International Criminal Tribunal for Rwanda: Tharcisse Muvunyi V Prosecutor

Susana SáCouto; Katherine Cleary

doi:10.1017/S0020782900005684

* This text was reproduced and reformatted from the text appearing at the International Tribunal for Rwanda website: (visited October 6, 2008) < http://69.94.11.53/English/cases/Muvunyi/decisions/080829-apl-judgement.pdf >

page 877 note 1 Prosecutor v. Tharcisse Muvunyi, Judgment, Case No. ICTR- 2000-55A-A, Appeals Chamber (Aug.29, 2008) [hereinafter Muvunyi, Appeals Judgment].

page 877 note 2 Statute of the International Criminal Tribunal for Rwanda, art. 6(3).S.C. Res. 955, U.N. Scor, 49th Sess., 3453rd mtg., Annex, U.N. Doc. S/Res/955 (1994).

page 877 note 3 Muvunyi, Appeals Judgment, supra note 1,¶ 18.

page 877 note 4 Id. ¶¶ 64-70, 125-32.

page 877 note 5 Id. ¶ 142-48.

page 877 note 6 Id. ¶ 142.

page 877 note 7 Id. ¶ 142, 147.

page 877 note 8 Id. ¶ 147.

page 877 note 9 Id. ¶ 148.

page 877 note 10 Id. Rule 118(C) of the ICTR Rules of Procedure and Evidence provides: “In appropriate circumstances the Appeals Chamber may order that the accused be re tried before the Trial Chamber.” See International Criminal Tribunal for Rwanda, Rules of Procedure & Evidence, U.N. Doc. ITR/3/Rev.1 (1995),entered into force June 29, 1995.

page 877 note 11 Muvunyi, Appeals Judgment, supra note 1,¶ 20.

page 877 note 12 Id. (internal citations omitted).

page 877 note 13 Id. ¶ 28.

page 877 note 14 Id.

page 877 note 15 Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-2000-55A PT, Decision on the Prosecutor's Motion for Leave to File an Amended Indictment, (Feb. 23, 2005).

page 877 note 16 Id. ¶ 48.

page 877 note 17 Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T,Judgment, ¶ 23 (Sept. 2, 1998).

page 877 note 18 Prosecutor v. Milan Lukić & Sredoje Lukić, Case No. IT 98-32/1, Decision on Prosecution Motion Seeking Leave to Amend the Second Amended Indictment and on Prosecution Motion to Include UN Security Council Resolution 1820 (2008) as Additional Supporting Material to Proposed Third Amended Indictment as well as On Milan Lukićs Request for Reconsideration or Certification of the Pretrial Judge's Order of 19 June 2008, (July 8, 2008).

page 877 note 19 Id. ¶ 9.

page 877 note 20 Prosecutor v. Zoran Kupreškić, et al., Case No. IT-95-16-A, Appeal Judgment, ¶ 125 (Oct. 23, 2001).

page 877 note 21 Id.

page 877 note 22 Muvunyi, Appeals Judgment, supra note 1,¶ 148.

* This text was reproduced and reformatted from the text appearing at the International Tribunal for Rwanda website: (visited October 6, 2008) <http://69.94.11.53/ENGLISH/cases/Muvunyi/decisions/080829 -apl-judgement.pdf>

page 907 note 1 For ease of reference, two annexes are appended: Annex A Procedural Background; Annex B - Cited Materials and Defined Terms.

page 907 note 2 Trial Judgement, para. 30.

page 907 note 3 Trial Judgement, paras. 30, 57.

page 907 note 4 Trial Judgement, para. 57.

page 907 note 5 Trial Judgement, paras. 57, 90.

page 907 note 6 Trial Judgement, paras. 507-510.

page 907 note 7 Trial Judgement, paras. 496, 498.

page 907 note 8 Trial Judgement, paras. 497, 498.

page 907 note 9 Trial Judgement, para. 530.

page 907 note 10 Trial Judgement, paras. 531, 545.

page 907 note 11 Trial Judgement, paras. 499, 526.

page 907 note 12 Muvunyi Notice of Appeal, paras. 3-15; Muvunyi Appeal Brief, paras. 4-117. See also Muvunyi, Decision on Motion to Amend Grounds of Appeal, para. 6 (allowing Muvunyi to vary his Notice of Appeal to include Ground 13 as set outin his Appeal Brief). Muvunyi did not expressly number his alternative arguments challenging his sentence, and theAppeals Chamber has designated them as the fourteenth ground of appeal.

page 907 note 13 Muvunyi Notice of Appeal, para. 15; Muvunyi Appeal Brief, paras. 110, 111.

page 907 note 14 Prosecution Response Brief, paras. 16-18, 321.

page 907 note 15 Prosecution Notice of Appeal, paras. 1-12.

page 907 note 16 Prosecution Notice of Appeal, paras. 7, 12; Prosecution Appeal Brief, paras. 7, 174.

page 907 note 17 Muvunyi Response Brief, paras. 99-101.

page 907 note 18 See Seromba Appeal Judgement, para. 9; Nahimana et al.Appeal Judgement, para. 11; Simba Appeal Judgement, para.8; Blagojević and Jokić .Appeal Judgement, para. 6, fta. 14 (recalling jurisprudence under Article 25 of the ICTY Statute and under Article 24 of the Statute).

page 907 note 19 See Gacumbitsi Appeal Judgement, para. 7, quoting Ntakiruti mana Appeal Judgement, para. 11 (internal citations omitted).See also Muhimana Appeal Judgement, para. 7; Kajelijeli Appeal Judgement, para. 5; Stakić Appeal Judgement, para. 8; Vasiljević Appeal Judgement, para. 6.

page 907 note 20 Gacumbitsi Appeal Judgement, para. 8, quoting Krstić Appeal Judgement, para. 40 (citations omitted). See also Muhimana Appeal Judgement, para. 8; Kajelijeli Appeal Judgement, para. 5.

page 907 note 21 Seromba Appeal Judgement, para. 11; Limaj et al. Appeal Judgement, para. 13; Rutaganda Appeal Judgement, para. 24; Bagilishema Appeal Judgement, paras. 13, 14.

page 907 note 22 Muhimana Appeal Judgement, para. 9; Ndindabahizi Appeal Judgement, para. 11; Gacumbitsi Appeal Judgement, para. 9; Niyitegeka Appeal Judgement, para. 9. See also Stakić .Appeal Judgement, para. 11; Naletilić and Martinović Appeal Judgement, para. 13.

page 907 note 23 Muhimana Appeal Judgement, para. 9; Ndindabahizi Appeal Judgement, para. 11; Kajelijeli Appeal Judgement, para. 6; Ntakirutimana Appeal Judgement, para. 13. See also Stakić Appeal Judgement, para. 11; Naletilić and Martinović Appeal Judgement, para. 13.

page 907 note 24 Practice Direction on Formal Requirements for Appeals from Judgement, para. 4(b). See also Muhimana Appeal Judgement, para. 10; Ndindabahizi Appeal Judgement, para. 12; Gacumbitsi Appeal Judgement, para. 10; Kajelijeli Appeal Judgement, para. 7; Stakić Appeal Judgement, para. 12; Vasiljević Appeal Judgement, para. 11.

page 907 note 25 Vasiljević Appeal Judgement, para. 12. See also Muhimana Appeal Judgement, para. 10; Ndindabahizi Appeal Judgement, para. 12; Naletilić and Martinovi ćAppeal Judgement, para. 14; Kajelijeli Appeal Judgement, para. 7.

page 907 note 26 Muhimana Appeal Judgement, para. 10; Gacumbitsi Appeal Judgement, para. 10; Kajelijeli Appeal Judgement, para. 8; Niyitegeka Appeal Judgement, para. 11. See also Stakić Appeal Judgement, para. 13; Blać Appeal Judgement, para. 13.

page 907 note 27 Trial Judgement, paras. 261, 498.

page 907 note 28 Muvunyi Notice of Appeal, para. 3; Muvunyi Appeal Brief, paras. 4-10, 13, 14; Muvunyi Reply Brief, paras. 11, 12. In addition, Muvunyi argues that the evidence is insufficient to establish the facts as found by the Trial Chamber. Muvunyi Notice of Appeal, para. 3; Muvunyi Appeal Brief, paras. 11,12, 14.

page 908 note 29 Indictment, p. 15.

page 908 note 30 The Schedule of Particulars was filed on 28 February 2005; it is annexed to the Trial Judgement.

page 908 note 31 Schedule of Particulars, para. 11.

page 908 note 32 Trial Judgement, paras. 225-229, 251-253.

page 908 note 33 Trial Judgement, paras. 253, 261.

page 908 note 34 Trial Judgement, para. 261. Several witnesses gave testimony related to this event with varying degrees of detail. See Trial Judgement, paras. 254-258. However, the Trial Chamber did not specify which witness or witnesses it relied on in making this finding. See Trial Judgement, para. 261.

page 908 note 35 Trial Judgement, para. 261.

page 908 note 36 Muvunyi Appeal Brief, paras. 4-10, 13, 14.

