence supporting this particular case throughout the trial,⁵⁸³⁵ relied on Kanyabashi ordering and supervising the killings perpetrated at Kabakobwa Hill in its closingbrief,⁵⁸³⁶ and reiterated in its oral closing arguments that its case was that Kanyabashi was an active participant and organiser in the genocide and ordered the killings at Kabakobwa Hill.⁵⁸³⁷ The Prosecution does not point to any other material facts pleaded at trial which would have provided an alternative basis for Kanyabashi’s superior responsibility in relation to the Kabakobwa Hill massacre. In fact, the Prosecution specifically disputed Kanyabashi’s alibi evidence that, at the time of the killings of Kabakobwa Hill, he was in his office chairing a meeting.⁵⁸³⁸

5834. Prosecution Pre-Trial Brief, para. 20 (“During the month of April 1994, thousands of Tutsi refugees gathered in different locations in Ngoma commune. They assembled in places such as Kabakobwa Cellule, Matyazo clinic and Ngoma Church, often on the recommendation of Joseph Kanyabashi (the long serving Bourg  mestre) who had promised to protect them. Instead of offering protection, Joseph Kanyabashi ordered and supervised their massacre by communal civil servants, soldiers and militiamen.”) (emphasis added).

5835. See Trial Judgement, paras. 1490-1492, 1517-1529, 1538-1554, 1561-1565; Witness FAM, T. 6 March 2002 pp. 82-87, T. 13 March 2002 p. 58; Witness QCB, T. 20 March 2002 p. 123, T. 2 April 2002 pp. 10, 11, T. 3 April 2002 p. 74.

5836. Prosecution Closing Brief, heading “(3)” at p. 411 (“Kanyabashi orders Tutsis at Kabakobwa to be killed”), paras. 41-44, 88-90, 95-97, 101 (“The Prosecution evidence in this regard is that by giving orders, providing training, weapons and encouragement to the militia to kill, Joseph Kanyabashi killed Tutsis and therefore is culpable for committing genocide through the acts of others pursuant to Article 6(3).”), 105-107 at pp. 397, 398, 409, 411, 413-415.

5837. Prosecution Closing Arguments, T. 21 April 2009 pp. 13 (“It is the Prosecutor’s case, Mr. President, that Joseph Kanyabashi was, in fact, an active participator, an active organiser, a person who planned, instigated, committed, ordered and/or abetted in the genocide that took place in Butare préfecture. At this juncture, Mr. President, I would like to take you a bit through the evidence with respect to these acts and conducts as well as inferences that he made during the period of April through July 1994 establishing that he had a specific genocidal intent to commit genocide against the Tutsis or illustrating his active participation in facilitating and providing training or giving orders and instructions to the perpetrators of the massacres that ensued.”), 22-24.

5838. Prosecution Closing Brief, paras. 175, 176 at pp. 433, 434 (“The Prosecutor has led credible and reliable evidence that the accused Kanyabashi was part and parcel of the killing machine at Kabakobwa on 22 April 1994. He was not stuck in his office or at home as claimed by D-2-YYYY.”); Prosecution Closing Arguments, T. 21 April 2009 pp. 23, 24.

2515. Yet, the Trial Chamber, concluding that it was not proven that Kanyabashi either ordered or was present during the attack at Kabakobwa, found him responsible as a superior on the basis of the following material facts: (i) his awareness of the Tutsi refugees’ presence at Kabakobwa; (ii) the fact that, on 22 April 1994, Interahamwe went to report to him upon seeing the number of refugees at Kabakobwa Hill, before returning to commence the attack; (iii) the fact that he should have been able to hear the gunshots from the Ngoma commune office during the attack; (iv) the relatively small number of Ngoma commune policemen, his control over them as well as the fact that he was in regular contact with these policemen and that several of them were stationed at his house on the weekend of the attack at Kabakobwa Hill; (v) the systematic and large-scale nature of the attack; (vi) his public condemnation of the killings during a meeting at Huye Stadium; and (vii) the fact that he took no steps to prevent the attack or punish any policeman involved in the attack.⁵⁸³⁹

5839. Trial Judgement, paras. 5805-5809.

2516. Although Kanyabashi’s awareness of the Tutsi refugees’ presence at Kabakobwa Hill and the allegation that he took no measures to stop the massacres of the civilian population were pleaded in the Indictment,⁵⁸⁴⁰ it is apparent that the key source of Kanyabashi’s knowledge and the conduct by which he was alleged to have failed to prevent or punish the crimes on the basis of which he was convicted was materially different from the acts expressly pleaded in the Indictment. As such, the Appeals Chamber considers that the Trial Chamber’s findings were based upon a set of material facts different from those that were specifically pleaded in the Indictment, set forth in theProsecution Pre-Trial Brief, and pursued throughout the trial. The Appeals Chamber finds that the Trial Chamber erred in convicting Kanyabashi based on material facts that were not pleaded by the Prosecution in the Indictment and at trial.

5840. See Kanyabashi Indictment, paras. 6.32, 6.65.

2517. The Prosecution’s argument that, by pleading that Kanyabashi ordered and supervised the killings, the Indictment necessarily implied his knowledge and provided notice of his failure to prevent and punish the crimes fails to appreciate Kanyabashi’s contention. Kanyabashi does not contend that he lacked notice that he was alleged to have known that his subordinates were about to or had committed crimes and to have failed to prevent such acts or punish his culpable subordinates, but that he was convicted on the basis of different material facts than those specifically set forth in the Indictment and against which he defended at trial.

2518. The Prosecution does not show that, at any point in the Indictment, notice was provided to Kanyabashi that he could be held responsible as a superior in relation to the Kabakobwa Hill massacre on the basis of a conduct other than his ordering or encouraging the killings. While paragraph 6.65 of the Indictment referred to by the Prosecution generally alleges that Kanyabashi had knowledge that massacres were carried out and failed to take measures to stop them, it does not identify any source for such knowledge. Reading the Indictment as a whole, and given the phrasing of paragraph 6.65, it would not be reasonable to consider that this general paragraph provided Kanyabashi with notice of the material facts which ultimately underpinned his conviction on the basis of superior responsibility in relation to Kabakobwa Hill. The Appeals Chamber also observes that the Prosecution Pre-Trial Brief mirrors paragraph 6.32 of the Indictment regarding the material facts relied upon for the allegation related to Kabakobwa Hil⁵⁸⁴¹ and that neither the Prosecution Pre-Trial Brief nor any other information from the Prosecution provided Kanyabashi with timely, clear, and consistent information detailing the factual basis underpinning the charge for which he was ultimately convicted.⁵⁸⁴²

5841. See Prosecution Pre-Trial Brief, para. 20.

5842. The Appeals Chamber further notes that the summaries of the Prosecution witnesses’ anticipated testimonies appended to the Prosecution Pre-Trial Brief did not provide any notice of a possible alternative basis for Kanyabashi’ssuperior responsibility in relation to the Kabakobwa Hill killings. See Witness Summaries Grid, items 3, 7, 22, 52, 56, 58-60, 70, 73, 82, Witnesses QAM, FAM, FAJ, QP, QR, QW, RO, and SQ.

2519. Furthermore, the Prosecution overlooks that, in the Bagosora and Nsengiyumva and Ntabakuze cases, the Appeals Chamber found that, along with the specific allegations that the accused ordered their subordinates to commit the crimes, the respective indictments pleaded additional material facts underpinning their superior responsibility for the same crimes.⁵⁸⁴³ In those cases, the Appeals Chamber upheld the convictions based on a different mode of liability which was properly pleaded in the indictments. 

5843.See Ntabakuze Appeal Judgement, para. 119; Bagosora and Nsengiyumva Appeal Judgement, para. 204.

2520. Based on the foregoing, the Appeals Chamber finds that Kanyabashi lacked notice of the material facts upon which the Trial Chamber convicted him as a superior in relation to the killings of Tutsi refugees committed at Kabakobwa Hill on 22 April 1994 and, accordingly, that the Trial Chamber erred in convicting him based on these killings."

"2533. In convicting Kanyabashi in relation to the killings at Matyazo Clinic in late April 1994, the Trial Chamber found that Kanyabashi’s alleged superior responsibility over the soldiers and their role in the events was correctly pleaded in the Indictment.⁵⁸⁷³ In particular, while noting that paragraph 6.34 of the Indictment did not specifically describe the soldiers as Kanyabashi’s subordinates, the Trial Chamber observed that paragraph 4.3 of the Indictment alleged that Kanyabashi exercised authority over his subordinates in his capacity as bourgmestre of Ngoma Commune and that paragraph 6.32 of the Indictment indicated that these subordinates were not limited to the conseillers de secteur and communal policemen but envisaged the existence of other categories of subordinates.⁵⁸⁷⁴ Considering further that paragraph 6.34 referred to Kanyabashi giving orders to soldiers, “which implies that  he  held a position of authority vis-à-vis soldiers”, the Trial Chamber found it established from reading the Indictment as a whole that the soldiers referred to in paragraph 6.34 were Kanyabashi’s alleged subordinates and that this paragraph was“sufficiently specific to meet the standards set forth in the case law regarding Article 6 (3) liability."

"2534. Kanyabashi submits that the Trial Chamber erred in concluding that, based on an overall reading of the Indictment, paragraph 6.34 of the Indictment identifies the soldiers as his alleged subordinates and contends that the defect in the Indictment concerning the identification of the soldiers as his subordinates was not curable.⁵⁸⁷⁶ He argues that, in finding that paragraph 6.32 of the Indictment could be interpreted to also include soldiers, the Trial Chamber went beyond the scope of the Indictment and circumvented its previous decision which ordered the Prosecution to specify the identity of his alleged subordinates in paragraph 6.29 of the indictment.⁵⁸⁷⁷ Kanyabashi recalls that, following the Trial Chamber’s order, the Prosecution amended paragraph6.29 of the indictment by simply referring to paragraph 6.32, which only explicitly identifies conseillers de secteur and communal policemen as his subordinates.⁵⁸⁷⁸ Kanyabashi submits that, in light of this amendment, he legitimately understood that the conseillers de secteur and communal policemen were alleged to be his subordinates with respect to all charges of the Indictment.⁵⁸⁷⁹

5876. Kanyabashi Notice of Appeal, sub-paras. 2.2-2.2.6; Kanyabashi Appeal Brief, paras. 159-161, 165, 166; Kanyabashi Reply Brief, paras. 50-55.

