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1 ' 'a------~1-?0-~.,.,..,. O.!_~~i.if}.b" f.t)\ lnter(fo~mlnal Trlbu! ~r Rwanda \1:.- ~ 'W' Tribunal Penal International pour le Rwanda UNITED NATIONS NATIONS UNIES Arusha International Conference Centre P.O.Box 6016, Arusha, Tanzania- B.P. 6016, Arusha, Tanzania Tel: or Fax: /4373 or /49 Before: Registrar: Filed on: BEFORE THE APPEALS CHAMBER Judge Mehmet GUney, Presiding Judge Fausto Pocar Judge Liu Daqun Judge Theodor Meron Judge Carmel Agius AdamaDieng 1 March 2010 THE PROSECUTOR v. EMMANUEL RUKUNDO Case No.: ICTR A L c 0 C"") >- :::.' ~~~ 1'!0;: <~::~ ("T]VJ- 0~ :::w C"") :I: < I'T1 U> PROSECUTOR'S RESPONDENT'S BRIEF Counsel for the Prosecutor Alex Obote-Odora Christine Graham Ousman Jammeh Madeleine Schwarz Shamus Mangan Counsel for Emmanuel Rukundo ArchaConde Benoit Henry Marie Capotorto Laure Huntzbuchler

2 1 March 2010 "34'1/R INTRODUCTION... 3 BACKGROUND... 3 APPLICABLE LAW... 3 Standard for appellate review... 3 RESPONSE TO ARGUMENTS ON APPEAL... 5 Ground I: The Appellant' right to a fair trial was not violated... 5 A. The Trial Chamber did not err when it denied hearing SLB's testimony via video-link... 5 B. The Trial Chamber's order to hear defence witness SJA by video-link... 7 Ground II: The Trial Chamber did not err in law... 7 A. Vagueness of the Amended Indictment Mode of participation... 7 Paragraph 12 of the Indictment B. Exclusion of evidence C. Violation of Article 6(1) of the Statute D. Legal elements of the offences... ~ St Joseph's College St Leon Minor Seminary Sexual assault... l9 Genocidal intent..., E. Identification of the Accused CSF, CSG and BLC BU BLP Ground III: The Trial Chamber did not err in respect of BLP and the Haguma Report A. Cross-examination of BLP (sub-ground I) B. Cross-examination of Jean Haguma (sub-grounds 2 and 3) C. Allegation of prematurely drawing conclusions (sub-ground 4) D. Mr Nshogoza's appearance as a witness at trial (sub-ground 5) E. Chamber's reliance on conclusions of Haguma Report (sub-grounds 6 and 7) F. Conclusion: convictions for events at St Joseph's College Ground IV: The Trial Chamber did not err in assessing the evidence A. Identification of the Appellant B. Corroboration Law on corroboration St Joseph's College St Leon Minor Seminary C. Credibility and probative value St Joseph's College St Leon Minor Seminary D. Burden of proof (withdrawn) E. Failure to draw certain inferences (withdrawn) F. Position of authority G. Distortion of evidence St Joseph's College St Leon Minor Seminary Sexual assault H. Assessment of defence evidence St Joseph's College St Leon Minor Seminary Testimony of the Appellant I. Circumstantial evidence (withdrawn) J. Beyond reasonable doubt. (withdrawn) Ground V: Sentencing A. Appellant's position of authority and abuse of it B. Mitigating circumstances C. Gravity of the Appellant's crimes D. Conclusion RELIEF REQUESTED

3 1 March 2010 INTRODUCTION 1. The Prosecutor ("Respondent") hereby files his response to the appeal of Emmanuel Rukundo ("Appellant") against the judgement of the Trial Chamber rendered on 27 February 2009 ("Judgement"). The Respondent opposes the relief sought and all of the grounds of appeal. BACKGROUND 2. The Trial Chamber convicted the Appellant on one count of genocide and two counts of crimes against humanity (extermination and murder) based on his culpable acts in Gitarama prefecture, at St Joseph's College and St Leon Minor Seminary. The Appellant was sentenced to 25 years of imprisonment. The Respondent has appealed against the sentence imposed The Trial Chamber's convictions of the Appellant for committing genocide were based on his participation in the targeted murder of a Tutsi female civilian named Madame Rudahunga; the brutal beating of her two children and two other Tutsi civilians at St Joseph's College; and the abductions and killings of Tutsi civilians at St Leon Minor Seminary. The Trial Chamber (by majority) included in that conviction for genocide the Appellant's sexual assault on a young Tutsi woman, who had sought refuge at the religious institution of St Leon Minor Seminary. Based on his participation in the abductions and killings of a large number of Tutsi civilians at St Leon Minor Seminary and the selective killing of Madame Rudahunga, the Trial Chamber also convicted the Appellant for committing crimes against humanity (extermination and murder). APPLICABLE LAW Standard for appellate review 4. Article 24 of the Statute provides for appeals of an error of law that invalidates the decision or an error of fact which has occasioned a miscarriage of justice. The Appeals Chamber held in Celebiti that an "appellant must show how the Trial Chamber erred in 1 Prosecutor v. Rukundo, "Prosecutor's Notice of Appeal", 14 April2009; "Prosecutor's Appellant's Brief', 14 May