page 908 note 37 Muvunyi Appeal Brief, paras. 4, 13.

page 908 note 38 Muvunyi Appeal Brief, paras. 10, 13, 14.

page 908 note 39 Muvunyi Appeal Brief, para. 5.

page 908 note 40 Muvunyi Appeal Brief, paras. 13, 14; Muvunyi Reply Brief, para. 11.

page 908 note 41 Prosecution Response Brief, paras. 19-59.

page 908 note 42 Prosecution Response Brief, paras. 22-28.

page 908 note 43 Prosecution Response Brief, paras. 29-58.

page 908 note 44 Prosecution Response Brief, paras. 30-34. Paragraph 3.17 of the Indictment provides, in part, that “the massacres did not start until 19 April 1994”.

page 908 note 45 Prosecution Response Brief, para. 35.

page 908 note 46 Seromba Appeal Judgement, paras. 27, 100; Simba Appeal Judgement para. 63; Muhimana Appeal Judgement, paras. 76, 167, 195; Gacumbitsi Appeal Judgement, para. 49; Ndinda bahizi Appeal Judgement, para. 16.

page 908 note 47 Ntagerura et al. Appeal Judgement, para. 27. See also Kvoć kaet al. Appeal Judgement, para. 30; Niyitegeka Appeal Judgement, para. 194; Kupreć et al. Appeal Judgement, para. 92.

page 908 note 48 Ntagerura et al. Appeal Judgement, para. 27. See also Kvo∼ka et al. Appeal Judgement, para. 31; Niyitegeka Appeal Judgement, para. 194; Kupreć et al. Appeal Judgement, para. 92.

page 908 note 49 Nahimana et al. Appeal Judgement, para. 326; Ntagerura et al. Appeal Judgement, para. 28; Kvoć ka etal. Appeal Judgement, para. 33.

page 908 note 50 See Nahimana et al. Appeal Judgement, para. 323; Ntagerura et al. Appeal Judgement, paras. 26, 152. See also Naletilić and Martinović Appeal Judgement, para. 67; Blašić Appeal Judgement, para. 218.

page 908 note 51 Seromba Appeal Judgement, para 100; Simba Appeal Judgement, para. 64; Muhimana Appeal Judgement, paras. 76,195217; Gacumbitsi Appeal Judgement, para. 49. See also Ntagerura et al. Appeal Judgement, paras. 28, 65.

page 908 note 52 Bagosora et al, Decision on Aloys Ntabakuze’ s Interlocutory Appeal on Questions of Law Raised by the 29 June2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, para. 30 (internal citations omitted).

page 908 note 53 Muvunyi, Decision on the Prosecutor's Motion for Leave to File an Amended Indictment, p. 17 (disposition).

page 908 note 54 Pre Trial Brief, paras. 74, 75 (emphasis added).

page 908 note 55 The Prosecution initially filed a proposed amended indictment on 19 January 2005, which repeats the language of paragraph 3.29 of the Indictment verbatim. See Proposed Amended Indictment (19 January 2005), para. 14. However, in response to several concerns raised by the Trial Chamber, the Prosecution filed a revised proposed amended indictment on 4 February 2005, which alters the language of paragraph 3.29 of the Indictment. See Proposed Amended Indictment (4 February 2005), para. 15. See also Muvunyi, Decision on the Prosecutor's Motion for Leave to File an Amended Indictment, paras. 1-5, 11-15.

page 908 note 56 The Prosecution filed its Pre-Trial Brief on 25 January 2005. The Prosecution filed proposed amended indictments on 19 January 2005 and 4 February 2005.

page 908 note 57 Proposed Amended Indictment (4 February 2005), para. 15 (“Between April and May 1994, Lieutenant Colonel Tharcisse Muvunyi was seen in the company of soldiers at the University Hospital in Butare ordering or instigating the said soldiers to attack wounded Tutsi refugees at the said hospital. During the said attack, soldiers under Lieutenant Colonel Tharcisse Muvunyfs command separated Tutsi refugees from their Hutu counterparts. The Tutsi refugees were subsequently attacked and killed by soldiers from ESO and Hutu militiamen“).

page 908 note 58 Proposed Amended Indictment (19 January 2005), pp. 3, 4; Proposed Amended Indictment (4 February 2005), pp. 3, 5.

page 908 note 59 Prosecution Response Brief, para. 20.

page 908 note 60 See Muvunyi, Decision on the Prosecutor's Motion for Leave to File an Amended Indictment, para. 41(i), referring to Proposed Amended Indictment (4 February 2005), para. 15.

page 908 note 61 See Muvunyi, Decision on the Prosecutor's Motion for Leave to File an Amended Indictment, paras. 6-9.

page 908 note 62 See Muvunyi, Decision on the Prosecutor's Notice of the Filing of a Schedule of Particulars to the Indictment Pursuant to the Directive of the Trial Chamber, para. 8.

page 908 note 63 Niyitegeka Appeal Judgement, para. 200. See also Muhimana Appeal Judgement, paras. 199, 219; Gacumbitsi Appeal Judgement, para. 51; Ntagerura et al. Appeal Judgement, paras. 31, 138.

page 908 note 64 Muhimana Appeal Judgement, paras. 82, 201, 223, citing Gacumbitsi Appeal Judgement, paras. 57, 58; Naletilić and Martinović Appeal Judgement, para. 45; Ntakirutimana Appeal Judgement, para. 48.

page 908 note 65 See, e.g., Muhimana Appeal Judgement, para. 224.

page 908 note 66 Muvunyi, Decision on the Prosecutor's Motion for Leave to File an Amended Indictment, para. 48 (referring to the Indictment as well as the initial indictment against Muvunyi filed on 17 November 2000).

page 908 note 67 Muvunyi, Decision on the Prosecutor's Motion for Leave to File an Amended Indictment, para. 48.

page 908 note 68 Muvunyi, Decision on the Prosecutor's Motion for Leave to File an Amended Indictment, para. 41(i).

page 908 note 69 Muvunyi, Decision on Prosecution Interlocutory Appeal against Trial Chamber II Decision of 23 February 2005,paras. 43-45.

page 908 note 70 Muvunyi, Decision on Prosecution Interlocutory Appeal against Trial Chamber II Decision of 23 February 2005, para.22.

page 908 note 71 Cf. Blagoje Simić Appeal Judgement, paras. 40, 41 (finding that language in a particular amended indictment did not put the appellant on notice that he was being prosecuted for joint criminal enterprise because the pre-trial judge accepted the amendment was to only remove certain charges).

page 909 note 72 Schedule of Particulars, para. 11 (“In addition, for all of the acts described at paragraphs [sic] 3.29 of the indictment the Prosecutor alleges that the accused knew, or had reason to know, that his subordinates were preparing to commit or had committed one or more of the acts referred to in Article 2(3)(a) and (e) of the Statute of the Tribunal and failed to take the necessary and reasonable measures to prevent the said acts from being committed or to punish those who were responsible pursuant to Article 6(3) of the Statute.“).

page 909 note 73 Trial Judgement, paras. 498, 530.

page 909 note 74 Muvunyi Notice of Appeal, para. 4; Muvunyi Appeal Brief, paras. 15-18; Muvunyi Reply Brief, paras. 13,14. In addition, Muvunyi argues that the Prosecution provided him with defective notice with respect to the location of the crime because the Indictment states that the Beneberika Convent is located in Huye Commune instead of where the Trial Chamber placed it in Ngoma Commune. Muvunyi Appeal Brief, paras. 15, 16. Muvunyi also asserts that the convictions are not supported by credible evidence, but he does not develop this argument in any detail. Muvunyi Appeal Brief, para. 19.

page 909 note 75 Indictment, p. 15.

page 909 note 76 Schedule of Particulars, paras. 10, 35.

page 909 note 77 Trial Judgement, paras. 289, 436, 437.

page 909 note 78 Trial Judgement, para. 289.

page 909 note 79 Trial Judgement, paras. 290, 291, 530.

page 909 note 80 Muvunyi Appeal Brief, paras. 15,17,18,107; Muvunyi Reply Brief, paras. 14, 80, 81.

page 909 note 81 Muvunyi Appeal Brief, paras. 18,107; Muvunyi Reply Brief, para. 14.

page 909 note 82 Prosecution Response Brief, paras. 61-71.

page 909 note 83 See supra Section III.A (Alleged Errors relating to an Attack at the But are University Hospital).

page 909 note 84 Muvunyi, Decision on the Prosecutor's Motion for Leave to File an Amended Indictment, p. 17 (disposition).

page 909 note 85 See Schedule of Particulars, para. 10 (repeating paragraph 3.27 of the Indictment verbatim); Pre-Trial Brief, para. 80 (“It is alleged that Tharcisse Muvunyi was also responsible for ordering soldiers of the Ngoma Camp to go to Benebirika Convent [sic] at Buye where some young orphans had taken refuge with nuns in the order.“).