5877. Kanyabashi Appeal Brief, paras. 159, 160, referring to 31 May 2000 Decision, para. 5.21. See also ibid., para. 165; Kanyabashi Reply Brief, paras. 51, 53; AT. 20 April 2015 p. 53.

5878. Kanyabashi Notice of Appeal, sub-para. 2.2.1; Kanyabashi Appeal Brief, para. 159. Kanyabashi also points out that paragraph 6.29 of the Kanyabashi Indictment immediately follows the sub-heading “Ngoma Commune” and that all sites specified in the other sub-headings were located in Ngoma Commune, of which he was the bourgmestre. See idem.

5879. Kanyabashi Notice of Appeal, sub-para. 2.2.2; Kanyabashi Appeal Brief, para. 159.

2535. According to Kanyabashi, he was “misled” and, as a result, centred his defence on denying that conseillers de secteur and communal policemen took part in the massacre and endeavoured “to demonstrate that the soldiers were the ones responsible for the attack and that he had no authority over them.”⁵⁸⁸⁰ He also points out that his counsel declared at the time of Witness QI’s testimony “that he had not prepared to deal with 6(3)”⁵⁸⁸¹ and that he “did not cross-examine on effective control over the specific soldiers.⁵⁸⁸²

5880. Kanyabashi Appeal Brief, para. 162. See also Kanyabashi Reply Brief, para. 55; AT. 20 April 2015 pp. 53, 54.

5881. Kanyabashi Appeal Brief, para. 163, referring to Witness QI, T. 23 March 2004 pp. 53-57.

5882. Kanyabashi Appeal Brief, para. 164. Kanyabashi also generally submits that “ t here is no mention, with regard to the soldiers, of the requisite ingredients for responsibility under 6(3).” See ibid., para. 165. See also ibid., heading 2.2.3 at p. 66. The Appeals Chamber notes that Kanyabashi substantiates his claim regarding the “requisite ingredients” of superior responsibility only with respect to the identification of the subordinates. He does not make any arguments regarding the other material facts that have to be pleaded with respect to superior responsibility.

2536. The Prosecution responds that the Trial Chamber correctly found that Kanyabashi received sufficient notice that he was charged with superior responsibility for the crimes committed by thesoldiers at Matyazo Clinic.⁵⁸⁸³ It argues that paragraph 6.34 of the Indictment, read in conjunction with paragraph 6.32 of the Indictment and the fact that paragraph 6.34 was only charged pursuant to Article 6(3) of the Statute, gave notice to Kanyabashi that he was alleged to be the superior of the soldiers who perpetrated the killings at Matyazo Clinic.⁵⁸⁸⁴ It also submits that Kanyabashi failed to raise a timely objection to the evidence related to his superior relationship with the soldiers, that the conduct of his defence demonstrates that he understood the case against him, and that he was not prejudiced.⁵⁸⁸⁵

5883. Prosecution Response Brief, paras. 1766-1774.

5884. Prosecution Response Brief, paras. 1767, 1769-1772. See also AT. 20 April 2015 p. 31. The Prosecution also relies on the fact that Witness QI’s Summary and statement also referred to Kanyabashi giving orders which were followed. See Prosecution Response Brief, para. 1773.

5885. Prosecution Response Brief, paras. 1777-1785. See also AT. 20 April 2015 p. 32. In reply, Kanyabashi submits, inter alia, that he complained about the defects of the Indictment regarding the identification of his subordinates already in 1999 and that the Prosecution does not explain why it did not mention that the soldiers were alleged to be his subordinates when ordered to do so. See Kanyabashi Reply Brief, para. 53, referring to Kanyabashi Preliminary Motion, paras. 24, 27, 42.

2537. The Appeals Chamber recalls that when an accused is charged with superior responsibility pursuant to Article 6(3) of the Statute, the indictment must plead, inter alia, that the accused is the superior of sufficiently identified subordinates over whom he had effective control – in the sense of a material ability to prevent or punish criminal conduct – and for whose acts he was alleged to be responsible.⁵⁸⁸⁶

5886. See, e.g., Ntabakuze Appeal Judgement, para. 100; Nahimana et al. Appeal Judgement, para. 323; Blaškić Appeal Judgement, para. 218. The Appeals Chamber also recalls that a superior need not necessarily know the exact identity of his subordinates who perpetrate crimes in order to incur liability under Article 6(3) of the Statute and that physical perpetrators of the crimes can be identified by category in relation to a particular crime site. See Hategekimana Appeal Judgement, para. 166; Bagosora and Nsengiyumva Appeal Judgement, para. 196; Blagojević and Jokić Appeal Judgement, para. 287.

2538. In the instant case, the Appeals Chamber finds that the Trial Chamber erred in holding that adequate notice was provided to Kanyabashi that he was alleged to be the superior of the “soldiers” involved in the killings at Matyazo Clinic referred to in paragraph 6.34 of the Indictment through the following information: (i) the reference in paragraph 4.3 of the Indictment that he “exercised authority over his subordinates”; (ii) the indication – through the term “notably” in paragraph 6.32 of the Indictment – that his subordinates were not limited to “conseillers de secteur and communal policemen”; and (iii) the allegation in paragraph 6.34 that he gave orders to soldiers at Matyazo Clinic.⁵⁸⁸⁷ The Appeals Chamber stresses that an accused should not have to decipher the alleged basis of his criminal responsibility from scattered factors read together and that it was incumbent on the Prosecution to set forth clearly and unambiguously in the Indictment all material facts underpinning the charges. The Appeals Chamber considers that the factors relied upon by the Trial Chamber in the Indictment did not provide adequate notice to Kanyabashi that the soldiers invokedin paragraph 6.34 were alleged to be his subordinates within the meaning of Article 6(3) of the Statute.

2539. As emphasised in its submissions, the Prosecution indicated in the charging section of the Indictment that the allegation set forth in paragraph 6.34 was being pursued exclusively pursuant to Article 6(3) of the Statute.⁵⁸⁸⁸ In the opinion of the Appeals Chamber, this was indicative that the Prosecution intended to prove that Kanyabashi was the superior of the soldiers referred to in this paragraph. However, it was incumbent on the Prosecution to identify Kanyabashi’s subordinates unambiguously in the Indictment, especially as it was expressly directed to do so by the Trial Chamber in May 2000.⁵⁸⁸⁹ The Appeals Chamber considers that the Prosecution’s failure to provide adequate notice to Kanyabashi of the identity of his alleged subordinates in the Indictment is manifest.⁵⁸⁹⁰

5887. The Appeals Chamber recalls that “ordering” liability requires no formal superior-subordinate relationship between the person giving the order and the physical perpetrator. See, e.g., Nzabonimana Appeal Judgement, para. 482; Setako Appeal Judgement, para. 240; Semanza Appeal Judgement, para. 361; Kordić and Čerkez Appeal Judgement, para. 28.

5888. See Kanyabashi Indictment, pp. 41-45.

5889. See 31 May 2000 Decision, para. 5.21(c), p. 8.

5890. Following the Trial Chamber’s instruction in the 31 May 2000 Decision, the Prosecution merely amended paragraph 6.29 of the indictment by simply referring to paragraph 6.32 of the same indictment which, as noted above, only identifies conseillers de secteur and communal policemen as Kanyabashi’s subordinates. Compare Amended Indictment with Kanyabashi Third Amended Indictment, para. 6.29.

2540. Based on the foregoing, the Appeals Chamber finds that the Trial Chamber erred in failing to find that the Indictment was defective in relation to Kanyabashi’s superior responsibility for the killings perpetrated at Matyazo Clinic by soldiers insofar as it failed to provide adequate notice to Kanyabashi that the soldiers involved in these killings were alleged to be his subordinates.

2541. The Appeals Chamber, however, finds that this error does not invalidate the Trial Chamber’s decision to convict Kanyabashi on this basis as it considers that the ambiguity of the Indictment was remedied by the additional information provided in the Prosecution Pre-Trial Brief. Specifically, the Appeals Chamber considers that, reading paragraph 6.34 of the Indictment which was only charged pursuant to Article 6(3) of the Statute together with the allegation in the Prosecution Pre-Trial Brief that Kanyabashi exercised a supervisory role vis-à-vis the soldiers involved in the massacres of Tutsi refugees gathered in Matyazo Clinic,⁵⁸⁹¹ Kanyabashi was put on clear notice that he was alleged to exercise superior authority over the soldiers identified in paragraph 6.34 within the meaning of Article 6(3) of the Statute. The conduct of Kanyabashi’sdefence at trial confirms that he understood the charge against him regarding the killings at Matyazo Clinic and was able to prepare a meaningful defence.⁵⁸⁹²

5891. Prosecution Pre-Trial Brief, para. 20.

5892. In his appeal submissions, Kanyabashi acknowledged that “ a nother side of the defence was to demonstrate that the soldiers were the ones responsible for the attack and that he had no authority over them.” See Kanyabashi Appeal Brief, para. 162. The Appeals Chamber further observes that, in his closing brief, Kanyabashi, referring to several testimonies of Defence witnesses, unequivocally contended that there was no relation of subordination between him and the soldiers. See Kanyabashi Closing Brief, para. 238. Similarly, in his oral closing arguments, Kanyabashi argued that he did not have power over soldiers, that they considered him an RPF accomplice, and that he was threatened by them. See Kanyabashi Closing Arguments, T. 28 April 2009 pp. 37, 42, 46, 69.

2542. Consequently, the Appeals Chamber finds that Kanyabashi was ultimately put on adequate notice that he was charged pursuant to Article 6(3) of the Statute for the criminal conduct of the soldiers at Matyazo Clinic and that the vagueness of the Indictment in this respect did not impair his ability to prepare his defence."

Prosecutor v. Ephrem Setako, Case No. ICTR-04-81-A, Judgement (AC), 28 September 2011, para. 272:

"272. Furthermore, the Appeals Chamber recalls that a superior’s authority to issue orders is one indicator of effective control, but that it does not automatically establish such control.615 Consequently, the fact that the 25 April and 11 May Killings were committed upon Setako’s orders is not sufficient to show that he exercised effective control over the perpetrators within the meaning of Article 6(3) of the Statute."

615 See Strugar Appeal Judgement, paras. 253, 254, 256; Halilović Appeal Judgement, para. 207. The Appeals Chamber notes that convictions under Article 6(3) of the Statute are generally based on a thorough analysis of various indicators of effective control. See, e.g., Kajelijeli Appeal Judgement, paras. 90, 91; Kayishema and Ruzindana Appeal Judgement, para. 298; Karera Trial Judgement, paras. 562-568; Halilović Appeal Judgement, paras. 69, 154, 207; Orić Appeal Judgement, para. 159.