4 I March 2010 I, J law or in fact, and the Appeals Chamber expects their submissions to be directed to th~~'a end." 2 5. A party "alleging an error of law must, at least, identify the alleged error, present arguments in support of its claim and explain how the error invalidates the decision." 3 An allegation of an error of law which has no chance of changing the outcome of a decision may be rejected on that ground. 4 In addition, a party who submits that the Trial Chamber erred in law must at least identify the alleged error and advance some arguments in support of its contention. An appeal cannot be allowed to deteriorate into a guessing game for the Appeals Chamber. If the party is unable to at least identify the alleged legal error, he should not raise the argument on appeal A party alleging an error of fact must demonstrate both that the error was committed and that it occasioned a miscarriage of justice. 6 It is well established that the Appeals Chamber will not lightly overturn findings of fact made by a Trial Chamber. 7 The Appeals Chamber will not overturn factual findings where there is "reliable evidence on which the Trial Chamber might reasonably have based its findings." 8 The Appeals Chamber will only substitute its own findings for that of the Trial Chamber when no reasonable trier of fact could have reached the original decision. 9 A party cannot merely repeat on appeal arguments that did not succeed at trial, unless it can demonstrate that the Trial Chamber's rejection of those arguments constituted an error warranting the intervention of the Appeals Chamber. 10 The Appeals Chamber will in general, therefore, address only those issues for which the aforementioned prerequisites have been demonstrated CelebiCi (AC), para Krnojelac (AC), para. 10; KupreSkic et al. (AC), para. 27; Krajisnik (AC), para Krajisnik (AC), para Kuprdkic et al. (AC), para Krnolejac (AC), paras 12, Karera (AC), para Krnojelac (AC) para. 12; Krajisnik (AC), para. 14; Hadzihasanovic and Kubura (AC), para. 10; Halilovic (AC), para. 9; Limaj et al. (AC), para Krajisnik (AC), para. 14; Karera (AC), para Karera (AC), para. 11, citing Muvunyi (AC), para. 10; Krstic (AC), para Kunarac (AC), paras 43, 44. See also KupreSkic et al. (AC), para

5 lmmch2;,, 14 RESPONSE TO ARGUMENTS ON APPEAL.,, I" Ground 1: The Appellant' right to a fair trial was not violated A. The Trial Chamber did not err when it denied hearing SLB' s testimony via video-link 7. The Appellant claims that the Trial Chamber violated his right to a fair trial when it denied his request to hear defence witness SLB via video-link. 12 The Appellant has failed to demonstrate any error on the part of the Trial Chamber that warrants appellate intervention. 8. At the final stages of trial, the Appellant brought two motions to have SLB testify via video-link. 13 In both decisions denying the Appellant's requests, the Trial Chamber acknowledged the potential relevance of SLB's testimony but denied them because the Appellant failed to demonstrate why a video-link order was warranted in SLB's case Jurisprudence from the international ad hoc tribunals under Rule 90(A) of the Rules confirms that a Chamber has discretion to authorize the hearing of testimony by videoconference where it is "in the interests of justice". 15 Amongst other factors the Chamber will consider to determine whether to grant a video-link is the importance of the testimony. The Chamber must also be satisfied that there is a credible basis for the witness' inability or refusal to come to testify in person in Arusha At trial, the Appellant failed to demonstrate any such credible basis. The Trial Chamber correctly dismissed the First Video-Link Motion because of its timing and the 12 Prosecutor v. Rukundo, "Decision on the Defence Motions for Additional Time to Disclose Witnesses' Identifying Information, to Vary its Witness List and for Video-Link Testimony, and on the Prosecution's Motion for Sanctions", 11 September 2007 ("II September 2007 Decision"); "Decision on Defence Motion for Video-Link Testimony for Witness SLB", 3 October 2007 ("3 October 2007 Decision"); "Notice of Appeal of Emmanuel Rukundo against the Judgment rendered on 27 February 2009", 6 November 2009, paras 9-II ("Notice of Appeal"); "Defence Appellant's Brief', I9 January 20IO, paras 6-8 ("Appellant's Brief'). 13 Prosecutor v. Rukundo, "Requete aux fins d'autoriser des temoins a decharge a deposer par voie de videoconference, 16 August 2007 ("First Video-link Motion"); "Requete en extreme urgence et confidentielle aux fins d'autoriser le temoin SLB deposer par voie de videoconference", 27 September 2007 ("Second Video-link Motion"). 14 II September 2007 Decision, para. 24; 3 October 2007 Decision, para Prosecutor v. Bagosora et at., "Decision on Prosecution Request for Testimony of Witness BT Via Video-Link", Case No. 98-4I-T, 8 October 2004, paras 5-8; Prosecutor v. Gotovina et at, "Reasons for Decision Granting Prosecution's Motion to Cross-Examine Four Proposed Rule 92Bis Witnesses and Reasons for Decision to Hear the Evidence of those Witnesses Via Video-Conference Link", Case No. IT T, 3 November 2009, para Prosecutor v. Bagosora, "Decision on Video-Conference Testimony of Kabiligi Witnesses YUL-39 and LAX-23 and to Hear Testimony in Closed Session", Case No T, 19 October 2006, para. 2. 5