page 909 note 86 A review of the Prosecution's examination of Witness Qcm underscores this point. The Prosecution posed no questions concerning ESO Camp soldiers during its direct examination of Witness Qcm, and posed only one question about the identity of the soldiers taking part in the attack during its re examination. See T. 11 July 2005 pp. 2-16,27-28. The allegation that ESO Camp soldiers were present during the attack surfaced for the first time at the end of the cross examination in response to a general question about the witness's ability to recognize the soldiers. See generally T. 11 July 2005 pp.24-25 (“Those I knew by sight were more than 20. […] I could see them. I could meet them along the road. I know that they lived in the Ngoma camp and others lived at ESO. […] It was not easy to identify individuals in such circumstances. It wouldn't be easy to identify every single one of them in such a large group, so I can't really tell you that I was able to identify each one of those 20. I told you I saw them along the road. I recognised them. It was not easy in such circumstances to identify particular individuals. […]“). Witness Qcm did not attribute any criminal conduct specifically to ESO Camp soldiers and provided no testimony that these soldiers, as opposed to other attackers, harmed or killed the refugees at the convent.

page 909 note 87 Niyitegeka Appeal Judgement, para. 200. See also Muhimana Appeal Judgement, paras. 199, 219; Gacumbitsi Appeal Judgement, para. 51; Ntagerura et al. Appeal Judgement, paras. 31, 138.

page 909 note 88 Bagosora et al., Decision on Aloys Ntabakuze's Interlocutory Appeal on Questions of Law Raised by the 29 June2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, para. 29.

page 909 note 89 See Schedule of Particulars, para. 10; Pre-Trial Brief, para. 80.

page 909 note 90 Schedule of Particulars, para. 10. The Prosecution uses similar language in paragraph 35 of the Schedule of Particulars in connection with paragraph 3.47 of the Indictment.

page 909 note 91 Prosecution Response Brief, paras. 68-70.

page 909 note 92 See Ntagerura et al. Appeal Judgement, paras. 26, 152 (emphasis added).

page 909 note 93 See Ntagerura et al. Appeal Judgement, paras. 154-158.

page 909 note 94 Muvunyi, Decision on the Prosecutor's Notice of the Filing of a Schedule of Particulars to the Indictment Pursuant to the Directive of the Trial Chamber, p. 2, para. 8.

page 909 note 95 Prosecution Response Brief, para. 71.

page 909 note 96 Trial Judgement, paras. 303, 498.

page 909 note 97 Muvunyi Notice of Appeal, para. 5; Muvunyi Appeal Brief, paras. 19-52; Muvunyi Reply Brief, paras. 15-20.

page 909 note 98 Indictment, p. 15.

page 909 note 99 Schedule of Particulars, para. 16.

page 909 note 100 Trial Judgement, para. 303 (internal citation omitted).

page 909 note 101 Muvunyi Appeal Brief, paras. 19, 20, 22, 52.

page 909 note 102 Muvunyi Appeal Brief, paras. 20, 52.

page 909 note 103 Muvunyi Appeal Brief, paras. 19, 22.

page 909 note 104 Prosecution Response Brief, paras. 125, 130.

page 909 note 105 Prosecution Response Brief, paras. 127-129.

page 909 note 106 Prosecution Response Brief, para. 126.

page 909 note 107 See supra Section III.A (Alleged Errors relating to an Attack at the Butare University Hospital).

page 909 note 108 Muvunyi, Decision on the Prosecutor's Motion for Leave to File an Amended Indictment, p. 17 (disposition).

page 909 note 109 Blagojević and Jokić Appeal Judgement, para. 287.

page 909 note 110 Paragraph 2.3 of the Indictment states: “In his capacity as Commander of the ESO, the accused had under his command the officers and soldiers of the school. He exercised authority and control over the gendarmerie, NgomaCamp, as well as all military operations in Butare préfecture.“

page 909 note 111 See Ntagerura et al. Appeal Judgement, paras. 140,141, 153.

page 909 note 112 Muvunyi Appeal Brief, paras. 20, 52.

page 909 note 113 See, e.g., Indictment, paras. 3.24, 3.27-3.29, 3.44, 3.45, 3.48 (referring to the commission of specific crimes between April and June 1994).

page 909 note 114 Ntagerura et al. Appeal Judgement, para. 26 fn. 82, quoting Blašić Appeal Judgement, para. 218.

page 909 note 115 Muhimana Appeal Judgement, para. 79; Gacumbitsi Appeal Judgement, para. 50; Kuprešić Appeal Judgement.para. 89.

page 909 note 116 Muvunyi Appeal Brief, paras. 19, 22.

page 910 note 117 Trial Judgement, para. 303.

page 910 note 118 Trial Judgement, para. 303.

page 910 note 119 Trial Judgement, paras. 302, 303.

page 910 note 120 Trial Judgement, para. 302. The underlying evidence does not state that Muvunyi established the squad, but rather that an ESO officer named Bizimana established the squad after a meeting held by Muvunyi on 20 April 1994. T. 18 July 2005 p. 49 (“Furthermore, on the 20th, following the meeting chaired by Muvunyi, Bizimana appointed Ntamuhanga as the leader of the team assigned to prevent soldiers from looting.“).

page 910 note 121 Trial Judgement, para. 302.

page 910 note 122 Trial Judgement, paras. 293, 294.

page 910 note 123 Trial Judgement, para. 302.

page 910 note 124 Trial Judgement, para. 303.

page 910 note 125 Trial Judgement, para. 303.

page 910 note 126 Muvunyi Appeal Brief, paras. 25-34, 45-51.

page 910 note 127 Muvunyi Appeal Brief, paras. 39-44.

page 910 note 128 Muvunyi Appeal Brief, para. 38.

page 910 note 129 Muvunyi Appeal Brief, paras. 27, 28, 44, 52.

page 910 note 130 Prosecution Response Brief, paras. 103-112, 120-123.

page 910 note 131 Prosecution Response Brief, paras. 113-119.

page 910 note 132 Trial Judgement, para. 303.

page 910 note 133 Trial Judgement, paras. 31-57.

page 910 note 134 Muvunyi does assert that Witness KAL's testimony that Muvunyi ordered the attacks on the university is hearsay. Muvunyi Appeal Brief, paras. 29-34. The Trial Chamber reached the same conclusion and did not accept this aspect of Witness Kal's evidence. See Trial Judgement, para. 301.

page 910 note 135 Trial Judgement, para. 303.

page 910 note 136 Trial Judgement, para. 298. See also T. 18 July 2005 p. 50 (“I do not very well remember the date [of the attacks]. Furthermore, maybe I should make some other clarifications on the massacres at the university. A student at the university, whose family members had sought refuge in Butare, had asked me to try to save that girl who was studying at the university. […] I took her out of the faculty of medicine. As a matter of fact, when I asked her what the situation was on the university campus, she told me that people were being killed. […] Those were the circumstances under which I learned of the massacres at the university. […] Secondly, as I have just stated to you, I heard about the massacres at the university when I went to the university campus to free that girl, and she related everything to me.“).

page 910 note 137 Trial Judgement, para. 298. See also T. 18 July 2005 p. 50 (“She told me that children who had committed the massacres at the university were members of Ntamuhanga's military police group. They came boasting, giving us details on the manner in which the students had been killed.“).

page 910 note 138 Trial Judgement, para. 302.

page 910 note 139 Trial Judgement, paras. 294-296. See also T. 8 March 2005 pp. 6-10 (“Sergeant Major Sibomana was a student in the school, but he had the rank of sergeant. When he finished, he went to university because he had been granted leave to do so. […] And at one point he asked to leave the army and he was authorised to do so, but since the university was not far from the ESO camp, he would come to the camp, and he would go and abduct students from the university but come back to the ESO camp. So he worked with the soldiers as if he had come back into the army. […] Sergeant Major Sibomana as a student at the university was under a duty to identify students who were called Inkotanyi. Those students were put on board vans that had been commandeered, and they scoured the town looking for those students who were brought to ESO camp, and then they took them out of the ESO camp. […] All those who had been taken to ESO camp, not only the students, anyone who was taken out of that camp, was killed. It was not only those students, it was everyone.“).

page 910 note 140 Muhimana Appeal Judgement, para. 49; Gacumbitsi Appeal Judgement, para. 115.

page 910 note 141 Ndindabahizi Appeal Judgement, para. 115. See also Ruta ganda Appeal Judgement, paras. 34, 156.

page 910 note 142 Trial Judgement, para. 12.

page 910 note 143 Trial Judgement, para. 303.

page 910 note 144 Trial Judgement, paras. 496, 498, 530.

page 910 note 145 Trial Judgement, para. 360.

page 910 note 146 Trial Judgement, para. 447.