Ferdinand Nahimana et.al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement (AC), 28 November 2007, paras. 778, 785:

778. Appellant Nahimana first submits that the Trial Chamber erred in law when it held that mere civilians, acting in a purely private context and without any authority analogous to that of military commanders, could be held responsible as superiors pursuant to Article 6(3) of the Statute.1812 He argues that only civilian leaders possessing "excessive de jure or de facto powers in ordinary law similar to the powers of public authorities" have, so far, been convicted on the basis of their superior responsibility.1813

1812 Nahimana Appellant’s Brief, paras. 337-348.

1813 Ibid., paras. 340-347 (quotation taken from para. 345, emphasis omitted).

785. The Appeals Chamber has already recalled the elements which must be proved in order to establish superior responsibility.1832 It has also pointed out that civilian leaders need not be vested with prerogatives similar to those of military commanders in order to incur such responsibility under Article 6(3) of the Statute: it suffices that the superior had effective control of his subordinates, that is, that he had the material capacity to prevent or punish the criminal conduct of subordinates.1833 For the same reasons, it does not have to be established that the civilian superior was vested with "excessive powers" similar to those of public authorities. Moreover, the Appeals Chamber cannot accept the argument that superior responsibility under Article 6(3) of the Statute requires a direct and individualized superior subordinaterelationship.1834

1832 See supra XI. B.

1833 See supra XII. D. 2. (a) (i) .

1834 Halilović Appeal Judgement, para. 59; Kordić and Čerkez Appeal Judgement, para. 828; Blaškić Appeal Judgement, para. 67; Čelebići Appeal Judgement, paras. 251-252, 303.

Prosecutor v. Dominique Ntawukulilyayo, Case No. ICTR-05-82-T , Judgement (TC), 3 August 2010, para. 435:

"435. Ultimately, the general evidence about the relationship between the sub-prefect, and bourgmestres is equivocal. Consequently, whether Ntawukulilyayo exercised de jure authority over communal police is similarly ambiguous. However, the critical issue is whether Ntawukulilyayo exercised effective control over his alleged subordinates. While a showing of de jure authority may suggest the material ability to prevent or punish an offence, its proof is neither necessary nor sufficient to prove beyond reasonable doubt that an accused exercised effective control over his subordinates.618 Accordingly, the Majority has not considered such evidence as decisive in its assessment of Ntawukulilyayo’s authority. The main question is whether Ntawukulilyayo exercised effective control over the communal police".619

618 Renzaho Trial Judgement, para. 752, citing Orić Appeal Judgement, paras. 91-92.

619 Orić Appeal Judgement, para. 91.

Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31-T, Judgement (TC), 14 July 2009, paras. 434, 438:

"752. Turning to the question of Renzaho’s superior responsibility, the Chamber recalls that the main question is whether he exercised effective control over his alleged subordinates.835 In this respect, the Appeals Chamber has stated that de jure authority is not synonymous with effective control.836 Furthermore, although a showing of de jure authority may suggest the material ability to prevent or punish an offence, its proof is neither necessary nor itself sufficient to prove beyond reasonable doubt that an accused exercised effective control over his subordinates.837 Accordingly, the Chamber has not considered such evidence as decisive in its assessment of Renzaho’s authority."

835 Orić Appeal Judgement para. 91.

836 Id. para. 91.

837 Id. paras. 91-92.

Prosecutor v. Naser Oric, Case No. IT-03-68-A, Judgement (AC), 3 July 2008, paras. 91-92:

"91. It is well established that the Prosecution must prove effective control beyond reasonable doubt in establishing a superior-subordinate relationship within the meaning of Article 7(3) of the Statute.187 For that purpose, de jure authority is not synonymous with effective control.188 Whereas the possession of de jure powers may certainly suggest a material ability to prevent or punish criminal acts of subordinates, it may be neither necessary nor sufficient to prove such ability.189 If de jure power always results in a presumption of effective control, then the Prosecution would be exempted from its burden to prove effective control beyond reasonable doubt.190 The Appeals Chamber is therefore unable to agree with the Prosecution’s proposed legal presumption.

92. The Appeals Chamber acknowledges that its jurisprudence might have suggested otherwise, using the terms "presume" or "prima facie evidence of effective control".191 The import of such language has not always been clear. Although in some common law jurisdictions "prima facie evidence" leads by definition to a burden-shifting presumption,192 the Appeals Chamber underscores that before the International Tribunal the Prosecution still bears the burden of proving beyond reasonable doubt that the accused had effective control over his subordinates.193 The possession of de jure authority, without more, provides only some evidence of such effective control. Before the International Tribunal there is no such presumption to the detriment of an accused."

M.P.1. Evidence the hierarchical de jure authority of the suspect over the subordinates

M.P.1.1. Evidence of domestic legislation providing the hierarchical authority of the suspects over the subordinates as a evidence of de jure control

The Prosecutor v. Ante Gotovina et al., Case No. ICTR-06-90, Judgement (AC), 16 November 2012, para. 148:

148. Turning first to superior responsibility, the Appeals Chamber notes that the Trial Chamber did not explicitly find that Markač possessed effective control over the Special Police. The Trial Chamber noted evidence indicative of a superior-subordinate relationship and found that commanders of relevant Special Police units were subordinated to Markač. However, the Trial Chamber was unclear about the parameters of Markač’s power to discipline Special Police members, noting that he could make requests and referrals, but that "crimes committed by members of the Special Police fell under the jurisdiction of State Prosecutors."

Ferdinand Nahimana et.al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement (AC), 28 November 2007, para. 787:

"787. The Appellant further contends that the Trial Chamber could not conclude that he possessed a de jure power, since neither the law of Rwanda, nor the RTLM Statutes or any other official document so provided. The Appeals Chamber recalls that a person possesses a de jure power when legally vested with such power.1836 The Chamber is of the view that this power can derive from law, from a contract or from any other legal document; it may have been conferred orally or in writing and may be proved by documentary or any other type of evidence. The Appeals Chamber will examine below whether the Trial Chamber could conclude that the Appellant was vested with a de jure power over the RTLM staff, but considers that, in any event, this is not a decisive factor for the issue of effective control.1837"

1836 See the definition of "de jure" in Bryan A. Garner (ed.), Black’s Law Dictionary, 8th ed., Saint Paul, Minnesota, Thomson West Publishing Company, 2004, p. 458 ("Existing by right or according to law"). Thus, the jurisprudence describes a superior de jure as one whose power derives from an official appointment: Kajelijeli Appeal Judgement, para. 85; Bagilishema Appeal Judgement, para. 50 ; Čelebići Appeal Judgement, para. 193.

1837 In this respect, see supra XII. D. 2. (a) (ii) b. i., where the Appeals Chamber explains that, even if the possession of de jure powers can certainly suggest a material capacity to prevent or punish criminal acts by subordinates, it is neither necessary nor sufficient to demonstrate such capacity.

Prosecutor v. Ndahimana, Case No. ICTR-01-68-T, Judgement (TC), 31 December 2011, para. 737-739, 740:

"737. According to Article 56 of the Administrative Law, the communal administration was under the direct control of the bourgmestre.1375

738. The bourgmestre supervised the conseillers communaux and exercised administrative control over State agents assigned to the commune. All communal agents, including administrative personnel, technical personnel and communal police were under the authority of the bourgmestre. The bourgmestre, after consulting with the communal council could hire, suspend or dismiss any communal staff members; however, these decisions had to be approved by the préfet. Chapters VI through VIII of the Administrative Law set out the disciplinary regime available to the bourgmestre in case of disciplinary problems involving communal agents. The bourgmestre was responsible for imposing such measures.

739. The legislation detailing the de jure powers of the bourgmestre is limited in determining the precise authority that was actually exercised by the bourgmestre in 1994. Thus, the Majority will consider more specific evidence of Ndahimana’s de jure and de facto authority with respect to each category of alleged subordinates who have been found to have participated in the attacks on Nyange church."

"740. Under Rwandan law, the bourgmestre assumed complete responsibility for the organisation, functioning and control of the communal police. A member of the communal police was an employee of the commune and subject to the same basic conditions of employment as other communal staff. The bourgmestre’s power to discipline members of the communal police was the same as for other staff. The law prescribed five categories of sanctions, as set out below. While it was the bourgmestre who was exclusively empowered to discipline communal staff, sanctions described in the fourth and fifth categories could be imposed by the bourgmestre only on the advice of the conseil communal and with the prior approval of the préfet.1383 The five categories were: "(1) warning; (2) withholding of one quarter salary for one month maximum; (3) disciplinary suspension for one month maximum; this sanction involves prohibition from exercising any duties and withholding of salary; (4) extended disciplinary action for an indeterminate period; this sanction involves termination of all salary and of all indemnities; (5) termination of service.""

Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42-T, Judgement (TC), 24 June 2011, para. 5802:

"5802. Rwandan law provided that bourgmestres wielded legal authority over commune police. Bourgmestres had power over the hiring, suspension, and termination of commune police officers. Although it appears that these powers could be exercised only after consultation with the commune counsel and the Minister of the Interior, Rwandan law also provided that "the bourgmestre has sole authority over the members of the commune police".As bourgmestre of Ngoma commune, Kanyabashi enjoyed de jure authority over the commune police of Ngoma."

Prosecutor v. Ljube Boškoski et. al., Case No. IT-04-82-T, Judgement (TC), 10 July 2008, para. 508-510:

"508. The Law on the Government of FYROM provides in Article 11(1):

The President of the Government manages the work of the Government; he/she is responsible for its operation and the implementation of cooperation with other bodies, public enterprises and institutions.

The notion of manages is here used in respect of the President "of the Government"(sic). This serves to highlight the impracticality and legal deficiencies of the notion that manages should be read in the narrow and in essence powerless administrative manner proposed. Ironically, it is also somewhat contradictory to the position of the Defence which appeared to accept that the President had wide powers to direct Ministers and Ministries by virtue of his being the ultimate repository of authority in the government of the FYROM.

509. The same Law on Government goes on to provide in Article 13:

A minister manages independently the ministry to which he/she is elected, monitors and is responsible for the implementation of the laws and other regulations.