6 P. v. Rukundo, Case No.: ICTR-200I-70-A, Prosecutor's Respondent's Brief I March d f. f th d h' h d th. 1 q I /A e tctenctes o e supportmg ocumentatton, w tc compnse no more an a smg e sentence from WVSS stating that the witness would testify by video-link In respect of the Second Video-Link Motion, the Appellant also failed to show the existence of a credible basis for SLB's inability or refusal to testify in person. In an unsworn note, SLB stated that she was anxious about testifying in Arusha because a defence investigator who interviewed her had been arrested, that coming to testify on behalf of an accused person was not easy for her, and that she was responsible for her family and children and could not be away a long time In its 3 October Decision denying the request, the Chamber did not find "the concerns for security of this witness, as presently articulated, sufficiently persuasive to order the particular measures of video-link testimony". 19 It observed that the ordinary protective measures provided to all defence witnesses in this case would suffice to address her concerns. With respect to the witness' worry about being away from her family for long, the Chamber noted that this could be addressed by appropriate planning and travel arrangements and that it "is not a basis to grant testimony via video-link." The Appellant has entirely failed to articulate how he has been unfairly prejudiced by the Trial Chamber's decisions denying a video-link for SLB. The prejudice he alleges is pure speculation. The Appellant claims that if the Trial Chamber had heard SLB, it would have found prosecution witnesses CSF, CSG and BLC not credible. 21 offers no support for this contention. No less than three defence witnesses, including the Appellant, were called to rebut the prosecution evidence implicating the Appellant in the crimes committed at St Leon Minor Seminary. 22 He The Appellant has not demonstrated that SLB could have offered evidence that was not already before the Chamber when it came to its final decision concerning the Appellant's involvement in those crimes. Even if the Appeals Chamber were to find that the Trial Chamber erred in 17 II September 2007 Decision, para. 24. See also Prosecutor v. Bagosora et al., "Decision on Nsengiyumva' s Motion for Witness Higaniro to Testify by Video-Conference", Case No. 98-4I-T, 29 August 2006, para. 2; "Decision on Ntabakuze Motion under Article 28 and for Video-Conference Testimony under Rule 54 of Colonel de St. Quentin", II September 2006, para October 2007 Decision, para. 5; Procureur c. Rukundo, "Requete en extreme urgence et confidentielle aux fins d'autoriser le temoin SLB a deposer par voie de videoconference", 27 September 2007, Annexe II October 2007 Decision, para. 5. The Appellant made no attempt to provide more persuasive materials or seek certification to appeal the decision October 2007 Decision, para Appellant's Brief, para J. paras 3I

7 ,-~ ~ P. ' Rukundo. c.,, No.: ICTR A, Pro.=uto<'' R"'pondont'' Briof 1 Moreh 2010 S3 VA denying the video-link for SLB, such an error would not render the trial unfair, thereby justifying a reversal of the Appellant's conviction relating to events at St Leon Minor Seminary. This ground ought to be dismissed. B. The Trial Chamber's order to hear defence witness SJA by video-link 14. The Appellant has withdrawn this sub-ground. 23 Ground II: The Trial Chamber did not err in law A. Vagueness of the Amended Indictment Mode of participation 15. The Appellant alleges that the Trial Chamber erred in finding him guilty of 'committing' genocide and crimes against humanity because the Indictment against him was ambiguous as to the alleged mode of participation.z 4 The Appellant claims that he understood he was only charged with ordering, instigating and aiding and abetting under Article 6(1), but not 'committing' The underlying purpose of an indictment is to ensure that an accused knows the case against him by setting out the material facts with enough detail so that he may prepare his defence. 26 As noted by the Appeals Chamber, "The question is not whether particular words have been used, but whether an accused has been meaningfully 'informed of the nature of the charges' so as to be able to prepare an effective defence.'m In considering whether the Appellant received sufficient notice, the Indictment must be considered as a whole. 28 In Gacumbitsi, the Appeals Chamber found that even if an individual count of the indictment does not indicate precisely the form of responsibility pleaded, clear and timely notice of it may be found in other paragraphs of the indictment The three chapeau paragraphs of the Indictment alleging individual criminal responsibility for genocide, murder as a crime against humanity and extermination as a 23 Appellant's Brief, para Prosecutor v. Rukundo, "Amended Indictment", dated 6 October 2006 ("Indictment"). 25 Appellant's Brief, para Kupreskic (AC), para Gacumbitsi, (AC), para. 165, quoting Ntakirutimana, (AC), para Gacumbitsi (AC), para Gacumbitsi (AC), para. 122, quoting Semanza (AC), para. 259, referring to Ntakirutimana (AC), para. 473; Aleksovski (AC), footnote

8 , ,------~-- - [ M=h20l0 331/A crime against humanity, all specifically charge the Appellant with 'committing' the crimes pursuant to Article 6( 1) of the Statute. Contrary to the Appellant's claim, 30 variations of the word 'commit' appear seven times in the Indictment, once in paragraph II.B.(iii) and twice in each of the chapeau paragraphs. 18. More importantly, the material facts in the relevant paragraphs of the Indictment describe, with sufficient detail, the Appellant's role as a principal perpetrator of the crimes, including his presence at the crime scenes. This is most obvious in the allegation of sexual assault. 31 Given the nature of the crime, the Appellant must have understood that he was charged with 'committing' genocide through his sexual assault of a young Tutsi girl, contradicting his claim that he had no idea that he was charged with 'committing'. 32 Paragraph 14 of the Indictment alleges that the Appellant took a young Tutsi refugee woman into his room and sexually assaulted her, clearly indicating that he physically committed the crime. 19. During his evidence, the Appellant's counsel asked him whether he ever had nonconsensual sex with CCH. The Appellant responded that he knew CCH but never saw her after March 1994 and therefore could not have had non-consensual sex with her. 33 The Appellant's comments demonstrate that he understood the charge against him. 34 As noted by the Trial Chamber, "[t]he question is not whether particular words have been used, but whether an accused has been meaningfully 'informed of the nature of the charges' so as to be able to prepare an effective defence." 35 The Indictment sets out the material facts that the Appellant needed to prepare his defence and indicated his alleged role as a principal perpetrator in the crimes. 20. In any event, the Prosecutor may cure a defective indictment by giving timely, clear and consistent notice to the Defence through subsequent communications such as the pre-trial brief, witness statements or the opening statement. 36 The Prosecutor's Pre Trial Brief specifically stated that the Appellant was charged under Article 6(1) with 30 Appellant's Brief, para Indictment, para Appellant's Brief, para. 16; Notice of Appeal, para T. 9 October 2007, p. 47, line 27- p. 48, line Defence Closing Brief, paras J. para 26, referring to Gacumbitsi (AC), para. 165, quoting Ntakirutimana (AC), para Kupreskic et at. (AC), para. 114; Gacumbitsi (AC), para. 55; Ntakirutimana (AC), para. 27; Niyitegeka (AC), para

