English version of the judgment of the Quebec

Court of Appeal in Munyaneza v. R
Munyaneza c. R. 2014 QCCA 906
COURT OF APPEAL
CANADA
PROVNCE O! Q"E#EC
RE$%&R' O! (ON&REA)
No*+ ,--./-.--00/1.-23
4,--.53.--6,--.-,67
DA&E+ (A' 58 6-/0
CORAM: THE HONOURABLE PERRE !. "ALPHON"# !.A
ALLAN R. HLTON# !.A.
FRAN$O% "O&ON# !.A.
"'%R' MUN&ANE(A
APPE))AN& 9 Accused
v*
HER MA!E%T& THE QUEEN
RE%PONDEN& 9 Prosecutri:
and
THE CANA"AN CENTRE FOR NTERNATONAL !U%TCE
CANA"AN LA)&ER% FOR NTERNATONAL HUMAN R*HT%
N&ERVENER%
;"D$(EN&
NTRO"UCTON
,--./-.--00/1.-23 PA$E+ 6
</= !rom April to ;ul> of /2208 a domestic armed conflict led to the massacre of
appro:imatel> ?--8--- R@andas 4primaril> members of the &utsi ethnic group8 as @ell
as so.called moderate Autus7 and to numerous other acts of violence 4rape8 ph>sical
abuse8 Bidnappings8 pillage8 and others7* &he horror of this period has forever scarred
those @ho survived it8 the countr> of R@anda8 and the collective memor> of the @orld*
<6= &hese tragic events have given rise to numerous prosecutions before the
nternational Criminal &ribunal for R@anda 4CC&RC78 the special tribunal constituted
under the authorit> of the "nited Nations that is based in Arusha8 &anDania8 @here
several of the leaders have stood trial8 as @ell as before national R@andan courts*
Prosecutions have also been instituted in other countries8 including t@o in Canada8
@hich is a %tate signator> to the Rome Statute of the International Criminal Court8 /5
;ul> /22? 4amended /222 and 6---78 AECON!*/?3E2 4CRome StatuteC7*
<3= &his is appeal is born from a guilt> verdict rendered in the first Canadian trial
46--2 QCC% 66-/78 that of DFsirF (un>aneDa8 a resident of this countr>8 @ho @as
charged @ith participating in events that tooB place on the territor> of the prefecture of
#utare8 one of R@andaGs territorial divisions*
/

BAC+*ROUN"
<0= Hhen the R@andan traged> occurred8 the appellant @as living in the cit> of
#utare8 the countr>Gs second.largest cit> and part of the commune of Ngoma8 @hich @as
one of the t@ent> communes maBing up the prefecture of #utare* Ae @as @orBing at his
fatherGs store* n ;ul> of /2208 he fled R@anda8 settling in Canada in /225*
<,= After receiving information connecting him @ith the genocide8 the Ro>al
Canadian (ounted Police began a length> investigation* n !ebruar> and (arch of
6--,8 investigators travelled to R@anda and met @ith 6, individuals @ho had been
identified as potential @itnesses in the Canadian trial* A series of photographs @as
sho@n to 6- of these potential @itnesses* !ifteen of them identified the appellant as the
person to @hom the> referred in their statements*
<1= On October /28 6--,8 he @as arrested and charged @ith the follo@ing seven
counts under the Crimes Against Humanity and War Crimes Act8 %*C* 6---8 c* 60
4CActC7+
<&RAN%)A&ON=
F,-./ c0un/:
#et@een April /8 /220 and ;ul> 3/8 /2208 in the Prefecture of #utare8 in R@anda8
committed the intentional Billing of members of an identifiable group of people8 to
@it+ the &utsi8 @ith intent to destro> the &utsi8 in @hole or in part8 committing an
act of genocide8 as defined in subsections 1437 and 1407 of the Crimes Against
Humanity and War Crimes Act8 %*C* 6---8 c* 608 thereb> committing the
indictable offence of genocide8 as provided for in subparagraph 14/74a7 of the
said Act*
/
A second prosecution8 @hich @as instituted in Ontario8 gave rise to a later judgment+ R. v. Jacques
Mungarere! 6-/3 ONC% 0,20*
,--./-.--00/1.-23 PA$E+ 3
%ec0n1 c0un/:
#et@een April /8 /220 and ;ul> 3/8 /2208 in the Prefecture of #utare8 in R@anda8
caused serious bodil> or mental harm to members of an identifiable group of
people8 to @it+ the &utsi8 @ith intent to destro> the &utsi8 in @hole or in part8
committing an act of genocide8 as defined in subsections 1437 and 1407 of the
Crimes Against Humanity and War Crimes Act8 %*C* 6---8 c* 608 thereb>
committing the indictable offence of genocide8 as provided for in subparagraph
14/74a7 of the said Act*
T2,-1 c0un/
#et@een April /8 /220 and ;ul> 3/8 /2208 in the Prefecture of #utare8 in R@anda8
committed the intentional Billing of members of a civilian population or an
identifiable group of people8 to @it+ the &utsi8 Bno@ing that the said intentional
Billing @as part of a @idespread or s>stematic attacB on the &utsi8 committing a
crime against humanit>8 as defined in subsections 14378 1407 and 14,7 of the
Crimes Against Humanity and War Crimes Act! %*C* 6---8 c* 608 thereb>
committing the indictable offence of a crime against humanit>8 as provided for in
subparagraph 14/74"7 of the said Act*
F0u-/2 c0un/
#et@een April /8 /220 and ;ul> 3/8 /2208 in the Prefecture of #utare8 in R@anda8
committed the act of se:ual violence in regard to members of a civilian
population or of an identifiable group of people8 to @it+ the &utsi8 Bno@ing that the
said act of se:ual violence @as part of a @idespread or s>stematic attacB on the
&utsi8 committing a crime against humanit>8 as defined in subsections 14378 1407
and 14,7 of the Crimes Against Humanity and War Crimes Act8 %*C* 6---8 c* 608
thereb> committing the indictable offence of a crime against humanit>8 as
provided for in subparagraph 14/74"7 of the said Act*
F,3/2 c0un/
#et@een April /8 /220 and ;ul> 3/8 /2208 in the Prefecture of #utare8 in R@anda8
during an armed conflict8 to @it+ hostilities bet@een the R@andan Armed !orces
4RA!7 and the R@andan Patriotic !ront 4RP!78 committed the intentional Billing of
people @ho @ere not taBing a direct part in the said conflict8 committing a @ar
crime8 as defined in subsections 1437 and 1407 of the Crimes Against Humanity
and War Crimes Act8 %*C* 6---8 c* 608 thereb> committing the indictable offence
of a @ar crime8 as provided for in subparagraph 14/74c7 of the said Act*
%,4/2 c0un/
#et@een April /8 /220 and ;ul> 3/8 /2208 in the Prefecture of #utare8 in R@anda8
during an armed conflict8 to @it+ hostilities bet@een the R@andan Armed !orces
4RA!7 and the R@andan Patriotic !ront 4RP!78 committed the act of se:ual
violence against people8 committing a @ar crime8 as defined in subsections 1437
and 1407 of the Crimes Against Humanity and War Crimes Act! %*C* 6---8 c* 608
thereb> committing the indictable offence of a @ar crime8 as provided for in
subparagraph 14/74c7 of the said Act*
,--./-.--00/1.-23 PA$E+ 0
%e5en/2 c0un/
#et@een April /8 /220 and ;ul> 3/8 /2208 in the Prefecture of #utare8 in R@anda8
during an armed conflict8 to @it+ hostilities bet@een the R@andan Armed !orces
4RA!7 and the R@andan Patriotic !ront 4RP!78 pillaged8 committing a @ar crime8
as defined in subparagraphs 1437 and 1407 of the Crimes Against Humanity and
War Crimes Act8 %*C* 6---8 c* 608 thereb> committing the indictable offence of a
@ar crime8 as provided for in subparagraph 14/74c7 of the said Act*
<5= n brief8 the seven counts refer to distinct offences committed b> various means
during a single time period 4from April /8 /2208 to ;ul> 3/8 /2207 and in a single location
4the prefecture of #utare7+
9 t@o counts of genocide8 one b> murder and the other b> causing serious
bodil> or mental harmI
9 t@o counts of crimes against humanit>8 one b> intentional Billings and the
other b> acts of se:ual violenceI
9 three counts of @ar crimes8 the first b> murders8 the second b> acts of se:ual
violence8 and the third b> pillage*
<?= &he appellant subseJuentl> applied for release pending trial* On April 658 6--18
this application @as rejected b> Denis8 ;* of the %uperior Court of Quebec 46--1 QCC%
?--57*
<2= On October ,8 6--18 the appellant filed a motion under sections 1-/ et seJ* of
the Criminal Code8 R*%*C* /2?,8 c* C.01 entitled <&RAN%)A&ON= C(otion to Juash counts
and8 in the alternative8 motion relating to the countsC in @hich he contested the validit>
of the indictment on the follo@ing grounds+
K &he indictment fails to compl> @ith section ,?2 Cr. C. 4no count that charges
an indictable offence other than murder shall be joined in an indictment to a
count that charges murder7I
K Counts / to 1 fail to compl> @ith section ,?/ Cr. C. and in particular counts /
to 3 4because the> do not refer to a single transaction and are not sufficientl>
detailed7I
K Count 5 alleges that the appellant committed an offence that is unBno@n and
non.e:istent under Canadian la@8 namel>8 pillage*
</-= Denis ;* dismissed the motion in a judgment rendered on November 6-8 6--18
holding that the changes @ere for specific offences under the Act8 @hich @ere based on
international la@ 46--1 QCC% ?-/-7*
<//= &he trial @as preceded b> a rogator> commission in R@anda in ;anuar> and
!ebruar> of 6--5* t @as held in (ontreal beginning in (arch of 6--5 and included
rogator> commissions in 6--? in Paris8 Ligali8 and Dar es %alaam* n total8 11 @itnesses
@ere heard and 6-- e:hibits @ere filed over the eight months of trial* t should also be
pointed out that the trial tooB place before Denis ;* sitting alone8 as the parties agreed
,--./-.--00/1.-23 PA$E+ ,
and as permitted b> the Act8 and not before a judge and jur> as is usuall> the case in
prosecutions for murder under the Criminal Code*
</6= On (a> 668 6--28 the appellant @as convicted on all seven counts* &o safeguard
the identit> of several of the @itnesses and thus protect them from an> possible
reprisals8 the judgment of conviction consisted of t@o documents+ one public judgment8
@hich is 6-2, paragraphs length8 and a confidential schedule of /56? paragraphs that
contains the judgeGs more detailed revie@ and anal>sis of the testimon>*
</3= On October 628 6--28 the appellant @as sentenced to life imprisonment 46--2
QCC% 0?1,7*
THE *ROUN"% OF APPEAL
</0= &he appellant raises several grounds8 @hich can be grouped into five categories8
@hich the Court @ill address in the follo@ing order+
9 the acts alleged in counts ,8 18 and 5 do not constitute @ar crimes according
to international la@ in force in /220 or8 in the alternative8 according to
Canadian la@ in /220I
9 the invalidit> of the seven counts on grounds of vaguenessI
9 the commission of irregularities b> the judge8 rendering the trial unfairI
9 the judgeGs misinterpretation of the constituant elements of the alleged
offencesI and
9 the clear lacB of credibilit> of the Cro@nGs @itnesses invalidating the verdict*
THE E6%TENCE N 1994 OF THE )AR CRME% ALLE*E"
AN" THE 7AL"T& OF PRO%ECUTON FOR %UCH CRME% N CANA"A
</,= &he appellant maintains that the three @ar crimes @ith @hich he @as charged did
not e:ist according to international la@ because the underl>ing acts @ould have been
committed during a non.international armed conflict as opposed to an international
armed conflict* Ae argues that such acts onl> became crimes according to international
la@ in /22? @ith the adoption of the Rome Statute. (oreover8 pillage of a home and of
businesses8 @hich are the offences underl>ing the seventh count8 still do not constitute
crimes in international la@*
</1= n the alternative8 if8 in /2208 @ar crimes under international la@ did include acts
committed during a non.international armed conflict8 their prosecution could not taBe
place in Canada because subsection 543*517 Cr. C.! @hich @as in force at the time8
defined C@ar crimesC as acts committed during an international armed conflict*
&herefore8 unless the Act is retroactive in effect8 @hich the appellant argues is
,--./-.--00/1.-23 PA$E+ 1
prohibited under paragraph //4g7 of the Canadian Charter of Rights and #reedoms8 he
could not be prosecuted in Canada for the @ar crimes alleged in counts ,8 18 and 5*
</5= !inall>8 considering that section // of the Act recogniDes the right to raise an>
defence in e:istence in Canada in /2208 the appellant argues that he ma> raise the fact
that the alleged acts @ere not offences in this countr> at the time because the> @ere
committed in the conte:t of a non.international armed conflict*
</?= On these grounds8 the appellant asBs the count to Juash the fifth8 si:th and
seventh counts and to annul the verdicts arising therefrom*
</2= n the CourtGs opinion8 these arguments have no merit*
(i) Existence of the war crimes alleged according to international law in 1994
<6-= %ubsection 1437 of the Act defines @ar crimes as follo@s+
M@ar crimeN means an act or
omission committed during an
armed conflict that8 at the time
and in the place of its
commission8 constitutes a @ar
crime according to customar>
international la@ or
conventional international la@
applicable to armed conflicts8
@hether or not it constitutes a
contravention of the la@ in
force at the time and in the
place of its commission*
O crime de guerre P !ait Q acte
ou omission Q commis au
cours dRun conflit armF et
constituant8 au moment et au
lieu de la perpFtration8 un crime
de guerre selon le droit
international coutumier ou le
droit international
conventionnel applicables S
ces conflits8 JuRil constitue ou
non une transgression du droit
en vigueur S ce moment et
dans ce lieu*
<6/= #ecause this definition refers to international la@8 for there to be a crime8
<&RAN%)A&ON= Cinternational la@ must itself define the individual unla@ful acts
considered to be offencesC 4PatricB Dallier8 (athias !orteau and Alain Pellet8 $roit
international %u"lic8 ?th ed* 4Paris+ )$D;8 6--27 at 5?-7*
<66= t must be noted that there are three sources of international la@8 @hich interact
@ith each other+
K conventions8 treaties8 and other international agreements 4conventional
international la@7I
K international custom 4customar> international la@7I and
K general principles of la@ recogniDed b> the communit> of nations*
<63= &he Act8 ho@ever8 refers onl> to t@o of the three sources of international la@+
customar> and conventional international la@* n other @ords8 it e:cludes the third8 the
general principles of la@ recogniDed b> the communit> of nations*
,--./-.--00/1.-23 PA$E+ 5
<60= n the present case8 it cannot be determined @hether the acts alleged in the fifth8
si:th8 and seventh counts constituted @ar crimes in /220 b> referring to the Rome
Statute because subsection 1407 of the Act states that the Rome Statute codifies crimes
according to customar> international la@ as of ;ul> /58 /22?+
407 !or greater certaint>8 crimes
described in articles 1 and 5
and paragraph 6 of article ? of
the Rome %tatute are8 as of
;ul> /58 /22?8 crimes according
to customar> international la@8
and ma> be crimes according
to customar> international la@
before that date* &his does not
limit or prejudice in an> @a> the
application of e:isting or
developing rules of
international la@*
407 l est entendu Jue8 pour
lRapplication du prFsent article8
les crimes visFs au: articles 1
<crimes de gFnocide= et 5
<crimes contre lRhumanitF= et au
paragraphe 6 de lRarticle ?
<crimes de guerre= du %tatut de
Rome sont8 au /5 juillet /22?8
des crimes selon le droit
international coutumier8 et JuRils
peuvent lRTtre avant cette date8
sans Jue soit limitFe ou
entravFe de JuelJue maniUre
Jue ce soit lRapplication des
rUgles de droit international
e:istantes ou en formation*
<6,= Hith regard to crimes against humanit>8 ho@ever8 subsection 14,7 of the Act
provides that the> e:isted before the coming into force of the Agreement for the
&rosecution and &unishment of the Ma'or War Criminals of the (uro%ean A)is8 signed in
)ondon in August of /20, 4M*ondon AgreementN78 and of a proclamation b> the Allied
!orces in ;anuar> of /2018 and thus8 long before the Rome Statute and long before the
events in R@anda in /220.
<61= As for genocide8 this crime has been recogniDed under customar> international
la@ since long before /2208 as attested b> the Convention on the &revention and
&unishment of the Crime of +enocide8 5? "*N*&*%* 6558 2 December /20?8 coming into
force+ /6 ;anuar> /2,/8 signed b> Canada and R@anda on %eptember 38 /2,68 and
April /18 /25,8 respectivel>* t has also been recogniDed in international jurisprudence+
&rosecutor v. Jean,&aul A-ayesu 46 %eptember /22?78 Case No* C&R.21.0.& 4C&R8
&rial Chamber7 at para* 02,8 affGd b> the Appeals Chamber 4/ ;une 6--/78 Case No*
C&R.21.0.A8 and in commentar>+ $uFnaVl (ettrau:8 International Crimes and the ad
hoc .ri"unals 4O:ford+ O:ford "P8 6--,7 at /22 et seJ*
<65= Hith regard to the underl>ing acts alleged against the appellant in the fifth8 si:th8
and seventh counts 9 murder8 se:ual violence and pillage during a non.international
armed conflict 9 the Act leaves it to the Court to determine @hether the> constituted @ar
crimes before /22?8 and specificall> in /2208 according to customar> or conventional
international la@* ndeed8 this is the onl> possible meaning of the @ords C&his does not
limit or prejudice in an> @a> the application of e:isting or developing rules of
international la@C in subsection 1407 of the Act 4!annie )afontaine8 &rosecuting
+enocide! Crimes against Humanity and War Crimes in Canadian Courts 4%carborough8
Ont*+ Cars@ell8 6-/67 at /557*
,--./-.--00/1.-23 PA$E+ ?
<6?= &he Cro@n and the interveners begin b> pointing out that the &rotocol Additional
to the +eneva Conventions of /0 August /121! and relating to the &rotection of 3ictims
of 4on,International Armed Conflicts 5&rotocol II6//6, "*N*&*%* 1-28 ? ;une /2558 @as
incorporated into Canadian la@ through the +eneva Conventions Act8 R*%*C* /2?,8 c*
$.38 s* 6467* &rotocol II8 @hich8 as its title indicates8 applies to non.international armed
conflicts8 provides that murder8 rape 4se:ual violence constituting serious outrage to a
personRs dignit>7 and pillage are prohibited at all times+
Article 0 .. !undamental
guarantees
/* All persons @ho do not taBe
a direct part or @ho have
ceased to taBe part in
hostilities8 @hether or not their
libert> has been restricted8 are
entitled to respect for their
person8 honour and convictions
and religious practices* &he>
shall in all circumstances be
treated humanel>8 @ithout an>
adverse distinction* t is
prohibited to order that there
shall be no survivors*
6* Hithout prejudice to the
generalit> of the foregoing8 the
follo@ing acts against the
persons referred to in
paragraph / are and shall
remain prohibited at an> time
and in an> place @hatsoever+
4a7 violence to the life8 health
and ph>sical or mental @ell.
being of persons8 in particular
murder as @ell as cruel
treatment such as torture8
mutilation or an> form of
corporal punishmentI
4b7 collective punishmentsI
4c7 taBing of hostagesI
4d7 acts of terrorismI
4e7 outrages upon personal
dignit>8 in particular humiliating
and degrading treatment8 rape8
enforced prostitution and an>
form of indecent assaultI
Article 0 .. $aranties
fondamentales
/* &outes les personnes Jui ne
participent pas directement ou
ne participent plus au:
hostilitFs8 JuGelles soient ou
non privFes de libertF8 ont droit
au respect de leur personne8
de leur honneur8 de leurs
convictions et de leurs
pratiJues religieuses* Elles
seront en toutes circonstances
traitFes avec humanitF8 sans
aucune distinction de caractUre
dFfavorable* l est interdit
dGordonner JuGil nG> ait pas de
survivants*
6* %ans prFjudice du caractUre
gFnFral des dispositions Jui
prFcUdent8 sont et demeurent
prohibFs en tout temps et en
tout lieu S lGFgard des
personnes visFes au
paragraphe / +
a7 les atteintes portFes S la vie8
S la santF et au bien.Ttre
ph>siJue ou mental des
personnes8 en particulier le
meurtre8 de mTme Jue les
traitements cruels tels Jue la
torture8 les mutilations ou
toutes formes de peines
corporellesI
b7 les punitions collectivesI
c7 la prise dGotagesI
d7 les actes de terrorismeI
e7 les atteintes S la dignitF de la
,--./-.--00/1.-23 PA$E+ 2
4f7 slaver> and the slave trade
in all their formsI
4g7 pillage7
5h6 threats to commit any of the
foregoing acts.
8(m%hasis added.9
personne8 notamment les
traitements humiliants et
dFgradants8 le viol8 la
contrainte S la prostitution et
tout attentat S la pudeurI
f7 lGesclavage et la traite des
esclaves sous toutes leurs
formesI
g7 le pillageI
h7 la menace de commettre les
actes prFcitFs*
<62= &he appellant nevertheless responds that there @as no clear consensus before
/220 as to @hether all of the norms recogniDed in the Additional Protocols @ere
customar>8 referring in particular to Robert ;* Currie8 International and .ransnational
Criminal *a 4&oronto+ r@in )a@8 6-/-7 at /01*
<3-= &o decide this issue8 the Court ma> rel> on international jurisprudence from the
/22-s dealing @ith the content of customar> la@ in @ar crimes cases8 follo@ing the
%upreme Court of CanadaGs suggestion in Mugusera v. Canada 5M.C.I.68 <6--,= 6
%*C*R* /--8 6--, %CC 0-8 at para* /61*
<3/= Accordingl>8 the judgment in &rosecutor v. .adic 46 October /22,7 Case No* &.