page 910 note 147 In particular, in setting out the “salient issues” which were “corroborated and established beyond reasonable doubt” the Trial Chamber does not refer to the killing of the refugees other than one member of the Bicunda family who was killed due to a mistaken identity. Trial Judgement, para. 360 (“Infact the salient issues that an attack was perpetrated on Groupe scolaire on 29 April 1994 by soldiers and Interahamwe, that Bicunda's family was saved by the Accused, that one of the Bicunda children was killed during the attack due to a mistaken identity, and that an ESO soldier called Lieutenant Modeste Gatsinzi led the group of military and civilian attackers, have all been corroborated and established beyond reasonable doubt.“). However, the Trial Chamber's legal findings simply state that Muvunyi “assisted and encouraged the killing of Tutsi civilians at the Groupe scolaire ”. See Trial Judgement, para. 496.

page 910 note 148 This follows from the evidence of Witnesses qbe and tq. See Trial Judgement, paras. 336, 340. In another part of the Trial Judgement, the Trial Chamber reflects that it based its findings with respect to the attack on these two Prosecution witnesses. See Trial Judgement, para. 447.

page 910 note 149 Trial Judgement, paras. 358, 363, 364, 496.

page 910 note 150 Trial Judgement, paras. 360, 364, 496.

page 910 note 151 Trial Judgement, para. 496.

page 910 note 152 Muvunyi Notice of Appeal, para. 6; Muvunyi Appeal Brief, paras. 53-67; Muvunyi Reply Brief, paras. 21-24. The Appeals Chamber considers Muvunyi's arguments against his conviction for other inhumane acts as a crime against humanity based on this event in connection with his Tenth Ground of Appeal. See infra Section III.I (Alleged Errors relating to the Conviction for Other Inhumane Acts as a Crime against Humanity).

page 910 note 153 Trial Judgement, para. 496.

page 910 note 154 Trial Judgement, para. 496.

page 910 note 155 Trial Judgement, paras. 358, 363, 364.

page 910 note 156 Trial Judgement, para. 341. The Trial Chamber stated that the evidence of Witness qbe corroborated its finding that Muvunyi ordered that the Bicunda family be spared. Trial Judgement, para. 359. However, as discussed below, this is not the case.

page 910 note 157 Muvunyi Appeal Brief, paras. 54, 60-67.

page 910 note 158 Muvunyi Appeal Brief, paras. 53, 65.

page 911 note 159 Muvunyi Appeal Brief, paras. 61, 67.

page 911 note 160 Muvunyi Appeal Brief, paras. 61, 62.

page 911 note 161 Muvunyi Appeal Brief, para. 63.

page 911 note 162 Muvunyi Appeal Brief, para. 63.

page 911 note 163 Prosecution Response Brief, para. 142.

page 911 note 164 Prosecution Response Brief, paras. 143, 144.

page 911 note 165 Prosecution Response Brief, para. 149.

page 911 note 166 Blagojevi ć and Jokić Appeal Judgement, para. 127; Ntagerura et al. Appeal Judgement, para. 370.

page 911 note 167 Blagojevićand Jokić Appeal Judgement, para. 127; Ntagerura et al. Appeal Judgement, para. 370.

page 911 note 168 Brdanin Appeal Judgement, paras. 273, 277.

page 911 note 169 Brdanin Appeal Judgement, para. 277.

page 911 note 170 Blagojević and Jokić Appeal Judgement, para. 134.

page 911 note 171 Muhimana Appeal Judgement, para. 49; Gacumbitsi Appeal Judgement, para. 115.

page 911 note 172 Ndindabahizi Appeal Judgement, para. 115. See also Ruta ganda Appeal Judgement, paras. 34, 156.

page 911 note 173 Trial Judgement, paras. 358, 363, 364.

page 911 note 174 This follows from the evidence of Witness qbe. See Trial Judgement, paras. 328-330 (“According to qbe's testimony, the first attack was by a group of people apparently led by an Interahamwe dressed in Kitenge cloth. […] Witness qbe testified that on this occasion, the refugees were not killed because a certain Bicunda paid the attackers about 200,000 Rwandan francs to save their lives.“).

page 911 note 175 The Trial Chamber heard evidence that Witness qbe called the ESO Camp and asked Muvunyi to provide assistance. It, however, was not convinced that the witness in fact spoke with Muvunyi. See Trial Judgement, para. 358.

page 911 note 176 In particular, the Appeals Chamber observes that the only evidence that ESO Camp soldiers participated in the attack comes from Witnesses qbe and tq, who heard from other sources after the attack, that soldiers from the ESO Camp participated and that the leader of the attack was Lieutenant Gatsinzi, a soldier from the ESO Camp. See Trial Judgement, paras. 331,339. In addition, Witness nn testified that Lieutenant Gatsinzi participated in the attack, but he gave no basis for this assertion. See Trial Judgement, para. 352.

page 911 note 177 Trial Judgement, para. 341. At a later point in his testimony, Witness TQ stated simply that the soldier asked to see Bicunda's family. See T. 20 June 2005 p. 23 (“When a soldier asked to see Bicyunda's [sic] family, Bicyunda [sic] went towards his wife […]“).

page 911 note 178 Trial Judgement, para. 341.

page 911 note 179 Trial Judgement, paras. 361, 364, 496.

page 911 note 180 Trial Judgement, para. 341 (“However, a child from Bicunda's family, nicknamed Kibwa, stayed away from other members of Bicunda's family and was taken away and killed. TQ learnt that an ambulance was sent for the child but it was already too late.“), citing T. 30 June 2005 p. 23. The relevant portion of the transcript reads: “In the meantime an ambulance took him to the university hospital, but it was realised that the child was already dead and we subsequently buried him. (…) And I believe that your client was aware of that death and he sent somebody.” See T. 30 June 2005 p. 23.

page 911 note 181 Trial Judgement, para. 359.

page 911 note 182 Trial Judgement, para. 330. See also T. 15 June 2005 p. 21.

page 911 note 183 See Trial Judgement, paras. 336, 340. As noted above, the Trial Chamber made no express findings about the killings.

page 911 note 184 Trial Judgement, para. 496.

page 911 note 185 Muvunyi also submits that he did not have adequate notice of the material facts underlying his conviction for aiding and abetting genocide in order to properly prepare his defence. Muvunyi Notice of Appeal para. 6; Muvunyi Appeal Brief, paras. 53-56, 60.

page 911 note 186 Trial Judgement, paras. 372, 498.

page 911 note 187 Muvunyi Notice of Appeal, para. 7; Muvunyi Appeal Brief, paras. 69, 70; Muvunyi Reply Brief, paras. 25-29.

page 911 note 188 Trial Judgement, paras. 365-372.

page 911 note 189 Trial Judgement, para. 372.

page 911 note 190 Trial Judgement, para. 372.

page 911 note 191 Trial Judgement, para. 26.

page 911 note 192 Trial Judgement, para. 26.

page 911 note 193 Trial Judgement, para. 26.

page 911 note 194 Muvunyi Appeal Brief, paras. 68-70.

page 911 note 195 Prosecution Response Brief, paras. 151-168. The Prosecution notes that the exact date of the disclosure of the unredacted statements was 19 January 2005. Prosecution Response Brief, para. 159.

page 911 note 196 See supra Section III.A (Alleged Errors relating to an Attack at the Butare University Hospital).

page 911 note 197 Muhimana Appeal Judgement, para. 79; Gacumbitsi Appeal Judgement, para. 50; Kupresic Appeal Judgement,para. 89.

page 911 note 198 See AT. 13 March 2008 pp. 29, 32, 34. The Prosecution states that Mukura ‘ ‘is comparatively in the same line of other massacre sites”. With respect to the number of refugees who were attacked, the Prosecution added that “Mukuraforest is relatively viewed as one of the big massacre sites because of the evidence of Witness XV and YAK, which actually characterised it as a big massacre site.” AT. 13 March 2008 p. 34.

page 911 note 199 The Prosecution indicates that statements of Witnesses XV and YAK mentioning the attack were given on 7 December and 17 June 2000, respectively. See Prosecution Response Brief, para. 159.

page 911 note 200 AT.13 March 2008 pp. 29, 38. Further, the Prosecution stated that “with a substantial massacre site it would have been proper for a charging instrument to specify it'’ and that “ [t]his was not done”. AT. 13 March 2008 p. 34.

page 911 note 201 At.13 March 2008 pp. 29-30.

page 911 note 202 At.13 March 2008 p. 15. In support of this submission, Muvunyi specifies two particular instances where the Presiding Judge said that the Trial Chamber would not consider evidence in relation to uncharged conduct. See At. 13 March 2008 p. 73, referring to T. 16 May 2005 pp. 10-12 and T. 1 March 2005 pp. 13-14.

page 911 note 203 T. 16 May 2005 p. 10.

page 911 note 204 T. 16 May 2005 pp. 10-12. The Presiding Judge stated: “[W]hatever is not in the indictment, Mr. Counsel, will not be convicted or acquitted. So when the witness narrates something, we can't say that you must (unintelligible) say only this. But if he's going outside the realm of evidence, I think you may. In the final decision, these are not relevant to the charges. But we can't confine the witness and say that he must say only this. […] So why are you worried about it? We [sic] are not charged with that. That will be dismissed just like that.” Mr. Taylor noted in response: “I understand the Court's finding in that regard, that if it is not supported by the pleadings, […] it can't stand as a basis for conviction.'’ Similarly, when, at the outset of the trial, Muvunyi objected to evidence being led in relation to uncharged conduct, the Presiding Judge stated: “[I]f there is nothing in the indictment, why are you worried? They have to prove the indictment. […][I]f it is not in the indictment, how are we going to attribute it? […] So if there is nothing in the indictment, I don't think there's any objection on your part.” T. 1 March 2005 pp. 13-14.