9 !M=h2010 3~l~ 'committing' the crimes alleged in the Indictment. 37 It went further, stating, "[t]he 1' Prosecutor hereby puts the Defence on further notice through the pleading of Article 6(1) that any one or more of the theories of direct responsibility may apply." 38 The Pre- Trial Brief even sets out the definition of 'committing' as a mode of participation under Article 6(1) The Prosecutor's opening statement describes the Appellant's "substantial criminal participation" in the deaths of Tutsi identified by him. 40 The description of the Appellant's role as 'subtle', cited in the Appellant's Brief, referred to the Appellant's caution not to be seen at the scene of the killings. 41 It had nothing to do with the Appellant's role in the crimes alleged. The Appellant was given further clear and consistent information that he was charged with 'committing' later in the trial. The Prosecutor's closing brief specifically states that the Appellant is charged under Article 6(1) for 'committing' genocide, murder as a crime against humanity and extermination as a crime against humanity and even provides a definition of 'committing'. 42 In his closing statement, the Prosecutor discusses 'commission' under Article 6(1). 43 Yet, the Appellant failed to raise the alleged ambiguity in his closing statement The Appeals Chamber has held that objections based on lack of notice should be raised at the pre-trial stage or at the time the evidence of an allegedly new material fact is introduced. 45 If the Appellant's objection is not timely, then he will bear the burden of proving on appeal that his ability to prepare his case was materially impaired. 46 In general, "a party should not be permitted to refrain from making an objection to a matter which was apparent during the course of the trial, and to raise it only in the event of an adverse finding against that party." Prosecutor v. Rukundo, "Prosecution Pre-Trial Brief', 16 October 2006, paras 45, 46 ("Prosecution Pre-Trial Brief'). 38 Prosecution Pre-Trial Brief, para Prosecution Pre-Trial Brief, paras 68, T. 15 November 2006, p. 3, lines Appellant's Brief, para Prosecutor v. Rukundo, "The Prosecutor's Final Trial Brief', 14 January 2008, paras 34-35, T. 20 February 2008, p. 6, line 27- p. 7, line T. 20 February Prosecutor v. Bagosora et at., "Decision on Aloys Ntabukuze's Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence", Case No. ICTR AR73, 18 September 2006, para Gacumbitsi (AC), para. 49; Niyitegeka (AC), paras 199, Niyitegeka (AC), para. 199, quoting Kayishema and Ruzindana (AC), para

10 ~ - - IMMoh201~~~~ 23. The Appellant raised the issue for the first time in his Notice of Appeal. 48 He has failed to provide a reasonable explanation for why he did not raise this issue at trial. He did not object in his preliminary motions, 49 or at any stage during the trial, despite notice being given on several instances that he was charged with 'committing'. Therefore, he bears the burden of proving that his ability to prepare his case was materially impaired. 24. The Appeals Chamber has held that an appellant's understanding of the nature of the prosecution case can be inferred from the whole trial record. 50 It shows that the Appellant did understand that he was charged with 'committing' or, at least, he should have realised that it was an issue. In his preliminary motions the Appellant specifically acknowledged that he was charged with 'committing' under Article 6(1), clearly demonstrating that he was aware of the allegation. 5 1 In his Closing Brief, the Appellant objected that JCE, which is a form of committing, had been insufficiently pleaded in the Indictment. 52 This shows that he knew he was charged with committing. Additionally, while he complained that JCE had not been pleaded clearly, he failed to argue that he was not charged with committing. This would indicate that he did not consider it an issue. The Chamber's analysis of the Appellant's objection and its convictions for 'committing', support the same conclusion The details of the Appellant's sexual assault of CCH with respect to notice and lack of material prejudice are discussed above. 54 In regards to the killing of Madame Rudahunga and the beating of four other Tutsi civilians, paragraphs 1 O(iii) and 22 of the Indictment state that the Appellant was "at the location at all material times", indicating the Appellant's role as being integral to the commission of the crime. The Appellant quoted this allegation in his pre-defence brief, demonstrating that he was aware of it. 55 The Appellant denied that he ever went to St Joseph's College during the events of The defence theory in response to this allegation is a blanket denial that the Appellant was involved in the crime. 56 The Appellant has failed to demonstrate how his 48 Notice of Appeal, paras Prosecutor v. Rukundo, "Preliminary Motions", 17 September 2002 ("Preliminary Motions"). 5 Kvocka et al. (AC), paras Preliminary Motions, paras. 109, Defence Closing Brief, paras J. paras See paras 18, 19 above. 55 Prosecutor v. Rukundo, "Pre-Defence Brief', 31 May 2007, para Defence Closing Brief, para