20./ 4C&'8 Appeals Chamber7 states that &rotocol II cr>stalliDed customar> la@ in
/255+
//5* Attention must also be dra@n to Additional Protocol to the $eneva
Conventions* (an> provisions of this Protocol can no@ be regarded as
declarator> of e:isting rules or as having cr>stallised emerging rules of
customar> la@ or else as having been strongl> instrumental in their evolution as
general principles* &his proposition is confirmed b> the vie@s e:pressed b> a
number of %tates* &hus8 for e:ample8 mention can be made of the stand taBen in
/2?5 b> El %alvador 4a %tate part> to Protocol 7* After having been repeatedl>
invited b> the $eneral Assembl> to compl> @ith humanitarian la@ in the civil @ar
raging on its territor> 4see8 e*g*8 $*A* Res* 0/E/,5 4/2?1778 the %alvadorian
$overnment declared that8 strictl> speaBing8 Protocol did not appl> to that civil
@ar 4although an objective evaluation prompted some $overnments to conclude
that all the conditions for such applications @ere met8 4see8 e*g*8 03 Annuaire
Suisse de $roit International8 4/2?57 at /?,.?57* Nevertheless8 the %alvadorian
$overnment undertooB to compl> @ith the provisions of the Protocol8 for it
considered that such provisions Cdeveloped and supplementedC common Article
38 C@hich in turn constitute<d= the minimum protection due to ever> human being
at an> time and placeC417 4%ee nforme de la !uerDa Armata de El %alvador sobre
el respeto > la vigencia de las normas del Derecho nternacional Aumanitario
durante el periodo de %eptiembre de /2?1 a Agosto de /2?58 at 3 43/ August
/2?57 4for@arded b> (inistr> of Defence and %ecurit> of El %alvador to %pecial
Representative of the "nited Nations Auman Rights Commission 46 October
/2?578I 4unofficial translation7* %imilarl>8 in /2?58 (r* (*;* (atheson8 speaBing in
,--./-.--00/1.-23 PA$E+ /-
his capacit> as Deput> )egal Adviser of the "nited %tates %tate Department8
stated that+
<&=he basic core of Protocol is8 of course8 reflected in common article 3
of the /202 $eneva Conventions and therefore is8 and should be8 a part
of generall> accepted customar> la@* &his specificall> includes its
prohibitions on violence to@ards persons taBing no active part in
hostilities8 hostage taBing8 degrading treatment8 and punishment @ithout
due processC 4Aumanitarian )a@ Conference8 RemarBs of (ichael ;*
(atheson8 467 American "niversit> ;ournal of nternational )a@ and Polic>
4/2?57 0/28 at 03-.3/7*
<Emphasis addedI formatting and citations omitted*=
<36= n A-ayesu8 su%ra8 the Appeals Chamber of the C&R concluded that &rotocol II
applied to the R@andan genocide+
1/1* t should be noted8 moreover8 that Article 0 of the C&R %tatute states that8
C&he nternational &ribunal for R@anda shall have the po@er to prosecute
persons committing or ordering to be committed serious violations of Article 3
common to the $eneva Conventions of /6 August /202 for the Protection of Har
Victims8 and of Additional Protocol thereto of ? ;une /255C 4emphasis added7*
&he Chamber understands the phrase Cserious violationC to mean Ca breach of a
rule protecting important values <@hich= must involve grave conseJuences for the
victimC8 in line @ith the above.mentioned Appeals Chamber Decision in &adic 8
paragraph 20* &he list of serious violations @hich is provided in Article 0 of the
%tatute is taBen from Common Article 3 . @hich contains fundamental prohibitions
as a humanitarian minimum of protection for @ar victims 9 and Article 0 of
Additional Protocol 8 @hich eJuall> outlines C!undamental $uaranteesC* &he list
in Article 0 of the %tatute thus comprises serious violations of the fundamental
humanitarian guarantees @hich8 as has been stated above8 are recogniDed as
part of international customar> la@* n the opinion of the Chamber8 it is clear that
the authors of such egregious violations must incur individual criminal
responsibilit> for their deeds*
1/5* &he Chamber8 therefore8 concludes the violation of these norms entails8
as a matter of customar> international la@8 individual responsibilit> for the
perpetrator* n addition to this argument from custom8 there is the fact that the
$eneva Conventions of /202 4and thus Common Article 37 @ere ratified b>
R@anda on , (a> /210 and Additional Protocol on /2 November /2?08 and
@ere therefore in force on the territor> of R@anda at the time of the alleged
offences* (oreover8 all the offences enumerated under Article 0 of the %tatute
constituted crimes under R@andan la@ in /220* R@andan nationals @ere
therefore a@are8 or should have been a@are8 in /220 that the> @ere amenable to
the jurisdiction of R@andan courts in case of commission of those offences falling
under Article 0 of the %tatute*
<Emphasis added*=
,--./-.--00/1.-23 PA$E+ //
<33= &herefore8 there can be no doubt that8 in /2208 @ar crimes comprised serious
acts such as murder and rape8 an act of se:ual violence constituting serious harm to the
integrit> and dignit> of victims that @ere committed during a non.international armed
conflict in R@anda*
<30= As for pillage8 it has been a crime under customar> and conventional la@ for a
ver> long time* ndeed8 pillage and its s>non>m8 plunder8 have been recogniDed in
several international instruments and treaties*
<3,= !or e:ample8 Article 14"7 of the Charter of the International Military .ri"unal8
@hich forms part of the )ondon Agreement8 ?6 "*N*&*%* 6?, and @hich created the
Nuremberg &ribunal8 includes Mplunder of public and private propert>N in its definition of
@ar crimes*
<31= &he Convention 5I36 res%ecting the *as and Customs of War on *and and its
anne): Regulations concerning the *as and Customs of War on *and8 &he Aague8 /?
October /2-58 an earlier agreement considered to be part of customar> la@8 prohibits8 in
Article 6?8 Mthe pillage of a to@n or place8 even @hen taBen b> assaultN*
<35= %imilarl>8 Article 34e7 of the Statute of the International Criminal .ri"unal for the
former ;ugoslavia 4MIC.; StatuteN8 6, (a> /2238 "*N* Doc* %ERE%E?658 implicitl>
recogniDes pillage as a @ar crime8 @hile Article 04f7 of the Statute of the International
Criminal .ri"unal for Randa 5<IC.R Statute=68 "*N* Doc* %ERE%E2,,8 ? November /220
does so e:plicitl>* !urthermore8 the latter statute criminaliDes pillage b> recogniDing the
offences enumerated in the +eneva Conventions and &rotocol II.
<3?= t is therefore not surprising that8 in A-ayesu8 at para* 1-28 the &rial Chamber8
recogniDed that the fundamental guarantees in Article 0 of &rotocol II8 including that
protecting against pillage8 @ere customar> in nature*
<32= (oreover8 pillage need not be carried out b> an arm>*
<0-= n &rosecutor v. $elalic8 Mucic! $elic and *andzo 5Cele"ici Cam%6 4/1 November
/22?7 Case No* &.21.6/.& 4C&'8 &rial Chamber7 at para* ,2-8 the &ribunal recogniDed
that the Cprohibition against the unjustified appropriation of public and private enem>
propert> is general in scope8 and e:tends both to acts of looting committed b> individual
soldiers for their private gain8 and to the organiDed seiDure of propert>C*
<0/= n &rosecutor v. Jelisic 4/0 December /2227 Case No* &.2,./-.& 4C&'8 &rial
Chamber7 at para* 0?8 the same &ribunal states that plunder is Cthe fraudulent
appropriation of public or private funds belonging to the enem> or the opposing part>
perpetrated during an armed conflict and related theretoC and that Cindividual acts of
plunder perpetrated b> people motivated b> greed might entail individual criminal
responsibilit> on the part of its perpetratorC*
<06= Recent commentar> has adopted this position as @ell 4Currie at /3,8 (ettrau:8 at
/3? et seJ*7*
<03= n the circumstances8 the Court is of the vie@ that8 in /2208 pillage @as a @ar
crime according to customar> international la@ @hen committed in the conte:t of a non.
international armed conflict*
,--./-.--00/1.-23 PA$E+ /6
<00= &he appellant also criticiDes the parameters of the underl>ing offence of pillage8
@hich the Court @ill discuss later on in its anal>sis of the reJuisite elements to find that
a @ar crime b> pillage has occurred*
<0,= !or these reasons8 the Court finds that8 before /2208 the underl>ing offences
alleged in the fifth8 si:th and seventh counts committed during a non.international
armed conflict @ere @ar crimes according to international la@*
8,,9 The Act explicitly permits prosecution for these acts in Canada
<01= !ollo@ing the recommendations of the DeschTnes Commission in its report filed
in /2?,8 Parliament amended the Criminal Code to include crimes against humanit> and
@ar crimes committed outside Canada in subsections 543*5/7 to 543*557 4%*C* /2?58 c*
357 4)afontaine at /,9617* &hese amendments contemplated onl> @ar crimes
committed during an international armed conflict*
<05= n 6---8 to give full effect to CanadaGs adherence to the Rome Statute8
Parliament adopted the Act8 @hich criminaliDes all acts that8 according to international
la@8 constitute genocide8 crimes against humanit>8 or @ar crimes committed in Canada
4section 07 or outside Canada 4section 17*
<0?= Offences committed outside Canada ma> be prosecuted in Canada8 regardless
of @hen the> @ere committed*
1* 4/7 Ever> person @ho8 either
before or after the coming into
force of this section8 commits
outside Canada
4a7 genocide8
4b7 a crime against humanit>8 or
4c7 a @ar crime8
is guilt> of an indictable offence
and ma> be prosecuted for that
offence in accordance @ith
section ?*
W
2* 4/7 Proceedings for an
offence under this Act alleged
to have been committed
outside Canada for @hich a
person ma> be prosecuted
under this Act ma>8 @hether or
not the person is in Canada8 be
commenced in an> territorial
division in Canada and the
1* 4/7 QuiconJue commet S
lRFtranger une des infractions
ci.aprUs8 avant ou aprUs
lRentrFe en vigueur du prFsent
article8 est coupable dRun acte
criminel et peut Ttre poursuivi
pour cette infraction au: termes
de lRarticle ? +
a7 gFnocideI
b7 crime contre lGhumanitFI
c7 crime de guerre*
[W]
2* 4/7 )es poursuites S lGFgard
dGune infraction visFe par la
prFsente loi Jui aurait FtF
commise S lGFtranger peuvent
Ttre engagFes dans toute
circonscription territoriale au
Canada8 Jue lGaccusF se trouve
ou non au Canada8 et celui.ci
peut subir son procUs et Ttre
,--./-.--00/1.-23 PA$E+ /3
person ma> be tried and
punished in respect of that
offence in the same manner as
if the offence had been
committed in that territorial
division*
W
<Emphasis added*=
uni8 S lGFgard de cette
infraction8 comme si elle avait
FtF commise dans cette
circonscription territoriale*
<W=
<02= &hus8 the Act criminaliDes in Canadian la@ all acts constituting crimes @ithin the
meaning of international la@ at the time the> @ere committed* As noted previousl>8
these crimes include genocide8 @ar crimes8 and crimes against humanit> during a non.
international armed conflict*
<,-= t is true that the crimes alleged against the appellant @ere committed in /2208
@hereas the Act @as not enacted until 6---* &his does not8 ho@ever8 result in the
retroactive creation of an offence*
<,/= &he Act does not attempt to create an offence e) %ost facto* Rather8 it seeBs
merel> to allo@ the prosecution in Canada of persons @ho8 before the Act entered into
force8 committed acts that8 at the time of their commission8 constituted genocide8 crimes
against humanit>8 or @ar crimes8 according to the definitions of those crimes under
international la@8 as illustrated b> subection 1437 of the Act+
Mcrime against humanit>N
means murder8 e:termination8
enslavement8 deportation8
imprisonment8 torture8 se:ual
violence8 persecution or an>
other inhumane act or omission
that is committed against an>
civilian population or an>
identifiable group and that8 at
the time and in the place of its
commission8 constitutes a
crime against humanit>
according to customar>
international la@ or
conventional international la@
or b> virtue of its being criminal
O crime contre lRhumanitF P
(eurtre8 e:termination8
rFduction en esclavage8
dFportation8 emprisonnement8
torture8 violence se:uelle8
persFcution ou autre fait Q
acte ou omission Q inhumain8
dRune part8 commis contre une
population civile ou un groupe
identifiable de personnes et8
dRautre part8 Jui constitue8 au
moment et au lieu de la
perpFtration8 un crime contre
lRhumanitF selon le droit
international coutumier ou le
droit international
,--./-.--00/1.-23 PA$E+ /0
according to the general
principles of la@ recogniDed b>
the communit> of nations8
@hether or not it constitutes a
contravention of the la@ in
force at the time and in the
place of its commission*
M@ar crimeN means an act or
omission committed during an
armed conflict that8 at the time
and in the place of its
commission8 constitutes a @ar
crime according to customar>
international la@ or
conventional international la@
applicable to armed conflicts8
@hether or not it constitutes a
contravention of the la@ in
force at the time and in the
place of its commission*
MgenocideN means an act or
omission committed @ith intent
to destro>8 in @hole or in part8
an identifiable group of
persons8 as such8 that at the
time and in the place of its
commission8 constitutes
genocide according to
customar> international la@ or
conventional international la@
or b> virtue of its being criminal
according to the general
principles of la@ recogniDed b>
the communit> of nations8
@hether or not it constitutes a
contravention of the la@ in
force at the time and in the
place of its commission*
conventionnel ou en raison de
son caractUre criminel dRaprUs
les principes gFnFrau: de droit
reconnus par lRensemble des
nations8 JuRil constitue ou non
une transgression du droit en
vigueur S ce moment et dans
ce lieu*
O crime de guerre P !ait Q acte
ou omission Q commis au
cours dRun conflit armF et
constituant8 au moment et au
lieu de la perpFtration8 un crime
de guerre selon le droit
international coutumier ou le
droit international
conventionnel applicables S
ces conflits8 JuRil constitue ou
non une transgression du droit
en vigueur S ce moment et
dans ce lieu*
O gFnocide P !ait Q acte ou
omission Q commis dans
lRintention de dFtruire8 en tout
ou en partie8 un groupe
identifiable de personnes et
constituant8 au moment et au
lieu de la perpFtration8 un
gFnocide selon le droit
international coutumier ou le
droit international
conventionnel8 ou en raison de
son caractUre criminel dRaprUs
les principes gFnFrau: de droit
reconnus par lRensemble des
nations8 JuRil constitue ou non
une transgression du droit en
vigueur S ce moment et dans
,--./-.--00/1.-23 PA$E+ /,
<Emphasis added*= ce lieu*
<,6= &he Act is thus consistent @ith paragraph //4g7 of the Charter8 @hich recogniDes
that the criminal nature of an act at the moment it is committed ma> be assessed under
either domestic or international la@+
//* An> person charged @ith an
offence has the right
4g7 not to be found guilt> on
account of an> act or omission
unless8 at the time of the act or
omission8 it constituted an
offence under Canadian or
international la@ or @as
criminal according to the
general principles of la@
recogniDed b> the communit>
of nationsI
<Emphasis added*=
//* &out inculpF a le droit +
g7 de ne pas Ttre dFclarF
coupable en raison dGune
action ou dGune omission Jui8
au moment oX elle est
survenue8 ne constituait pas
une infraction dGaprUs le droit
interne du Canada ou le droit
international et nGavait pas de
caractUre criminel dGaprUs les
principes gFnFrau: de droit
reconnus par lGensemble des
nationsI
<,3= (oreover8 the la@ of this countr> does not prohibit an amendment to the rules
governing the jurisdiction of courts to allo@ for prosecutions in Canada for acts that8 at
the time the> @ere committed8 @ere offences under Canadian or international la@ 4R. v.
#inta8 </220= / %*C*R* 5-/7* And in fact8 that is @hat the Act did*
6
<,0= n summar>8 through the Act and the repeal of the /2?5 amendments to the
Criminal Code8 Parliament did not create ne@ legal conseJuences for the past but onl>
for the future* At most8 the Act is retrospective in effect but not retroactive8 as defined in
>enner v. Canada 5Secretary of State68 </225= / %*C*R* 3,? at 3?/*
3

<,,= ConseJuentl>8 the Act validl> permits the prosecution of an individual in Canada
for a @ar crime committed before 6---*
(iii) The end of impunity: a alid effect of the Act
<,1= "pon the enactment of the Act8 the perpetrators of @ar crimes8 crimes against
humanit>8 and genocide could no longer come to Canada seeBing immunit> from
prosecution* During one of the Parliamentar> debates8 (P Ra>mond Chan made a
statement on behalf of the (inister of !oreign Affairs8 confirming this objective+
6
David $oetD8 >ill C,/1: Crimes Against Humanity and War Crimes Act 4)%.31-E7 4Otta@a+ )ibrar>
of Parliament8 Research department8 )a@ and $overnment Division8 , April 6---8 rev* /, ;une
6---78 online+ http+EE@@@*parl*gc*caEAboutEParliamentE)egislative%ummariesEbillsYls*aspZ
lang[!\ls[C/2\Parl[31\%es[6\source[#illsYAouseY$overnment
3
%ee also Pierre.AndrF C]tF in collaboration @ith %tFphane #eaulac \ (athieu Devinat8
Inter%r?tation des lois8 0th ed* 4(ontreal+ &hFmis8 6--27 at para* ,-2I Aubert Reid8 $ictionnaire de
droit qu?"?cois et canadien8 0th ed* 4(ontreal+ Hilson \ )afleur8 6-/-7 at ,32I Daphne A* DuBelo@8
.he Canadian $ictionary of *a8 0th ed* 4%carborough8 Ont*+ Cars@ell8 6-//7 at //3/*
,--./-.--00/1.-23 PA$E+ /1
&he crimes against humanit> and @ar crimes act has been amended to ensure
that Canada @ill be able to full> prosecute individuals @ho commit mass murder8
rape8 torture or an> other similar heinous crimes against humanit>* &he
customar> international la@ definitions of genocide8 crimes against humanit> and
@ar crimes @ill no@ be recogniDed inside Canada*
CanadaGs abilit> to assert universal jurisdiction for these crimes has also been
streamlined and simplified* No@8 as long as the person accused of the crime is
found in Canada8 the> @ill fall under our jurisdiction8 regardless of @hen or @here
the crime tooB place* &his change ensures that those @ho have committed or
@ho commit in the future the most egregious crimes @ill not find a safe haven in
Canada*
0
<Emphasis added*=
<,5= ConseJuentl>8 the appellant ma> be prosecuted in Canada for acts committed in
/220 in R@anda if these acts constituted crimes according to international la@ at the
time*
<,?= Although the appellant does not directl> den> this principle8 he submits that he is
entitled to raise an> defence that e:isted in /2208 including the fact that an offence
committed during a non.international armed conflict @as not an offence under Canadian
criminal la@ at the time* Ae invoBes section // of the Act+
//* n proceedings for an
offence under an> of sections 0
to 58 the accused ma>8 subject
to sections /6 to /0 and to
subsection 1-5417 of the
Criminal Code8 rel> on an>
justification8 e:cuse or defence
available under the la@s of
Canada or under international
la@ at the time of the alleged
offence or at the time of the
proceedings*
<Emphasis added*=
//* %ous rFserve du
paragraphe 1-5417 du Code
criminel et des articles /6 S /08
lGaccusF peut se prFvaloir des
justifications8 e:cuses et
mo>ens de dFfense reconnus8
au moment de la prFtendue
perpFtration ou au moment du
procUs8 par le droit canadien ou
le doit international*
<,2= n the CourtGs vie@8 the fact that he Bne@ that he could taBe refuge in a countr>
@here no prosecution @as possible for an international crime cannot be raised as a
justification8 e:cuse8 or defence available at the time of the offence*
<1-= n other @ords8 the loss of immunit> from prosecution for an international crime
b> a perpetrator @ho no@ resides in Canada is not a defence and cannot be raised
under section // of the Act.
THE 7AL"T& OF THE "RAFTN* OF THE N"CTMENT
0
Aouse of Commons Debates8 31th legislature8 6nd session8 No* //3 4/3 ;une 6---7 at ///-*
,--./-.--00/1.-23 PA$E+ /5
<1/= &he appellant argues that the counts do not meet the degree of precision
reJuired b> the international criminal tribunals8 thus rendering his trial unfair* n his vie@8
the location of the alleged offences8 the identit> of the victims8 and the nature of the
incidents at issue should have been precisel> identified in each of the counts* n support
of his position8 he invoBes judgments of the international criminal tribunals8 including
that of the &rial Chamber in &rosecutor v. Milosevic 4/3 December 6--/7 Cases No* &.
22.35.AR53 and &.-/.,-.AR53 4C&'8 &rial Chamber7 and that of the Appeals
Chamber8 4/? April 6--67 No* &.-/.,/.AR538 in @hich the indictment @as over 1,
pages long8 including schedules listing the victims of each offence*
<16= Ae also refers to the procedure of the C&R8 @hich involves a t@o.part
indictment8 @ith the first setting out the offence alleged b> the prosecution and the
second containing a detailed summar> of the facts surrounding the commission of the
offence* Ae concludes that8 contrar> to @hat the trial judge @rote8 the Cro@n can be
reJuired to describe the offences in more detail @ithout depriving the Act of its effects*
<13= Ae also argues that this degree of detail is also reJuired under the Charter8
particularl> paragraph //4a7 4the right to be informed @ithout unreasonable dela> of the
specific offence78 paragraph //4h7 4the right not to be tried again for the same offence78
and section 5 4the right to a fair trial and to maBe full ans@er and defence78 especiall>
since the charges are comple:8 involve several events8 and contemplate ver> harsh
sentences*
<10= n his opinion8 the counts as drafted @ere too vague and thus prevented him from
adeJuatel> preparing his defence8 as he @as Bept in the darB about the Cro@nGs theor>
until a document summariDing the facts giving rise to the alleged offences @as filed after
the Cro@n had closed its case* Ae also faults the Cro@n for @aiting too long to provide
him @ith the document8 @ithout @hich he @as unable to object to the filing of certain
pieces of evidence that later turned out to be irrelevant*
<1,= &he appellant also argues that the judge erred in la@ b> taBing into account the
disclosure of the evidence in his determination of @hether the drafting of the counts @as
sufficientl> precise* An accused should not be reJuired to anal>De the content of the
evidence disclosed to Bno@ precisel> @ith @hat he is accused* Rather8 this information
should be included in the indictment* &his principle has been recogniDed b> both
Canadian courts and international tribunals8 pertaining as it does to the right of all
accused to a fair trial*
<11= Citing subsection ,?/4/7 Cr. C.8 @hich provides that each count in an indictment
shall in general appl> to a single transaction8 the appellant argues that the Cro@n
undul> benefited from the indictment as drafted because all it had to prove @as his
participation in a single underl>ing act to obtain a conviction8 @hile the appellant8 to be
acJuitted8 had to raise a reasonable doubt as to his participation in all of the underl>ing
acts the Cro@n alleged* &his imbalance8 he claims8 rebuts the argument of the Csingle
criminal transactionC accepted b> the judge* n this case8 each count contains multiple
transactions 4or in !rench8 CaffairesC78 @hich should be alleged in an eJual number of
separate counts*
,--./-.--00/1.-23 PA$E+ /?