It is apparent that in this law, manages is used in respect of both the President and a Minister. In each provision the context is the ultimate control of the function of the government or of one of its ministries. In each case manages is used to describe the role of the President or the Minister, respectively, each of whom is to be accountable to the Parliament and the people for the proper functioning of the whole government, in the case of the President, or Ministry, in the case of a Minister. This context strongly indicates that the notion of manages cannot be restricted merely to administrative supervision without real power to determine and direct the functions being managed. This is made more evident by the words that follow in Article 13 by which the minister who manages independently the Ministry, is responsible for the implementation of the laws and other regulations. The emphasis on "independently" is not consistent with the contention that the Minister is essentially merely the channel of communication from his officers in the Ministry who (rather than the Minister) have the responsibility to exercise most powers and functions. The inconsistency is more manifest as the minister is expressly made responsible for the implementation of the laws and other regulations. On the Defence contention, however, that is precisely what the various officials in the Ministry are directly (and exclusively of the Minister) charged with doing, in respect of each statutory power or function conferred on an official or the position he or she holds.

510. The true intention of the legislative scheme for the government may be seen even more clearly in the Law on the Organisation and Work of Government Bodies which provides:

Article 47(1):

The work of the Ministry is managed by a minister.

Article 49(1):

The minister represents the ministry, organises and secures the lawful and efficient completion of work and tasks; submits regulations and other acts for which he is authorised and undertakes other measures from the competence of the ministry in accordance with the law; decides on the rights, duties and responsibilities of state employees and other individuals employed by the ministry who do not have state employee status, unless otherwise stated by law.

It is apparent from these two directly related provisions that the scope of the management of a ministry by a minister includes the securing of the lawful and efficient completion of the work of the ministry. The Minister has the duty to secure that the work performed in his Ministry is performed lawfully and efficiently. Of necessity this requires that, consistently with any express statutory requirements, the Minister be able to order and determine the work to be performed in his Ministry, direct the officials performing the tasks of the Ministry, (including those powers and functions conferred on particular officials by statutory provisions,) and to enforce compliance withhis directions."

M.P.1.2. Evidence of domestic legislation providing the suspect’s power to remove the subordinates from their official positions

Prosecutor v. Ndahimana, Case No. ICTR-01-68-T, Judgement (TC), 31 December 2011, para. 768:

"768. For the period covered by the Indictment, the administration of Kivumu commune was, according to Rwandan law, under the direct authority of the bourgmestre.1420 The staffing of the communal administration was subject to the following general principles, set out in Articles 92 to 94 of the Law on the Organisation of Communes of 23 November 1963 ("Law on the Organisation of Communes"):

"Communes may employ personnel to perform communal functions. Furthermore, should there be need, representatives from State Administrative Services may be assigned to Communal Administrative positions, pursuant to statutory provisions.

The bourgmestre has the authority to employ, suspend or terminate [after conferring with Communal Council pursuant to instructions from the Minister of the Interior].

All decisions in regard to employment, suspension, or termination of personnel must be approved by the Prefect or his representative."1421

1421 Prosecution Exhibit 47, Articles 92-94 (Non-official translation).

M.P.1.3. Evidence of domestic legislation providing the suspect’s power to propose the dismissal of the subordinate to higher authorities

Prosecutor v. Ndahimana, Case No. ICTR-01-68-A, Judgement (AC), 16 December 2013, paras. 53-55:

"53. As the Appeals Chamber has held, " [i]ndicators of effective control are ‘more a matter of evidence than of substantive law, and those indicators are limited to showing that the accused had the power to prevent [or] punish’."132 In finding that Ndahimana had effective control over the communal policemen, the Trial Chamber first relied on the fact that Ndahimana possessed de jure authority, as bourgmestre, over the communal policemen under Rwandan law and that this authority encompassed disciplinary powers.133 Ndahimana does not dispute that he possessed such de jure disciplinary powers, 134 nor does he demonstrate that it was unreasonable for the Trial Chamber to consider his de jure authority over the communal policemen as an indicator of his effective control over them. The Appeals Chamber recalls in this regard that the possession of de jure authority over subordinates, while not synonymous with effective control, may suggest a material ability to prevent or punish their criminal acts.135

54. The Trial Chamber further cited extensive evidence of Ndahimana’s ability to issue binding orders to the communal policemen and the compliance of the policemen with these orders, namely: (i) Ndahimana’s order to a communal policeman to escort a Tutsi refugee to safety on the night of 15 April 1994; (ii) Ndahimana’s assignment of communal policemen to protect the Les Soeurs de l’Assomption Convent in Kivumu on 16 April 1994; (iii) Ndahimana’s assignment of communal policemen to protect Tutsi refugees at the health center around 17 April 1994; and (iv) Ndahimana’s demotion of Brigadier Mbakilirehe and promotion of Abayisenga and Niyitegeka to brigadier and to deputy brigadier, respectively, on 29 April 1994.136 Contrary to Ndahimana’s contention, the Trial Chamber therefore did not "wrongly define[] the parameters" of effective control by focusing on Ndahimana’s power to issue binding orders or take disciplinary measures.137 The Trial Judgement reflects that the Trial Chamber also relied on the fact that Ndahimana’s orders were obeyed and his disciplinary measures implemented. 138 It is well-settled that these factors are indicative of a superior’s effective control over his subordinates.137

55. […]However, the very fact that Ndahimana issued an order demoting the brigadier - irrespective of the reasons for that demotion - and filled the resulting vacancies, combined with the fact that his order was complied with, shows that Ndahimana had the material ability to issue binding orders to the communal policemen."

132 Perišić Appeal Judgement, para. 87, referring to, inter alia, Strugar Appeal Judgement, para. 254, referring, in turn, to Blaškić Appeal Judgement, para. 69.

133 See Trial Judgement, para. 740, and authorities cited therein.

134 See Ndahimana Appeal Brief, paras. 108-161.

135 Ntabakuze Appeal Judgement, para. 169, referring to Orić Appeal Judgement, para. 91; Nahimana et al Appeal Judgement, para. 625.

136 See Trial Judgement, paras. 743-747.

137 Ndahimana Appeal Brief, para. 154.

138 See Trial Judgement, paras. 743-747.

139 The indicators of effective control generally relied upon in the jurisprudence of the Tribunal include a superior’s material ability to issue binding orders that are complied with by subordinates, and the material ability to take disciplinary measures to punish acts of misconduct by subordinates. See Kajelijeli Appeal Judgement, paras. 90, 91; Kayishema and Ruzindana Appeal Judgement, paras. 298, 299. See also Perišić Appeal Judgement, paras. 97-111; Strugar Appeal Judgement, para. 256; Hadzihasanović and Kubura Appeal Judgement, para. 199; Halilović Appeal Judgement, paras. 69, 154, 207.

Prosecutor v. Ndahimana, Case No. ICTR-01-68-T, Judgement (TC), 31 December 2011, paras. 742-744, 768:

"744. The Majority has also considered circumstantial evidence which indicates that Ndahimana took disciplinary measures against Brigadier Mbakilirehe. In particular, the Majority has considered Prosecution Exhibit 51. This letter, dated 29 April 1994, indicates that the accused demoted Mbakilirehe from the position of brigadier to that of an ordinary policeman. The letter also indicated that he would be replaced by Abayisenga and that his deputy would be Niyitegeka. Préfet Kayishema confirmed that he received a copy of the letter and that Ndahimana had full power to demote or promote communal staff during the month of April 1994."

"768. For the period covered by the Indictment, the administration of Kivumu commune was, according to Rwandan law, under the direct authority of the bourgmestre.1420 The staffing of the communal administration was subject to the following general principles, set out in Articles 92 to 94 of the Law on the Organisation of Communes of 23 November 1963 ("Law on the Organisation of Communes"):

"Communes may employ personnel to perform communal functions. Furthermore, should there be need, representatives from State Administrative Services may be assigned to Communal Administrative positions, pursuant to statutory provisions.

The bourgmestre has the authority to employ, suspend or terminate [after conferring with Communal Council pursuant to instructions from the Minister of the Interior].

All decisions in regard to employment, suspension, or termination of personnel must be approved by the Prefect or his representative."1421

1421 Prosecution Exhibit 47, Articles 92-94 (Non-official translation).

 

M.P.1.4. Evidence of domestic legislation providing the suspect’s authority to take disciplinary sanctions against the subordinates

M.P.1.5. Evidence of domestic legislation allowing the suspect to requisition the communal police and place them under his direct authority in cases of grave public disorder or in times when unrest has occurred or is about to occur

M.P.1.6. Evidence of the suspect’s general authority of supervision over the acts of the subordinates

M.P.1.7. Evidence of the suspect’s overarching duty to maintain public order and security

The Prosecutor v. Edouard Karemera and Mathieu Ngirumpatse, Case No. ICTR-98-44, Judgement (TC), 2 February 2012, para. 1514:

1514. He also informed the military authorities about the decisions taken during the Council of Ministers and could, in the absence of the Minister of Defence, ensure that decisions related to security matters were enforced. He was accountable to the Government and Parliament concerning his administration and was the guarantor of law and order.

Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31-T, Judgement (TC), 14 July 2009, paras. 434, 438:

"750. Renzaho was appointed prefect of Kigali-Ville on 5 October 1990, immediately after an RPF invasion, and remained in that position until July 1994, when he fled Kigali.830 The prefect was the representative of the national government in Kigali-Ville, vested with the authority of the state. His tasks included the maintenance of peace, public order and security of persons and property within the prefecture and ensuring the proper functioning of the prefecture’s services.831

830 Renzaho, T. 27 August 2007 pp. 5, 10-12 (appointment); Witness UB, T. 23 January 2007 p. 32(appointment in war).

831 Prosecution Exhibit 14 (Loi portant organisation administrative de la préfecture de la ville de Kigali of 22 June 1990) Article 25; Prosecution Exhibit 10 (Décret-loi sur l’organisation et fonctionnement de la préfecture of 11 March 1975 as modified on 14 August 1978) Articles 8-9.

 

M.P.2. Evidence of the suspect’s acts of requisition by telephone or in writing

M.P.3. Evidence of the suspect’s authority to define regulations for law and order

M.P.4. Evidence of the suspect’s authority to punish

M.P.5. Evidence of a letter from the suspect to the subordinates requesting that they recruit people to be trained for the civil defence programme

M.P.6. Evidence of a letter from the suspect to the subordinates requesting an urgent report on the security situation in the suspect’s area of responsibility

M.P.7. Evidence of the suspect’s communication to the subordinates instructing them to disregard a letter from higher authorities

A. Legal source/authority and evidence :

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 479-489:

"De Jure Control

479. The Indictment states that the Prefect as trustee of the State Authority in the Prefecture had control over the Prefectoral administration and its agencies. The Chamber has found that, inter alia, Bourgmestre Sikubwabo, a number of communal police, and members of the gendarmerie nationale were responsible for numerous deaths and injuries inflicted upon innocent Tutsis.