11 P. ' Ruk>nJo, C..e No., ICTR A, Pmreouto<'' Re.pondent'' Brief I M=h 2010 ~ defence would have been different had he known that he was charged :!,ss:' ~ 'committing', in addition to the other modes of participation alleged in paragraphs 10(iii) and 22 of the Indictment- 'ordered', 'instigated' and 'aided and abetted'. 26. In regards to the abductions and killings at St Leon Minor Seminary, paragraph 12 of the Indictment alleges the Appellant's presence at the scene and his role in identifying Tutsi victims to be killed. This indicates his role as a principal perpetrator. The Appellant admits to going to the Seminary. However, again the defence theory in regards to this allegation is a blanket denial of his involvement in the crime. 57 Appellant has failed to demonstrate how his defence would have been different had he known that he was charged with 'committing' or how his ability to prepare his defence was prejudiced. Paragraph 12 of the Indictment 27. The Appellant alleges that paragraph 12 of the Indictment is deficient because it does not identify the victims and the exact dates of the alleged facts, including the date when the Appellant arrived with the list. 58 The Appellant also alleges that the evidence adduced was not consistent with paragraph The Chamber has already ruled on the Appellant's objection and he has failed to demonstrate that the Chamber made any error in that ruling. 60 The Chamber observed that the Indictment, which specified that the crimes occurred during the months of April and May 1994, "provides the Accused with a clear timeframe during which he is alleged to have visited the St Leon Minor Seminary." 61 The In respect of the victims' identity, the Chamber noted that "paragraph 12 of the Indictment clearly states that once [the Appellant] had identified the refugees, soldiers and Interahamwe took away and killed Tutsi refugees from the St Leon Minor Seminary." 62 The Chamber found that "the reference to 'Tutsi refugees', certainly of a large number, is sufficiently specific in this instance." 63 The Chamber recalled that specific details "need not be pleaded where the sheer scale of the alleged crimes makes it impracticable to require the same degree of 57 Defence Closing Brief, paras 546, Appellant's Brief, paras Appellant's Brief, para. 29. This aspect of the Appellant's argument is reponded to under Ground IV below. 60 J. para Ibid. 62 Ibid. 63 Ibid. 11

12 specificity" 64 and was satisfied that the Indictment provided the sufficient notice to enable him to adequately prepare his defence. 65 I M=h11H03!JI/II Appellant with B. Exclusion of evidence 29. The Appellant alleges that the Chamber erred in not excluding BU's evidence regarding his presence at the hospital together with two soldiers who earlier abducted Madame Rudahunga and four others. The Appellant argues that this is a material fact which should have been specifically mentioned in the Indictment. 66 His argument is without merit. 30. The Appellant raised a version of this objection in his Closing Brief, where he claimed to have raised the issue previously on a number of occasions. 67 In all the instances cited, the Appellant simply argued that new evidence was raised in BU's willsay statement or testimony, and requested time for investigations or additional witnesses to counter that evidence. The Appellant never argued that the evidence was a new material fact or requested its exclusion. The Appellant has failed to provide a reasonable explanation for why he did not raise the objection requesting the evidence to be excluded when the evidence was introduced or why he raised the objection so late in the trial. 68 Therefore, the Appellant bears the burden of proving that his ability to prepare his case was materially impaired. 31. The evidence which the Appellant is requesting be excluded does not relate to a new material fact but, rather, to material facts which were specifically mentioned in the Indictment. As admitted by the Appellant, BU' s testimony regarding the Appellant's presence together with soldiers who abducted Madame Rudahunga and four others is evidence linking him to those abductions, as well as the subsequent murder and assaults. 69 Paragraphs lo(iii) and 22 of the Indictment clearly charge the Appellant with those abductions, murder and assaults and specifically pleads that the Appellant was at the location at all material times. 64 Ibid. 65 Ibid. 66 Appellant's Brief, paras 34, Defence Closing Brief, 14 January 2008, para Prosecutor v. Bagosora et at., "Decision on Aloys Ntabukuze's Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence", Case No. ICTR AR73, 18 September 2006, para Appellant's Brief, para. 36; Defence Closing Brief, para

13 ~-----, P. v. Rukumlo, c.,e No., ICTR A, ""'"'"""'' I<e.pondent'' Brief 1 Mareh 20 10~ ~A 32. The Chamber excluded BU' s evidence regarding the intimidation and abduction of Tutsi patients at the Kabgayi hospital on the grounds that this was a new allegation not specifically pleaded in the Indictment. 70 It did not exclude her testimony on the Appellant's presence with the two soldiers at the hospital. The Prosecutor has to plead all the material facts underpinning the charges in the indictment but not the evidence by which the material facts are to be proven. 71 The Appellant's presence together with the soldiers is not a new material fact but rather evidence in support of the material fact that the Appellant was at the location at all material times, as already pleaded in the Indictment. 72 C. Violation of Article 6(1) of the Statute 33. The Appellant alleges that the Chamber erred by convicting him for 'committing' genocide and crimes against humanity based on jurisprudence regarding criminal responsibility set out in Gacumbitsi. The Appellant claims the Chamber should have considered jurisprudence only prior to Gacumbitsi. 73 circumstances of this case are different to Gacumbitsi. 74 Alternatively, he claims that the He also claims the Chamber erred by not specifying the mode of participation for the crime of extermination. 75 Contrary to these claims, the Trial Chamber did not err in applying the relevant jurisprudence to find that the Appellant's acts amounted to 'committing' under Article 6(1) of the Statute. 34. First, the Appellant has failed to articulate any cogent reasons for why the Appeals Chamber should disregard the jurisprudence set out in Gacumbitsi and subsequent decisions. The reasons put forth by the Appellant, the right to a fair trial through the application of established jurisprudence and the similar treatment of cases, actually support the Chamber's reliance on the jurisprudence in Gacumbitsi, Ndindabahizi, and Seromba Contrary to the Appellant's contention, 'committing' is not limited to direct and physical perpetration and other acts can constitute direct participation in the actus reus 70 J. para Naletilic and Martinovic, (AC), para J. para Appellant's Brief, para. 45, footnotes 46, 48, Appellant's Brief, para Appellant's Brief, para J. footnote 833 referring to Seromba (A C), para. 161; Gacumbitsi (AC), para. 60; Ndindabahizi (AC), para