<15= &hese arguments cannot succeed*
<1?= Hhile indictments filed before the international criminal tribunals are admittedl>
highl> detailed8 this is because the procedural rules are different* n this case8 ho@ever8
the Canadian rules in sections ,?/ to 1-/ Cr. C* appl>8 and the> are a complete
codification of the procedure for indictments*
<12= %ections 2 and /- of the Act specif> that the trial is held in accordance @ith
Canadian procedure+
2* 4/7 Proceedings for an
offence under this Act alleged
to have been committed
outside Canada for @hich a
person ma> be prosecuted
under this Act ma>8 @hether or
not the person is in Canada8 be
commenced in an> territorial
division in Canada and the
person ma> be tried and
punished in respect of that
offence in the same manner as
if the offence had been
committed in that territorial
division*
467 !or greater certaint>8 in a
proceeding commenced in an>
territorial division under
subsection 4/78 the provisions
of the Criminal Code relating to
reJuirements that an accused
appear at and be present
during proceedings and an>
e:ceptions to those
reJuirements appl>*
W
/-* Proceedings for an offence
alleged to have been
committed before the coming
into force of this section shall
be conducted in accordance
@ith the la@s of evidence and
procedure in force at the time
of the proceedings*
2* 4/7 )es poursuites S lGFgard
dGune infraction visFe par la
prFsente loi Jui aurait FtF
commise S lGFtranger peuvent
Ttre engagFes dans toute
circonscription territoriale au
Canada8 Jue lGaccusF se trouve
ou non au Canada8 et celui.ci
peut subir son procUs et Ttre
puni8 S lGFgard de cette
infraction8 comme si elle avait
FtF commise dans cette
circonscription territoriale*
467 l est entendu Jue la
procFdure visFe au paragraphe
4/7 est assujettie au:
dispositions du code criminel
concernant lGobligation pour un
accusF dGTtre prFsent et de
demeurer prFsent pour la durFe
de la procFdure et les
e:ceptions S cette obligation*
<W=
/-* )es poursuites engagFes S
lGFgard dGune infraction Jui
aurait FtF commise avant
lGentrFe en vigueur du prFsent
article <Note + 63 octobre 6---=
sont menFes conformFment
au: rUgles de preuve et de
procFdure en vigueur au
moment du procUs*
<5-= &hus8 the trial must be conducted as though the offence @as committed in
Canada* (oreover8 @hen Parliament chooses to introduce principles or rules dra@n
from international la@8 it states so e:plicitl>* &his is the case8 for e:ample8 in the
,--./-.--00/1.-23 PA$E+ /2
definition of genocide8 @ar crimes8 and crimes against humanit> in subsection 1437 of
the Act and section // dealing @ith defences*
<5/= &here is nothing8 ho@ever8 to indicate that Parliament @ished to incorporate the
special rules adopted b> the international criminal tribunals into the Act or to create a
h>brid s>stem of Canadian and international rules*
<56= &he validit> of the indictment and its impact on the fairness of the trial must be
anal>Ded under Canadian rules* Accordingl>8 it is sufficient for an indictment to compl>
@ith the reJuirements in section ,?/ Cr. C.+
,?/* 4/7 Each count in an
indictment shall in general
appl> to a single transaction
and shall contain in substance
a statement that the accused or
defendant committed an
offence therein specified*
467 &he statement referred to in
subsection 4/7 ma> be
4a7 in popular language
@ithout technical
averments or allegations
of matters that are not
essential to be provedI
4b7 in the @ords of the
enactment that describes
the offence or declares
the matters charged to
be an indictable offenceI
or
4c7 in @ords that are
sufficient to give to the
accused notice of the
offence @ith @hich he is
charged*
437 A count shall contain
sufficient detail of the
circumstances of the alleged
offence to give to the accused
reasonable information @ith
respect to the act or omission
to be proved against him and to
identif> the transaction referred
,?/* 4/7 ChaJue chef dans
un acte dRaccusation
sRappliJue8 en gFnFral8 S une
seule affaireI il doit contenir en
substance une dFclaration
portant Jue lRaccusF ou le
dFfendeur a commis lRinfraction
Jui > est mentionnFe*
467 )a dFclaration mentionnFe
au paragraphe 4/7 peut Ttre
faite +
a6 en langage populaire
sans e:pressions
techniJues ni
allFgations de choses
dont la preuve nRest pas
essentielleI
"6 dans les termes
mTmes de la disposition
Jui dFcrit lRinfraction ou
dFclare Jue le fait
imputF est un acte
criminelI
c6 en des termes
suffisants pour notifier
au prFvenu lRinfraction
dont il est inculpF*
437 "n chef dRaccusation doit
contenir8 S lRFgard des
circonstances de lRinfraction
prFsumFe8 des dFtails
suffisants pour renseigner
raisonnablement le prFvenu sur
lRacte ou omission S prouver
contre lui8 et pour identifier
,--./-.--00/1.-23 PA$E+ 6-
to8 but other@ise the absence
or insufficienc> of details does
not vitiate the count*
407 Hhere an accused is
charged @ith an offence under
section 05 or sections 02 to ,38
ever> overt act that is to be
relied on shall be stated in the
indictment*
4,7 A count ma> refer to an>
section8 subsection8 paragraph
or subparagraph of the
enactment that creates the
offence charged8 and for the
purpose of determining @hether
a count is sufficient8
consideration shall be given to
an> such reference*
417 Nothing in this Part relating
to matters that do not render a
count insufficient shall be
deemed to restrict or limit the
application of this section*
lRaffaire mentionnFe8 mais
autrement lRabsence ou
insuffisance de dFtails ne vicie
pas le chef dRaccusation*
407 )orsJuRun prFvenu est
accusF dRune infraction visFe S
lRarticle 05 ou S lRun des articles
02 S ,38 tout acte manifeste
devant Ttre invoJuF doit Ttre
indiJuF dans lRacte
dRaccusation*
4,7 "n chef dRaccusation peut
se rFfFrer S tout article8
paragraphe8 alinFa ou sous.
alinFa de la disposition Jui crFe
lRinfraction imputFe et8 pour
dFterminer si un chef
dRaccusation est suffisant8 il est
tenu compte dRun tel renvoi*
417 )es dispositions de la
prFsente partie concernant des
matiUres Jui ne rendent pas un
chef dRaccusation insuffisant
nRont pas pour effet de
restreindre ou limiter
lRapplication du prFsent article*
<53= %ubsection / sets out the Csingle transactionC rule 4in !rench+ Cune seule affaireC7*
As the trial judge pointed out8 it has long been established that this rule does not
prohibit grouping together a series of incidents that relate to a similar activit> or a similar
course of conduct8 if the> are part of a single operation 4R. v. +.*.M.8 </222= #*C*;* No*
/?3? 4Q)7 4#*C*C*A*7I R. v. &omerleau8 </222= ;*Q* No* ,6/- 4Q)7 4C*Q*7I R. v. Selles8
</225= O*;* No* 6,-6 4Q)7 4ON C*A*7I R. v. Adams and Waltz 4/2?27 02 C*C*C* 43d7 /--
4ON C*A*7I R. v. +erman 4/2?27 ,/ C*C*C* 43d7 /5, 4%L C*A*7I &iquette v. R.8 </251=
C*A* 115 at 11?7*
<50= n &hili%%e v. R*8 ;*E* 6--0.32?8 this Court noted that the formalism once reJuired
is no longer mandator>8 although it urged prudence @hen the trial is before a jur>+
<&RAN%)A&ON=
<6?= %ubsection ,?/4/7 Cr. C* reJuires that the count appl> to a Csingle
transactionC onl>* t has long been established that the terms Ca single
transactionC or Cune seule affaireC do not preclude referring to several incidents in
one count* Although the rules governing the drafting of indictments @ere long
formal and strict8 there are nevertheless cases from rather far bacB in judicial
histor> involving indictments that group together several similar incidents* W
,--./-.--00/1.-23 PA$E+ 6/
<62= &he statement in a count encompassing several events must receive
particular attention in a trial before judge and jur>8 @here the rule of unanimit>
prevails* !or e:ample8 @here t@o distinct transactions are contemplated in one
count8 care must be taBen to prevent a jur> from arriving at a unanimous verdict
of guilt for an alleged offence if si: of the jurors are convinced be>ond an>
reasonable doubt of the accusedGs guilt @ith respect to the first transaction and
the other si: are eJuall> persuaded although @ith respect to the second
transaction* Hhere the transactions contemplated in the counts are not part of an
ongoing series of events and are distinct as to the manner in @hich the> @ere
perpetrated and the defences raised against them8 the judge @ould be @ise to
order that the count be divided 4subsection ,2-437 Cr. C.7*
<5,= Certainl>8 the latter concern is justified* !or e:ample8 can a jur>8 unanimous as to
the commission of genocide8 convict an appellant on the first count8 if si: of the jurors
based their finding of guilt on the murders committed near the Ngoma church and the
other si: based it on the murders committed after the Bidnappings at the roadblocBsZ
Ao@ever interesting this Juestion ma> be8 the Court need not decide it8 since this trial
tooB place before a judge alone*
<51= n this case8 the issue must instead be anal>Ded in light of the acts that are the
subjects of each of the counts*
<55= &he appellant is not charged @ith murder8 se:ual violence8 or pillage* Ae is
charged @ith genocide8 crimes against humanit>8 and @ar crimes8 offences that @ere
allegedl> committed through murder8 se:ual violence8 and pillage* &he distinction is
important*
<5?= Crimes against humanit>8 genocide8 and @ar crimes are offences that can be
described as Cconte:tualC* n crimes against humanit>8 the underl>ing offence must be
committed during a @idespread or s>stematic attacB directed against an identifiable
group of persons 4Mugesera at para* /,/78 @hich distinguishes a crime against
humanit> from an ordinar> offence* &he same is true @ith respect to genocide8 in @hich
the underl>ing act must be committed @ith intent to destro>8 in @hole or in part8 an
identifiable group of persons* And @ith respect to @ar crimes8 as the name indicates8
the> must be committed during an armed conflict8 either domestic or international*
<52= $iven the applicable rules8 @hich are outlined above8 it is entirel> possible for this
t>pe of count to encompass a series of similar acts committed during a @idespread or
s>stematic attacB directed against a civilian population8 either in the conte:t of the
destruction of an identifiable group of persons or during an armed conflict8 and still not
violate the single transaction rule* &he conte:t reveals a course of conduct that includes
the commission of underl>ing acts8 @hich ma> then be grouped together8 according to
their nature8 in a single count and constitute a single transaction*
<?-= Although the Cro@n could have drafted one count for ever> incident8 it cannot be
criticiDed for having grouped similar underl>ing offences referring to the same course of
conduct together in a single count* &his manner of proceeding is not contrar> to the
reJuirements of subsection ,?/4/7 Cr. C.
,--./-.--00/1.-23 PA$E+ 66
<?/= &he conte:tual nature of the offences is also important @hen the sufficienc> of
the counts under subsection ,?/437 Cr. C. is at issue*
<?6= &he sufficienc> reJuirement has been anal>Ded on numerous occasions b> the
%upreme Court of Canada* &he golden rule as set out in R. v. C@t?8 </25?= / %*C*R* ? at
/38 is for Cthe accused to be reasonabl> informed of the transaction alleged against him8
thus giving the possibilit> of a full defence and a fair trialC*
<?3= &he %upreme Court has held that sufficienc> is assessed on the basis of the
facts of the case and the nature of the charge 4R. v. >.5+.68 </22-= 6 %*C*R* 3- at 0090,I
R. v. $ouglas8 </22/= / %*C*R* 3-/ at 3/07*
<?0= n this case8 the appellant @as a@are of the conte:t of the charges since he
admitted that8 on the dates specified in the indictment8 R@anda8 including the prefecture
of #utare8 @as in the grips of genocide and armed conflict and that the civilian &utsi
population @as the target of a @idespread or s>stematic attacB* Ae also Bne@ @hat
underl>ing acts he @as alleged to have committed+ murder8 se:ual violence8 pillage* n
short8 he Bne@ that he @as being accused of committing murder8 se:ual violence and
pillage in the conte:t of the s>stematic or @idespread attacB against the &utsi population
and the armed conflict that @as ravaging R@anda8 and more precisel> in the prefecture
of #utare8 during a specific period of time8 and for having thus committed genocide8 a
crime against humanit>8 and a @ar crime*
<?,= (oreover8 before the trial8 the Cro@n had disclosed to the appellant all of the
evidence in its possession8 including a 35.page table of contents8 as @ell as8 @hen his
application for release @as heard8 a summar> of the evidence that it intended to adduce
at trial8 @hich @as no less than 6? pages long*
<?1= &hese are all elements to be considered @hen determining @hether the appellant
had sufficient Bno@ledge of the theor> the Cro@n intended to present to be able to
prepare an adeJuate defence against the charges8 in accordance @ith the reJuirements
noted b> the Court of Appeal for Ontario in R. v. Ro"inson8 <6--/= O*;* No* /-56 4Q)7+
63 Hhether an indictment or a count in an indictment meets the sufficienc>
reJuirement in this subsection depends upon the facts and circumstances of
each case* n determining @hether the transaction has been sufficientl> identified
the court @ill looB not just at the @ording of the indictment but also at the other
material in the possession of the accused such as Cro@n disclosure and the
evidence called at the preliminar> inJuir>8 if there @as one+ Re Regina and R.I.C.
4/2?178 36 C*C*C* 43d7 322 4Ont* C*A*7I R. v. Ryan 4/2?,78 63 C*C*C* 43d7 / 4Ont*
C*A*7* W
<Emphasis added*=
<?5= n the other case brought under the Act8 R. v. Mungarere8 su%ra8 the trial judge
opined that disclosure of evidence is similar to the description of facts reJuired b> the
international criminal tribunals and allo@s the accused to become familiar @ith the
evidence for the purpose of preparing the defence+
<&RAN%)A&ON=
,--./-.--00/1.-23 PA$E+ 63
</3= t is true that8 at the C&R8 the facts are incorporated into the indictment
itself* t is also true that the Court ma> dra@ inspiration from the procedure at the
C&R8 given that tribunalGs e:perience in such matters* !undamentall>8 in this
case8 there is no real difference bet@een the t@o @a>s of proceeding* &he
statement of fact used b> the C&R and the obligation to disclose incumbent on
the Cro@n in Canada serve the same purpose+ to inform the accused* Our
procedure has evolved significantl> over the last three decades* &here @as a
time @here the Cro@n needed onl> to submit an indictment listing the essential
elements of the offence and nothing more* No@8 the golden rule is to ensure that
the accused has in hand all of the information that the Cro@n has in its
possession and under its control* ConseJuentl>8 the accused has detailed
Bno@ledge of all of the facts surrounding the allegation against him8 including all
of the evidence at the Cro@nGs disposal8 be it inculpator> or e:culpator>*
<??= n this case8 the Court finds that the appellant @as full> able to prepare his
defence and concludes that the counts @ere sufficient @ithin the meaning of subsection
,?/437 Cr. C.
<?2= As for paragraph //4h7 of the Charter8 the appellantGs argument is not convincing*
%ince an accused has the right not to be tried again for an offence of @hich he has been
acJuitted or convicted8 the broader the drafting of the offence8 the more paragraph //4h7
@ill @orB in favour of the accused later on b> prohibiting ne@ prosecutions concerning
an> of the events contemplated in the count* n other @ords8 if the count is broadl>
@orded8 paragraph //4h7 cannot be used to counter it*
<2-= #efore concluding this section8 it should be pointed out that initiall>8 the appellant
argued that the first8 third8 and fifth counts8 @hich allege murder8 and the second8 fourth8
si:th8 and seventh counts could not be joined in the same indictment in light of section
,?2 Cr. C.! @hich prohibits the inclusion of counts charging indictable offences other
than murder @hen such a charge is brought8 unless the other counts arise out of Cthe
same transactionC* &he Court is of the vie@ that he @as right to abandon this ground at
the hearing* &he appellant is not charged @ith murder but @ith genocide8 crimes against
humanit>8 and @ar crimes* &he murders are simpl> details included in the count to
characteriDe the charge* &his rules out the application of section ,?2 Cr. C. n addition8
given the conte:t in @hich the acts underl>ing these offences @ere committed8 it @ould
be inappropriate to reJuire that there be as man> counts as there are murder
allegations8 @hen the> all arise out of Cthe same transactionC*
THE ALLE*E" RRE*ULARTE%
<2/= &he appellant criticiDes the trial judge for visiting the cit> of #utare @ithout the
parties8 for using sources not adduced into evidence8 including a booB @ritten b> one of
the e:pert @itnesses8 Alison Des !orges8 entitled *eave 4one to .ell the Story8 the
@ebsite of the nternational Committee of the Red Cross8 and an e:hibit8 reproduced in
a schedule to his judgment8 that @as different from the one adduced* Ae submits that
the unla@ful consideration of this evidence b> the judge irremediabl> compromised the
fairness of the trial*
(i) The isit to !utare
,--./-.--00/1.-23 PA$E+ 60
<26= During the portion of the trial held in R@anda8 the judge spent a @eeBend in and
around the cit> of #utare* After@ards8 the follo@ing discussion bet@een the judge and
counsel tooB place+
(R* PERRA%+ @ill be short*
He did hear8 naturall>I it @as not a hidden venture to go to #utare* #ut8 as far as
the Defence is concerned8 @e are preoccupied8 letGs sa>8 that the ;udge @ent to
@hat is8 practicall> speaBing8 a crime scene in this case8 because eventuall> @e
@ill be hearing evidence of the topograph> of the place* #utare and its ph>sical
appearance is a factual issue in this case*
&AE CO"R&+ understand >our preoccupation8 but @e @ere not at the crime
scene*
@ant it to be ver> clear* &here are t@o major cities in R@anda8 Ligali and #utare*
He @orB ver> hard during the @eeB8 and @e @ent to8 first of all8 LingGs Aouse8
@hich is a@a> from the Cit> of #utare* t is half an hour*
@ill tell >ou e:actl> @hat @e did*
After that8 @e @ent to the museum8 @hich is also outside #utare8 @e had lunch at
the bis Aotel8 and then @e came bacB*
&hat is @hat @e did8 e:actl>8 and it @as ver> clear for me8 as the leader of our
group8 that there @as no intention to go on !irst8 %econd or 9
He didnGt see an>thing in #utare8 e:cept for LingGs Aouse8 the museum8 and the
bis Aotel* And thinB @e sa@ the universit>* &hatGs it8 and it @as ver> clear that
didnGt @ant to see an>thing concerning the facts that have been put or @ill be put
in front of this Court*
(R* PERRA%+ &hanB >ou*
(% )EDO"^+ f ma> add for (r* Perras8 the LingGs Aouse8 believe8 is in
N>anDa*
&AE CO"R&+ t is half an hour a@a>*
(% )EDO"^+ 'es* believe it is in N>anDa8 not even in #utare*
&AE CO"R&+ &he museum8 thinB8 is about five minutes out of the cit>8 but itGs
not in the cit>*
(R* COAEN+ t ma> be8 'our Aonour8 that @e might seeB to visit that site as a
group8 given that >ou have seen some but not all of the site*
&hat ma> be the @a> to rectif> the situation*
(% )EDO"^+ ;ust for the record8 the Cro@n doesnGt share the preoccupation of
the Defense on that point*
&AE CO"R&+ understand8 and @anted to tell >ou that @e @ere there*
f @e go some@here else8 @e @ill also tell >ou*
He @ant to see @ild animals8 and @e @ill go there one of these da>s8 if @e can do
that* lGm not sure* still @orB during the @eeBends*
,--./-.--00/1.-23 PA$E+ 6,
#ut @e @ere in #utare*
(R* PERRA%+ @onGt be asBing if the bis had a five star restaurant*
... )aughter
<23= &he discussion of the incident concluded on this humorous note8 and did not
result in an> motion being filed b> the appellant*
<20= Nevertheless8 no@8 in appeal8 he believes that the judge could not8 on his o@n
initiative and a@a> from the appellant and from counsel8 visit the cit> of #utare8 the
location @here man> of the incidents alleged against him tooB place* According to him8
section 1,- Cr. C. @as not respected and the appearance of justice has not been
preserved8 since it is impossible for the defence to Bno@ @hether the judgeRs
observations there might have influenced his conclusions and conseJuentl> to contest
them*
<2,= %ection 1,- Cr. C. enshrines the principle @hereb> the accused must be present
in court during the @hole of the trial* &his principle is reiterated in subsection 2467 of the
Act. %ection 1,6 Cr. C* prescribes the procedure applicable during a Cvie@C and
enshrines the right of the accused to be present during such a visit*
1,6* 4/7 &he judge ma>8 @here
it appears to be in the interests
of justice8 at an> time after the
jur> has been s@orn and before
it gives its verdict8 direct the
jur> to have a vie@ of an>
place8 thing or person8 and
shall give directions respecting
the manner in @hich8 and the
persons b> @hom8 the place8
thing or person shall be sho@n
to the jur>8 and ma> for that
purpose adjourn the trial*
467 Hhere a vie@ is ordered
under subsection 4/78 the judge
shall give an> directions that he
considers necessar> for the
purpose of preventing undue
communication b> an> person
@ith members of the jur>8 but
failure to compl> @ith an>
directions given under this
subsection does not affect the
validit> of the proceedings*
437 Hhere a vie@ is ordered
under subsection 4/78 the
accused and the judge shall
attend*
1,6* 4/7 )orsJue la chose
para_t Ttre dans lRintFrTt de la
justice8 le juge peut8 S tout
moment aprUs Jue le jur> a FtF
assermentF et avant JuRil rende
son verdict8 ordonner Jue le
jur> visite tout lieu8 toute chose
ou personne8 et il donne des
instructions sur la maniUre dont
ce lieu8 cette chose ou cette
personne doivent Ttre montrFs8
et par Jui ils doivent lRTtre8 et il
peut S cette fin ajourner le
procUs*
467 )orsJuRune visite des lieu:
est ordonnFe en vertu du
paragraphe 4/78 le juge donne
les instructions JuRil estime
nFcessaires pour empTcher
toute communication indue par
JuelJue personne avec les
membres du jur>I le dFfaut de
se conformer au: instructions
donnFes sous le rFgime du
prFsent paragraphe nRatteint
pas la validitF des procFdures*
437 )orsJuRune visite des lieu:
est ordonnFe en vertu du
,--./-.--00/1.-23 PA$E+ 61
paragraphe 4/78 lRaccusF et le
juge doivent Ttre prFsents*
<21= n .anguay v. R.8 </25/= ;*Q* No* 1/ 4Q)7 at para* 608 this Court held that this
provision applies to a trial before a judge sitting alone* n addition8 in R. v. >o)em"aum8
</2?-= ;*Q* No* 66 4Q)7 at para* /28 this Court found that the attendance of the accused
@as mandator>* ndeed8 appellate courts generall> consider the failure to follo@ the
foregoing procedure to be a jurisdictional error vitiating the entire process8 @hich cannot
be saved b> the curative proviso 4R. v. >oucher8 </2?5= R*;*Q* /22- 4QC C*A*7I R. v.