480. The Trial Chamber finds that it is beyond question that the Prefect exercised de jure authority over these assailants. The Rwandan law is very clear in this respect.

481. The Prefects’ position vis-à-vis the bourgmestre is evidently one of hierarchical authority and supervisory jurisdiction. Two Rwandan statutes support this finding. The first, Loi sur l’organisation de la commune, 1963, clearly implies in Article 59 that the bourgmestre is under the hierarchical authority of the Prefect.²⁵² The same law provides at Article 85 that where a communal authority fails to execute measures prescribed by law or decree, then the Prefect may, ultimately, supplant this communal authority in order to remedy their inaction. ²⁵³ Moreover, at Articles 46 and 48, the Loi sur l’organisation de la commune, 1963, establishes the power of the Prefect to take disciplinary sanctions against a bourgmestre and even to propose his dismissal to the Minister of the Interior. Coupled with this is the law as promulgated in the second statute submitted to this Trial Chamber, the Décret-Loi organisation et fonctionnement de la préfecture, 11 March 1975. Article 15 of this statute makes clear that, in addition to the hierarchical authority that the Prefect exercises over the bourgmestres and their services, he also has a general power of supervision over the acts of the communal authorities. Therefore, these provisions, coupled with the Prefect’s overarching duty to maintain public order and security, reflect the ultimate hierarchical authority enjoyed by the Prefect over the bourgmestre.²⁵⁴

482. The communal police are under the direct control over the bourgmestre. This matter was not disputed, and reflects the findings of the Trial Chamber in the Akayesu Judgement. Even if it is not axiomatic that the Prefect would hold the corresponding hierarchical de jure authority over the communal police, the law provides that in the situation which faced Rwanda and Kibuye Prefecture in 1994, it is the Prefect who retains ultimate control. To this end, the Loi sur l’organisation de la commune, 1963, allows the Prefect to requisition the communal police and place them under his direct authority in cases of grave public disorder or in times when unrest has occurred or is about to occur.²⁵⁵

483. Similarly, the Prefect exercises this ultimate authority of requisition over the gendarmerie nationale. The position set out in the Décret-Loi sur la création de la Gendarmerie Nationale, 1974, states that any competent administrative authority may requisition the gendarmerie nationale, that the advisability of the requisition cannot be questioned as long as it does not contravene any law or regulation, and that the requisition persists until the requisitioning authority informs the gendarmerie otherwise.²⁵⁶ Moreover, the gendarmerie nationale may only execute certain functions, notably, ensuring the maintenance and restoration of public order, when it is legally requisitioned to do so.²⁵⁷ The Trial Chamber recalls that Kayishema requisitioned the gendarmerie both by telephone, and in writing, in the face of the public disorder that prevailed in Rwanda in the pivotal months of April to July 1994.

484. This de jure power of the Prefect was confirmed by the expert Defence witness, Professor Guibal. In his testimony to the Trial Chamber he opined that, even after the 1991 Constitution, in the advent of multiple party politics,

485. Further, when Counsel for Kayishema asked whether, in light of the multi-party politics, it was, "a co-ordination role that the Prefect plays rather than the exercise of hierarchical power", Professor Guibal replied, "normally the relationships fall under the hierarchy rather than under co-ordination".²⁵⁹

486. Professor Guibal then proceeded to describe how the situation would have been very different in the tumultuous realities of Rwanda in 1994. The situation in the country and the peculiar nature of the party-orientated constitution would have led to what he described as "crisis multi-partyism". Although he did not examine the specific context of the Rwandan crisis, he explained that such a status quo would have arisen because each respective party would have felt that the situation should be resolved through them, not the constitution. A dichotomy between political and administrative hierarchy would have emerged. This led Professor Guibal to the conclusion that although the power of the Prefect over the forces of law and order existed formally in 1994, these powers were emptied of any real meaning when the ministers, the ultimate hierarchical superiors to the police, gendarmes and army, were of a different political persuasion.

487. The Trial Chamber is of the opinion that such assertions clearly highlight the need to consider the de facto powers of the Prefect between April and July 1994. Such an examination will be conducted below. However, the delineation of power on party political grounds, whilst perhaps theoretically sound, should only be considered in light of the Trial Chambers findings that the administrative bodies, law enforcement agencies, and even armed civilians were engaged together in a common genocidal plan. The focus in these months was upon a unified, common intention to destroy the ethnic Tutsi population. Therefore, the question of political rivalries must have been, if it was at all salient, a secondary consideration.

488. The actions of Kayishema himself also appear to evidence a continued subordination of the bourgmestres to his de jure authority during the events of 1994 or, at least, an expectation of such subordination. Prosecution exhibit 51, for example, is a letter from Kayishema to the bourgmestres requesting that they recruit people to be "trained" for the civil defence programme. Prosecution exhibit 53 is another letter from Kayishema to the bourgmestres, dated 5 May 1994, which requests an urgent report on the security situation in their communes and to inform him of where "the works" had started. In addition, Kayishema testified to this Trial Chamber that in late May 1994, he went to the Bourgmestres in his prefecture and instructed them to disregard a letter that they had received directly from the Minister of Interior relating to the civil defence programme. His clear objective in doing so was to prevent the Bourgmestres from implementing the explicit instructions of the Minister.²⁶⁰

489. Even in the climate that prevailed, therefore, Kayishema clearly considered that this hierarchical relationship persisted and expected his ‘requests’ to be executed. Accordingly, the Trial Chamber finds that it is beyond any doubt that Kayishema exercised de jure power over the Bourgmestres, communal police, gendarmes and other law enforcing agencies identified at the massacre sites."

252..Article 59: En tant que représentant du pouvoir exécutif, le Bourgmestre est soumis à l’autorité hiérarchique du préfet.

253. Article 85: Lorsque les autorités communales font preuve de carence et n’exécutent pas des mesures prescrites par les lois ou règlements, le préfet peut après deux avertissements écrits restés sans effet se substituer à elles. Il peut prendre toutes les mesures appropriées pour parer à leur défaillance.

254. Article 15: Le préfet, en plus du pouvoir hiérarchique qu’il a sur les Bourgmestres et leurs services administratifs, dispose sur les actes des autorités communales, du pouvoir général de tutelle, determiné par les dispositions de la loi communale.

255. Article 104 (para. 2): Toutefois, en cas de calamité publique ou lorsque des troubles menacent d’éclater ou ont éclaté, le préfet peut réquisitionner les agents de la Police communale et les placer sous son autorité directe.

256. Article 29: L’action des autorités administratives compétentes s’exerce à l’égard de la Gendarmerie Nationale par voie de réquisition; Article 33: L’autorité requise de la Gendarmerie Nationale ne peut discuter l’opportunité de la réquisition pour autant qu’elle n’aille pas à l’encontre d’une loi ou d’un règlement; Article 36: Les effets de la réquisition cessent lorsque l’autorité requérante signifie, par écrit ou verbalement, la levée de la réquisition à l’autorité de Gendarmerie qui était chargée de son exécution.

257. Décret-Loi sur la création de la Gendarmerie Nationale, reading Articles 4 and 24 in conjunction: Article 4 (para. 3): Les fonctions extraordinaires sont celles que la Gendarmerie Nationale ne peut remplir que sur réquisition de l’autorité compétente; Article 24 (Under section 23, Extraordinary functions): La Gendarmerie Nationale assure le maintien et le rétablissement de l’ordre public lorsqu’elle en est légalement requise.

258. Trans., 27 May 1998, p.125.

259. Ibid.

260. Trans., 3 Sept. 1998, p. 113. The Trial Chamber was never seized of the details of these instructions. However, the contents of these instructions are only of secondary importance.

M.P.8. Evidence of the suspect being a well-known, respected, and esteemed figure within his or her community

A. Legal source/authority and evidence:

The Prosecutor v. Edouard Karemera and Mathieu Ngirumpatse, Case No. ICTR-98-44, Judgement (TC), 2 February 2012, para. 1517:

1517. Moreover, Karemera was a well-known figure in Rwanda due to his national positions in the MRND and Interim Government. The Chamber has found that he carried out numerous activities before and during the genocide that furthered his status, influence, and de facto authority in Rwanda during that period, particularly over the Interahamwe in Kigali and Gisenyi and civilian participants in the Civil Defence Programme.

M.P.9. Evidence of the suspect being requested by the subordinates to go directly to a chaotic scene and intervene

M.P.10. Evidence of the suspect’s strong affiliations with the subordinates

M.P.10.1. Evidence of the suspect transporting or leading the subordinates to the massacre sites

M.P.10.2. Evidence of the suspect being regularly identified in the company of the subordinates

M.P.10.3. Evidence of the suspect instructing, rewarding, directing the subordinates

M.P.11. Evidence of the suspect’s orders being acted upon by the subordinates

Prosecutor v. Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphone Nteziryayo, Joseph Kanyabashi and Élie Ndayambaje, Case No. ICTR-98-42-A, Judgement (AC), 14 December 2015, paras. 1466-1476:

"1466. The Trial Chamber concluded that Ntahobali bore superior responsibility pursuant to Article 6(3) of the Statute for the conduct of the Interahamwe who killed Ruvurajabo and considered this as an aggravating factor in sentencing.³³⁵¹ In particular, it recalled that Ntahobali instructed Interahamwe to kill Ruvurajabo and that they followed his order.³³⁵² On this basis, the Trial Chamber found as the only reasonable inference that Ntahobali exercised effective control over these Interahamwe and that he “was in a superior-subordinate relationship to them, on an ad hoc or temporary basis, when they killed Ruvurajabo."³³⁵³

3351. See Trial Judgement, paras. 5847-5849, 5971, 6056, 6220.

3352. Trial Judgement, para. 5847.

3353. Trial Judgement, para. 5847.

1467. Ntahobali submits that the Trial Chamber erred in concluding that he exercised effective control over the Interahamwe who killed Ruvurajabo solely on the evidence that they followed Ntahobali’s alleged order to kill him.³³⁵⁴ He points to case law reflecting that, while a superior’sability to issue orders may be indicative of effective control, it does not automatically establish it.³³⁵⁵

3354. Ntahobali Appeal Brief, paras. 907-909.

3355. Ntahobali Appeal Brief, para. 908, referring to Setako Appeal Judgement, para. 272, Strugar Appeal Judgement, para. 253, Halilović Appeal Judgement, paras. 68, 70, 139, Kamuhanda Trial Judgement, para. 612, Kordić and Čerkez Trial Judgement, paras. 838-841.