14 I March 2010 of the crime. In situations where an accused person's participation is "as muc~~~~integral part of the genocide as were the killings which it enabled", it is legally correct to find the accused 'committed' a crime under the Tribunal's Statute, even if the person did not physically perpetrate the crime. 77 In Gacumbitsi, the Appeals Chamber reasonably supported this principle as being necessary because no other mode of 6(1) liability adequately described his actions, considering Gacumbitsi's integral role in the killings. 78 This jurisprudence does not conflict with the decision in Staldc to reject the new mode of liability, "co-perpetratorship", put forth by the Trial Chamber. 79 Appeals Chamber in Gacumbitsi merely interpreted, in the context of genocide, the mode of 'committing' based on the jurisprudence firmly established in Tadic. 80 neither created a new mode of liability nor generated the uncertainty that the Appeals Chamber in Stakic stated might result from the introduction of "co-perpetratorship" Secondly, an examination of the facts in this case reveal that the Appellant's actions were not "totally different" from those of the accused in Gacumbitsi, Seromba and Ndindabahizi. 82 The To begin with, the Appellant also exercised significant authority, both as a priest and as a member of the Rwandan military. 83 It In addition, the Appellant played a central role in the selection of the Tutsi victims at St Leon Minor Seminary. The victims were selected on the basis of the list the Appellant handed over to the soldiers who accompanied him Thirdly, the Appellant also wrongly contends that "it is only for genocide that the commission would not be limited to the physical commission of the crime." 85 Appeals Chamber has expressly found that the Gacumbitsi dictum can be equally applicable to the crime of extermination and it is sufficient that the accused participated in measures indirectly causing death Finally, the Appellant complains that the Chamber did not specify the mode of participation in its conviction for extermination, relating to events at St Leon Minor The 77 Gacumbitsi, (AC), para. 60; Seromba (AC), para Gacumbitsi (AC), para Stakic (A C), para. 62; Stakic (TC), paras Tadic (AC), para Stakic (AC), para Appellant's Brief, para J. paras 563, See also paras below. 84 J, paras Appellant's Brief, para Seromba, (AC), paras 189, 190; Ndindabahizi (AC), para

15 1 March 2010 'I 3l/ A Seminary. The Chamber acknowledged that to establish the Appellant's criminal responsibility for extermination, the Prosecution relies on the same allegations as for the crime of genocide. 87 In its conviction for genocide, in relation to events at St I...eon Minor Seminary, the Chamber found that the Appellant's conduct amounts to 'committing'. 88 Given that the Chamber convicted the Appellant for extermination and genocide on the same factual basis relating to events at St I...eon Minor Seminary, it is clear that he was convicted for 'committing' extermination. D. Legal elements of the offences St Joseph's College 39. The Appellant alleges that the Trial Chamber erred by convicting him for having committed genocide and a crime against humanity in respect of the Rudahunga abductions, killing and beatings. He appears to base this allegation on the argument that the Chamber 1) incorrectly relied on the notion that these events constituted one single criminal transaction in which the Appellant was involved, and 2) confused the material elements of the crimes with that of the material elements of 'committing' as a mode of participation. 89 Included in this second argument is also a challenge to the Trial Chamber's finding that the mens rea of the crimes had been met A reading of the Judgement suggests that the Trial Chamber used the term "criminal transaction" to factually describe the series of events which constituted the Appellant's involvement in the Rudahunga abductions, killing and beatings. 91 It was simply a choice of words, not a reliance on a particular legal theory or notion. Accordingly, nothing much turns on this issue. It was certainly permissible for the Trial Chamber to phrase its factual findings concerning the Appellant's participation in the crimes in that way. 41. There is no dispute that Madame Rudahunga was killed and that her children and two other Tutsi civilians were severely beaten as found by the Trial Chamber. What is at issue here is the Appellant's participation in the perpetration of those crimes and whether that participation renders him criminally culpable for having 'committed' the 87 J. para J. para Appellant's Brief, paras 54, Appellant's Brief, paras 75, J.paras 171,172 15

16 1 March 2010 crimes as opposed to having aiding and abetted their commission by others. Appellant's challenge to the sufficiency of the evidence relied upon by the Trial Chamber to draw its factual findings is discussed extensively in the response to arguments on Ground IV. 92 The 3311/14..._...~ 42. A person may be held criminally responsible under Article 6(1) of the Statute for various acts and conduct that substantially contribute to the perpetration of a crime. 93 Article 6(1) provides that a person may be held criminally responsible for having 'committed' any of the crimes under the Statute. The notion of 'committing' generally encompasses the direct and physical perpetration of the crime by the offender himself. However, in Gacumbitsi, the Appeals Chamber found that direct and physical perpetration need not mean physical killing and other acts can constitute direct participation in the actus reus of the crime The exact nature of those acts can, of course, not be exhaustively enumerated. The legal standard applied in Seromba was captured in the question as to whether the actions of the accused person were "as much an integral part of the genocide as were the killings which [he or she] enabled". 95 An accused can play an integral part in many different ways. In the case of the Appellant, the Trial Chamber found that he, together with army soldiers, abducted and killed Madame Rudahunga, as well as abducted and "severely beat and injured two of the Rudahunga' s children and two other Tutsi civilians". 96 The Trial Chamber concluded that the Appellant led a group of soldiers, who systematically searched for Tutsi refugees in St Joseph's College and checked identity cards to verify the refugees' Tutsi ethnicity. 97 The soldiers acknowledged the Appellant's position of authority. 98 The soldiers transported Madame Rudahunga to her nearby home in a vehicle belonging to the Appellant as he followed closely behind in another vehicle. 99 The Trial Chamber found that Madame Rudahunga was shot and 92 Appellant's Brief, paras 65-71, 79; See paras below. 93 Kayishema and Ruzindana (AC), para. 186; Kordic and Cerkez (AC), paras 26, Gacumbitsi (AC), paras In Ndindabahizi the ICTR Appeals Chamber, in upholding the Trial Chamber's characterization of the Appellant's conduct as committing extermination, adopted the same approach with respect to committing the crime of extermination. See Ndindabahizi(AC), para. 123 and footnote 268. See, a contrario, Partially Dissenting Opinion of Judge Giiney, attached to Ndindabahizi (AC). 95 Seromba (AC), para. 161, quoting Gacumbitsi (AC), para. 60 with approval. 96 J. paras 171, J. para J. paras 563, J. para