&redac8 </2?3= O*;* No* /02 4Q)7 4ON* C*A*7I R. v. +avin8 </2?3= #*C*;* No* 60,0 4Q)7
at para* 3 4#*C*C*A*77*
<25= A Cvie@C in the absence of the accused8 ho@ever8 does not al@a>s constitute
such an error* !or the vie@ to fall under sections 1,- and 1,6 Cr. C.8 it must taBe place
@ith the objective of moving the trial for@ard8 as this Court pointed out in Meunier v. R*8
</21,= ;*Q* No* 61 4Q)7 at para* ?8 confirmed b> the %upreme Court of Canada 4</211=
%*C*R* 3227* &his principle @as been endorsed b> the #ritish Columbia Court of Appeal
in +avin at para* 3 and the Court of Appeal for Ontario in R. v. Sternig8 </25,= O*;* No*
/006 4Q)7 at paras* 1/913* %ee also #ontaine v. R*8 6-/0 QCCA 0-, at para* 01*
<2?= n short8 it is the fact that observations made in the absence of the accused are
used for the purpose of adjudication that can be problematic*
<22= )et us no@ consider the situation here* Did the judgeGs trip to #utare have the
objective of moving the trial for@ard or8 if not8 did it have that conseJuenceZ
</--= Of course8 it @ould undoubtedl> have been preferable if the judge had refrained
from visiting this cit> @ithout speaBing to counsel about it beforehand* Nevertheless8 the
record sho@s that the judge @as there purel> as a tourist and that his visit did not have
the objective of moving the trial for@ard @ithin the meaning of the judgments cited
above* n fact8 no@here in his judgment or in the schedule to it did the judge refer to his
observations during this visit* Ae never assessed the credibilit> of an> of the @itnesses
on the basis of these observations* (oreover8 the judge did not see the locations @here
the appellant allegedl> committed the crimes8 namel>8 the Ngoma church8 the
prefectural office8 or the roadblocBs8 for e:ample*
</-/= n conclusion8 the record sho@s that the judgeGs visit @as essentiall> for the
purposes of tourism and recreation8 as counsel for the appellant understood at the time8
and @ho did not see fit to file an> Bind of motion in this regard* &here is therefore no
issue of jurisdictional error*
(ii) The use of sources not adduced in eidence
</-6= !irst8 the appellant faults the judge for rel>ing on the booB b> Alison Des !orges8
@hich had not been adduced into evidence* Ais counsel objects to such use because it
contains four chapters on the events in #utare and mentions certain @itnesses @ho
@ere heard at trial*
,--./-.--00/1.-23 PA$E+ 65
</-3= t is true that8 in paragraphs /,, et seJ* of the judgment8 the judge states that the
portion concerning the histor> of R@anda @as inspired b> Des !orgesG @orB* &his limited
use had been announced during the trial8 ho@ever+
<&RAN%)A&ON=
*** No@8 the overall content8 Des !orges talBs about it8 thatGs @hat @ant*** @hat
@ant to hear >ou testif> about*
Obviousl>8 (r* $u>isha@a <another author= connects the accused to some ver>
specific facts* donGt believe that @e can go that far8 and the evidence that hear
is evidence that @ill be given specificall> b> the @itnesses against (r*
(un>aneDa and @hat he does is evidence that tends to e:culpate him and @here
the line should lead ever>one to the constituant elements of the offences8 but if
there is a reasonable doubt8 he @ill be acJuitted8 thatGs clear8 and if there is not8
he @ill be convicted*
An>@here (r* (un>aneDa is mentioned in (r* $u>isha@aGs treatise8 thinB @e
set that aside*
No@8 there are plent> of other elements in this histor>8 and (s* Des !orges8
Bno@8 @ho is a historian8 @ho sBetches an outline of the situation as a @hole*
Even @hat happened in Ligali8 @hich does not concern us8 but @hich can have***
@hich can give the judge a historical perspective*
%o8 this is @hat @ant to talB to >ou about8 and donGt Bno@ if @e have doDens of
documents8 am not going to go through ever>thing about the histor>* W
</-0= &he appellant does not contest this point* Nevertheless8 he argues that the
judgment reveals that the use of this booB @as not limited to the histor> of the genocide*
n support of this claim8 he refers to passages from the judgment concerning the speech
made b> )Fon (ugesera in /2268 to the role of propagandist pla>ed b> Radio,
.?l?vision li"re des mille collines8 and to the judgeGs conclusion that he committed
offences in the cit> of #utare and <&RAN%)A&ON= Cthe neighbouring communesC8 @hile
the evidence concerned solel> the offences committed in the commune of Ngoma8 in
@hich the cit> of #utare is located* &he appellant adds that if his counsel had Bno@n that
the judge intended to maBe such e:tensive use of Des !orgesG booB8 the> @ould have
cross.e:amined her differentl>*
</-,= As the respondent points out8 the appellant is unable to refer to a conclusion of
fact concerning him in the judgment that could have been dra@n from Des !orgesG booB*
&he e:amples of the borro@ings he provides 9 namel>8 (ugeseraGs speech and the
propagandist role pla>ed b> certain media outlets 9 are part of the histor> of the
genocide and have no connection @ith the appellant* !urthermore8 the speech is
reproduced in a schedule to the judgment in Mugesera8 @hich @as argued before
Denis ;*
</-1= As for the conclusion that the appellant <&RAN%)A&ON= CBilled ten or so people in
#utare and the surrounding communesC8 this sentence should not be taBen in isolation
,--./-.--00/1.-23 PA$E+ 6?
from the rest of the judgment8 much less provide a basis for inferring that the judge
relied on e:ternal evidence in coming to this conclusion* n realit>8 throughout his ver>
detailed judgment8 the judge found that the appellant had participated in various acts
committed in specific locations onl> in the commune of Ngoma* Perhaps8 for the saBe of
clarit>8 it might have been preferable if he had @ritten that the appellant had committed
murders <&RAN%)A&ON= Cin the cit> of #utare and in the neighbouring areas in the
commune of NgomaC8 as the Cro@n suggests8 but this in no @a> proves that he made
inappropriate use of the booB b> Des !orges*
</-5= n addition8 the judgeRs comments reproduced above confirm that he @as
perfectl> a@are of the limited use he could maBe of Des !orgesG booB* t must therefore
be assumed that he acted accordingl>8 as must be done @ith regard to an> evidence
that is declared inadmissible* 4R. v. 3idal! </225= ;*Q* No* 656, 4Q)7 at para* 05 4QC
C*A*7*
</-?= &he appellant also faults the judge for basing his finding that R@anda @as a
signator> to the $enocide Convention on his consultation of the Red Cross @ebsite*
</-2= n this respect8 it is the CourtRs vie@ that the judge did not err b> taBing
cogniDance of the list of %tate parties to an international treat> to @hich Canada is also
a part>* Contrar> to the appellantRs argument8 the %upreme Court did not decide in
#inta8 at ?159?1?8 that a %tateRs signing of a convention has to be established through
e:pert evidence* Rather8 that judgment refers solel> to the fact that e:pert evidence and
commentar> are often necessar> in the interpretation of international la@8 man>
principles of @hich remain uncodified*
<//-= Certainl>8 it @ould have been better for the judge to consult the official source8
i*e*8 the Anited 4ations .reaty Collection8
,
instead of the Red Cross site* Nevertheless8
@hat the judge did @as inconseJuential*
(iii) "chedule to the #udgment
<///= !inall>8 the appellant attaches a great deal of importance to the fact that the
e:hibit in schedule 34E7 to the judgment differs from that adduced at trial8 @hich is
e:hibit D.50* &his e:hibit concerns the possible perjur> of Cro@n @itness C./,8 @hich
@ill be discussed later on* &he appellant uses this as a springboard to Juestion the
judgeGs entire approach and its impact on his right to a fair trial*
<//6= No one is able to sa> e:actl> ho@ the judge found himself in possession of the
incorrect version of e:hibit D.50 and @h> he used this version instead of the one filed at
trial* &he most plausible e:planation @as provided b> the respondent8 @ho believes that
(tre Dimitri8 counsel for the appellant8 might have accidentall> submitted an earlier
version of the document from her computer during the trial*
<//3= Did this gaffe necessaril> vitiate the process to such a degree that the trial @as
rendered unfairZ &he Court does not believe so*
,
&o consult the list of %tate signatories to the +eneva Convention8 see
https+EEtreaties*un*orgEPagesEVie@Details*asp:Zsrc[&REA&'\mtdsgYno[V.
/\chapter[0\lang[en\clang[Yen
,--./-.--00/1.-23 PA$E+ 62
<//0= #efore the judge8 @itness C./, stated that she Bne@ a certain Rose #uriDihiDa* n
cross.e:amination8 the @itness @as confronted @ith her testimon> before the C&R in
@hich she had stated that she did not Bno@ this @oman* %he justified this contradiction
b> e:plaining that she had denied Bno@ing Rose #uriDihiDa at the reJuest of counsel for
the prosecution at the C&R* &his @as the conte:t in @hich e:hibit D.50 @as filed* &his
e:hibit consists in an admission b> the parties that this attorne>8 @hile preparing the
testimon> of C./,8 never suggested that the @itness den> Bno@ing this @oman* !rom
this8 the appellant finds that C./, perjured herself before the judge8 in addition to having
lied before the C&R*
<//,= As the respondent rightl> points out8 e:hibit D.50 concerns a strictl> collateral
fact* t @as filed solel> to contradict C./,Gs statement that the C&R attorne> allegedl>
asBed her to lie to the tribunal*
<//1= n Manual of Criminal (vidence 4&oronto+ Cars@ell8 6-/-7 at 6?/96?68 ;ustice
David Hatt @rites about the rule applicable to collateral facts+
&he collateral facts or collateral issues rule prohibits the introduction of evidence
for the sole purpose of contradicting a @itnessG testimon> concerning a collateral
fact* W n general8 matters that relate @holl> and e)clusively to the credibilit> of a
non.accused @itness are collateral8 hence be>ond the reach of contradictor>
evidence*
A collateral fact is one that is not connected @ith the issue in the case* t is one
that the part> @ould not be entitled to prove as part of its case8 because it lacBs
relevance or connection to it* A collateral fact8 in other @ords8 is one that is
neither
i materialI nor
ii* relevant to a material fact
f the ans@er of a @itness that a part> seeBs to contradict8 is a matter that the
opponent could prove in evidence as part of its case8 inde%endent the
contradiction8 the matter is not collateral* Contradictor> evidence ma> be elicited*
f the ans@er of a @itness that a part> seeBs to contradict8 is a matter that the
opponent @ould not be entitled to prove in evidence8 inde%endent the
contradiction8 the matter is collateral* Contradictor> proof is not permitted*
&he several e:ceptions to collateral facts rule include and permit+
i* proof of bias8 interest or corruption denied b> the @itnessI
ii* proof of prior inconsistent statement not admitted b> the @itnessI
iii* proof of prior conviction not admitted b> the @itnessI
iv* disproof of a denial of a reputation for l>ing or untruthfulnessI and
v* disproof of a denial of a ph>sical or mental defect relating to the
capacit> of liBelihood of the @itness telling the truth*
,--./-.--00/1.-23 PA$E+ 3-
<//5= n this case8 @e ma> describe this evidence as relating to a collateral fact8 in that
it concerns the credibilit> of @itness C./, regarding her e:planation of a contradiction
@ith a prior statement before a different court*
<//?= C./,Gs credibilit> @as thus undermined8 and the reason for her lie @as of little
importance* All things considered8 e:hibit D.50 might not have been adduced 4as a
matter of fact8 it should not have been7 and nothing @ould have changed @ith regard to
the issues to be decided b> the judge* n the circumstances8 the judgeGs inclusion of the
@rong version of e:hibit D.50 in the schedule to his judgment caused no prejudice to
the appellant8 @ho successfull> undermined the credibilit> of @itness C./, during her
cross.e:amination*
<//2= !or these reasons8 the Court is of the vie@ that all of the grounds alleging
irregularities raised b> the appellant should be rejected*
CON%TTUANT ELEMENT% OF THE OFFENCE%
</6-= &he appellant argues that the judge convicted him on the seventh count8 @ar
crimes b> pillage8 @ithout considering the reJuirements of this offence8 namel>8 pillaging
Ca to@n or a placeC* n his vie@8 @hatever ma> have been the elements of a @ar crime
b> pillage in /2208 pillage could be punished after ;ul> of /22? onl> according to the
rules of international la@ as the> e:isted at the time the indictment @as filed8 namel>8
those of the Rome Statute8 @hich defines a @ar crime in the conte:t of a non.
international armed conflict as a specific list of acts8 including C<p=illaging a to@n or
place8 even @hen taBen b> assaultC* n this case8 no evidence @as tendered of pillage of
a to@n or place8 but onl> of a fe@ businesses and a home8 and the judge therefore
convicted him of an offence that does not e:ist*
</6/= (oreover8 during the hearing8 in a manner that @as at times rather vague8
counsel for the appellants faulted the trial judge for his outline of the elements of the
other crimes8 particularl> his definition of @hat constitutes murder8 arguing that he
selected a Canadian and not an international definition of this underl>ing offence*
</66= n the circumstances8 the Court believes that it is useful to outline the constituant
elements of the offences @ith @hich the appellant is charged*
</63= As @e have seen8 the Act confers on Canadian courts universal jurisdiction over
genocide8 crimes against humanit>8 and @ar crimes8 and refers to international la@ for
the elements thereof 4subsection 1437 of the Act7*
</60= &herefore8 in interpreting and defining these offences8 as @ell as their underl>ing
offences or acts8 a Canadian court ma> taBe into account international la@8 including
decisions of the international courts8 as noted b> the %upreme Court in Mugesera and in
commentar> 4)afontaine at //? and /6/9/618 Robert ;* Currie \ on %tancu8 CR. v.
Munyaneza+ Pondering CanadaGs !irst Core Crimes ConvictionC8 46-/-7 /- IntBl. Crim.
*. R. ?62I (adeleine ;* %ch@artD8 CProsecuting Crimes against Aumanit> in Canada+
Hhat (ust be ProvedC8 46--67 01 Crim. *.C. 0-7*
</6,= n realit>8 doing other@ise @ould liBel> create a dichotom> potentiall> leading to
impunit> in Canada for acts committed abroad that are crimes under international la@
,--./-.--00/1.-23 PA$E+ 3/
but not under Canadian la@* ParliamentGs intent @as to prevent such dichotomies8 as it
abolished the reJuirement that had e:isted before the Act in subsections 543*/7 to 43*557
Cr. C* to demonstrate8 in the prosecution for a crime against humanit> or @ar crime8 that
the underl>ing offences @ere offences according to both international la@ and Canadian
la@*
</61= n such cases8 ParliamentRs intent to refer to international la@ in such matters is
also demonstrated b> the use of the concept Cintentional BillingC in subsections 1467 and
/,4/7 of the Act for the purposes of sentence and eligibilit> for parole* &here is no
concept of Cintentional BillingC in the Criminal Code! although it goes @ithout sa>ing that
in Canadian la@8 murder reJuires proof of intent* &he use of this notion distinguishes the
Act from the Criminal Code in regard to sentencing8 since an Cintentional BillingC
committed in the circumstances described in the provision reJuires the offender to serve
at least t@ent>.five >ears of the sentence8 @hile under the Criminal Code! such a fate is
reserved onl> for those convicted of first degree murder*
</65= Admittedl>8 a superficial reading of subsection 6467 of the Act could lead to the
impression that the definition of the underl>ing offences must be that found in the
Criminal Code. %uch8 ho@ever8 is not the case* Admittedl>8 Parliament provides a list of
prohibited underl>ing acts onl> for crimes against humanit>8 but it is recogniDed that
genocide and @ar crimes are also composed of underl>ing acts that are similar in
nature* !or e:ample8 murder ma> constitute an offence underl>ing all three crimes8 but
it is e:plicitl> mentioned onl> under crimes against humanit>* &herefore8 if murder is
alleged as an underl>ing offence in a charge of genocide or @ar crimes8 it must be
defined according to international la@8 since the Act does not do so directl>* n a case
involving crimes against humanit>8 it @ould be illogical to assign it a different definition8
one corresponding to Canadian criminal la@8 under the prete:t that it is one of the
underl>ing offences enumerated in the Act. A single underl>ing offence might therefore
have t@o meanings depending on the crime alleged8 @hich can potentiall> result in a
ne@ dichotom>8 @hereas coherence is @hat must be sought in the interpretation of the
Act*
</6?= &o put it simpl>8 save @here it refers specificall> to Canadian la@8 as in
subsection 2467 discussed above8 the Act must be interpreted in a manner consistent
@ith developments in international la@8 and to this end8 the international definitions of
crimes and their underl>ing offences must be applied*
</62= &he Rome Statute is a crucial tool in this respect* n /22?8 this instrument
codified some material and intentional elements of genocide upon @hich there @as a
concenssus8 crimes against humanit> and @ar crimes8 and thereafter jurisdiction over all
of these crimes @as attributed to the nternational Criminal Court 4CC7* n addition8 as
subsection 1407 of the Act indicates8 the Rome Statute is not an e:haustive codification
of international la@ and does not rule out the e:istence of similar crimes under e:isting
or developing rules of international la@*
C-,:e. a;a,n./ 2u:an,/y: e<e:en/. 03 /2e 033ence
,--./-.--00/1.-23 PA$E+ 36
</3-= "nliBe the provisions defining genocide and @ar crimes8 subsection 1437 of the
Act provides a precise definition of the underl>ing acts that ma> become crimes against
humanit>* &he> are murder8 e:termination8 enslavement8 deportation8 imprisonment8
torture8 se:ual violence8 and persecution* &he list is not e:haustive8 since an> other act
or omission that contravenes customar> international la@ or conventional international
la@ or b> virtue of its being criminal according to the general principles of la@
recogniDed b> the communit> of nations ma> constitute a proscribed underl>ing act*
(oreover8 genocide does not reJuire the e:istence of an armed conflict and thus ma>
be committed during peace time*
</3/= )iBe all crimes8 crimes against humanit> are composed of t@o elements+ a
criminal act and a guilt> mind 4Mugesera at para* /657*
</36= &he criminal act includes three material elements+ 4i7 one of the enumerated
proscribed acts is committedI 4ii7 it is committed as part of a @idespread or s>stematic
attacBI and 4iii7 the attacB is directed against an> civilian population or an> identifiable
group 4Mugesera at para* /6?7*
</33= A guilt> mind consists of t@o elements+ 4i7 the mental element reJuired for the
underl>ing offence8 and 4ii7 evidence that the accused @as cogniDant of the ne:us
bet@een his act and the attacB directed against a civilian population or identifiable group
of persons 4Mugesera at para* /507*
</30= t is appropriate here to consider each of these elements solel> @ith regard to the
offences underl>ing the t@o crimes against humanit> for @hich the appellant has been
convicted8 i.e*8 murder and se:ual violence*
(a) The material elements or actus reus of the proscri$ed acts
= Mu-1e-
</3,= Rel>ing on Mugesera and &rosecutor v. >rdanin 4/ %eptember 6--078 Case No*
&.22.31.& 4C&'8 &rial Chamber7 the trial judge found that under international la@8 it @as
necessar> to demonstrate 4a7 that the person @as deceased8 4b7 that the accused
caused the death through an act or omission or contributed significantl> to the death8
and 4c7 that the accused had the intent to cause the victimGs death or to inflict serious
injur> that he Bne@ @as liBel> to cause death*
</31= (urder under international la@ thus differs from murder under Canadian la@ in
one respect8 since the latter reJuires a lo@er standard to establish a causal connection
bet@een the accusedGs conduct and the death* As Professor )afontaine points out at
page /65+
n Canadian la@8 all that is reJuired is that the conduct be a Ccontributing cause
of death8 outside the de minimis rangeN or8 as rephrased in a later judgment b>
the majorit> of the %upreme Court8 a Msignificant contributing causeN* &he
%upreme Court e:plicitl> rejected the terminolog> of Msubstantial causeN to
describe the reJuisite degree of causation for all homicide offenses and indicated
that this involved a Mhigher degree of legal causationN*
,--./-.--00/1.-23 PA$E+ 33
</35= &o remain consistent @ith the applicable la@ 9 i*e*8 international la@ 9 the higher
standard of causation must be met* t follo@s that8 @ith respect to causation8 the
prosecution must establish be>ond an> doubt that the act committed @as a Msubstantial
cause of deathN 4Ccause su"stantielle de la mortN7 and not merel> a Csignificant
contributing cause of deathC 4Ccause ayant contri"u? de faDon a%%r?cia"le E la mortC7*
= %e4ua< 5,0<ence > -a?e
</3?= &he acts of se:ual violence that the trial judge found to have occurred 4paragraph
/6/ of his judgment7 are the same as those he described in the section of the judgment
on genocide+
<&RAN%)A&ON=
<2,= nternational jurisprudence8 @hich does not differ from Canadian
jurisprudence in this regard8 defines se:ual violence as Man> act of a se:ual
nature @hich is committed on a person under circumstances @hich are coerciveN
<21= &he follo@ing acts8 among others8 are considered se:ual violence+
4a7 forcing a person to undress in publicI
4b7 se:ual penetrationI
4c7 rapeI
4d7 se:ual molestation*
<Citations omitted=
</32= As the judge emphasiDed8 se:ual violence has been defined b> the ad hoc
tribunals as Can> act of a se:ual nature @hich is committed on a person under
circumstances @hich are coerciveN 4A-ayesu at para* ,2?78 @hich are defined as
follo@s+
1?? W coercive circumstances need not be evidenced b> a sho@ of ph>sical
force* &hreats8 intimidation8 e:tortion and other forms of duress @hich pre> on
fear or desperation ma> constitute coercion8 and coercion ma> be inherent in
certain circumstances8 such as armed conflict or the militar> presence of
nteraham@e among refugee &utsi @omen at the bureau communal* W
</0-= )ater8 in &rosecutor v. $ragol'u" Funarac 4/6 ;une 6--67 Case No* &.21.