page 912 note 205 T. 29 June 2005; T. 30 June 2005.

page 912 note 206 Gacumbitsi Appeal Judgement, paras. 57, 58. See also Ntakirutimana Appeal Judgement, para. 48 (holding that a witness statement, when taken together with “unambiguous information” contained in a pre-trial brief and its annexes may be sufficient to cure a defect in an indictment). This approach is consistent with ICTY jurisprudence. See Naletilićand MartinovićAppeal Judgement, para. 45.

page 912 note 207 Pre-Trial Brief, Annex, R. PP. 1190-1192.

page 912 note 208 Prosecution Response Brief, para. 159.

page 912 note 209 See Pre-Trial Brief, Annex, R. PP. 1190-1192. The summary of Witness XV's anticipated evidence refers to paragraph 3.29 of the Indictment related to the attack on the Butare University Hospital. The summary ofWitness YAK's evidence refers to paragraphs 3.24,3.25,3.29,3.34(i), and 3.35 of the Indictment, related specifically to the attacks on the hospital and University of Butare as well as to several meetings. However, paragraph 3.35 of the Indictment is a general allegation referring to attacks by Interahamwe “with the help of soldiers”. Moreover, the summary of Witness YAK's evidence refers only to responsibility under Article 6(1) of the Statute.

page 912 note 210 Schedule of Particulars, para. 21.

page 912 note 211 Muvunyi, Decision on the Prosecutor's Motion for Leave to File an Amended Indictment, p. 17 (disposition).

page 912 note 212 T.28 February 2005 pp. 2-7.

page 912 note 213 Prosecution Closing Brief, paras. 308-949.

page 912 note 214 Muvunyi, Decision on the Prosecutor's Motion for Leave to File an Amended Indictment, para. 48.

page 912 note 215 Muvunyi, Decision on the Prosecution Interlocutory Appeal against Trial Chamber II Decision of 23 February 2005, para.22.

page 912 note 216 While it was not permissible to convict Muvunyi on the basis of this evidence, this does not mean that the Trial Chamber erred in admitting the evidence in connection with other specifically pleaded events. See Ntahobali and Nyiramasuhuko, Decision on the Appeal by Pauline Nyiramasuhuko and Arsène Shalom Ntahobali on the “Decision on Defence Urgent Motion to Declare Parts of the Evidence of Witnesses rv and qbz Inadmissible”, paras. 13-15.

page 912 note 217 Trial Judgement, paras. 157, 456, 497, 498, 530.

page 912 note 218 Muvunyi Notice of Appeal, para. 8; Muvunyi Appeal Brief, paras. 71-74; Muvunyi Reply Brief, paras. 30-44.

page 912 note 219 See infra Section III.I (Alleged Errors relating to the Conviction for Other Inhumane Acts as a Crime against Humanity).

page 912 note 220 Indictment, p. 15.

page 912 note 221 Trial Judgement, para. 157.

page 912 note 222 Trial Judgement, para. 157.

page 912 note 223 Trial Judgement, para. 157.

page 912 note 224 Muvunyi Appeal Brief, paras. 72, 73; Muvunyi Reply Brief, paras. 33-44.

page 912 note 225 Muvunyi Appeal Brief, paras. 72, 73; Muvunyi Reply Brief, paras. 33-44.

page 912 note 226 Muvunyi Appeal Brief, para. 73.

page 912 note 227 Muvunyi Appeal Brief, para. 73.

page 912 note 228 Prosecution Response Brief, paras. 173-182.

page 912 note 229 Prosecution Response Brief, para. 174.

page 912 note 230 Prosecution Response Brief, paras. 179-181.

page 912 note 231 Prosecution Response Brief, para. 177.

page 912 note 232 Prosecution Response Brief, para. 182.

page 912 note 233 See supra Section III.A (Alleged Errors relating to an Attack at the Butare University Hospital).

page 912 note 234 Trial Judgement, paras. 157, 497.

page 912 note 235 Trial Judgement, para. 113. The Appeals Chamber considered similar evidence given by Witness KAL in connection with the attacks on the University of Butare and found that no reasonable trier of fact could have relied on this hearsay evidence alone to find that there had been widespread killings. See supra Section III.C (Alleged Errors relating to Attacks at the University of Butare).

page 912 note 236 Trial Judgement, para. 124.

page 912 note 237 See, e.g, Prosecution Response Brief, paras. 174, 177.

page 912 note 238 Trial Judgment, para. 497 (“Furthermore, the Chamber concludes that the Accused is individually responsible as a superior for the killing of Tutsi civilians by ESO soldiers […] at various roadblocks in Butare.“) (emphasis added).

page 912 note 239 Schedule of Particulars, paras. 14, 15.

page 912 note 240 See, e.g., Section III.A (Alleged Errors relating to an Attack at the Butare University Hospital); Section III.B (Alleged Errors relating to an Attack at the Beneberika Convent); Section III.C (Alleged Errors relating to Attacks at the University of Butare).

page 912 note 241 Muvunyi, Decision on the Prosecutor's Motion for Leave to File an Amended Indictment, p. 17 (disposition).

page 912 note 242 Proposed Amended Indictment (4 February 2005), paras. 20, 21.

page 912 note 243 Muvunyi, Decision on the Prosecutor's Motion for Leave to File an Amended Indictment, paras. 41(iv), 48-50.

page 912 note 244 Muvunyi, Decision on the Prosecution Interlocutory Appeal against Trial Chamber II Decision of 23 February 2005, paras. 43-45.

page 912 note 245 T. 28 February 2005 p. 6 (“MR. Taylor: I object. May it please the Court; I object that the Prosecutor is bringing in in [sic] his opening statement, matters that this Court has said could not be amended into the indictment. And, therefore, if they are not properly amended into the indictment, are not proper for consideration in his opening statement. MR. President: Well, Counsel, I think he is only giving the background, so this will — whatever comes out in his opening has to be proofed later. So, if he — if there is no evidence forthcoming from the Prosecution, I think this will be disregarded. Yes, Counsel, you may continue. MR. Jallow: Your Honours, I thank you, Your Lordships, very much for that clarification.“).

page 912 note 246 Niyitegeka Appeal Judgement, para. 200. See also Muhimana Appeal Judgement, paras. 199, 219; Gacumbitsi Appeal Judgement, para. 51; Ntagerura et al. Appeal Judgement, paras. 31, 138.

page 913 note 247 Trial Judgement, paras. 507, 510, 531.

page 913 note 248 Notice of Appeal, para. 9; Muvunyi Appeal Brief, paras. 75- 81; Muvunyi Reply Brief, paras. 45, 46.

page 913 note 249 Trial Judgement, paras. 190, 507.

page 913 note 250 Trial Judgement, paras. 190, 507.

page 913 note 251 Trial Judgement, para. 190.

page 913 note 252 Trial Judgement, paras. 190, 507.

page 913 note 253 Trial Judgement, paras. 190, 507.

page 913 note 254 Muvunyi Appeal Brief, para. 80; Muvunyi Reply Brief, para.46.

page 913 note 255 Muvunyi Appeal Brief, para. 80; Muvunyi Reply Brief, para.46.

page 913 note 256 Muvunyi Reply Brief, para. 46.

page 913 note 257 Muvunyi Reply Brief, para. 46.

page 913 note 258 Muvunyi Appeal Brief, paras. 80, 81; Muvunyi Reply Brief, para. 46.

page 913 note 259 Prosecution Response Brief, para. 206.

page 913 note 260 Prosecution Response Brief, paras. 208-210.

page 913 note 261 See supra Section III.A (Alleged Errors relating to an Attack at the Butare University Hospital).

page 913 note 262 Seromba Appeal Judgement, para. 27; Muhimana Appeal Judgement, para. 76; Ndindabahizi Appeal Judgement,para. 16; Gacumbitsi Appeal Judgement, para. 49; Ntakirutimana Appeal Judgement, para. 32, quoting Kuprešićet al. Appeal Judgement, para. 89.

page 913 note 263 Seromba Appeal Judgement, para. 100; Simba Appeal Judgement, para 64; Muhimana Appeal Judgement, paras. 76, 167, 195,217; Gacumbitsi Appeal Judgement, para. 49; Ntagerura et al. Appeal Judgement, paras. 28, 65.

page 913 note 264 T. 31 May 2005 p. 7 (“I met him at another place between the months of April and May. This is simply an approximation.At that time people were killing, and they did not pay any attention to the months. The days just went by, but I can say it was between the months of April and May.“).