17 ~ , ~ I P. v. Rukundo, eru; 0 No., ICTR A, P =uto''' R"'J''ndont'' Briof I M&ch 20 I 0 "3 29 /A killed in her own house. 100 were brutally beaten and left for dead. 101 Her two children together with two other Tutsi civilians The Appellant was heard saying that "We entered in Rudahunga's Inyenzi's house, we killed the wife and the children, but the idiot [Louis Rudahunga] managed to get away from us." The Trial Chamber found that the Appellant was instrumental in the abductions and subsequent killing of Madame Rudahunga and the brutal beating of her two children as well as two Tutsi civilians, Justin and Jeanne. 103 The Trial Chamber concluded that the Appellant claimed ownership of the crimes and that he participated in the criminal acts at St Joseph's College from the beginning until the end It follows from the factual findings upon which the Trial Chamber relied that the Appellant's participation directly and substantially affected the commission of the Rudahunga abductions, killing and beatings through his support to the actual commission before, during and after the incident. It does not matter that the Appellant was not the one who shot Madame Rudahunga through the head. Similarly, it does not matter that the Appellant was not the one to physically beat the Rudahunga children and the other two Tutsi civilians to the extent that they were left for dead. What the Appellant did with his own hands is not the only relevant criterion in determining if he committed a crime. 105 What matters is that the Appellant's acts contributed substantially to the death or serious bodily harm of the persons. 106 This is demonstrated by the Appellant's concerted actions with the soldiers, who acknowledged the Appellant's authority over them, the use of the Appellant's vehicle in the transportation of some of the victims, as well as his subsequent boasting that he and the soldiers had entered the Rudahunga house, and that they had killed not only Madame Rudahunga but also her two children The Appellant's series of actions relating to the abductions, killing and beatings of Madame Rudahunga, her two children and other Tutsi civilians, formed an integral part in the larger group criminality which resulted in the commission of the crimes. The 100 Ibid. 101 Ibid 102 J. para T. 4 December 2006, p. 21, lines [Emphasis added.] 103 J. para J. paras 172, Seromba (AC), para Kvocka (AC), para. 261; Galic (AC), para. 149; Celebici (AC), para 423; Kordic and Cerkez (AC), para J. para. 563,

18 I Moreh 2010 l2!4/lf' Appellant was a central player in this commission. As such, the Trial Chamber was correct not to describe his criminal culpability as an aider and abettor, but instead as a principal perpetrator who committed the crimes. 47. In terms of his mens rea, the Trial Chamber correctly found that the Appellant intended the killing of Madame Rudahunga and the serious bodily harm caused to her children and the other two Tutsi civilians. 108 The Appellant's own boasting about how he and the soldiers, "we", entered the Rudahunga house and killed not only Madame Rudahunga but also her two children, makes his intention in this regard apparent. 109 The same applies to the Trial Chamber's finding that the Appellant possessed the requisite intent for genocide and crime against humanity. 110 It follows from the Trial Chamber's factual conclusions that the Appellant had the necessary intent when he directly and substantially contributed to the commission of these crimes. 111 St Uon Minor Seminary 48. The Appellant alleges that the Trial Chamber erred in convicting him for genocide and extermination as a crime against humanity based on events at St Leon Minor Seminary as the requisite elements of the offences were not satisfied. 112 The Appellant's contention is without merit. 49. The Appellant incorrectly claims that the evidence does not demonstrate that the victims of the crimes committed at St Leon Minor Seminary were of Tutsi ethnicity and that his actions formed part of a systematic or widespread attack against the civilian population on discriminatory grounds. As discussed below in response to Ground IV, Distortion of the evidence, 113 the testimonies of CSF, CSG and BLC establish that the victims of the abductions and killings at St Leon Minor Seminary were Tutsi civilians. Moreover, as reasonably found by the Trial Chamber, the Appellant's criminal conduct at St Leon Minor Seminary formed part of systematic or widespread attacks on Tutsi civilians on ethnic grounds in Gitarama prefecture. 114 Accordingly, there was no error 108 J. paras J. para. 567; T. 4 December 2006, p J. paras 568, J. paras , Appellant's Brief, paras See paras below. 114 J. paras 572, 575, 578, 581,