63\63E/.A 4C&'8 &rial Chamber78 the victimRs lacB of consent @as found to be the
determining element* t follo@s that8 @hile the use of force or the threat of force ma> be
used to establish lacB of consent8 it is not an element of rape8 @hereas lacB of
consent is*
</0/= nternational jurisprudence8 and the judgment in ABa>esu in particular8 recogniDes
that acts of se:ual violence are more broadl> defined than rape+
1??* W &he &ribunal considers se:ual violence8 @hich includes rape8 as an> act
of a se:ual nature @hich is committed on a person under circumstances @hich
are coercive* %e:ual violence8 far from being limited to ph>sical invasion of the
human bod>8 ma> include acts @hich do not involve penetration or even ph>sical
contact* W
,--./-.--00/1.-23 PA$E+ 30
</06= As for the material elements of rape8 one of the components of se:ual violence8
international jurisprudence has defined them as penetration8 ho@ever slight8 of the
vagina and anus b> the penis or an> other object or of the mouth b> the penis
4&rosecutor v. Anto #uirundziia 4/- December /22?7 Case No* &.2,./5E/.& 4&rial
Chamber7 at para* /?,I Funarac at para* /657*
</03= &hese principles @ere reiterated in the first CC decisions in such matters
4&rosecutor v. +ermain Fatanga and Mathieur 4gud'olo Chui 43- %eptember 6--?7
CC.-/E-0.-/E-58 Decision on the confirmation of charges8 at para* 00-I &rosecutor v*
Jean,&ierre >em"a +om"o 4/, ;une 6--27 CC.-/E-,.-/E-?8 Decision on the
confirmation of charges8 at para* /167*
</00= &his constitutes the first element of the actus reus8 namel>8 the content of the
proscribed acts alleged here*
($) Attac% directed against a population or group
</0,= &he second material element is proof be>ond an> reasonable doubt of an attacB
against a civilian population or identifiable group of people*
</01= !or this to be established8 consideration must be given to a number of factors
identified in international jurisprudence including8 inter alia8 the ethnic and political
characteristics of a group* n Mugesera8 the %upreme Court states+
/1/ &he mere e:istence of a s>stematic attacB is not sufficient8 ho@ever8 to
establish a crime against humanit>* &he attacB must also be directed against a
civilian population* &his means that the civilian population must be Mthe primar>
object of the attacBN8 and not merel> a collateral victim of it+ Funarac8 &rial
Chamber8 at para* 06/* &he term MpopulationN suggests that the attacB is
directed against a relativel> large group of people @ho share distinctive features
@hich identif> them as targets of the attacB+ (ettrau:8 at p* 6,,*
W
/13 &he &utsi and moderate Autu8 t@o groups that @ere ethnicall> and
politicall> identifiable8 @ere a civilian population as this term is understood in
customar> international la@* (r* DuJuetteRs findings of fact leave no doubt that
the ongoing s>stematic attacB @as directed against them* !or these reasons8 @e
agree that at the time of (r* (ugeseraRs speech8 a s>stematic attacB directed
against a civilian population @as taBing place in R@anda*
</05= n this case8 it is established8 indeed even admitted8 that the &utsis @ere an
identifiable group of persons targeted b> s>stematic attacBs*
(c) The context in which acts were committed
</0?= &he third element of the actus reus of a crime against humanit> is proof be>ond
an> reasonable doubt that the alleged acts @ere committed as part of a @idespread or
s>stematic attacB*
,--./-.--00/1.-23 PA$E+ 3,
</02= &he Cro@n must therefore sho@ that the murders and se:ual violence @ere part
of a @idespread or s>stematic attacB against the &utsis and that there @as a linB
bet@een them and this attacB8 as noted b> the %upreme Court in Mugesera+
/10 As @e have seen8 the e:istence of a @idespread or s>stematic attacB
helps to ensure that purel> personal crimes do not fall @ithin the scope of
provisions regarding crimes against humanit>* Ao@ever8 because personal
crimes are committed in all places and at all times8 the mere e:istence of a
@idespread or s>stematic attacB @ill not be sufficient to e:clude them* &o ensure
their e:clusion8 a linB must be demonstrated bet@een the act and the attacB
@hich compels international scrutin>* !or this reason8 @e must e:plore @hat it
means for an act to occur Mas part ofN a @idespread or s>stematic attacB W
/1, &he reJuirement for a linB bet@een the act and the attacB ma> be
e:pressed in man> @a>s* !or instance8 Min the conte:t ofN or Mforming a part ofN
are common @ordings* &hese phrases reJuire that the accusedRs acts Mbe
objectivel> part of the attacB in that8 b> their nature or conseJuences8 the> are
liable to have the effect of furthering the attacBN+ (ettrau:8 at p* 6,/* n .adic8 the
Appeals Chamber of the C&' found that the acts of the accused must Mcomprise
part of a patternN of @idespread or s>stematic abuse of civilian populations or
must objectivel> further the attacB 4para* 60?7*
W
/15 *** n essence8 the act must further the attacB or clearl> fit the pattern of
the attacB8 but it need not comprise an essential or officiall> sanctioned part of it*
&hus8 in Funarac8 @here the three accused tooB advantage of a @idespread and
s>stematic attacB to rape and se:uall> torture (uslim @omen and girls8 the ne:us
reJuirement @as made out+ &rial Chamber8 at para* ,26* &he accused Bne@ of
the attacB8 their acts furthered the attacB directed against the (uslim population
of !oca and the> contributed to a pattern of attacB against that population*
<Emphasis added*=
</,-= &his Juestion remains an objective one+ @as the act a part of the pattern of
abuse or did it further the attacB8 @hether or not personal motives e:isted 4Mugesera at
para* /117*
(d) The mental element or mens rea of the underlying offence
= Mu-1e-
</,/= Article 3- of the Rome Statute describes the mental element of an act as follo@s+
6* !or the purposes of this
article8 a person has intent
@here+
4a7 n relation to conduct8 that
person means to engage in the
conductI
4b7 n relation to a
conseJuence8 that person
6* l > a intention au sens du
prFsent article lorsJue +
a7 Relativement S un
comportement8 une personne
entend adopter ce
comportement I
b7 Relativement S une
consFJuence8 une personne
,--./-.--00/1.-23 PA$E+ 31
means to cause that
conseJuence or is a@are that it
@ill occur in the ordinar> course
of events*
3* !or the purposes of this
article8 CBno@ledgeC means
a@areness that a circumstance
e:ists or a conseJuence @ill
occur in the ordinar> course of
events* CLno@C and CBno@ingl>C
shall be construed accordingl>*
entend causer cette
consFJuence ou est consciente
Jue celle.ci adviendra dans le
cours normal des FvFnements*
3* l > a connaissance8 au sens
du prFsent article8 lorsJuGune
personne est consciente
JuGune circonstance e:iste ou
JuGune consFJuence adviendra
dans le cours normal des
FvFnements* O Conna_tre P et
O en connaissance de cause P
sGinterprUtent en consFJuence*
</,6= %ince the Rome Statute is a codification of the customar> international la@
governing criminal la@ matters at the time of its adoption8 i*e*8 in ;ul> of /22?8 it @ould
not be appropriate to appl> this criterion here*
</,3= Rather8 the standard that e:isted at the time of the events in /220 is @hat must
be applied* &he mens rea of murder according to international la@ at the time @as
similar to that under Canadian )a@ in paragraph 6624a7 of the Criminal Code+
662* Culpable homicide is
murder
4a7 @here the person @ho
causes the death of a human
being
4i7 means to cause his
death8 or
4ii7 means to cause him
bodil> harm that he Bno@s is
liBel> to cause his death8
and is recBless @hether
death ensues or notI
662* )Rhomicide coupable est
un meurtre dans lRun ou lRautre
des cas suivants +
a7 la personne Jui cause la
mort dRun Ttre humain +
4i7 ou bien a lRintention de
causer sa mort8
4ii7 ou bien a lRintention de
lui causer des lFsions
corporelles JuRelle sait Ttre
de nature S causer sa mort8
et JuRil lui est indiffFrent Jue
la mort sRensuive ou nonI
= %e4ua< 5,0<ence
</,0= n customar> international la@8 the mens rea for se:ual violence and even for
rape is similar to that for se:ual assault under Canadian la@8 particularl> @ith respect to
Bno@ledge of the victimRs lacB of consent*
</,,= n Funarac at paragraph /658 the Appeals Chamber found that C<t=he mens rea is
the intention to effect this se:ual penetration8 and the Bno@ledge that it occurs @ithout
the consent of the victimC*
</,1= n &rosecutor v. Semanza 4/, (a> 6--37 Case No* C&R.25.6-.& 4C&R8 &rial
Chamber78 the C&R8 basing itself on the decisions in A-ayesu and Funarac8 found that
,--./-.--00/1.-23 PA$E+ 35
the mental element of rape as an underl>ing offence to crimes against humanit> Cis the
intention to effect the prohibited se:ual penetration @ith the Bno@ledge that it occurs
@ithout the consent of the victimC 4para* 3017*
</,5= n 6--18 the judgment in &rosecutor v. +acum"itsi 45 ;ul> 6--17 Case No* C&R.
-/.10.A 4C&R8 Appeals Chamber78 follo@ed the guidance in Funarac and stated+
/,5 As to the accusedRs Bno@ledge of the absence of consent of the
victim8 @hich as Funarac establishes is also an element of the offence of
rape8 similar reasoning applies* Lno@ledge of nonconsent ma> be proven8
for instance8 if the Prosecution establishes be>ond reasonable doubt that
the accused @as a@are8 or had reason to be a@are8 of the coercive
circumstances that undermined the possibilit> of genuine consent*
<Emphasis added*=
(e) The specific criminal intent of crimes against humanity
</,?= n Mugesera8 the %upreme Court stated that evidence of discriminator> intent is
not reJuired for all crimes against humanit>8 but that it must be sho@n that the accused
not onl> had the intent to commit the underl>ing offence but also that he @as a@are of
the attacB and Bne@ that his act @as part of it+
/53 &he Juestion of @hether a superadded mental element e:ists for crimes
against humanit> @as a point of significant contention in #inta* Cor> ;*8 for the
majorit>8 found that the accused must have an a@areness of the facts or
circumstances @hich @ould bring the act @ithin the definition of a crime against
humanit> 4p* ?/27* )a !orest ;* penned dissenting reasons suggesting that
establishing the mental element for the underl>ing act @as sufficient in itself and
thus no additional element of moral blame@orthiness @as reJuired 4p* 5,07* At
the time8 there @as little international jurisprudence on the Juestion* t is no@ @ell
settled that in addition to the mens rea for the underl>ing act8 the accused must
have Bno@ledge of the attacB and must Bno@ that his or her acts comprise part of
it or taBe the risB that his or her acts @ill comprise part of it+ see8 e*g*8 .adic8
Appeals Chamber8 at para* 60?I Ruggiu8 at para* 6-I Funarac8 &rial Chamber8 at
para* 030I >las-ic8 at para* 6,/*
<Emphasis added*=
</,2= &his additional mental element is defined in Mugesera as follo@s+
/50 t is important to stress that the person committing the act need onl> be
cogniDant of the linB bet@een his or her act and the attacB* &he person need not
intend that the act be directed against the targeted population8 and motive is
irrelevant once Bno@ledge of the attacB has been established together @ith
Bno@ledge that the act forms a part of the attacB or @ith recBlessness in this
regard+ Funarac8 Appeals at para* /-3* Even if the personRs motive is purel>
personal8 the act ma> be a crime against humanit> if the relevant Bno@ledge is
made out*
/5, Lno@ledge ma> be factuall> implied from the circumstances+ .adic8 &rial
Chamber8 at para* 1,5* n assessing @hether an accused possessed the
reJuisite Bno@ledge8 the court ma> consider the accusedRs position in a militar>
,--./-.--00/1.-23 PA$E+ 3?
or other government hierarch>8 public Bno@ledge about the e:istence of the
attacB8 the scale of the violence and the general historical and political
environment in @hich the acts occurred+ see8 e*g*8 >las-ic8 at para* 6,2* &he
accused need not Bno@ the details of the attacB+ Funarac8 Appeals at para* /-6*
<Emphasis added*=
</1-= n conclusion8 in the assessment of the mental element of crimes against
humanit>8 the conte:t in @hich the accused acted must be considered* Hhile the
accused need not have the specific intent to attacB members of the targeted group8 his
consciousness or Bno@ledge of the linB bet@een his act and the @idespread or
s>stematic attacB must be determined*
` ` ` ` `
</1/= n short8 to paraphrase para* //2 of Mugesera8 under the Act and the principles
of international la@8 a proscribed act rises to the level of a crime against humanit> @hen
four elements are made out+
/* An enumerated proscribed act @as committed 4this involves sho@ing that
the accused committed the underl>ing criminal act and had the reJuisite
guilt> state of mind for the underl>ing act7I
6* &he act @as committed as part of a @idespread or s>stematic attacBI
3* &he attacB @as directed against a civilian population or an identifiable
group of personsI and
0* &he perpetrator of the proscribed act Bne@ of the attacB and @as a@are
that or recBless as to @hether there @as a linB bet@een his act and the
attacB8 even if he @as not a@are of the details*
*en0c,1e: e<e:en/. 03 /2e 033ence
</16= .he +enocide Convention is the codification of customar> international la@
4A-ayesu at para* 02,8 $uFnaVl (ettrau: at /22 et seJ*7* t defines the crime as follo@s+
Article /
&he Contracting Parties confirm
that genocide8 @hether
committed in time of peace or
in time of @ar8 is a crime under
international la@ @hich the>
undertaBe to prevent and to
punish*
Article 6
n the present Convention8
genocide means an> of the
follo@ing acts committed @ith
intent to destro>8 in @hole or in
part8 a national8 ethnical8 racial
Article %remier
)es Parties contractantes
confirment Jue le gFnocide8
JuGil soit commis en temps de
pai: ou en temps de guerre8 est
un crime du droit des gens8
JuGelles sGengagent S prFvenir
et S punir*
Article II
Dans la prFsente Convention8
le gFnocide sGentend de lGun
JuelconJue des actes ci.aprUs8
commis dans lGintention de
dFtruire8 ou tout ou en partie8
,--./-.--00/1.-23 PA$E+ 32
or religious group8 as such+
4a7 Lilling members of the
groupI
4b7 Causing serious bodil> or
mental harm to members of the
groupI
4c7 Deliberatel> inflicting on the
group conditions of life
calculated to bring about its
ph>sical destruction in @hole or
in partI
4d7 mposing measures
intended to prevent births
@ithin the groupI
4e7 !orcibl> transferring
children of the group to another
group*
Article 3
&he follo@ing acts shall be
punishable+
4a7 $enocideI
4b7 Conspirac> to commit
genocideI
4c7 Direct and public incitement
to commit genocideI
4d7 Attempt to commit
genocideI
4e7 Complicit> in genocide*
<Emphasis added*=
un groupe national8 ethniJue8
racial ou religieu:8 comme tel +
a7 (eurtre de membres du
groupeI
b7 Atteinte grave S lGintFgritF
ph>siJue ou mentale de
membres du groupeI
c7 %oumission intentionnelle du
groupe S des conditions
dGe:istence devant entra_ner sa
destruction ph>siJue totale ou
partielleI
d7 (esures visant S entraver
les naissances au sein du
groupeI
e7 &ransfert forcF dGenfants du
groupe S un autre groupe*
Article III
%eront punis les actes
suivants +
a7 )e gFnocideI
b7 )Gentente en vue de
commettre le gFnocideI
c7 )Gincitation directe et
publiJue S commettre le
gFnocideI
d7 )a tentative de gFnocideI
e7 )a complicitF dans le
gFnocide*
</13= &he +enocide Convention sets out t@o liabilit> regimes8 one for the %tates
parties8 @hich is similar to a civil regime8 and the other for individuals8 @hich is a
criminal regime+
Article 0
Persons committing genocide
or an> of the other acts
enumerated in article shall
be punished8 @hether the> are
constitutionall> responsible
Article V
)es personnes a>ant commis le
gFnocide ou lGun JuelconJue
des autres actes FnumFrFs S
lGarticle seront punies8
JuGelles soient des
,--./-.--00/1.-23 PA$E+ 0-
rulers8 public officials or private
individuals*
gouvernants8 des
fonctionnaires ou des
particuliers*
</10= &he Act restates the element of intent to destro> an identifiable group8 then refers
to its o@n subsection 1437 as @ell as to both customar> and conventional international
la@+
MgenocideN means an act or
omission committed @ith intent
to destro>8 in @hole or in part8
an identifiable group of
persons8 as such8 that at the
time and in the place of its
commission8 constitutes
genocide according to
customar> international la@ or
conventional international la@
or b> virtue of its being criminal
according to the general
principles of la@ recogniDed b>
the communit> of nations8
@hether or not it constitutes a
contravention of the la@ in
force at the time and in the
place of its commission*
O gFnocide P !ait Q acte ou
omission Q commis dans
lRintention de dFtruire8 en tout
ou en partie8 un groupe
identifiable de personnes et
constituant8 au moment et au
lieu de la perpFtration8 un
gFnocide selon le droit
international coutumier ou le
droit international
conventionnel8 ou en raison de
son caractUre criminel dRaprUs
les principes gFnFrau: de droit
reconnus par lRensemble des
nations8 JuRil constitue ou non
une transgression du droit en
vigueur S ce moment et dans
ce lieu*
</1,= &o identif> the underl>ing offences and their elements8 therefore8 @e must turn to
conventional international la@8 essentiall> the +enocide Convention and international
jurisprudence 4Mugesera at paras* ?69?37*
</11= n this appeal8 the t@o offences alleged are murder and serious harm to the
ph>sical or mental integrit> of the victims*
(a) The underlying offences
= Mu-1e-
</15= &he actus reus and the mens rea of murder as an underl>ing offence of genocide
do not differ from these elements as described above regarding crimes against
humanit>* t should be added that the number of murders is not a determinative factor*
= %e-,0u. 2a-: /0 ?2y.,ca< 0- :en/a< ,n/e;-,/y
</1?= &he C&R has on numerous occasions considered the interpretation of serious
ph>sical or mental harm to a member of an identifiable group 4A-ayesuI SemanzaI
&rosecutor v. Fayishema and Ruzindana 46/ (a> /22278 Case No* C&R.2,./.& 4&rial
Chamber 7I Funarac 4Appeals Chamber7* n those cases8 it concluded that such harm
could be constituted b> ph>sical or mental torture8 inhumane or degrading treatment8
,--./-.--00/1.-23 PA$E+ 0/
rape8 or se:ual violence* &he jurisprudence adds that the harm need not cause
permanent and irremediable damage*
</12= &o demonstrate that the proscribed act has been committed8 the prosecution
must prove that one or more victims have suffered ph>sical or mental harm* As for the
mens rea! the accused must have had the intent to cause this harm*
</5-= n this case8 the Cro@n alleged the commission of rapes* &he actus reus and the
mens rea of rape as an underl>ing offence to genocide do not differ from these
elements as described above in connection @ith crimes against humanit>*
($) The additional elements specific to genocide
</5/= &he specific elements of the offence of genocide are both material and mental*
&he prosecution must establish first8 that the alleged acts @ere committed against an
indentifiable group and second8 the intent to destro>8 in @hole or in part8 this group
4$abrielle Dion8 (aude (atin.Chantal \ (arlene 'ah>a Aaage8 M)a double attribution
de la responsabilitF en matiUre de genocideN 46--5 6-*6 R*Q*D** /537*
</56= An identifiable group ma> be characteriDed b> national8 ethnic8 racial8 or religious
criteria* &he identification of the protected or identifiable group must be assessed on a
case.b>.case basis b> reference to the objective particulars of a given social or
historical conte:t8 and b> the subjective perceptions of the perpetrators 4Semanza at
para* 3/57*
</53= &he international jurisprudence has found on numerous occasions that the &utsi
population constitutes an identifiable ethnic group @ithin the meaning of the definition of
genocide 44iyitege-a at para* 0/2I A-ayesu at para* 5-67* %imilarl>8 in Mugesera at
paras* // et seJ*8 the %upreme Court used the conte:tual approach to recogniDe the
ethnic character of the &utsi population*
</50= As for the mental element of genocide8 before anal>Ding the international
jurisprudence8 it should be pointed out that the English and !rench versions of the Act
differ* &he former includes the e:pression Mas suchN8 @hile the second does not use the
eJuivalent Mcomme telN8 @hich is in contrast found in all of the genocide treaties+
MgenocideN means an act or
omission committed @ith intent
to destro>8 in @hole or in part8
an identifiable group of
persons8 as such8 that at the
time and in the place of its
commission8 constitutes
genocide according to
customar> international la@ or
conventional international la@
or b> virtue of its being criminal
according to the general
principles of la@ recogniDed b>
the communit> of nations8
O gFnocide P !ait Q acte ou
omission Q commis dans
lRintention de dFtruire8 en tout
ou en partie8 un groupe
identifiable de personnes et
constituant8 au moment et au
lieu de la perpFtration8 un
gFnocide selon le droit
international coutumier ou le
droit international
conventionnel8 ou en raison de
son caractUre criminel dRaprUs
les principes gFnFrau: de droit
reconnus par lRensemble des
,--./-.--00/1.-23 PA$E+ 06
@hether or not it constitutes a
contravention of the la@ in
force at the time and in the
place of its commission*
<Emphasis added*=
nations8 JuRil constitue ou non
une transgression du droit en
vigueur S ce moment et dans
ce lieu*
</5,= n the vie@ of the Court8 ParliamentRs intent is to reflect international la@8 @hich
places a great deal of emphasis on the descriptive term Mas suchN or the !rench
Mcomme telN8 @hich is found in international treaties 4)afontaine at /169/137* t follo@s
that the English version should prevail here8 and indeed8 the trial judge recogniDed that
this e:pression @as an integral part of the mens rea of genocide*
</51= &hus8 the act must have been committed @ith the specific intent to destro>8 in
@hole or in part8 an identifiable group of people Mas suchN or Mper seN* n Aya-esu8 the
C&R defined this specific intent as follo@s+
02?* $enocide is distinct from other crimes inasmuch as it embodies a special
intent or dolus s%ecialis* %pecial intent of a crime is the specific intention8
reJuired as a constitutive element of the crime8 @hich demands that the
perpetrator clearl> seeBs to produce the act charged* &hus8 the special intent in
the crime of genocide lies in Cthe intent to destro>8 in @hole or in part8 a national8
ethnical8 racial or religious group8 as such*C
</55= t follo@s that the proscribed act must have been committed against a person
precisel> because that person @as part of the identifiable group8 thus conflating the
individual @ith that group 4A-ayesu at para* ,6/I &rosecutor v. Glizer 4iyitege-a 4/1
(a> 6--37 Case No* C&R.21./0.& 4C&R8 &rial Chamber7 at para 0/-7*
</5?= #ecause specific intent is reJuired8 recBlessness and negligence cannot be
considered part of the mental element of the crime of genocide 4Antonio Cassese at
/-3I Robert ;* Currie at /-27*
</52= !inall>8 @hile a genocidal polic> or specific plan to carr> it out ma> constitute a
significant fact8 it need not be proved*
(c) The differentiation $etween genocide and crimes against humanity
</?-= %everal underl>ing offences can be identified as either crimes against humanit>
or as genocide* Professor Cassese goes so far as to sa> that the t@o categories of
crime overlap 4su%ra at /-17*
</?/= Although it @as initiall> found that genocide could constitute part of a crime
against humanit>8 it is no@ clearl> distinct unto itself* Objective and subjective factors
differentiate the t@o8 although the> are similar8 to sa> the least*
</?6= !irst8 both t>pes of crime ma> be based on the same proscribed act8 but crimes
against humanit> are broader in scope* !or e:ample8 crimes against humanit> include
torture or arbitrar> imprisonment8 but that is not necessaril> the case @ith genocide*
</?3= %econd8 the mental elements are not the same* n the case of crimes against
humanit>8 in addition to the elements of the underl>ing offence8 Bno@ledge of the
,--./-.--00/1.-23 PA$E+ 03
e:istence of a @idespread or s>stematic attacB and the linB bet@een the underl>ing
offence and the attacB must be proved* n the case of genocide8 apart from the
elements of the underl>ing offence8 it is also necessar> to prove the intent to destro>8 in
@hole or in part8 an identifiable group of people*
)a- c-,:e. = e<e:en/. 03 /2e 033ence
</?0= ;ust as @ith crimes against humanit>8 there are fe@ observable differences
bet@een the definition of @ar crimes in subsection 1437 of the Act and that in the former
provision of the Criminal Code8 save for the nature of the conflict:
Act+ M@ar crimeN means an act
or omission committed during
an armed conflict that8 at the
time and in the place of its
commission8 constitutes a @ar
crime according to customar>
international la@ or
conventional international la@
applicable to armed conflicts8
@hether or not it constitutes a
contravention of the la@ in
force at the time and in the
place of its commission*
Criminal Code + M@ar crimeN
means an act or omission that
is committed during an
international armed conflict8
@hether or not it constitutes a
contravention of the la@ in
force at the time and in the
place of its commission8 and
that8 at the time and in that
place8 constitutes a
contravention of the customar>
international la@ or
conventional international la@
applicable in international
armed conflicts*
<Emphasis added*=
*oi + O crime de guerre P !ait Q
acte ou omission Q commis au
cours dRun conflit armF et
constituant8 au moment et au
lieu de la perpFtration8 un crime
de guerre selon le droit
international coutumier ou le
droit international
conventionnel applicables S
ces conflits8 JuRil constitue ou
non une transgression du droit
en vigueur S ce moment et
dans ce lieu*
Code criminel + O crime de
guerre P !ait .. acte ou
omission .. commis au cours
dGun conflit armF international ..