page 913 note 265 After recounting the chronology of each of the three times the witness saw Muvunyi during the relevant events, Witness YAQ clarified that the speech underpinning Muvunyi's conviction occurred in May or June. See T. 31 May 2005 p. 35(“The meeting at Gikonko was held after the massacres. It was towards June […] I have told you that it was in May or June.“). This clarification followed an extensive colloquy between the Defence, the Presiding Judge, and the witness intended to clarify the approximate dates of each time the witness saw Muvunyi. See generally T. 31 May 2005 pp. 34- 35. Moreover, even when speculating that this might have happened between April or May, the witness tied it to a specific event, noting mat the meeting took place when “[t]he Inkotanyis had already arrived in Ntyazo commune.” T. 31 May 2005 p. 7. Witness MO80 stated that the killing of Vincent Nkurikiyinka occurred in mid-May 1994 in the context of the Rpf advance in Ntyazo commune. See T. 14 February 2006 p. 8 (“[Vincent Nkurikiyinka] died when those manning the roadblocks went to fight the Inkotanyi at Ntyazo and youths had to be gathered to go and fight the Inkotanyi.“).

page 913 note 266 Trial Judgement, para. 188.

page 913 note 267 See Muhimana Appeal Judgement, para. 79; Gacumbitsi Appeal Judgement, para. 50, citingKuprešićet al. Appeal Judgement, para. 89.

page 913 note 268 As discussed below, the Prosecution had this information in its possession from at least 4 February 2000.

page 913 note 269 Motion for Judgement of Acquittal, para. 59 (“With respect to the sensitization meetings, the Prosecutor offered the testimony of Witnesses CCP, YAI, CCR, YAP. These sensitizing meetings as alleged in the indictment are not sufficiently plead as to victims of the crimes of genocide in each instance or what specific acts of genocide occurred in order to give the Accused notice of what Count 1 or Count 2 acts he must specifically defend against.“).

page 913 note 270 Bagosora et al., Decision on Aloys Ntabakuze's Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, para. 46 (internal citation omitted).

page 913 note 271 Muvunyi, Decision on Tharcisse Muvunyi's Motion for Judgement of Acquittal pursuant to Rule 9Sbis, para. 41.

page 913 note 272 Gacumbitsi Appeal Judgement, para. 51, quoting Niyitegeka Appeal Judgement, paras. 199, 200. See also Bagosora et al., Decision on Aloys Ntabakuze's Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber 1 Decision on Motion for Exclusion of Evidence, paras. 45-47.

page 913 note 273 Muvunyi Appeal Brief, paras. 80-81 (where he simply objects to the lack of notice). A similar situation occurred in Niyiteg eka. In that case, the Appeals Chamber found that the Indictment was defective, that Niyitegeka had not objected to this during trial, and that the burden of showing prejudice was therefore on him. Since he had made no submissions as to how he was prejudiced, the Appeals Chamber held that the Trial Chamber did not err in convicting him. Niyitegeka Appeal Judgement, paras. 200, 207, 211.

page 913 note 274 Trial Judgement, paras. 182-186, 189, 190.

page 913 note 275 Trial Judgement, paras. 187, 188.

page 913 note 276 See Trial Judgement, para. 189.

page 913 note 277 Muvunyi Appeal Brief, paras. 76, 79.

page 913 note 278 Muvunyi Appeal Brief, para. 76, referring to Trial Judgement, para. 181.

page 913 note 279 Muvunyi Appeal Brief, para. 76.

page 913 note 280 Muvunyi Appeal Brief, paras. 76, 77.

page 913 note 281 Muvunyi Appeal Brief, paras. 76, 77; Muvunyi Reply Brief, para. 45; At. 13 March 2008 pp. 51-52.

page 913 note 282 Muvunyi Appeal Brief, para. 78.

page 913 note 283 Prosecution Response Brief, paras. 196-199.

page 913 note 284 Prosecution Response Brief, para. 197.

page 913 note 285 Prosecution Response Brief, paras. 200-203.

page 913 note 286 Prosecution Response Brief, para. 203.

page 913 note 287 Niyitegeka Appeal Judgement, para. 98. See also Ntagerura et al. Appeal Judgement, para. 204.

page 913 note 288 Niyitegeka Appeal Judgement, para. 98. See also Ntagerura et al. Appeal Judgement, paras. 204, 206.

page 913 note 289 Muhimana Appeal Judgement, para. 101; Gacumbitsi Appeal Judgement, para. 72; Niyitegeka Appeal Judgement.para. 92; Ntagerura et al. Appeal Judgement, para. 214.

page 913 note 290 Trial Judgement, paras. 156, 180.

page 913 note 291 Trial Judgement, para. 156.

page 913 note 292 Trial Judgement, para. 181.

page 913 note 293 See T. 14 February 2006 p. 8.

page 913 note 294 T. 14 February 2006 p. 10.

page 914 note 295 T. 14 February 2006 p. 8 (“[Vincent Nkurikiyinka] died when those manning the roadblocks went to fight the Inkotanyi at Ntyazo and youths had to be gathered to go and fight the Inkotanyi. Once at the communal office policemen came to tell them that they could not fight and repulse the Inkotanyi, so there was a need to go and flush out Vincent and take him to kill him.“).

page 914 note 296 T. 14 February 2006 pp. 8-9; T. 15 February 2006 p. 23.

page 914 note 297 Trial Judgement, para. 189.

page 914 note 298 Trial Judgement, paras. 211, 509, 510, 531.

page 914 note 299 Notice of Appeal, para. 10; Muvunyi Appeal Brief, paras. 82-88; Muvunyi Reply Brief, paras. 47-50.

page 914 note 300 Trial Judgement, para. 509.

page 914 note 301 Muvunyi Appeal Brief, paras. 87, 88; Muvunyi Reply Brief, paras. 49, 50.

page 914 note 302 Muvunyi Appeal Brief, paras. 87, 88.

page 914 note 303 Prosecution Response Brief, para. 224.

page 914 note 304 Prosecution Response Brief, para. 225.

page 914 note 305 The Appeals Chamber notes that Muvunyi erroneously refers to Witness ccr instead to Witness ccp throughout this ground of appeal. In light of the context of this ground of appeal, the Appeals Chamber is satisfied that thereference to Witness ccr is a clerical error.

page 914 note 306 Trial Judgement, paras. 191-201,206-210. The Trial Chamber also considered that “the evidence of Prosecution Witnesses yai and ccp is corroborated by that of Defence Witness MO78 who confirmed that he saw Muvunyi at a public meeting in Gikore on 23 or 24 May 1994, and that Nteziryayo and Nsabimana were also in attendance.” See Trial Judgement, para. 210.

page 914 note 307 Muvunyi Appeal Brief, paras. 83-86.

page 914 note 308 Muvunyi Appeal Brief, paras. 83-85; Muvunyi Reply Brief, para. 47.

page 914 note 309 Muvunyi Appeal Brief, para. 83.

page 914 note 310 Muvunyi Appeal Brief, para. 84.

page 914 note 311 Muvunyi Appeal Brief, para. 85.

page 914 note 312 Prosecution Response Brief, para. 221.

page 914 note 313 See e.g., Bagilishema Appeal Judgement, para. 78.

page 914 note 314 Simba Appeal Judgement, para. 152; Kamuhanda Appeal Judgement, para. 32; Kajelijeli Appeal Judgement, para. 59; Semanza Appeal Judgement, paras. 130, 149; Niyitegeka Appeal Judgement, para. 124; Rutaganda Appeal Judgement, para. 536; Musema Appeal Judgement, paras. 18,277; Celebići Case Appeal Judgement, para. 4$l;Kupresic et al. Appeal Judgement, para. 224.

page 914 note 315 Compare T. 25 May 2005 pp. 4-16 (Witness YAI) with T. 9 June 2005 pp. 1-14 (Witness CCP).

page 914 note 316 See Trial Judgement, para. 209.

page 914 note 317 Muvunyi Appeal Brief, para. 86.

page 914 note 318 Prosecution Response Brief, para. 222.

page 914 note 319 Trial Judgement, para. 210.

page 914 note 320 See Trial Judgement, paras. 206, 208.

page 914 note 321 Cf. Simba Appeal Judgement, para. 143.

page 914 note 322 Trial Judgement, paras. 426, 427, 530. Witness YAN was arrested at Économat général, which is near the Butare Cathedral. Trial Judgement, paras. 414-416. Witness YAO was arrested at the Butare Cathedral. Trial Judgement, para. 411.

page 914 note 323 Trial Judgement, paras. 456, 530. The Trial Chamber also convicted Muvunyi as a superior under Article 6(3) of the Statute of genocide based on the conduct of ESO soldiers at various roadblocks. Trial Judgement, para. 498. The Appeals Chamber addresses Muvunyi's appeal against his conviction for genocide on this basis in section III.F of the Judgement.

page 914 note 324 Trial Judgement, paras. 437, 530. The Trial Chamber also convicted Muvunyi as a superior under Article 6(3) of the Statute of genocide for this attack. Trial Judgement, para. 498. The Appeals Chamber addresses Muvunyi's appeal against his conviction for genocide on the basis of this attack in section III.B of this Judgement.