1468. In addition, Ntahobali contends that the Trial Chamber failed to consider Witness QCB’s evidence that the Interahamwe who killed Ruvurajabo were from Kigali and under Robert Kajuga’s (“Kajuga”) control, or other evidence that Kajuga or Nteziryayo exercised effective control over them.³³⁵⁶ In Ntahobali’s view, the Trial Chamber failed to provide a reasoned opinion by not addressing this evidence and no reasonable trier of fact could have found beyond reasonable doubt that Ntahobali had effective control over the Interahamwe who killed Ruvurajabo.³³⁵⁷

3356. Ntahobali Appeal Brief, para. 910. Ntahobali further argues that the Prosecution alleged that these Interahamwe were Nteziryayo’s subordinates. See idem, referring to Prosecution Closing Brief, paras. 197, 198 at pp. 366, 367, Trial Judgement, paras. 3982, 4031.

3357. Ntahobali Appeal Brief, para. 910.

1469. The Prosecution responds that the Trial Chamber correctly found that Ntahobali exercised effective control over the Interahamwe at the Hotel Ihuliro roadblock based on the evidence that the Interahamwe complied with Ntahobali’s instructions to kill Ruvurajabo as well as other evidence of Ntahobali’s role at that roadblock,³³⁵⁸ which includes Ntahobali ordering Interahamwe to commit other crimes.³³⁵⁹ The Prosecution contends that the Trial Chamber was not required to ascertain whether other individuals had similar control over the group in question and that, in any event, Ntahobali has not demonstrated that Kajuga or Nteziryayo had effective control over the Interahamwe to the extent that it negated Ntahobali’s effective control.³³⁶⁰ It notes that, although Witness QCB referred to the group of Interahamwe as Kajuga’s Interahamwe, the witness maintained that Ntahobali was the head of the group.³³⁶¹

3358. Prosecution Response Brief, paras. 1177-1179.

3359. Prosecution Response Brief, para. 1177, referring to Trial Judgement, para. 3118.

3360. Prosecution Response Brief, para. 1180.

3361. Prosecution Response Brief, para. 1180.

1470. Ntahobali replies that, contrary to the Prosecution’s contention, the Trial Chamber did not rely on evidence of his general role at the Hotel Ihuliro roadblock, such as alleged orders to commit other crimes there, when finding that he exercised effective control over the Interahamwe who killed Ruvurajabo.³³⁶² He points out that the only crime the Trial Chamber found that he had ordered at the Hotel Ihuliro roadblock was Ruvurajabo’s murder and that the Trial Chamber only concluded that he manned the roadblock, not that he controlled it.³³⁶³ Ntahobali argues that the evidence referred to by the Prosecution as reflecting Ntahobali’s control over Interahamwe does notnecessarily concern those who killed Ruvurajabo or events at the Hotel Ihuliro roadblock.³³⁶⁴ Finally, Ntahobali submits that the Prosecution ignores that Witness QCB’s evidence suggests that Kajuga controlled the Interahamwe as well as his testimony that the Interahamwe at the roadblock could have been soldiers.³³⁶⁵

3362. Ntahobali Reply Brief, paras. 366-368. See also ibid., para. 370 (arguing that the Trial Chamber only found Ntahobali to have ordered the killing of Ruvurajabo and committed the rape and killing of the Tutsi girl).

3363. Ntahobali Reply Brief, paras. 370, 371.

3364. Ntahobali Reply Brief, paras. 369, 371.

3365. Ntahobali Reply Brief, para. 372.

1471. The Appeals Chamber first turns to Ntahobali’s contention that the Trial Chamber erred in concluding that he exercised effective control over the Interahamwe who killed Ruvurajabo solely on the basis of the evidence that they followed his alleged order. The Appeals Chamber recalls that “ i ndicators of effective control are ‘more a matter of evidence than of substantive law, and those indicators are limited to showing that the accused had the power to prevent ₣orğ punish’.”³³⁶⁶ A superior’s ability to issue binding orders that are complied with by subordinates is one of the indicators of effective control generally relied upon in the jurisprudence of the Tribunal.³³⁶⁷

3366. Ndahimana Appeal Judgement, para. 53, quoting Blaškić Appeal Judgement, para. 69.

3367. Karemera and Ngirumpatse Appeal Judgement, para. 260; Nizeyimana Appeal Judgement, para. 202; Ndahimana Appeal Judgement, para. 54, fn. 139; Kajelijeli Appeal Judgement, paras. 90, 91; Kayishema and Ruzindana Appeal Judgement, para. 299. See also Strugar Appeal Judgement, para. 256; Had`ihasanović and Kubura Appeal Judgement, para. 199; Halilović Appeal Judgement, paras. 204, 207.

1472. The Trial Judgement reflects that, in finding that Ntahobali had effective control over the Interahamwe who killed Ruvurajabo, the Trial Chamber expressly relied on Ntahobali’s issuance of an instruction to the Interahamwe to kill Ruvurajabo with which they complied.³³⁶⁸ In summarising Witness QCB’s evidence concerning Ruvurajabo’s killing, the Trial Chamber noted that Interahamwe sought instructions from Ntahobali in relation to Ruvurajabo upon his refusal to produce identification at the roadblock.³³⁶⁹ Given the Trial Chamber’s acceptance of Witness QCB’s evidence as it relates to this event, the Appeals Chamber is not convinced that the Trial Chamber relied solely upon Ntahobali ordering the killing of Ruvurajabo as the indicator of his effective control over the Interahamwe that killed Ruvurajabo, but also on Witness QCB’s evidence that the Interahamwe sought instructions from him.

3368. Trial Judgement, para. 5847.

3369. Trial Judgement, para. 2959.

1473. The Appeals Chamber also considers that Ntahobali’s submissions fail to appreciate the broader context of the Trial Chamber’s findings concerning his role at the Hotel Ihuliro roadblock. In particular, the Appeals Chamber notes that the Trial Chamber also considered extensive evidence pointing to Ntahobali’s leadership position and authoritative conduct at that roadblock.³³⁷⁰ This evidence led the Trial Chamber to conclude that “Ntahobali manned Hotel Ihuliro roadblock  and utilised  it  with the assistance of soldiers and other unknown persons to abduct and killmembers of the Tutsi population.”³³⁷¹ While Ntahobali argues that the Trial Chamber did not find that he ordered the commission of other crimes at the roadblock or that he “controlled” it, the Appeals Chamber is of the view that the evidence accepted by the Trial Chamber concerning Ntahobali’s general role at the Hotel Ihuliro roadblock reasonably supports the Trial Chamber’s conclusion that Ntahobali exercised effective control over the Interahamwe who killed Ruvurajabo when he issued that order.

3370. See Trial Judgement, paras. 3118-3121, 3124-3127. See also ibid., para. 5842.

3371. Trial Judgement, para. 3128.

1474. The Appeals Chamber next turns to Ntahobali’s contention that the Trial Chamber erred by not considering evidence from Witness QCB and other witnesses that the Interahamwe in question were from Kigali and under the control of Kajuga or Nteziryayo, and did not provide a reasoned opinion when omitting to address this evidence. The Appeals Chamber recalls that effective control need not be exclusive and can be exercised by more than one superior, whose criminal responsibility is not excluded by coexisting responsibility of others.³³⁷² In this regard, the Appeals Chamber observes that Witness QCB testified that Ruvurajabo was apprehended and attacked by “Interahamwes  sic  from Kajuga  ...  it is the Robert Kajuga’s Interahamwe”,³³⁷³ an assertion that is not reflected in the Trial Chamber’s summary of his evidence. Nonetheless, the Appeals Chamber considers that Witness QCB’s designation of “Kajuga’s Interahamwe” did not require express analysis, as it was generic and was not inconsistent with the Trial Chamber’s finding that Ntahobali exercised effective control over these Interahamwe when he ordered them to kill Ruvurajabo. Notably, there is no evidence suggesting that the Interahamwe responsible for Ruvurajabo’s murder sought confirmation of Ntahobali’s order to kill Ruvurajabo from any other alleged superior, including Kajuga.³³⁷⁴

3372. See Bagosora and Nsengiyumva Appeal Judgement, para. 495. See also Nizeyimana Appeal Judgement, para. 346; ^elebići Appeal Judgement, paras. 197, 198.

3373. Witness QCB, T. 20 March 2002 pp. 67, 68. See also Trial Judgement, paras. 2957-2959, 3136-3139, 3173, 5361, 5842, 5847, 5848.

3374. Cf. Halilović Appeal Judgement, para. 206. The Appeals Chamber observes that Witness QCB testified that, at another roadblock, Interahamwe who came from Kigali were, nonetheless, “headed by” Ntahobali. Witness QCB, T. 25 March 2002 p. 156. The Appeals Chamber observes that both Ntahobali and the Prosecution confuse this reference to Interahamwe at the Hotel Ihuliro roadblock. However, read in the context of Witness QCB’s entire testimony, this reference is to Interahamwe at another, nearby roadblock, which he described as roadblock number “five”. The roadblock at which Ruvurajabo was killed was designated by Witness QCB as number “six”. See Witness QCB, T. 20 March 2002 pp. 56-61, T. 25 March 2002 pp. 100, 112 (closed session).

1475. Likewise, the Appeals Chamber finds that Ntahobali’s references to other evidence that Interahamwe led by Kajuga and Nteziryayo committed crimes fail to demonstrate that the Trial Chamber was required to expressly assess this evidence in evaluating Ntahobali’s superior responsibility for Ruvurajabo’s killing.³³⁷⁵ Notably, the Trial Chamber considered some of the evidence now highlighted by Ntahobali and the leadership roles Kajuga and Nteziryayo held withrespect to Interahamwe elsewhere in the Trial Judgement.³³⁷⁶ While the Trial Judgement does not reflect express consideration of the part of Witness FAM’s testimony invoked by Ntahobali, the Appeals Chamber fails to see the material relevance of evidence that Interahamwe led by Kajuga and Nteziryayo committed crimes during different time periods in other locations.³³⁷⁷ Ntahobali does not show that the Trial Chamber failed to provide a reasoned opinion in this regard. Similarly, he does not demonstrate that the Trial Chamber erred in finding as the only reasonable inference that Ntahobali exercised effective control over the Interahamwe who killed Ruvurajabo.³³⁷⁸

3375. See Ntahobali Appeal Brief, para. 910, referring to Witness QJ, T. 8 November 2001 pp. 113-117 (closed session), Witness FAM, T. 14 March 2002 pp. 66-69.