JuGil ait ou non constituF une
transgression du droit en
vigueur S lGFpoJue et au lieu de
la perpFtration .. et constituant8
S lGFpoJue et dans ce lieu8 une
transgression du droit
international coutumier ou
conventionnel applicable S de
tels conflits*
</?,= "nder the Criminal Code and the +eneva Conventions Act8 R*%*C* /2?,8 c* $.38
onl> serious offences could be prosecuted before Canadian courts* %ection 08 @hich is
common to the +eneva Conventions8 &rotection of civilian %ersons and %o%ulations in
time of ar 4+C I38 /6 August8 /2028 article /057 provides a restrictive definition of
these offences+
,--./-.--00/1.-23 PA$E+ 00
$rave breaches to @hich the
preceding Article relates shall
be those involving an> of the
follo@ing acts8 if committed
against persons or propert>
protected b> the present
Convention+ @ilful Billing8 torture
or inhuman treatment8 including
biological e:periments8 @ilfull>
causing great suffering or
serious injur> to bod> or health8
unla@ful deportation or transfer
or unla@ful confinement of a
protected person8 compelling a
protected person to serve in the
forces of a hostile Po@er8 or
@ilfull> depriving a protected
person of the rights of fair and
regular trial prescribed in the
present Convention8 taBing of
hostages and e:tensive
destruction and appropriation of
propert>8 not justified b> militar>
necessit> and carried out
unla@full> and @antonl>*
<Emphasis added*=
)es infractions graves visFes S
lRarticle prFcFdent sont celles
Jui comportent lRun ou lRautre
des actes suivants8 sRils sont
commis contre des personnes
ou des biens protFgFs par la
Convention + lRhomicide
intentionnel8 la torture ou les
traitements inhumains8 >
compris les e:pFriences
biologiJues8 le fait de causer
intentionnellement de grandes
souffrances ou de porter des
atteintes graves S lRintFgritF
ph>siJue ou S la santF8 la
dFportation ou le transfert
illFgau:8 la dFtention illFgale8 le
fait de contraindre une
personne protFgFe S servir
dans les forces armFes de la
Puissance ennemie8 ou celui
de la priver de son droit dRTtre
jugFe rFguliUrement et
impartialement selon les
prescriptions de la prFsente
Convention8 la prise dRotages8
la destruction et lRappropriation
de biens non justifiFes par des
nFcessitFs militaires et
e:FcutFes sur une grande
Fchelle de faaon illicite et
arbitraire*
</?1= &he adoption of the Act had the effect of broadening the scope of @ar crimes so
that offences committed during a non.international armed conflict could be prosecuted if
it @as proved that8 at the time the> @ere committed8 the> @ere crimes under customar>
or conventional international la@ 4)afontaine at /567*
</?5= !or the reasons outlined above8 the Court finds that murder8 rape or se:ual
violence8 and pillage @ere underl>ing offences that could give rise to @ar crimes in
/220*
</??= &o prove that a @ar crime has been committed8 in addition to the material and
mental elements of the underl>ing offence8 the follo@ing conte:tual elements must be
established+
. an armed conflict8 @hether international or notI
. offences committed against persons @ho did not taBe part or @ho had ceased to
taBe part in the armed conflict8 or in other @ords8 protected personsI
,--./-.--00/1.-23 PA$E+ 0,
. a ne:us bet@een the offences committed and the armed conflictI and
. the accusedRs Bno@ledge of this ne:us*
(a) The elements of the underlying offences
= Mu-1e-
</?2= &he actus reus and the mens rea of murder as an underl>ing offence to @ar
crimes do not differ from these elements as described above in connection @ith crimes
against humanit>*
= Ra?e an1 .e4ua< 5,0<ence
</2-= &he actus reus and the mens rea of rape and se:ual violence as underl>ing
offences to @ar crimes do not differ from these elements as described above in
connection @ith crimes against humanit>*
= P,<<a;e
</2/= &he offence of pillage set out in paragraph 04674g7 of &rotocol II contemplates
both organiDed and individual activities8 and applies to the pillage of an> t>pe of
propert>8 either private or public*
1
Article 0 of &rotocol II is an integral part of the IC.R
Statute8 "*N* Doc* %ERE%E2,,8 ? November /2208 criminaliDing pillage but @ithout
defining it* Pursuant to paragraph 34e7 of the IC.; Statute8 "*N* Doc* %ERE%E?658 6,
(a> /2238 the CplunderC 4a s>non>m of pillage8 as pointed out in FunaracI see belo@7 of
public or private propert> is a violation of the la@s and customs of @ar*
</26= n Jelisic at para* 0?8 the C&' found that plunder consists in Cthe fraudulent
appropriation of public or private funds belonging to the enem> or the opposing part>
perpetrated during an armed conflict and related theretoC* &hus8 Cindividual acts of
plunder perpetrated b> people motivated b> greed might entail individual criminal
responsibilit> on the part of its perpetratorsC*
</23= n $elalic! the C&'8 at para* ,2-8 found that Cthe prohibition against the
unjustified appropriation of public and private enem> propert> is general in scope8 and
e:tends both to acts of looting committed b> individual soldiers for their private gain8
and to the organiDed seiDure of propert> WC*
</20= n Funarac8 the C&'defined CplunderC8 @ith reference to CpillageC+
/,* &he @ord MplunderN in its ordinar> meaning suggests that more than the
theft of propert> from one person or even from a fe@ persons in the one building
is reJuired* Plunder is s>non>mous @ith MpillageN8 @hich more clearl> emphasises
that there must be theft involving a more e:tensive group of persons or a pattern
of thefts over some identifiable area such as8 for e:ample8 the (uslim section of
a village or to@n or even a detention centre* &he Cele"ici Judgment held that
1
Diplomatic Conference on the Reaffirmation and Development of nternational Aumanitarian )a@
applicable in Armed Conflicts8 #inal Act of the $i%lomatic Conference of +eneva of /1H2,/1HH8
&rotocol Additional to the +eneva Conventions of /0 August /121! and relating to the &rotection of
3ictims of 4on,International Armed Conflicts 5&rotocol II68 ? ;une /2558 Commentar>8 /25?8 at para*
0,068 online+
http+EE@@@*icrc*orgEapplicEihlEihl*nsfECO(E05,.51---?ZOpenDocument\:pYarticle%elected[51---?
,--./-.--00/1.-23 PA$E+ 01
plunder included unjustified appropriations both b> individual soldiers for their
private gain and b> the organised seiDures @ithin the frame@orB of a s>stematic
e:ploitation of enem> propert>* n &rosecutor v >las-ic8 the accusedRs conviction
for plunder @as based upon the large.scale activities of his subordinates over a
@idespread geographical area* Neither judgment therefore found it necessar> to
consider @hether plunder reJuires the thefts to be @idespread*
/1* Nevertheless8 in the vie@ of the &rial Chamber8 the use of the @ord
MplunderN in Article 34e7 of the %tatute refers to its ordinar> meaning of involving
unjustified appropriations of propert> either from more than a small group of
persons or from persons over an identifiable area such as alread> described*
&his interpretation is more consistent @ith plunder being a violation of the la@s or
customs of @ar* t is inappropriate to include @ithin that term a theft from onl> one
person or from onl> a fe@ persons in the one building* &here is no evidence in
the present case @hich satisfies the interpretation adopted* &here @ill therefore
be a judgment of acJuittal in favour of Funarac on Count /3*
<Emphasis addedI citations omitted*=
</2,= &his approach @as also taBen in &rosecutor v. Hadzihsanovic 4/, (arch 6--17
Case No* &.05.-/.& 4C&'8 &rial Chamber78 @here the &ribunal defined the scope of
plunder+
02* &he Chamber considers that the elements of the offence of plunder e:ist
@hen public or private propert> is acJuired illegall> and deliberatel>* &his crime
covers Mall forms of unla@ful appropriation of propert> in armed conflict for @hich
individual criminal responsibilit> attaches under international la@8 including those
acts traditionall> described as MpillageN and e:tends to bbboth @idespread and
s>stematised acts of dispossession and acJuisition of propert> in violation of the
rights of the o@ners and isolated acts of theft or plunder b> individuals for their
private gain*RR
,-* &he mens rea element of the offence of plunder of public or private
propert> is established @hen the perpetrator of the offence acts @ith the
Bno@ledge and intent to acJuire propert> unla@full>8 or @hen the conseJuences
of his actions are foreseeable*
W
,0* &he Chamber considers that to constitute an offence punishable b> Article
3 of the %tatute8 the plunder of public or private propert> need not be carried out
in the conte:t of militar> action* t suffices for the offence stipulated in Article 34e7
of the %tatute to be closel> linBed to the hostilities*
,,* &he Chamber recalls that the crime of plunder of public or private propert>
must satisf> the conditions for appl>ing Article 3 of the %tatute8 particularl> the
condition regarding the gravit> of the offence* &hat last condition is met @hen the
plundered propert> is of sufficient value that its unla@ful appropriation involves
grave conseJuences for the victims* n .adiI8 the Appeals Chamber illustrated
the concept of gravit> b> e:plaining that although the fact that a combatantRs
appropriation of a loaf of bread in an occupied village might fall under the
principle laid do@n in Article 01 of the Aague Regulations @hereb> private
propert> must be respected b> an> arm> occup>ing an enem> territor>8 that act
,--./-.--00/1.-23 PA$E+ 05
@ould not amount to a serious violation of international humanitarian la@* &he
Chamber agrees @ith the opinion e:pressed in 4aletiliI that the crime of plunder
can result not onl> from the fact the Mvictim suffers severe economic
conseJuences8N but also from Mthe reiteration of the acts and from their overall
impactN* &he seriousness of the violation must be ascertained on a case.b>.case
basis8 taBing into consideration the circumstances of the crime*
<Emphasis addedI citations omitted*=
</21= Hhat distinguishes ordinar> theft from plunder or pillage is the conte:t
surrounding its commission* &herefore8 it must be demonstrated that the plunder or
pillage of public or private propert> @as carried out in the conte:t of an armed conflict
and that the accused had Bno@ledge of the e:istence of an armed conflict and the intent
to acJuire the propert>* Hhile the e:tent of the pillage need not involve all of the
buildings in a to@n or place8 its conte:t must nevertheless be proved to establish that it
@as a serious violation of international la@* n the Rome Statute8 the use of the
e:pression Mpillaging a to@n or place8 even @hen taBen b> assaultN does not mean that
the pillage must affect the entire to@n or place8 since its list of serious violations is not
e:haustive* (oreover8 Article 14"7 of the 4urem"erg Charter refers to the plunder of
public or private propert>8 a notion that @as reiterated in the international jurisprudence
cited in the preceding paragraphs*
</25= !inall>8 the victim of the theft must be a protected person8 thus someone @ho did
not taBe part or @ho had ceased to taBe part in the hostilities*
8$) The nexus $etween the underlying offences and the armed conflict
</2?= &he C&R &rial Chamber and Appeals Chamber have both dealt @ith the ne:us
reJuirement*
</22= n Semanza8 the &rial Chamber confirmed that an> person ma> be found guilt> of
@ar crimes8 @hether or not that person acted under orders or in the furtherance of
official arm> activities+
3,?* Article 0 of the %tatute provides that the &ribunal Cshall have the po@er to
prosecute persons committing or ordering to be committed serious violations of
<Common Article 3 and Additional Protocol =*C &he Appeals Chamber of this
&ribunal recentl> pointed out that CArticle 0 maBes no mention of a possible
delimitation of classes of persons liBel> to be prosecuted under this provision*C
3,2* Common Article 3 and Additional Protocol similarl> do not specif>
classes of potential perpetrators8 rather the> indicate @ho is bound b> the
obligations imposed thereb>* n the case of Common Article 38 that is Ceach Part>
to the conflictC* &he CRC Commentar> on Additional Protocol simpl> sa>s that
the field of application ratione %ersonae includes Cthose @ho must8 @ithin the
meaning of the Protocol8 conform to certain rules of conduct @ith respect to the
adversar> and the civilian populationC*
31-* ndeed8 further clarification in respect of the class of potential perpetrators
is not necessar> in vie@ of the core purpose of Common Article 3 and Additional
Protocol + the protection of victims* n the vie@ of the C&R Appeals Chamber8
the protections of Common Article 3 impl> effective punishment of perpetrators8
,--./-.--00/1.-23 PA$E+ 0?
@hoever the> ma> be* n its ;udgement in the A-ayesu case8 the Appeals
Chamber held that the &rial Chamber erred on a point of la@ @hen it restricted
the application of Common Article 3 to a certain categor> of perpetrators*
%pecificall>8 the categor> of persons in Juestion in the &rial ChamberGs
;udgement consisted of members of the armed forces Cunder the militar>
command of either of the belligerent parties8 <and= * * * individuals @ho @ere
legitimatel> mandated and e:pected8 as public officials or agents or persons
other@ise holding public authorit> or de facto representing the $overnment8 to
support or fulfil the @ar efforts*
<Emphasis added*=
<6--= +eorges Anderson 4deru"ume Rutaganda v. &rosecutor 461 (a> 6--37 Case
No* C&R.21.3.A 4C&R8 Appeals Chamber78 rendered onl> a fe@ da>s after Semanza8
confirms the position taBen b> the C&' and the C&R &rial Chambers+
,12* &he Appeals Chamber of the C&R has not previousl> endorsed a
particular definition of the ne:us reJuirement* &he Appeals Chamber of the C&'
has done so t@ice* &he first time8 in the .adic ;urisdiction Decision8 the Appeals
Chamber stated that the offences had to be Mclosel> relatedN to the armed
conflict8 but it did not spell out the nature of the reJuired relation* n the Funarac
Appeal ;udgement8 it endorsed the same standard* t then provided the follo@ing
details8 @hich appear relevant to the Prosecution appeal in this case+
,?* Hhat ultimatel> distinguishes a @ar crime from a purel> domestic
offence is that a @ar crime is shaped b> or dependent upon the
environment 9 the armed conflict 9 in @hich it is committed* t need not
have been planned or supported b> some form of polic>* &he armed
conflict need not have been causal to the commission of the crime8 but
the e:istence of an armed conflict must8 at a minimum8 have pla>ed a
substantial part in the perpetratorRs abilit> to commit it8 his decision to
commit it8 the manner in @hich it @as committed or the purpose for @hich
it @as committed* Aence8 if it can be established8 as in the present case8
that the perpetrator acted in furtherance of or under the guise of the
armed conflict8 it @ould be sufficient to conclude that his acts @ere closel>
related to the armed conflict* &he &rial ChamberRs finding on that point is
unimpeachable*
,2* n determining @hether or not the act in Juestion is sufficientl>
related to the armed conflict8 the &rial Chamber ma> taBe into account8
inter alia8 the follo@ing factors+ the fact that the perpetrator is a
combatantI the fact that the victim is a non.combatantI the fact that the
victim is a member of the opposing part>I the fact that the act ma> be said
to serve the ultimate goal of a militar> campaignI and the fact that the
crime is committed as part of or in the conte:t of the perpetratorRs official
duties*
,--./-.--00/1.-23 PA$E+ 02
,5-* &his Chamber agrees @ith the criteria highlighted and @ith the e:planation
of the ne:us reJuirement given b> the C&' Appeals Chamber in the Funarac
Appeal ;udgement* t is onl> necessar> to e:plain t@o matters* !irst8 the
e:pression Munder the guise of the armed conflictN does not mean simpl> Mat the
same time as an armed conflictN andEor Min an> circumstances created in part b>
the armed conflictN* !or e:ample8 if a non.combatant taBes advantage of the
lessened effectiveness of the police in conditions of disorder created b> an
armed conflict to murder a neighbour he has hated for >ears8 that @ould not8
@ithout more8 constitute a @ar crime under Article 0 of the %tatute* #> contrast8
the accused in Funarac8 for e:ample8 @ere combatants @ho tooB advantage of
their positions of militar> authorit> to rape individuals @hose displacement @as an
e:press goal of the militar> campaign in @hich the> tooB part* %econd8 as
paragraph ,2 of the Funarac Appeal ;udgement indicates8 the determination of a
close relationship bet@een particular offences and an armed conflict @ill usuall>
reJuire consideration of several factors8 not just one* Particular care is needed
@hen the accused is a non.combatant*
<Emphasis addedI citations omitted*=
<6-/= &hus8 the ad hoc tribunals have accepted a certain number of conte:tual
elements to determine @hether there is a ne:us* Accordingl>8 a demonstration of the
ne:us does not reJuire the @ar crimes to have been committed in a determined
geographical territor> or over a short or long period of timeI the crimes are not limited to
offences of a purel> militar> natureI it is not a reJuirement that the accused be linBed to
one of the parties to the conflict and his or her actions need not be interconnected @ith
other crimes committed in the conte:t of that conflictI finall>8 the @ar crimes need not be
pursuant to an officiall> sanctioned practice of one of the parties to the conflict*
<6-6= &he elements identified b> the ad hoc tribunals to serve in the determination of a
ne:us are summariDed b> (ettrau: at 01+
4i7 the status of the perpetrator 4as soldier or combatant7I
4ii7 the status of the victim or victims 4as a non.combatant7I
4iii7 the circumstances in @hich the crime @as committedI
4iv7 the fact that the crime @as committed in the conte:t of an ongoing campaign
to achieve particular militar> goalsI
4v7 the fact that the crime coincided @ith the ultimate purpose of the militar>
campaignI
4vi7 the fact that the crime @as committed @ith the assistance or @ith the
connivance of the @arring partiesI
4vii7 the fact that the crime @as committed as part of8 or in the conte:t of8 the
perpetratorGs official dutiesI
4viii7 the fact that the victim @as a member of the forces of the opposing part>*
<Citations omitted*=
,--./-.--00/1.-23 PA$E+ ,-
<6-3= None of these criteria @hen taBen individuall> is conclusive evidence that a @ar
crime has been committed* Ans@ering this Juestion reJuires that the> be considered as
a @hole*
<6-0= n Rutaganda8 the C&R Appeals Chamber found that the accused @as guilt> of
@ar crimes because of t@o massacres committed as part of the armed conflict in
R@anda8 given his general connection @ith armed groups8 including the Interahame+
,10* W n support of this contention8 the Prosecution refers to conclusions
reached b> the &rial Chamber in considering the issue as to @hether Rutaganda
@as among the persons to @hom responsibilit> could be imputed under Article
04a7 of the %tatute 9 an issue @hich the Appeals Chamber subseJuentl> found to
be unnecessar> to prove for establishing responsibilit> for such violations* &he
relevant passages of the &rial ;udgement read as follo@s+
032* &he Accused @as in a position of authorit> vis.S.vis the
Interahame militia* &estimonies in this case have demonstrated that the
Accused e:erted control over the Interahame8 that he distributed
@eapons to them during the events alleged in this ndictment8 aiding and
abetting in the commission of the crimes and directl> participating in the
massacres @ith the Interahame* &he e:pert @itness8 (r* NsanDu@era8
testified that the Interahame militia served t@o roles during April8 (a>
and ;une /2208 on the one hand8 the> supported the RA! @ar effort
against the RP!8 and on the other hand8 the> Billed &utsi and Autu
opponents*
00-* (oreover8 as testified b> (r* NsanDu@era8 there is merit in the
submission of the Prosecutor that8 considering the position of authorit> of
the Accused over the Interahame8 and the role that the Interahame
served in supporting the RA! against the RP!8 there is a ne:us bet@een
the crimes committed and the armed conflict* n support thereof8 the
Prosecutor argues that the Interahame @ere the instrument of the
militar> in e:tending the scope of the massacres*
00/* &hus8 the Chamber is also satisfied that the Accused8 as second
vice.president of the >outh @ing of the (RND Bno@n as the Interahame
za MR4$ and being the >outh @ing of the political majorit> in the
government in April /2208 falls @ithin the categor> of persons @ho can be
held responsible for serious violations of the provisions of Article 0 of the
%tatute*
,1,* !inall>8 in t>ing these general claims to the specific crimes charged in
Counts 0 and 1 of the ndictment8 the Prosecution recounts the evidence at trial
sho@ing that the Interahame tooB a lead role in the Billings charged in those
counts @ith the support of RA! soldiers and that Rutaganda tooB part as a leader
of the Interahame*
<6-,= &he Appeals Chamber8 at para* ,558 accepted the findings of the &rial Chamber
in its anal>sis of the first massacre8 noting the follo@ing elements+
,--./-.--00/1.-23 PA$E+ ,/
. Rutaganda participated in the attacB on &utsi refugees at the E&O
schoolI
. Ae e:ercised de facto influence and authorit> over the InterahameI
. &he Interahame @ere armed @ith guns8 grenades8 and clubsI
. &he Interahame8 alongside the soldiers of the Presidential $uard8 entered
the E&O compound thro@ing grenades8 firing guns and Billing the refugees
@ith machetes and clubsI and
. &he victims of the Billings @ere persons protected under common Article 3 of
the $eneva Conventions and Additional Protocol *
<6-1= &hus8 it is not necessar> for the accused to be an official8 an armed combatant8 a
police officer8 or a soldier to be convicted of a @ar crime* t is sufficient if the involvement
in the abuses committed is more than accidental*
<6-5= n this case8 the evidence reveals that the appellant is an educated man8 a
member of the local elite8 that he @as clearl> a part of the campaign to destro> the
&utsis8 in fact affiliating himself @ith the Interahame groups to such a degree that he
e:ercised a certain influence over them*
THE !U"*E@% A%%E%%MENT OF THE E7"ENCE
<6-?= #efore addressing the appellantGs numerous complaints concerning the
assessment of the evidence8 it is useful to note that the %upreme Court of Canada has
consistentl> held that appellate revie@ of the assessment of evidence must be
conducted @ithin t@o @ell.established boundaries 4see8 for e:ample8 R. v. W.H*8 6-/3
%CC 668 <6-/3= 6 %*C*R* /?-7*
<6-2= !irst8 an appellate court must give due @eight to the advantages of the trier of
fact8 @ho tooB part in the trial and sa@ and heard the testimon>* A revie@ing court
should therefore refrain from interfering @ith the trial judgeGs findings of fact unless the
appellant can demonstrate a palpable and overriding error in the judgeGs assessment of
the evidence or a failure on the part of the judge to consider a significant part of the
evidence*
<6/-= %econd8 the revie@ing court must nevertheless @eigh the evidence and consider
@hether8 through the lens of its o@n e:perience8 judicial fact.finding precludes the
conclusion reached b> the trier of fact 9 or in other @ords8 @hether the verdict is
reasonable in light of the evidence*
<6//= f the judge has ignored legal rules in appl>ing his or her o@n anal>sis to the
evidence8 ho@ever8 and this error might have influenced the verdict8 the appellate court
must intervene*
` ` ` ` `
<6/6= &he appellantGs complaints ma> be grouped into t@o categories+ the general8 to
@hich the appellant freJuentl> refers in his anal>sis of the evidence8 and those
specificall> concerning certain Cro@n @itnesses*
,--./-.--00/1.-23 PA$E+ ,6
<6/3= &he first categor> encompasses+ 4i7 the failure to give a 3etrovec @arningI 4ii7 the
failure to appl> the rules respecting the reliabilit> of identification evidenceI and 4iii7 the
failure to taBe into account the risB of contamination of or collusion amongst the Cro@nGs
@itnesses*
(i) The &etroec warning
<6/0= n 3etrovec v. R.8 </2?6= / %*C*R* ?//8 the %upreme Court noted that @here there
are factors liBel> to seriousl> impair the credibilit> of a @itness8 @hoever it ma> be8 the
judge must @arn the jurors regarding the dangers of rel>ing on this @itness alone*
<6/,= Along the same lines8 in R. v. Fhela8 6--2 %CC 08 <6--2= / %*C*R* /-08 the
%upreme Court states+
6 &he evidence of a single @itness is nonetheless sufficient in Canada to
support a conviction for an> offence other than treason8 perjur> or procuring a
feigned marriage* (an> serious crimes might other@ise go unpunished* #ut
@here the guilt of the accused is made to rest e:clusivel> or substantiall> on the
testimon> of a single @itness of doubtful credit or veracit>8 the danger of a
@rongful conviction is particularl> acute*
3 t is therefore of the utmost importance8 in a trial b> judge and jur>8 for the
jur> to understand @hen and @h> it is unsafe to find an accused guilt> on the
unsupported evidence of @itnesses @ho are Munsavour>N8 Muntrust@orth>N8
MunreliableN8 or MtaintedN* !or present purposes8 use these terms
interchangeabl>*
0 hasten to add that a specific instruction is sometimes reJuired in this
regard not because jurors are thought to be unintelligent8 but rather because the>
might other@ise be uninformed* t is meant to bring home to la> jurors the
accumulated @isdom of the la@Rs e:perience @ith unsavour> @itnesses* ;udges
are alert to the concern that unsavour> @itnesses are prone to favour personal
advantage over public dut>* And @e Bno@ from recent e:perience that unsavour>
@itnesses8 especiall> but not onl> Mjailhouse informantsN8 can be convincing liars
and can effectivel> conceal their true motives for testif>ing as the> have+ see R.