page 914 note 325 Trial Judgement, paras. 447, 448, 530. The Trial Chamber also convicted Muvunyi as a superior under Article 6(1) of the Statute for genocide in connection with this attack. Trial Judgement, para. 498. The Appeals Chamber addresses Muvunyi's appeal against his conviction for genocide on the basis of this attack in section III.D of the Judgement.

page 914 note 326 Trial Judgement, para. 410.

page 914 note 327 Muvunyi Notice of Appeal, paras. 11-13; Muvunyi Appeal Brief, paras. 89, 91-96,106,109; Muvunyi Reply Brief, paras. 54-76, 79-81. Muvunyi raised similar arguments in his Sixth Ground of Appeal. See supra Section III.F (Alleged Errors relating to Events at Various Roadblocks); Muvunyi Appeal Brief, paras. 73, 74.

page 914 note 328 Emphasis added.

page 914 note 329 Paragraph 3.44 of the Indictment reads: “On or about the 21st of April 1994, some survivors of the Matyazo attack, sought refuge at the Ngoma Parish. Amongst the refugees were 62 wounded children ranging from 16 months to 5 years who were taken to the Parish by the Counseiller [sic] of the secteur, because he was prevented by the soldiers at the roadblock in front of the ESO, from taking the children for medical attention at the University Hospital.“

page 914 note 330 Paragraph 3.49 of the Indictment reads: ‘ ‘Tharcisse Muvunyi intended the attacks described in this indictment on these victims to be part of the non international armed conflict because the Tutsi civilians were considered enemies of the Government and/or accomplices of the Rpf.“

page 914 note 331 Trial Judgement, para. 18.

page 914 note 332 Muvunyi Appeal Brief, paras. 91,93,96,109; Muvunyi Reply Brief, para. 70.

page 914 note 333 Muvunyi Reply Brief, para. 66.

page 914 note 334 Muvunyi Appeal Brief, para. 91.

page 914 note 335 Muvunyi Appeal Brief, paras. 91, 92, 107; Muvunyi Reply Brief, paras. 66, 79.

page 914 note 336 Muvunyi Appeal Brief, paras. 93, 96, 109.

page 914 note 337 Prosecution Response Brief, paras. 183-194, 236-242, 248- 257, 259-268, 287-296.

page 914 note 338 Prosecution Response Brief, paras. 188, 189, 250, 286.

page 914 note 339 Prosecution Response Brief, paras. 186, 260, 287.

page 914 note 340 Prosecution Response Brief, paras. 191-193, 236-242, 248-257, 259-268, 289-296.

page 914 note 341 See supra Section III.A (Alleged Errors relating to an Attack at the Butare University Hospital).

page 914 note 342 Count 5 also refers to paragraph 3.49 of the Indictment, but this paragraph refers to Muvunyi's intent and not the underlying criminal acts.

page 914 note 343 See generally Indictment, pp. 15-17.

page 915 note 344 Muvunyi, Decision on the Prosecutor's Notice of the Filing of a Schedule of Particulars to the Indictment Pursuant to the Directive of the Trial Chamber, paras. 7, 8.

page 915 note 345 See Trial Judgement, para. 29, Muvunyi's objection in his Closing Brief with respect to the notice he received in connection with Count 5 concerns only Witnesses YAO and YAN.The fact that Muvunyi did not raise this same objection with respect to the mistreatment of Witnesses qy and afv and the refugees at the Beneberika Convent and the Groupe Scolaire is explained by the Prosecution's submissions and the Trial Chamber's decision in connection with his motion for judgement of acquittal. In particular, the Trial Chamber and the Prosecution referred only to Witnesses YAN and YAO in support of Count 5. See Muvunyi, Decision on Tharcisse Muvunyi's Motion for Judgement of Acquittal pursuant to Rule 98bis, para. 73 (“The Prosecution offers the testimonies of Witnesses YAO and YAN in support of this count. Their testimonies support paragraph 3.47 of the Indictment. The Chamber has considered their testimonies and finds that, if believed, they could sustain a conviction of the Accused for other inhumane acts pursuant to Article 6(3).“)(internal citations omitted).

page 915 note 346 Niyitegeka Appeal Judgement, para. 200. See also Muhimana Appeal Judgement, paras. 199, 219; Gacumbitsi Appeal Judgement, para. 51; Ntagerura et al. Appeal Judgement, paras. 31, 138.

page 915 note 347 Muvunyi, Decision on Prosecution Interlocutory Appeal against Trial Chamber II Decision of 23 February 2005, para. 33 (“The Appeals Chamber is satisfied that the allegation of the Accused's involvement in the detention and disappearance of Habyalimana could constitute a new charge against the Accused. In the current indictment, the relevant paragraph is contained in the section titled “Concise Statement of Facts” and not in the section of specific allegations against the Accused. Further, the Prosecution does not reference this paragraph of the current indictment as a material fact underpinning any of the charges made in the indictment. If the proposed amendment is allowed, it is presumed that the Prosecution would include this allegation under Counts 1 and 2 of the indictment, in support of the charges of genocide, or alternatively complicity to genocide. But this does not change the fact that this fresh allegation could support a separate charge against the Accused. “)(emphasis added).

page 915 note 348 Ntagerura et al. Appeal Judgement, para. 32; Bagosora et al., Decision on Aloys Ntabakuze's Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber 1 Decision on Motion for Exclusion of Evidence, para. 29.

page 915 note 349 Trial Judgement, paras. 497, 498, 530. The Trial Chamber convicted Muvunyi of genocide pursuant to Article 6(1) of the Statute for aiding and abetting the crimes committed at the Groupe scolaire by ESO Camp soldiers. His authority as ESO Commander was, nonetheless, relevant in determining that he “tacitly approved” of the crimes of his soldiers. See Trial Judgement para. 496.

page 915 note 350 Muvunyi Notice of Appeal, para. 14; Muvunyi Appeal Brief, paras. 97-105; Muvunyi Reply Brief, paras. 77, 78.

page 915 note 351 Trial Judgement, paras. 379-395, 403, 408. In addition, the Prosecution presented the evidence of Witnesses YAI, CCP, and YAK in an effort “to show that the Accused knew or should have known that the widespread rape of Tutsi women was taking place in Butare.” Trial Judgement, para. 408.

page 915 note 352 Trial Judgement, paras. 409, 524-526. The Trial Chamber observed that “[w]hen the evidence was presented in Court during the trial, however, it turned out that it was not the soldiers from Ngoma Camp but those from the ESO Camp who had committed these acts.” Trial Judgement, para. 403.

page 915 note 353 Trial Judgement, paras. 404, 526.

page 915 note 354 Trial Judgement, paras. 409, 526.

page 915 note 355 Prosecution Notice of Appeal, paras. 8-12; Prosecution Appeal Brief, paras. 76-174.

page 915 note 356 Prosecution Appeal Brief, paras. 76-112; At. 13 March 2008 pp. 60-62.

page 915 note 357 Prosecution Notice of Appeal, para. 12; Prosecution Appeal Brief, paras. 113-173: Prosecution Reply Brief, paras. 66-71.

page 915 note 358 Muvunyi Response Brief, paras. 90-98.

page 915 note 359 Muvunyi Response Brief, para. 96.

page 915 note 360 Trial Judgement, para. 401.

page 915 note 361 Prosecution Appeal Brief, para. 77.

page 915 note 362 Trial Judgement, paras. 402-404.

page 915 note 363 Trial Judgement, para. 404.

page 915 note 364 Trial Judgement, para. 404.

page 915 note 365 Trial Judgement, paras. 405, 406.

page 915 note 366 Trial Judgement, para. 407.

page 915 note 367 Bagosora et al, Decision on Aloys Ntabakuze's Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, para. 17, citing Kuprešić et al. Appeal Judgement, para. 114; Kvoèka et al. Appeal Judgement, para. 33; Naletilić and Martinović Appeal Judgement, para. 26;Ntagerura et al. Appeal Judgement, paras. 28, 30.

page 915 note 368 Bagosora et al, Decision on Aloys Ntabakuze's Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber 1 Decision on Motion for Exclusion of Evidence, para. 30 (internal citations omitted).

page 915 note 369 See, e.g., Muhimana Appeal Judgement, paras. 200,201 (general allegation was cured with more specific allegations in the pre-trial brief); Gacumbitsi Appeal Judgement, paras. 57, 58 (same). See supra Section III.E (Alleged Errors relating to an Attack at the Mukura Forest).

page 915 note 370 Trial Judgement, paras. 378-399, 401, 403.

page 915 note 371 Muvunyi, Decision on Prosecution Interlocutory Appeal against Trial Chamber II Decision of 23 February 2005, para.22.

page 915 note 372 Prosecution Appeal Brief, paras. 123, 125, 129.

page 915 note 373 Prosecution Appeal Brief, para. 123, quoting Pre-Trial Brief, para. 82 (“During the course of this and many other attacks led by soldiers from the ESO camp as well as soldiers from Ngoma camp and the gendarmeries, many women and girls were raped by militiamen and soldiers.“).