19 P. ' RWcwuio, c., No., ICTR-200 I -70-A, Pro=ulo>''' Re pondent'' Brief I Mareh 203.:z? I 11 in the Trial Chamber's conviction for genocide and extermination as a crime against humanity on this basis. 50. The Appellant claims further that the Trial Chamber erred since it did not specify the mode of participation for which he was convicted. 115 For reasons already discussed above, 116 this assertion is wrong. 51. Finally, the Appellant challenges the Trial Chamber's conviction for extermination by claiming that the element of mass-killings was not satisfied. 117 Contrary to the Appellant's assertion, 118 the participation in the killing of named or designated persons for the purposes of starting large scale massacres is not an element of extermination. 119 Rather, it is sufficient to demonstrate that mass-killings occurred. 120 The Trial Chamber reasonably concluded that this requirement was met based on the totality of the evidence before it. 121 This included CSF' s credible testimony explaining that most of the refugees who were hiding at St Leon Minor Seminary were Tutsi, especially after the first abductions, and that many of these were selected and taken away in buses. 122 Sexual assault 52. The Appellant challenges the Trial Chamber's finding of guilt for committing genocide through his sexual assault of a young Tutsi woman at St Leon Minor Seminary in May The Appellant alleges that the material elements of the offence, namely serious mental harm and his mens rea, were not established. He further alleges that the Trial Chamber erred in finding genocidal intent where there was none. The Appellant fails to demonstrate any error warranting appellate intervention. The Trial Chamber correctly found that CCH suffered serious mental harm 53. The Appellant alleges the Trial Chamber did not have any evidence allowing it to conclude that CCH suffered serious mental harm. The Appellant's arguments appear to focus on the two-pronged assumption that an abuse of a sexual nature that constitutes 115 Appellant's Brief, para See para. 38 above. 117 Appellant's Brief, paras 89, Appellant's Brief, para Ntakirutimana (AC), paras Ntakirutimana (AC), para J. paras , See paras below; J. paras 343, 344; T. 13 February 2007, p. 30, lines 7-31; T 30 November 2006, p. 22, lines Notice of Appeal, paras 40-43; Appellant's Brief, paras , ; J. paras

20 P. v. Ru/amJQ, c.,e No., ICTR-200I-70.A. P=ecut<><'' ""-'pondent'' Brief I MMeh 201~2' I~ serious mental harm must include "sexual humiliation and degradation of the victim" and that this can result only from an act of a sexual nature taking place in public. He argues that the Appellant did not degrade and humiliate CCH and the facts surrounding her alleged sexual assault did not meet the required level of gravity for serious mental harm The Appellant's arguments are misguided and ought to be dismissed. First, the Appellant did sexually degrade and humiliate CCH, albeit not in public. Secondly, CCH suffered serious mental harm to a sufficiently grave degree. The finding of the Trial Chamber was one that any reasonable trier-of-fact could have made based on the evidence before it and the law regarding serious mental harm. 55. The Trial Chamber correctly stated the law on what constitutes serious mental harm. 125 It noted that serious mental harm should be "more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat." 126 If it is to be a constituent element of genocide, "the mental harm inflicted on a member of one of the identified protected groups must be of such a serious nature as to threaten its destruction in whole or in part." Serious mental harm "can be construed as some type of impairment of mental faculties, or harm that causes serious injury to the mental state of the victim." 128 It does not need to cause permanent or irremediable harm. However, it must involve harm that goes beyond temporary unhappiness, embarrassment or humiliation. 129 Jurisprudence confirms that acts of rape and sexual violence can constitute serious mental harm. 130 There is no finite definition or exhaustive list on the type of harm that must be suffered to constitute serious mental harm. 131 However, it is clear from the jurisprudence that the harm cannot be minor or temporary but must result in grave and long-term disadvantage. 124 Appellant's Brief, paras J. paras 260, 261, J. para. 260, citing Seromba (AC), para. 46, citing Kajelijeli (TC), para. 815, referring to Kayishema and Ruzindana (TC), para. 110; Semanza (TC), para J. para. 260, citing Seromba (AC), para Gacumbitsi (TC), para Krstic (TC), para. 510, 513; Akayesu (TC), para Akayesu (TC), para. 707; Musema (TC), 156; Krstic (TC), para Musema (TC), para. 156; Krstic (TC), para

21 1Marchl~/ The Appellant focuses his argument on the alleged lack of evidence of humiliation and degradation. 132 The Trial Chamber is required to assess on a case-by-case basis, giving due regard to the individual circumstances, 133 whether the victim suffered serious mental harm. This is what the Trial Chamber did in respect of CCH. It reasonably concluded that the Appellant's actions caused her to suffer serious mental harm. Contrary to what he claims, the Appellant's treatment of CCH was not one of respect, similar to a woman being seduced. 134 CCH was a 21 year old Tutsi refugee seeking a safe haven from the atrocities being committed on people of her ethnicity. She calls herself a "small girl" which clearly indicates how she felt about herself at the time. 135 She asked the Appellant, whom she knew as a trusted priest and colleague of a relative, to hide her. 136 He responded that he could not. He stated: "If [name of relative] is your relative, then you all have to die because [name of relative] was assisting lnyenzi". 131 At a later point she stated that she understood "that he was hunting down the Inkotanyi because he said we had to die". 138 She considered his words to be a threat Despite this, CCH helped the Appellant carry some items to his room at St Leon Minor Seminary hoping that he might change his mind. The Appellant did not invite her to sit and share some beer. 140 The only evidence before the Trial Chamber was that the Appellant opened a beer, took a sip and gave the bottle to CCH, which she drank. He then got up and locked the door of a very small room. The event continued with the Appellant forcing CCH to lie on the bed, unzipping his trousers, putting his pistol on the table right next to the bed, laying on top of her, trying to remove her skirt, and caressing and kissing her. Words are exchanged, the Appellant tries to spread her legs and she resists. He rubs himself against her body, squeezes her and shakes and shivers and loses his erection The Trial Chamber noted that there was no direct evidence on CCH's mental state following the sexual assault apart from her testimony that she could not tell anyone 132 Appellant's Brief para Blaskic (TC), para Appellant's Brief, para T. 14 February 2007, p. 21, line T. 14 February 2007, p. 7, lines 18, J. para. 373; T. 13 February 2007, p. 58, lines T. 14 February 2007, p. 9, line T. 14 February 2007, p. 9, line Appellant's Brief, para J. para

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