v. Sauv? 46--078 /?6 C*C*C* 43d7 36/ 4Ont* C*A*78 at para* 51*
W
// &he central purpose of a 3etrovec @arning is to alert the jur> to the
danger of rel>ing on the unsupported evidence of unsavour> @itnesses and to
e:plain the reasons for special scrutin> of their testimon>* n appropriate cases8
the trial judge should also dra@ the attention of the jurors to evidence capable of
confirming or supporting the material parts of the other@ise untrust@orth>
evidence*
<6/1= &he trial judge responded to the appellantGs concerns regarding the credibilit> of
certain unsavour> @itnesses and the need for him to caution himself in the manner
prescribed in 3etrovec* Ae @rote+
<&RAN%)A&ON=
</266= &he Court8 sitting @ithout a jur>8 is a@are of the potential dangers of such
testimon>* Aence8 it is after careful stud> of the evidence that the Court
,--./-.--00/1.-23 PA$E+ ,3
concludes there is no reason to objectivel> believe that those versions are not
trust@orth> in terms of the specific facts related8 the evidence of @hich is
damning for the accused* !urthermore8 as @e @ill see in the anal>sis that follo@s8
their testimon> is ampl> corroborated b> numerous credible and reliable
@itnesses @ho testified for the prosecution and the defence*
</263= "ltimatel>8 the Court sa@ and heard those @itnesses and believes
elements of their testimon>8 as e:plained for each of them in the frame@orB of
this judgment*
</260= &he objective of an> judgment is to e:plain the decision to the parties8 to
render account before societ> and to allo@ a true e:amination in appeal* &o that
end8 the Court is compelled to strictl> respect the la@ and the jurisprudence8 and
e:amines comprehensivel> the @itnessesR credibilit> problems and the
importance of each testimon>*
<6/5= &he appellant argues that8 @hile the judge ma> have @arned himself8 he
nevertheless failed to appl> this @arning to the specific @eaBnesses in the evidence8
particularl> @ith respect to the testimon> of RCH.58 ?8 28 /-8 //8 /68 /3 and /0*
<6/?= &his argument is unfounded* t cannot be assumed that the trial judge failed to
consider the elements that led him8 rightl> or @rongl>8 to doubt the reliabilit> of some of
the @itnesses* On the contrar>8 as @e shall see further on8 he tooB note of the
@eaBnesses in the testimon> and e:plained his decision to accept them nevertheless8
either in @hole or in part*
(iii) The identification eidence
<6/2= t is recogniDed in case la@ that e>e@itness identification evidence has inherent
risBs* Appellate courts have accordingl> developed a series of factors to aid in
determining @hether it is appropriate to interfere @ith a verdict that relied on such
evidence8 even @hen it @as rendered b> a judge sitting alone+
K Hhether the trial judge can be taBen to have instructed himself or herself
regarding the frailties of e>e@itness testimon>I
K Hhether the trial judge revie@ed the evidence @ith such an instruction in
mindI
K Hhether there is other evidence that can be considered to confirm this
identificationI
K &he nature of the e>e@itness observation8 the reliabilit> of the @itnesses8 and
the degree to @hich the> Bno@ the person the> are identif>ingI
K &he timing of the prior identification and in its conte:t8 including factors such
as the strengthening of the identification b> inappropriate police remarBs or
actions*
4%ee8 for e:ample *egault v. R8 6-/3 QCCA /610I R. v* >igs-y8 6--1 %LCA /0,7*
<66-= &hose are the principles* Aere is ho@ the trial judge dealt @ith the identification
evidence+
,--./-.--00/1.-23 PA$E+ ,0
<&RAN%)A&ON=
</231= After hearing all the evidence8 conclude be>ond a reasonable doubt
that the accused8 DFsirF (un>aneDa8 @as indeed the person referred to b> the
prosecution @itnesses*
</235= &he @itnesses @ho testified outside Canada identified him in a photo
line.up constituted and presented in accordance @ith Canadian la@+
independence and freedom of judgment of the @itness8 a series of photos
presented one after the other8 no leading of the @itness8 and so on*
</23?= &he @itnesses heard at the hearing identified the accused in the docB*
Rm Juite @illing to @arn m>self against the danger of such a method of
identification8 but sa@ and heard the @itnesses8 and @as convinced*
!urthermore8 most of the @itnesses had recogniDed the accused previousl> in a
police line.up*
</232= &he accused @as a @ell.Bno@n man in #utare and had a major scar on
his face8 to @hich most of the @itnesses referred*
</20-= &he prosecutionRs evidence as a @hole8 to @hich refer more specificall>
in the section entitled M&he factsN 4including the confidential appendi:78 convince
me be>ond a reasonable doubt that the accused is the perpetrator of the alleged
crimes*
<66/= Hhile these comments are Juite general8 the anal>sis of the identification
evidence reveals that the threshold of objective reliabilit> @as reached*
<666= !irst8 as the judge points out8 a photo lineup @as presented out of court and in
accordance @ith Canadian la@ to all of the Cro@n @itnesses* (ost of the @itnesses
identified the appellant+
. %everal did so uneJuivocall> during the first lineup* RCH.68 RCH.38 RCH.08
RCH.,8 RCH.18 RCH.58 RCH.?8 RCH./-8 RCH.//8 RCH./68 RCH./38 C.
/? and C.66I
. Others8 after some hesitation during the first lineup8 positivel> identified him
during the second+ C./, and C.6-I
. !inall>8 some identified the correct photo8 sa>ing that he <&RAN%)A&ON=
CresembledC the appellant+ RCH.2 4<&RAN%)A&ON= C thinB it must be this oneC7
C./2 4<&RAN%)A&ON=Cthis face looBs familiar to me8 itGs the onl> one thatGs
familiarC8 C.63 4<&RAN%)A&ON= Cthis one looBs liBe (un>agasheBeGs son @ho
has a scar on his cheeBC7 and C.60 4<&RAN%)A&ON= M thinB itGs that one*C7
<663= Hith regard to RCH./08 C./18 and C./58 the onl> three @itnesses for the Cro@n
@ho @ere not able to identif> the appellant out of court from a lineup8 the> all affirmed8
as did the other Cro@nGs @itnesses8 that the appellant had a ver> prominent scar on his
face* &his distinguishing marB @as not apparent on the photo used during the photo
lineups* (oreover8 RCH./0 identified the appellantRs photo @hile testif>ing at the
rogator> commission8 @hen the appellant @as not present*
,--./-.--00/1.-23 PA$E+ ,,
<660= %econd8 the e:istence of an unusual distinguishing marB8 a scar on his face8 that
@as mentioned b> practicall> all of the @itnesses renders the identification of the
appellant objectivel> more reliable* &he scar even earned him the nicBname C+i-ovuC
4<&RAN%)A&ON= CscarfaceC78 @hich the @itnesses @ho had taBen refuge at the prefectural
office used on several occasions* &his highl> distinguishing marB made it possible to
distinguish the appellant from the other assailants and minimiDes the risB of the
@itnesses having confused him @ith another person*
<66,= !inall>8 it should be pointed out that man> @itnesses from different parts of the
prefecture of #utare @ho related incidents @ith no relation to each other described the
appellantGs manner of dress in relativel> the same @a>8 sa>ing that he @as generall>
@earing a <&RAN%)A&ON= CcamouflageC pattern militar>.st>le s@eater or shirt and a
<&RAN%)A&ON= CcivilianC or <&RAN%)A&ON= Cordinar>C pair of jeans 4testimonies of RCH.,8
RCH.18 RCH.28 RCH./-8 RCH.//8 RCH./68 RCH./38 RCH./08 C.63 and C.607*
Although not conclusive 4it ma> be assumed that the appellant did not @ear the same
clothes from April to ;ul> of /220 and that he @as not the onl> one @earing a militar>
s@eater @ith civilian pants78 this evidence nevertheless supports the idea that the
@itnesses @ere referring to the same individual*
(iii) Contamination and collusion
<661= &he appellantGs argument that the @itnesses @ere tainted due to collusion
amongst them is based on three allegations+
. %ome of the @itnesses tooB part in +acaca meetings8 @hich are assemblies
in @hich R@andans are called on to share their e:periences during the
genocideI
. !ive @itnesses detained in R@anda 4RCH.58 RCH.28 RCH.//8 RCH./6 and
RCH./37 co.signed a letter addressed to Canadian authorities asBing them to
intervene to improve their conditions of detention in e:change for testimon>I
. Hitnesses C./28 C.668 C.63 and C.60 stated that the appellant Bidnapped
and raped a >oung girl @ith the first name of Asumpta8 @ho8 @hen testif>ing
for the defence under the pseudon>m DD(./58 denied Bno@ing or having
dealt @ith him in an> @a> @hatsoever*
<665= t is @ell established that collusion undermines the probative value of concurring
testimon> 4R. v. Shearing8 <6--6= 3 %*C*R* 33 at para* 0-7*
<66?= Although specific evidence of collusion is not necessar> 4R. v. >urnie8 6-/3
ONCA //6 at para* 3178 there must nevertheless be evidence that the @itnesses had the
opportunit> to influence each other through their communication about the specific
events at the basis of the charges* &hat is not the case here*
,--./-.--00/1.-23 PA$E+ ,1
<662= n this case8 none of the @itnesses for the Cro@n Juestioned about the +acaca
meetings referred to an> discussions about the appellantGs participation in the abuses
committed during the genocide* (oreover8 counsel for the appellant never asBed these
@itnesses @hether their client had ever been mentioned during these meetings* n
other @ords8 the allegation of possible collusion or contamination in the conte:t of the
+acaca meetings is strictl> speculative and not based on sufficient evidence to reJuire
a @arning*
<63-= Hith regard to the letter from the detainees8 the @itnesses @ho @ere asBed b>
the defence @hether the signatories had discussed the appellant 4RCH.2 and RCH./67
ans@ered in the negative* RCH.2 e:plained that each @itness prepared his or her o@n
testimon> individuall> @ith Cro@n counsel* RCH./6 stated that the @itnesses did not
Bno@ for @hich proceeding the> @ere there8 and the> did not talB about the appellant
amongst themselves* &he subject of the letter @as brought up @ith RCH.//8 although
the Juestion regarding discussions about the appellant @as not put to him* &he subject
@as not even touched upon @ith RCH.5 and RCH./3* n short8 @hile the evidence ma>
reveal some contact among the signatories of the letter to the Canadian authorities8 it
contains no indication @hatsoever of collusion or contamination on the subject of the
appellantRs actions* Once again8 the allegation is nothing more than speculation and is
insufficient 4Shearing at para* 007*
<63/= &he remaining Juestion concerns the testimon> given b> C./28 C.668 C.63 and
C.60 regarding the Bidnapping and rape of DD(./5*
<636= f the trial judge had concluded that the appellant raped DD(./5 even though
she denied it8 @e @ould have to agree @ith the appellant that he should have e:plained
@h> he believed C./28 C.668 C.63 and C.60 instead of DD(./58 and @h> he @as ruling
out the possibilit> of collusion*
<633= &he judge did not rel> on this incident8 ho@ever8 and does not discuss it in the
portion of his decision dealing @ith his findings of fact relating to the offences committed
b> the appellant 4paras* /20/ et seJ*7*
<630= &herefore8 if there @as collusion8 on@hich the Court taBes no position8 its effect
@as merel> collateral8 in that it had the potential to undermine onl> the general
credibilit> of C./28 C.668 C.63 and C.60* &he testimon> of these @itnesses on the
appellantGs presence at the prefectural office and his role in the abuses committed there
@as not the onl> evidence presented on these subjects* &heir testimon> @as supported
b> those given b> C./,8 C./18 C./5 and C.6-8 against @hom no allegation of collusion
has been made* n other @ords8 the testimon> of C./28 C.668 C.63 and C.60 on the
actions committed b> the appellant8 e:cluding the incident involving DD(./58 could
reasonabl> be accepted b> the trial judge*
<63,= n summar>8 none of the grounds of a general nature has an> merit*
` ` ` ` `
<631= &he Court @ill no@ move on to the complaints relating to the judgeGs
individualiDed assessment of the si:t>.si: @itnesses he heard*
,--./-.--00/1.-23 PA$E+ ,5
<635= &he Cro@n sought to characteriDe the appellantGs actions in relation to four
specific clusters of activit>+ at the Ngoma church8 at the prefectural office in #utare8 at
the roadblocBs erected in this cit>8 and in various other locations*
<63?= t also sought to demonstrate that the appellant pla>ed a Be> role as leader of a
group of the Interahame8 the e:tremist Autu militia* t should be pointed out8 ho@ever8
that the appellant @as not charged under subsection 5467 of the Act regarding the
criminal liabilit> of CsuperiorsC other than militar> commanders*
(A) The church in 'goma
<632= RCH.68 RCH.// and RCH./3 testified that hundreds of &utsis tooB refuge in a
Catholic church in Ngoma and that8 on April 3-8 /2208 the> @ere Billed* &he e:istence of
this massacre has not been contested*
<60-= Hhat remained to be established @as @hether the appellant participated in this
event8 and if so8 the nature of his participation*
<60/= &he judge accepted the testimon> of RCH.// that he @as forced to follo@ a
group of the Interahame to the Ngoma church8 that the appellant @as acting as one of
the leaders of this group8 that he ordered the refugees to come out of the church8 and
that8 once outside8 the &utsi refugees @ere led to a mass grave a short distance a@a> to
be e:ecuted* !rom @here he @as posted8 RCH.// did not see the murders8 but he
heard the cries of the victims*
<606= As for RCH./38 the judge believed him @hen he stated that the appellant and his
group came to get him at the roadblocB @here he @as @orBing so that he could go to
the church @ith them8 that the appellant ordered him to open the doors to the building8
and that he sa@ him e:ecute a &utsi >outh @ho @as tr>ing to run a@a>* &he others @ere
e:ecuted a short distance a@a> in a small @ooded area or on the adjacent soccer field*
&he> @ere shot or clubbed to death* Ae states that the appellant Billed survivors @ith a
handgun*
<603= &he judge found that these t@o @itnesses corroborated each other8 @hich the
appellant contests8 raising primaril> the follo@ing arguments+
. A contradiction bet@een the t@o @itnesses for the Cro@n as to @hether shots
@ere firedI RCH.// states that he did not hear an> gunfire or see the
appellant Bill an> &utsis @ho had sought refuge in the church8 @hile RCH./3
states that the appellant murdered the &utsis @ith a handgun* !or the
defence8 DD(.0- also stated never having heard an> gunfireI
. A second contradiction concerning the priest at the church 4bound or free to
move around7I
. A third contradiction regarding the e:it from the church b> the &utsis @ho had
taBen refuge there 4b> the large red door or the small blacB doors*
,--./-.--00/1.-23 PA$E+ ,?
. A fourth contradiction regarding the presence of the appellant at the
scene after the church doors openedI RCH.68 @ho Bno@s the
appellant8 stated that he did not see him at the scene8 and this is also
@hat DD(.36 stated*
<600= Aside from these specific contradictions8 the appellant argues more generall>
that RCH.// and RCH./3 lacB credibilit>* Ae invoBes the failure to mention his
participation to the R@andan authorities8 the risB of contamination and collusion
resulting from their participation in the +acaca meetings8 and their signing8 along @ith
other detainees 4RCH.58 RCH.2 and RCH./678 of the letters to Canadian authorities
about their conditions of detention*
<60,= Ae concludes that the evidence @as insufficient to convict him of the murders
committed at the Ngoma church and that the verdict in this respect @as unreasonable*
Analysis
<601= &he issue of contamination and collusion has alread> been addressed* t is @orth
adding8 ho@ever8 that it is Juite strange that the appellant argues on the one hand
contamination and collusion8 @hile maintaining on the other that the versions given b>
RCH.// and RCH./3 are so contradictor> that the judgeGs conclusion about his
participation in this event is unreasonable* f these @itnesses had actuall> agreed on the
content of their testimon>8 it seems more liBel> that their versions @ould have been
similar*
<605= n the CourtRs opinion8 despite certain discrepancies bet@een the testimon> of
RCH.// and that of RCH./38 the judgeGs conclusion as to the appellantGs participation
in the Ngoma church massacre is reasonable*
<60?= !irst8 as the respondent points out in its submissions8 the atmosphere that
prevailed during the massacre @as chaotic to sa> the least8 and hundreds of people
4soldiers8 Interahame8 &utsi refugees8 onlooBers7 @ere involved8 inside the church and
@ithin a relativel> large perimeter outside it 4as the series of photographs filed as e:hibit
RCE./ attests7* n this conte:t8 it seems normal that the @itnesses neither sa@ nor
heard ever>thing that occurred and that their versions ma> differ @ith respect to some of
the details*
<602= As for the gunfire8 the evidence is neither determinative nor conclusive as to
@hether the appellant @as at the church and @hether he participated in the attacB*
<6,-= Admittedl>8 RCH.// testified that he did not hear an> gunfire at the church itself8
but he also said that shots could be heard an>@here that a massacre @as taBing place
during that period* Ae also stated that some of the assailants @ere carr>ing guns*
<6,/= n RCH./3Gs version8 there @as gunfire* Ae stated that the refugees @ere shot to
death8 or more specificall> that the appellant Billed them @ith a handgun* Ae did not
specif> the number of shots or the number of victims Billed in this @a>8 ho@ever*
<6,6= !or his part8 RCH.6 heard at least one gunshot* DD(.36 heard soldiers shooting
before the church doors opened8 and DD(.0-8 hidden in the rector>8 heard nothing*
,--./-.--00/1.-23 PA$E+ ,2
<6,3= All of these @itnesses8 ho@ever8 recounted the same event* &his is not in
Juestion* n the circumstances8 ascertaining @hether guns @ere fired in no @a> helps in
determining @hether the appellant @as present and participated in the massacre* At
most8 the discrepancies in the testimonies on this subject demonstrate that8 ten >ears
later8 the memor> of some of the victims failed @hen it came to certain details of the
attacB*
<6,0= n &rosecutor v. 4aletilic and Matinovic 43/ (arch 6--37 Case No* &.2?.30.&
4C&'8 &rial Chamber78 the &ribunal @rote+
/-* n evaluating the evidence given b> @itnesses8 the Chamber has taBen
into account that the alleged events tooB place almost ten >ears before the
@itnesses presented their testimonies in court* &he Chamber accepts that due to
the long period elapsed bet@een the alleged commission of the crimes and the
trial8 @itnesses cannot reasonabl> be e:pected to recall the precise minutiae8
such as e:act dates or times8 of events* &he Chamber further notes that man>
Prosecution @itnesses @ere transferred through a number of different detention
facilities8 in a seJuence that ma>8 for some8 have amounted to traumatic
e:periences* &he Chamber finds that such @itnesses cannot be e:pected to
recall each and ever> detail regarding the seJuence or details of the events* &he
Chamber further shares the vie@ of &rial Chamber that in most instances the
oral evidence of a @itness @ill not be identical @ith the evidence given in a prior
statement* t lies in the nature of criminal proceedings that a @itness ma> be
asBed different Juestions at trial than he @as asBed in prior intervie@s and that
he ma> remember additional details @hen specificall> asBed in court*
ConseJuentl>8 the Chamber has not attached particular significance to minor
inconsistencies in the testimon> of a @itness or irrelevant discrepancies in
peripheral matters in the testimonies of different @itnesses @ho testified to the
same events* &he Chamber has8 ho@ever8 onl> attached probative @eight to
evidence submitted b> @itnesses @ho @ere8 as a minimum8 able to recount the
essence of the incident charged in sufficient detail*
<6,,= (ore recentl>8 in &rosecutor v. 4yiramasuhu-o et al. 460 ;une 6-//7 Case No*
C&R.2?.06.& 4C&R &rial Chamber78 a trial involving8 among others8 the appellantRs
friend %halom and his mother8 (inister Pauline8 the &rial Chamber made similar
remarBs+
/5?* (oreover8 the Chamber has discretion to determine @hether alleged
inconsistencies bet@een prior statements and later testimon> render the
testimon> unreliable8 and the Chamber ma> accept parts of a @itnessR testimon>
@hile rejecting other parts* Hhere testimon> lacBs precision or is inconsistent
about matters such as the e:act date8 time or seJuence of events8 the lacB of
precision does not necessaril> discredit the evidence provided that the
discrepancies relate to matters peripheral to the charges in the indictments* !or
e:ample8 some inconsistencies in testimon> ma> be caused b> cultural factors
and interpretation issues* %imilarl>8 it ma> be difficult to recall particular dates
@ith respect to events that are repetitive or continuous*
/52* (an> @itnesses lived through particularl> traumatic events and the
Chamber recognises that the emotional and ps>chological reactions that ma> be
provoBed b> reliving those events ma> have impaired the abilit> of some
,--./-.--00/1.-23 PA$E+ 1-
@itnesses to clearl> and coherentl> articulate their stories* (oreover8 @here a
significant period of time has elapsed bet@een the acts charged in the
indictments and the trial8 it is not al@a>s reasonable to e:pect the @itness to
recall ever> detail @ith precision*
<6,1= As in the case of the gunfire8 the issue of @hether the priest8 Eulade8 @as bound
@hen the church doors opened or at an> other time during the attacB is a peripheral
detail that is of little value in determining @hether the appellant @as at the scene* t is
@orth noting8 ho@ever8 that RCH.//8 RCH./3 and DD(.36 all confirm that the priest
@as present at one point or another as the attacB began*
<6,5= Hhich door the refugees used to e:it the church is also a peripheral detail*
(oreover8 the <&RAN%)A&ON= CcontradictionsC alleged b> the appellant are in fact not
reall> contradictions at all and can be e:plained b> the fact that the @itnesses @ere
posted at different locations* t is also @orth noting that RCH./3 testified that the church
@as surrounded and that he received the order to open all of the doors*
<6,?= According to the appellant8 the fact remains that the versions given b> RCH.//
4the appellant left the scene after the doors @ere opened78 RCH./3 4the appellant @as
present throughout the attacB and personall> tooB part in the Billings78 and DD(./6 4the
appellant @as not on the scene7 are irreconcilable*
5

<6,2= &his submission must be rejected*
<61-= !irst8 as the Cro@n argues8 the appellant has failed to consider that these
@itnesses @ere not all at the same place during the attacB* !or e:ample8 @hile it is true
that RCH.// stated that he sa@ the appellant leave the area after the doors @ere
opened8 he nevertheless received a subseJuent order to station himself near the
@ooded area8 at a spot @here he could not see the refugees being Billed* &hus8 RCH.//
sa@ the appellant moving a@a> from the doors8 but he did not see him leave the large
church>ard*
<61/= n addition8 RCH.//Gs version is not inconsistent @ith that of RCH./3 because
the latter testified that he sa@ the appellant @hen the doors opened and then later
@here the refugees @ere e:ecuted8 a location that RCH.// could not see from @here
he @as posted*
<616= !inall>8 DD(.368 @hose testimon> the judge deemed to be less than credible8
stated that he arrived after the doors opened and therefore8 according to RCH.//Gs
version8 after the appellant had left the front of the church* Ae then spent most of his
time inside the church8 from @here he could not see the spot @here the refugees @ere
Billed8 and he left before the end of the massacre* Ae said8 ho@ever8 that he sa@ RCH.