page 915 note 374 Prosecution Appeal Brief, para. 125, quoting T. 28 February 2005 p. 7 (“Furthermore, we will lead evidence to show, to establish, that the soldiers under the command of the Accused as well as militiamen committed acts of rape and sexual assault on women and young girls. […] The victims were taken by force or coerced to locations where they were raped and subjected to acts of sexual violence by militiamen and by soldiers from the Ngoma camp, as well as the ESO, which were both under the command of the Accused person.“).

page 915 note 375 The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00- 55A-T, Prosecutor's Request for Leave to Amend an Indict ment pursuant to Rules 73 and 50 of the Rules of Procedure and Evidence, 19 January 2005, para. 1.2(i)(a); The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-T, Prosecution's Motion pursuant to Rule 73(B) for Certification to Appeal Trial Chamber Decision Denying Leave to File an Amended Indictment and for Stay of Proceedings, 28 February 2005. See also Trial Judgement, para. 407.

page 916 note 376 Prosecution Appeal Brief, para. 129, quoting Schedule of Particulars, para. 33 (“In addition, for all of the acts described at paragraphs 3.41 to 3.4l(i) the Prosecutor alleges that by reason of his position of authority over the soldiers of the ESO and the widespread nature of these massacres, Lieutenant Colonel Tharcisse Muvunyi knew or had reason to know, that these acts were being committed and he failed to take measures to prevent, or to put an end to these acts, or punish the perpetrators pursuant to Article 6(3) of the Statute.“).

page 916 note 377 See Schedule of Particulars, para. 31 (“At paragraph 3.41 of the indictment the Prosecutor alleges that during the course of the acts referred to in Paragraphs 3.40 of the indictment, many women and girls were raped and sexually violated in these locations or were taken by force and coerced to other locations, where they were raped and subjected to acts of sexual violence by Interahamwe and soldiers from the Ngoma camp. “)(emphasis added).

page 916 note 378 Muvunyi, Decision on the Prosecutor's Motion for Leave to File an Amended Indictment, p. 17 (disposition) (“Permits the Prosecutor, if he chooses, to file a Schedule of Particulars in order to arrange his current pleading in a clearer manner— provided that no new allegation, as found by the Chamber, is added in this exercise.“).

page 916 note 379 Trial Judgement, paras. 531, 545.

page 916 note 380 Muvunyi Notice of Appeal, para. 15; Muvunyi Appeal Brief, paras. 111-117; Muvunyi Response Brief, paras. 24, 87. The Notice of Appeal does not address these arguments, and simply requests that the sentence should be reduced in light of any findings that might be reversed by the Appeals Chamber.

page 916 note 381 Prosecution Notice of Appeal, paras. 1-7; Prosecution Appeal Brief, paras. 28-75.

page 916 note 382 In some jurisdictions also specifically referred to as prohibition of reformatio in peius, meaning that a court solely seized of an appeal lodged by the accused cannot increase the sentence. See for instance for the United Kingdom: Criminal Appeal Act of 1968, Schedule 2, Section 2(1); Germany: Strafprozeßordnung (Code of Criminal Procedure), Sections 331 and 358(2); Austria: StrafprozeBordnung (Code of Criminal Procedure), Sections 290(2) and 293(3); Denmark: Retsplejeloven, Fjerde bog, Strafferetsplejen (Administration of Justice Act, Fourth Chapter, Criminal Proceedings), Sections 960(3)(2) and 965a(2).

page 917 note 1 Accused Tharcisse Muvunyi's Notice of Appeal, 12 October 2006. Muvunyi filed an earlier version of this Notice of Appeal addressed to the Trial Chamber on 11 October 2006, which is essentially the same as the version filed on 12 October 2006. The earlier version however failed to cite the relevant findings of the Trial Chamber. See Accused Tharcisse Muvunyi's Notice of Appeal, 12 October 2006. The operative Notice of Appeal is the one filed on 12 October 2006.

page 917 note 2 Accused Tharcisse Muvunyi's Motion for Leave to Amend his Grounds for Appeal and Motion to Extend Time to File his Brief on Appeal, 12 December 2006.

page 917 note 3 Accused Tharcisse Muvunyi's Amended Grounds for Appeal, 17 January 2007.

page 917 note 4 Prosecutor's Motion Objecting to ‘Accused Tharcisse Muvunyi's Amended Grounds for Appeal', 29 January 2007.

page 917 note 5 Accused Tharcisse Muvunyi's Brief on Appeal, 13 March 2007.

page 917 note 6 Decision on “Accused Tharcisse Muvunyi's Motion for Leave to Amend his Grounds for Appeal and Motion to Extend Time to File his Brief on Appeal” and “Prosecutor's Motion Objecting to ‘Accused Tharcisse Muvunyi's Amended Grounds of Appeal”’,19 March 2007.

page 917 note 7 Accused Tharcisse Muvunyi's Motion to Amend His Ground for Appeal 27,March 2007.

page 917 note 8 Decision on Motion to Amended Grounds of Appeal,18 April 2007.

page 917 note 9 Prosecutor's Responednt's Brief,23 April 2007.

page 917 note 10 Accused Tharcisse Muvunyi's Reply to Prosecutor's Respondent's Brief, 9 May 2007.

page 917 note 11 Prosecutor's Notice of Appeal and Motion for an Extension of Time Within Which to File Notice of Appeal, 17 October 2006.

page 917 note 12 Decision on the Prosecution Motion for Extension of Time for Filing the Notice of Appeal, 22 November 2006.

page 917 note 13 Prosecutor's Appellant's Brief, 15 December 2006.

page 917 note 14 Accused Tharcisse Muvunyi's Motion to Extend Time to File his Brief in Reply to the Prosecutor's Appellant's Brief, 11 January 2007.

page 917 note 15 Decisionon “Accused Tharcisse Muvunyi's Motion to Extend Time to File His Brief in Reply to the Prosecutor's Appellant's Brief, 15 February 2007.

page 918 note 16 Accused Tharcisse Muvunyi's Response to Prosecutor's Appellant's Brief, 28 March 2007.

page 918 note 17 Accused Tharcisse Muvunyi's Motion to File His Response to Prosecutor's Appellant's Brief Out of Time, 28 March 2007.

page 918 note 18 Decision on Motion to Allow Filing of Response Brief Out of Time, 4 April 2007.

page 918 note 19 Prosecutor's Brief in Reply, 11 April 2007.

page 918 note 20 Order Assigning Judges to a Case before the Appeals Chamber, 18 October 2006.

page 918 note 21 Order Designating a Pre-Appeal Judge, 15 February 2007.

page 918 note 22 Order Replacing a Judge in a Case before the Appeals Chamber, 5 March 2007.

page 918 note 23 Accused Tharcisse Muvunyi's Motion to Take Testimony on Appeal Pursuant to Rule 115, 29 March 2007.

page 918 note 24 Decision on a Request to Admit Additional Evidence, 27 April 2007.

page 918 note 25 Accused Tharcisse Muvunyi's Motion to Take Testimony on Appeal Pursuant to Rule 115, 28 May 2007.

page 918 note 26 Decision on Request to Admit Additional Evidence, 27 August 2007.

page 918 note 27 Accused Tharcisse Muvunyi's Motion to Produce Testimony of Witness qy Pursuant to Rule 68 and for Sanctions, 7 June 2007.

page 918 note 28 Decision on Motion for Disclosure, 20 July 2007.

page 918 note 29 The hearing of the appeals was initially scheduled for 27 November 2007. See Scheduling Order, 19 September 2007. Upon emergency application, however, the hearing was postponed due to unavailability of lead counsel because of sudden illness. See Accused Tharcisse Muvunyi's Emergency Application to Reschedule Oral Argument Due to Unavailability of Lead Counsel William Taylor Because of Sudden Serious Illness While in Transit to ICTR, 26 November 2007; AT. 27 November 2007 pp. 2-5.

page 918 note 30 Accused Tharcisse Muvunyi's Submission in Clarification to Issues Raised by the Appeal Chamber during OralArguments, 25 March 2008.

page 918 note 31 Prosecutor's Motion to Expunge from the Record ‘Accused Tharcisse Muvunyi's Submission in Clarification to lssues Raised by the Appeal Chamber during Oral Arguments', 3 April 2008.

page 918 note 32 Decision on the Prosecutor's Motion to Expunge a Submission from the Record, 25 April 2008.

page 918 note 33 Accused Tharcisse Muvunyi's Request for Permission to File and Allow Response to Post Oral Argument Requestthat the Appeals Chamber Consider the Case of Prosecutor v. Enver Hasanovic Fsicğ IT-01-47-A and Acquit Tharcisse Muvunyi, 5 May 2008.

page 918 note 34 Decision on Muvunyi's Request for Consideration of Post Hearing Submissions, 18 June 2008.

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International Criminal Tribunal for Rwanda: Tharcisse Muvunyi V Prosecutor

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International Criminal Tribunal for Rwanda: Tharcisse Muvunyi V Prosecutor

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