3376. Specifically, when considering Nteziryayo’s responsibility for the abductions and killings of Tutsis at Hotel Ibis committed by the Interahamwe between May and June 1994, the Trial Chamber referred to the excerpt of Witness QJ’s testimony cited by Ntahobali, noting his testimony that “the Interahamwe were under the orders of their leaders, Robert Kajuga, who was their president, and Nteziryayo, who lived with  Kajuga at Hotel Ibis  and was deputy to Kajuga.” See Trial Judgement, para. 3995, fn. 10878. See also ibid., paras. 3982-3985, 399, 3994, 3996, 3997. Furthermore, the Trial Judgement reflects general consideration of Witness FAM’s evidence as it related to Nteziryayo’s responsibility for the attacks on the Tutsi refugees by the Interahamwe and civilians at Kabakobwa. See, e.g., ibid., paras. 1741-1748. See also ibid., paras. 1517-1529.

3377. Cf. Kvočka et al. Appeal Judgement, para. 23. See also Ðorðević Appeal Judgement, para. 864; Kanyarukiga Appeal Judgement, para. 127; Kalimanzira Appeal Judgement, para. 195.

3378. Trial Judgement, para. 5847.

1476. The Appeals Chamber therefore dismisses Ntahobali’s submissions that the Trial Chamber erred in concluding that Ntahobali bore responsibility as a superior under Article 6(3) of the Statute for the conduct of the Interahamwe who killed Ruvurajabo."

M.P.11.1. Evidence of attacks being executed only upon the suspect’s direction/order

A. Legal source/authority and evidence:

Prosecutor v. Ildephonse Nizeyimana, Case No. ICTR-2000-55, Judgement (TC), 19 June 2012, para. 1525-1527:

1525. The record demonstrates that Nizeyimana could also bear superior responsibility for the killings of Remy Rwekaza and Beata Uwambaye at the Gikongoro / Cyangugu and Kigali roads junction roadblock, as well as the serious bodily harm caused to Witness ZAV. The killings and assault were committed by ESO soldiers who were acting on the orders of Nizeyimana. The Chamber is mindful that a superior’s authority to issue orders is one indicator of effective control, but that it does not automatically establish such control. However, given the Chamber’s findings regarding Nizeyimana’s position within the ESO hierarchy, the considerable authority he possessed as well as the relative inexperience of ESO soldiers, the evidence firmly reflects that he exercised effective control over the ESO soldiers who perpetrated these crimes.

1526. As noted above, it is significant that the young ESO soldiers at the barrier initially allowed Witness ZAV and Remy Rwekaza, two Tutsis, to pass on the explanation that they intended to see ESO Captain Twagiramungu. However, they were returned to the roadblock by Nizeyimana who then ordered the soldiers to kill them. In describing the soldiers’ reaction, Witness ZAV stated that they "couldn’t challenge [their] superior". Notably, when Rwekaza later offered to pay the soldiers in exchange for his life, they responded that Nizeyimana would kill them unless they complied with his order. Nizeyimana’s actions, which were a necessary condition to the ensuing attack, fully reflect his material ability to prevent and punish this criminal conduct of these ESO soldiers at that moment.

1527. Likewise, the killing of Beata Uwambaye at the same roadblock weeks later further reflects Nizeyimana’s continuing ability to exercise effective control over the young ESO soldiers that manned this barrier. Like the killing of Rwekaza and the attack on Witness ZAV, Uwambaye was led away to be shot and stabbed after Nizeyimana’s orders to ESO soldiers to execute her. Notably, the verbal response to Nizeyimana’s command was from the ESO cadets was "Yes sir, Captain". In the Chamber’s view, this evidence further demonstrates the clear deference Nizeyimana demanded given his superior rank and authority over these young and impressionable soldiers. These facts necessarily demonstrate a material ability to prevent and punish criminal conduct at that moment. Nizeyimana’s conduct, in both instances, reflect that he was aware of the commission of these crimes and did nothing to prevent or punish them.

Prosecutor v. Ndahimana, Case No. ICTR-01-68-T, Judgement (TC), 31 December 2011, paras. 742-743:

"742. The Majority recalls that effective control is not satisfied by the mere showing of a general influence on the part of the accused. Therefore, the Majority will first assess whether the accused had the power to give orders or to take disciplinary measures toward the Kivumu policemen in April 1994.

743. Defence Witness ND17 reported that two attacks on the convent by Interahamwe were repelled by police officers assigned by Ndahimana to protect the nuns. According to the witness, the police officers were assigned to the convent on 16 April 1994, and the attacks on the convent took place after the destruction of Nyange church. Despite the Defence’s assertion that the accused was powerless during the genocide, the fact that, on 16 April 1994—the day Nyange church was destroyed—he assigned policemen to a certain task and was obeyed shows that Ndahimana had effective control over the policemen."

Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42-T, Judgement (TC), 24 June 2011, para. 5884:

"5884. As set out above, throughout the events at the BPO, Nyiramasuhuko and Ntahobali issued orders to Interahamwe and the Interahamwe complied with these orders and perpetrated the acts asked of them, which included abductions, rapes and killings. In view of these findings, and considering the evidence in its entirety, the Chamber has no doubt that Nyiramasuhuko and Ntahobali wielded effective control over the Interahamwe at the BPO. The only reasonable conclusion is that Nyiramasuhuko and Ntahobali had a superiorsubordinate relationship over these Interahamwe."

Prosecutor v. Sefer Halilovic, Case No, ICTY-IT-01-48-A, Judgement (AC), 16 October 2007, para. 207:

"207. In this context, the Appeals Chamber considers that proof that an accused is not only able to issue orders but that his orders are actually followed, provides another example of effective control. In the present case, the Trial Chamber made specific findings with regard to the resistance – even disobedience – that the Inspection Team and Halilovic as its Team Leader encountered from Corps and unit commanders. The Prosecution has submitted that there was, "in each of these cases a following-up and a following through of the order". Nonetheless, the Appeals Chamber considers that, as the Prosecution itself concedes, in most of these cases only Delic’s intervention led to the execution of Halilovic’s orders. The Appeals Chamber therefore finds that a reasonable trier of fact could have concluded that Halilovic’s orders were not followed and could have taken into account this important consideration in the overall assessment of Halilovic’s effective control over the perpetrators."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 490-507, 516:

"De Facto Control

490. However, the jurisprudence on this issue clearly reflects the need to look beyond simply the de jure authority enjoyed in a given situation and to consider the de facto power exercised. The Trial Chamber in the Celebici case stated that in the fact situation of the Former Yugoslavia, where the command structure was often ambiguous and ill-defined,

. . .persons effectively in command of such more informal structures, with power to prevent and punish the crimes of persons who are in fact under their control, may under certain circumstances be held responsible for their failure to do so. Thus the Trial Chamber accepts the . . . proposition that individuals in positions of authority, whether civilian or military structures, may incur criminal responsibility under the doctrine of command responsibility on the basis of their de facto as well as their de jure positions as superiors. The mere absence of formal legal authority to control the actions of subordinates should therefore not be understood to preclude impositions of such responsibility.²⁶¹ [emphasis added]

491. Thus, even where a clear hierarchy based upon de jure authority is not present, this does not prevent the finding of command responsibility. Equally, as we shall examine below, the mere existence of de jure power does not always necessitate the imposition of command responsibility. The culpability that this doctrine gives rise to must ultimately be predicated upon the power that the superior exercises over his subordinates in a given situation.

492. The Trial Chamber has found that acts or omissions of a de facto superior can give rise to individual criminal responsibility pursuant to Article 6(3) of the Statute. Thus, no legal or formal position of authority need exist between the accused and the perpetrators of the crimes. Rather, the influence that an individual exercises over the perpetrators of the crime may provide sufficient grounds for the imposition of command responsibility if it can be shown that such influence was used to order the commission of the crime or that, despite such de facto influence, the accused failed to prevent the crime. The Celebici case provides an exposition of the jurisprudence on this point.²⁶² One particularly pertinent example is the Roechling case which the Trial Chamber in the Celebici Judgement summarised as,

493. This passage is instructive not only when considering Kayishema’s control over the less explicitly documented command structures which existed in Rwanda in 1994, such as the members of the Interahamwe and those armed civilians involved in the ‘civil defence programme’; but also when examining the realities of Kayishema’s relationship with bourgmestres, communal police and the gendarmerie nationale.

494. Defence witnesses such as DN and DK testified to the lack of material means available for the Prefect to control the public disorder that ensued after the death of the President. Trial Chamber notes, however, that these witnesses did not actually contest the control that the Prefect exercised over the law enforcing and administrative bodies.

495. It was the Defence’s position that the Prefect had insufficient means to prevent those assailants, including a few defecting members of the army and gendarmerie nationale, from committing the massacres of 1994. Kayishema himself testified that he had sent what gendarmes he had at his disposal to the area of Bisesero, but that there was little that could be done.

496. Professor Guibal, for the Defence, described how the status quo that emerged in 1994 after the death of the President would have been one where the traditional influence and power of the Prefect would have been greatly reduced. He was of the opinion that the authority the Prefect, as a member of a political party and in the climate of the "crisis multi-partyism", would have been diminished, both de jure and de facto.

497. In this respect, Professor Guibal referred to a ‘paralysis of power’ suffered by the Prefect. Accordingly, it was submitted by the Defence, the political and administrative uncertainty that reigned between April and July 1994 was such as to curtail the Prefect’s power of requisition and his influence over administrative bodies. This uncertainty, the Defence submitted, also manifested itself amongst the population as a whole. Professor Guibal opined that the citizens in such a climate of uncertainty would receive instructions and orders with difficulty.

498. In short, the Defence submitted that in the pivotal months of 1994, Kayishema was in not in a de facto position to control the actions of the assailants and that he was neither in a position to prevent nor to punish the commission of the massacres in his Prefecture.

499. Once again, however, the theoretical underpinning proffered by Professor Guibal does not reflect the reality that the Trial Chamber has found existed in Rwanda. The Prefect was a well-known, respected, and esteemed figure within his community.²⁶⁴ The testimony of Kayishema provides an illustrative example of the influence that the Prefect enjoyed. He related to the Trial Chamber an instance in August 1992 when, soon after taking office, he was telephoned by the Bourgmestre of Gishyita Commune. The Bourgmestre reported that houses were being burnt down in his commune, people were fleeing and the situation was chaotic. Kayishema told the Trial Chamber that he was requested to go directly to the scene and intervene, that the Bourgmestre had said "I just want your presence here on the spot."²⁶⁵

500. The Trial Chamber draws three basic conclusions from this. Firstly, it is indicative of the effect that Kayishema’s presence at a scene could have, thus is appurtenant to the responsibility he must bear in aiding and abetting the crimes pursuant to Article 6(1). Secondly, in times of crisis it was ultimately the Prefect that was called upon, with all the powers of influence that such a bearer of that title wielded. Finally, it also reflects the de facto influence he had and the commensurate de facto authority he exercised as Prefect in such times. A clear parallel can be drawn with the climate that prevailed in Rwanda in 1994.

501. The facts of the case also reflect the de facto control that Kayishema exercised over all of the assailants participating in the massacres. Kayishema was often identified transporting or leading many of the assailants to the massacre sites. He was regularly identified, for example, in the company of members of the Interahamwe – transporting them, instructing them, rewarding them, as well as directing and leading their attacks. The Trial Chamber, therefore, is satisfied that Kayishema had strong affiliations with these assailants, and his command over them at each massacre site, as with the other assailants, was clearly established by witness testimony.

502. In the Bisesero area, for example, witness W testified that Kayishema was directing the massacre of those Tutsi who had sought refuge at the Cave. Witness U, at Karongi Hill, described to the Trial Chamber how Kayishema arrived at this location leading a number of soldiers, gendarmes, and armed civilians, addressed them by megaphone and then instructed them to attack. Upon these orders, the massacres began. These facts have been proven beyond a reasonable doubt.

503. The massacre that occurred at the Stadium provides a further striking example of the control exercised by Kayishema. The Trial Chamber has found that Kayishema transported gendarmes to the Stadium where, for two days, they simply stood guard and controlled the movement of persons in and out of the Stadium. Kayishema returned on 18 April leading more gendarmes, members of the Interahamwe, other armed civilians and prison wardens. Only then, when Kayishema ordered them to commence the attacks, firing into the crowd twice, did the guarding gendarmes begin their massacre. The onslaught by those who had been guarding the Stadium and those assailants who joined them were impromptu and unforeseen, but formed part of an attack that was clearly orchestrated and commanded by, inter alia, Kayishema.

504. All of the factual findings need not be recounted here. These examples are indicative of the pivotal role that Kayishema played in leading the execution of the massacres. It is clear that for all crime sites denoted in the Indictment, Kayishema had de jure authority over most of the assailants, and de facto control of them all. It has also been proved beyond reasonable doubt that the attacks that occurred were commenced upon his orders (Mubuga Church excepted). They were attacks clearly orchestrated by him, and only executed upon his direction.

505. Further, where the perpetrators of the massacres were found to be under the de jure or de facto control of Kayishema, and where the perpetrators committed the crimes pursuant to Kayishema’s orders, the Trial Chamber is of the opinion that it is self-evident that the accused knew or had reason to know that the attacks were imminent and that he failed to take reasonable measures to prevent them. In such a case, the Trial Chamber need not examine further whether the accused failed to punish the perpetrators. Such an extended analysis would be superfluous.

506. The Trial Chamber finds, therefore, that Kayishema is individually criminally responsible, pursuant to Article 6(3) of the Statute, for the crimes committed by his de jure and de facto subordinates at the Home St. Jean and Catholic Church Complex, the Stadium and the Bisesero area.

507. It only remains for the Trial Chamber to consider whether Kayishema knew, or had reason to know, of those attacks at which he was not present. If he was so aware, or ought reasonably to have known of such impending attacks, then the Chamber must consider whether the accused attempted to prevent or punish the commission of those crimes."

261. Celebici Judgement, para. 354.

262. Ibid., paras. 375-376.

263. Ibid., para. 376.

264. See Part II, Historical Context.

265. Trans., 3 Sept. 1998, p. 113.

Conclusion

"516.The inherent purpose of Article 6(3) is to ensure that a morally culpable individual is held responsible for those heinous acts committed under his command. Kayishema not only knew, and failed to prevent, those under his control from slaughtering thousands of innocent civilians; but he orchestrated and invariably led these bloody massacres. This Trial Chamber finds that in order to adequately reflect his culpability for these deaths, Kayishema he must be held responsible for the actions and atrocities committed."

M.3.1.2. Evidence of the suspect’s material ability to prevent the commission of the crime

M.P.12. Evidence of domestic legislation providing the suspect’s power to remove the subordinates from their official positions

The Prosecutor v. Edouard Karemera and Mathieu Ngirumpatse, Case No. ICTR-98-44, Judgement (TC), 2 February 2012, para. 1524, 1526:

1524. Furthermore, the Chamber is sure that Karemera could have punished offenders among the Kigali and Gisenyi Interahamwe on account of his status and authority over those organisations. He could have sanctioned offenders politically, removed them from the ranks of the organisation, disabled their benefits and privileges, publically humiliated them, or demoted them within the organisation, among other measures.

1526. Furthermore, on account of his de jure authority over local officials and de facto authority over administrative personnel in the ministries controlled by the MRND, such as Col. Théoneste Bagosora, the Chamber is convinced that he could have prevented them from facilitating further attacks and killings by removing them from office. This much is clear on account of his proven ability to replace préfets such as Nsabimana and Uwizeye and ensure that Bagosora was not removed from office prematurely.

M.P.13. Evidence of domestic legislation providing the suspect’s power to propose the dismissal of the subordinate to higher authorities

M.P.14. Evidence of domestic legislation providing the suspect’s authority to take disciplinary sanctions against the subordinates

A. Legal source/authority and evidence :

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 480-481:

480. The Trial Chamber finds that it is beyond question that the Prefect exercised de jure authority over these assailants. The Rwandan law is very clear in this respect.

481. The Prefects’ position vis-à-vis the bourgmestre is evidently one of hierarchical authority and supervisory jurisdiction. Two Rwandan statutes support this finding. The first, Loi sur l’organisation de la commune, 1963, clearly implies in Article 59 that the bourgmestre is under the hierarchical authority of the Prefect. ²⁵² The same law provides at Article 85 that where a communal authority fails to execute measures prescribed by law or decree, then the Prefect may, ultimately, supplant this communal authority in order to remedy their inaction.²⁵³ Moreover, at Articles 46 and 48, the Loi sur l’organisation de la commune, 1963, establishes the power of the Prefect to take disciplinary sanctions against a bourgmestre and even to propose his dismissal to the Minister of the Interior. Coupled with this is the law as promulgated in the second statute submitted to this Trial Chamber, the Décret-Loi organisation et fonctionnement de la préfecture, 11 March 1975. Article 15 of this statute makes clear that, in addition to the hierarchical authority that the Prefect exercises over the bourgmestres and their services, he also has a general power of supervision over the acts of the communal authorities. Therefore, these provisions, coupled with the Prefect’s overarching duty to maintain public order and security, reflect the ultimate hierarchical authority enjoyed by the Prefect over the bourgmestre.^254"

252. Article 59: En tant que représentant du pouvoir exécutif, le Bourgmestre est soumis à l’autorité hiérarchique du préfet.

253. Article 85: Lorsque les autorités communales font preuve de carence et n’exécutent pas des mesures prescrites par les lois ou règlements, le préfet peut après deux avertissements écrits restés sans effet se substituer à elles. Il peut prendre toutes les mesures appropriées pour parer à leur défaillance.

254. Article 15: Le préfet, en plus du pouvoir hiérarchique qu’il a sur les Bourgmestres et leurs services administratifs, dispose sur les actes des autorités communales, du pouvoir général de tutelle, determiné par les dispositions de la loi communale.

M.3.1.3. Evidence of the suspect’s material ability to punish the perpetrators of the crime

M.P.15. Evidence of domestic legislation providing the suspect’s power to remove the subordinates from their official positions

M.P.16. Evidence of domestic legislation providing the suspect’s power to propose the dismissal of the subordinate to higher authorities

M.P.17. Evidence of domestic legislation providing the suspect’s authority to take disciplinary sanctions against the subordinates

A. Legal source/authority and evidence :

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 480-481:

480. The Trial Chamber finds that it is beyond question that the Prefect exercised de jure authority over these assailants. The Rwandan law is very clear in this respect.

481. The Prefects’ position vis-à-vis the bourgmestre is evidently one of hierarchical authority and supervisory jurisdiction. Two Rwandan statutes support this finding. The first, Loi sur l’organisation de la commune, 1963, clearly implies in Article 59 that the bourgmestre is under the hierarchical authority of the Prefect. ²⁵² The same law provides at Article 85 that where a communal authority fails to execute measures prescribed by law or decree, then the Prefect may, ultimately, supplant this communal authority in order to remedy their inaction.²⁵³ Moreover, at Articles 46 and 48, the Loi sur l’organisation de la commune, 1963, establishes the power of the Prefect to take disciplinary sanctions against a bourgmestre and even to propose his dismissal to the Minister of the Interior. Coupled with this is the law as promulgated in the second statute submitted to this Trial Chamber, the Décret-Loi organisation et fonctionnement de la préfecture, 11 March 1975. Article 15 of this statute makes clear that, in addition to the hierarchical authority that the Prefect exercises over the bourgmestres and their services, he also has a general power of supervision over the acts of the communal authorities. Therefore, these provisions, coupled with the Prefect’s overarching duty to maintain public order and security, reflect the ultimate hierarchical authority enjoyed by the Prefect over the bourgmestre.^254"

252. Article 59: En tant que représentant du pouvoir exécutif, le Bourgmestre est soumis à l’autorité hiérarchique du préfet.

253. Article 85: Lorsque les autorités communales font preuve de carence et n’exécutent pas des mesures prescrites par les lois ou règlements, le préfet peut après deux avertissements écrits restés sans effet se substituer à elles. Il peut prendre toutes les mesures appropriées pour parer à leur défaillance.

254. Article 15: Le préfet, en plus du pouvoir hiérarchique qu’il a sur les Bourgmestres et leurs services administratifs, dispose sur les actes des autorités communales, du pouvoir général de tutelle, determiné par les dispositions de la loi communale.