/3 lead the refugees lo@er do@n to @here the> @ere Billed* &his is consistent @ith RCH.
/3Gs statement that he sa@ the appellant at this location*
5
Contrar> to @hat the appellant submits8 the testimon> of RCH.6 and that of DD(.0- are of
ver> little use in ans@ering this Juestion8 since both @itnesses have admitted that the>
remained hidden during the attacB and that the> could not see ever>thing*
,--./-.--00/1.-23 PA$E+ 1/
<613= n short8 although there ma> at first glance appear to be discrepancies bet@een
some of the facts related b> the various @itnesses8 such is not reall> the case*
<610= n the circumstances8 the Court has no reason to interfere @ith the judgeGs
findings of fact regarding the appellantGs participation in the massacre of the &utsis @ho
had taBen refuge in the Ngoma church*
(!) The prefectural office
<61,= &he evidence establishes that man> people8 mostl> &utsis8 believing the> could
find protection there8 tooB refuge in the prefectural office in the centre of the cit> of
#utare8 @hich is @here murders8 rapes and other abuses @ere committed*
5i6 Murder of .utsis
<611= C./5 stated that she sa@ the appellant Bill t@o men @ith a machete @hile he @as
forcing &utsis into a small trucB @ith %halom and other members of the Interahame*
&hose @ho resisted @ere beaten or Billed*
<615= C./2 affirmed that she sa@ the appellant Bill t@o men near the prefectural office
solel> because the> @ere &utsis*
<61?= C.6- stated that she @itnessed t@o incidents* One involved the murder of
children8 @hom the appellant and the members of his group put into bags and beat to
death @ith sticBs* &he appellant supposedl> said that if >ou @anted to Bill a snaBe8 >ou
had to hit it on the head* &he other involved an attacB on a famil> that @as arriving at
the prefectural office* &he appellant and his group allegedl> beat the t@o men in the
famil> to death*
<612= &he appellant argues that the identification evidence given b> C./58 C./2 and C.
6- @as @eaB* n the case of C./58 he alleges that she learned his identit> through
others and @as unable to identif> him in a photo lineup* Aer onl> positive identification
of him tooB place at the trial8 and is therefore not reliable* &his @as also the case @ith C.
/2* As for C.6-8 she @as not even able to positivel> identif> the appellant at trial even
though he @as sitting in the prisonerRs docB*
<65-= &he appellant adds that the trial judge ignored the fact that C./5 had taBen part
in the +acaca meetings and failed to compare C./5Gs testimon> @ith @hat @as said
before the C&R8 @here she stated that she Bne@ onl> %halom and not the other
Interahame fighters @ho @ere besieging the prefectural office* %he never mentioned
the appellantGs name before the C&R8 even though she affirmed at trial that he se:uall>
assaulted her four times*
<65/= As for C./28 it appears that she told the C&R that she sa@ %halom onl> once
during the genocide8 @hereas she told the trial judge that he @as al@a>s @ith the
appellant* %he also told the RC(P investigators that %halom and some members of the
Interahame that she did not Bno@ @ere responsible for the Billings8 and then
connected the appellant @ith the murders of several &utsis* &he appellant also argues
that there is probable collusion @ith @itnesses C.668 C.638 and C.60*
,--./-.--00/1.-23 PA$E+ 16
<656= &he appellant submits that8 in a statement to the RC(P investigators8 C.6- said
that the appellant did not oversee the incident involving the murder of the children in
bags and that in fact he committed no murder* &he judge should not have ignored the
accurac> of the statements made to the police officers8 since the> @ere the subject of
an admission*
Analysis
<653= &he complaints concerning identification8 contamination and collusion @ere
discussed above*
<650= Hith regard to the identification evidence8 it is sufficient to add that8 after some
hesitation8 C.6- positivel> identified the appellant in the photo lineup* C./2 @as less
categorical+ she identified the correct photograph in the lineup8 sa>ing onl> that it
resembled the appellant* Admittedl>8 C./5 @as not able to identif> the appellant in a
photo* )iBe the other t@o @itnesses8 ho@ever8 she said that the appellant had a ver>
large scar on his face 4C./2 and C.6- called him C+i-ovuC for this reason7* n our vie@8
this evidence allo@ed the judge to find that the identification evidence @as sufficient and
objectivel> reliable*
<65,= As for the rest8 it essentiall> concerns the assessment of the credibilit> of the
@itnesses8 a tasB8 it should be recalled8 that lies at the heart of the trial judgeRs role*
<651= Hith respect to C./5Gs failure to mention the appellantGs name to the C&R
investigators and in her testimon> before that tribunal8 this fact @as dul> noted b> the
judge* Ae accepted her e:planation that her memor> of the appellant returned to her
graduall>* Hhile it ma> initiall> appear astonishing that the victim8 @ho testified that the
appellant raped her four times8 had trouble remembering him8 it is important to recall
she claims to have also been raped numerous times b> members of the Interahame*
%he also e:plained that the Juestions before the C&R concerned primaril> %halom and
not the appellant and that she therefore did not mention his name*
<655= As the respondent points out8 the ad hoc tribunals have recogniDed that some
@itnesses merel> ans@er the Juestions put to them and recount onl> the actions
committed b> the people the> are asBed about* &hus8 in &rosecutor v. Faremera et al.8
4/, December 6--17 Case No* C&R.2?.00.&8 Decision on defence motions to prohibit
@itness proofing 4C&R8 &rial Chamber7 at para* //8 the C&R &rial Chamber cites @ith
approval the follo@ing passage from the decision of the same Chamber in >agosora et
al* 4/? November 6-337 Case No* C&R.2?.0/.&8 Decision on admissibilit> of @itness
D#Q 4C&R8 &rial Chamber7 at para* 62+
W @itness statements from @itnesses @ho sa@ and e:perienced events over
man> months @hich ma> be of interest to this &ribunal8 ma> not be complete*
%ome @itnesses onl> ans@ered Juestions put to them b> investigators @hose
focus ma> have been on persons other than the accused rather than
volunteering all the information of @hich the> are a@are*
<65?= A certain amount of prudence is therefore reJuired @hen considering statements
made b> a @itness in proceedings other than those involving the accused8 especiall>
@hen the accused @as never mentioned*
,--./-.--00/1.-23 PA$E+ 13
<652= C./2 also e:plained that she did not refer to the murders committed b> the
appellant at the prefectural office @hen she testified in Arusha because she @as not
asBed an> Juestions about him*
<6?-= C.6- e:plained that her statement to the RC(P investigators @as confused
because she @as not feeling @ell that da> and @as pressed for time 4she @as on her
@a> to vote7* %he also stated that she @as unnerved b> her first interaction @ith the
legal s>stem8 adding that it @as impossible in a single meeting to describe ever>thing
she had e:perienced during the genocide*
<6?/= &he judge8 @ho had the advantage of hearing and observing the @itnesses8 could
properl> consider these e:planations valid* A different judge might have arrived at a
different conclusion8
?
but that is not the point* &here is nothing to justif> finding that the
judgeGs conclusions regarding the murders committed at the prefectural office b> the
appellant @ere not sufficientl> based on the evidence and @ere therefore unreasonable*
5ii6 Se)ual assault
<6?6= C./5 stated that she @as raped b> the appellant four times* Ae @ould come to
get her at the prefectural office during the night8 carr>ing a Bnife or an a:e8 taBe her
inside old neighbouring buildings8 and se:uall> assault her* %he stated that she also
sa@ the appellant assault other @omen at the same location8 t@o of @hom @ere named
mmaculFe and Alphonsine*
<6?3= Other @omen @ho @ere not personall> assaulted b> the appellant stated that he
had participated in the rapes of numerous &utsi @omen+ C./,8 C./18 C./28 C.6-8 C.63
and C.60*
<6?0= C./, stated that she and t@o other @omen 4Alphonsine and Caritas7 @ere taBen
b> the appellant and other Interahame members to (ahengaRs8 located near CheD
Venant8 and @ere se:uall> assaulted there* &he appellant allegedl> raped Alphonsine
and other @omen* &he @itness referred to <&RAN%)A&ON= Cse:ual captivit>C8
characteriDed b> rapes8 often repeated8 @hich @ere committed at the prefectural office
b> the appellant and members of the Interahame* %he stated that @hen ten or so men
@ere raping her8 the> said that the> @anted to see if &utsis @ere better than the others*
<6?,= C./1 sa@ the appellant and his group bring three girls into an abandoned
building 4(ironBo PlastiJues7* &he appellant left @ith Alphonsine* Ae came bacB several
times to get girls to bring to (ahengaRs* According to her8 he @as choosing and
distributing girls to the Interahame members* C./1 @itnessed girls being raped and
@as herself raped b> a member of the Interahame and a policeman @hen she had
taBen refuge at the prefectural office* %he stated that almost all of the @omen @ho had
taBen refuge there suffered the same fate*
<6?1= C./58 @ho @as raped b> members of the Interahame8 affirmed that the
appellant raped her several times8 as @ell as other @omen* (embers of the
Interahame raped @omen from the prefectural office at random8 but eventuall> all of
them @ere raped* %he stated that the appellant told her that he @as going to do
?
%ee for e:ample R. v. Mungarere at para* /6,-*
,--./-.--00/1.-23 PA$E+ 10
@hatever he @anted @ith her because she @as going to be Billed* %he added that it @as
not usual to speaB about the rapes in the prefectural office8 since all of the @omen @ere
victims*
<6?5= C./2 also testified that8 after nightfall8 the appellant and his group @ould come to
the prefectural office to get the girls and rape them8 either on the spot or in old
neighbouring houses* %he states that she sa@ him assault a girl b> the name of !ifi in
front of several @itnesses* Ae also assaulted Alphonsine8 as @ell as t@o other girls b>
the names of Asumpta 4@itness DD(./57 and cmFrance* %he adds that she @as raped
b> members of the Interahame*
<6??= C.6-Gs testimon> @as to the same effect* %he stated that the appellant @as the
leader of the group @ho @ould taBe girls a@a> from the prefectural office after nightfall
and se:uall> assault them* &he appellantGs group acted in this manner because its
members believed the> had the right to be re@arded after the @orB the> had done*
<6?2= C.63 gave a similar testimon>8 stating that the appellant allegedl> declared that
the girl named Asumpta 4DD(./57 @as his propert>* &he assaults tooB place in old
houses near the prefectural office or in (ahengaGs house*
<62-= !inall>8 C.60 also stated that the appellant @as part of the group of rapists at the
prefectural office and that he regularl> left @ith Asumpta 4DD(./57* %he allegedl> heard
the appellant sa> to a member of the Interahame8 <&RAN%)A&ON= CRape the &utsis and
Bill themC*
<62/= C.668 C.638 and C.60 state that the Interahame tooB the @omen and girls from
the prefectural office to rape them on the spot or a short distance @a>* %ometimes the>
@ere held captive for several da>s* &he appellant also acted in this manner*
<626= &he appellant argues that C./5 @as not able to identif> him in a lineup* Ae also
impugns her credibilit> on the grounds that she tooB part in +acaca meetings and
especiall> because she never mentioned his name during her testimon> before the
C&R8 @hich lasted about ten da>s* On the contrar>8 she stated that8 other than %halom8
she did not Bno@ an> of the Interahame @ho @ere terroriDing the prefectural office* Ae
adds that it is strange that a @itness @ho claims to have been raped several times b>
the appellant failed to mention this fact prior to his trial and that she could not identif>
him in a photograph*
<623= &he appellantGs criticisms of the other @itnesses concern essentiall> gaps in the
identification evidence and their lacB of credibilit>* Ae argues that+
K C./, lied to the judge to justif> or e:plain her perjur> before the C&R*
(oreover8 her version of the facts is replete @ith contradictions and
based on hearsa>* %he never spoBe about the appellant before
meeting @ith the Canadian authorities and she @as unable to describe
him* %he @as not able to recogniDe the Aotel (ahenga @here she @as
allegedl> taBen and assaulted*
K C./1 gave four different versions regarding %halomGs presence in the
prefecture* &he contradictions in these versions @ere significant in that
,--./-.--00/1.-23 PA$E+ 1,
%halom @as the appellantGs inseparable acol>te* (oreover8 her testimon>
about the rapes @as based on hearsa>* %he @as not able to identif> the
appellant in a photo lineup and learned his name from other people*
K C./2 @as not able to identif> the appellant in a photo lineup and she never
mentioned his name @hen she testified before the C&R* #efore the C&R8
she stated that she sa@ %halom onl> once during the genocide8 although
before the judge she stated that he @as al@a>s @ith the appellant* %he also
told the RC(P officers that %halom and some Interahame members that
she did not Bno@ @ere responsible for the Billings8 and then connected the
appellant @ith the murders of several &utsis* &he appellant also raises a risB
of collusion among @itnesses C.668 C.638 and C.60 regarding the alleged
rape of DD(./5* Aer testimon> about the rapes is based on hearsa>*
K C.6- @as not able to identif> the appellant in a photo lineup and8 moreover8
she did not positivel> identif> him in the prisonerRs docB* Aer testimon>
contains numerous contradictions and8 in a statement she gave to Canadian
police officers8 she @as not able to affirm that the appellant Bidnapped girls
from the prefectural office to rape them*
K n a statement given to Canadian police officers8 C.66 stated that she did not
Bno@ the name of the Interahame members @ho @ere Bidnapping girls from
the prefectural office and that she did not @itness an> such Bidnappings b>
the appellant*
K C.63 did not positivel> identif> the appellant during her meeting @ith the
Canadian police* %he tooB her time before implicating the appellant8 @hose
name she never mentioned during her testimon> before the C&R* &here @as
allegedl> collusion amongst @itnesses C./28 C.668 and C.60 regarding the
rape of DD(./5*
K C.60 did not positivel> identif> the appellant in a photo lineup* Hhen asBed to
describe the appellant to Canadian police in 6--3 and 6--,8 she never
mentioned a scar* %he learned his name from other people* Aer testimon>
contained contradictions and she conspired @ith C./28 C.66 and C.63
regarding the rape of DD(./5*
<620= !or all of these reasons8 the appellant argues8 it is unreasonable to rel> on their
testimon> and find that he participated in the rapes that tooB place in the prefectural
office and its surrounding area*
Analysis
<62,= &here is no dispute that the prefectural office @as the site of numerous incidents
of se:ual abuse and8 in particular8 that soldiers and Interahame militia @ent there
regularl> to Bidnap @omen in order to rape them* &his observation is based on evidence
adduced b> both the Cro@n and the defence 4testimon> of DD(./57*
<621= &he judgeGs tasB8 therefore8 @as solel> to determine @hether the evidence
demonstrated be>ond an> reasonable doubt that the appellant had participated in these
,--./-.--00/1.-23 PA$E+ 11
rapes in one @a> or another8 either b> committing some of them himself or b> being and
accomplice*
<625= E:cept for the testimon> of C./58 @ho states that she @as personall> raped b>
the appellant on a fe@ occasions8 the Cro@nGs evidence seeBs to establish that the
appellant tooB part in the rapes b> choosing @omen and distributing them to the militia
men and b> raping some himself*
<62?= According to the appellantGs arguments8 all of the @itnesses from the prefectural
office have no credibilit> @hatsoever and their testimon> as to his participation in the
abuses that @ere committed there8 and more particularl> the rapes of the refugees8
@ere pure fabrication* Hith respect8 this conspirac> theor> is difficult to accept* Hhile it
is true that the @itnessesG testimon> at the prefectural office are not perfect and disclose
certain @eaBnesses8 there is nothing to justif> rejecting them @holesale8 as the
appellant proposes*
<622= &he issue of the sufficienc> of the identification evidence has alread> been
addressed and treated8 as have those concerning the effect of the allegations of
collusion amongst @itnesses C./28 C.668 C.638 and C.60 and the contamination
resulting from the participation of some of the @itnesses in +acaca meetings*
<3--= As for the rest8 the sole issue is the assessment of the credibilit> of the
@itnesses* &he appellant insists above all on the fact that several @itnesses failed to
implicate him immediatel>8 @hether to the C&R investigators8 to the RC(P officers8 or
during their testimon> before the C&R*
<3-/= Hhat the appellant is asBing the Court to do illustrates the delicac> of the tasB
before appellate judges in such matters8 since that the> have not had the advantage of
seeing or hearing the @itnesses* On numerous occasions8 the %upreme Court of
Canada has noted that @hile an appellate court has the po@er to reject a verdict
because it is unreasonable8 this ground must not become an e:cuse to ignore the
findings of fact of the judge or jur>8 as the case ma> be8 @ith respect to credibilit>* n R.
v. W.H.8 the %upreme Court states+
33 R. v. >ur-e8 </221= / %*C*R* 0508 and R. v. R.&.! 6-/6 %CC 668 <6-/6= /
%*C*R* 5018 @hile judge.alone cases8 further underline the great deference @hich
must be sho@n b> the appellate court to the trial courtRs assessment of credibilit>*
n the latter case8 Deschamps ;*8 for the majorit>8 reiterated the applicable
principle as follo@s+
Hhereas the Juestion @hether a verdict is reasonable is one of la@8
@hether a @itness is credible is a Juestion of fact* A court of appeal that
revie@s a trial courtRs assessments of credibilit> in order to determine8 for
e:ample8 @hether the verdict is reasonable cannot interfere @ith those
assessments unless it is established that the> Mcannot be supported on
an> reasonable vie@ of the evidenceN 4R. v. >ur-e8 </221= / %*C*R* 0508
at para* 57* <Emphasis addedI para* /-*= /-*
30 Perhaps the most useful articulations of the test for present purposes are
those found in >iniaris and >ur-e* n the former case8 Arbour ;* put it this @a>+
MW the unreasonableness W* of the verdict @ould be apparent to the legall>
,--./-.--00/1.-23 PA$E+ 15
trained revie@er @hen8 in all the circumstances of a given case8 judicial fact.
finding precludes the conclusion reached b> the jur>N+ para* 32 4emphasis
added7* n the latter8 %opinBa ;* concluded that a verdict based on credibilit>
assessment is unreasonable if Mthe trial courtRs assessments of credibilit> cannot
be supported on an> reasonable vie@ of the evidenceN+ para* 5 4emphasis
added7* Hhile appellate revie@ for unreasonableness of guilt> verdicts is a
po@erful safeguard against @rongful convictions8 it is also one that must be
e:ercised @ith great deference to the fact.finding role of the jur>* &rial b> jur>
must not become trial b> appellate court on the @ritten record*
<3-6= n this case8 the judge dul> noted and considered the main contradictions and the
fact that some of the @itnesses @ere slo@ to implicate the appellant 4especiall> in his
reasons in the confidential schedule8 @hich is more detailed than the public judgment7*
n particular8 as a general rule8 he outlined the @itnessesG e:planations and his reasons
for accepting them* %ince the Court is not in a position to assess the sincerit> of the
e:planations and justifications given b> the @itnesses because it did not see or hear
them8 the judgeGs conclusions in this respect @arrant deference*
<3-3= n short8 @hile some of the elements of the testimon>8 considered separatel>8 ma>
appear Juestionable or create a vague sense of unease8 it is important to consider all of
the evidence as a @hole @hen determining @hether the verdict is unreasonable* "nless
all of the @itnessesG testimon> of the @itnesses from the prefecture can be rejected as a
@hole8 it must be found that the judge had sufficient evidence to conclude be>ond an>
reasonable doubt that the appellant @ent to the prefecture on several occasions and
tooB part in the rapes of man> of the @omen @ho had taBen refuge there*
(C) The road$loc%s
<3-0= (an> of the @itnesses established that8 as of the second half of April of /2208
roadblocBs @ere erected at various locations throughout the prefecture of #utare @ith
the aim of preventing the passage of &utsis b> driving them bacB8 stopping them and
taBing them some@here else8 or Billing them*
5i6 .he %resence of the a%%ellant at the road"loc-s
<3-,= %everal of the @itnesses testified about the appellantGs presence at the
roadblocBs and hise role there+
. RCH.5+ the appellant drove from one roadblocB to another and spoBe @ith
the guardsI
. RCH.?+ the &utsis captured at the roadblocBs @ere handed over to the
people in charge8 @ho included the appellant and %halomI
. RCH.2+ the appellant and %halom @ere in charge of the roadblocBs near the
universit>* &he appellant gave the order to stop an>one crossing the
roadblocBs @ithout an identit> cardI
. RCH./-+ the appellant and %halom @ere in charge of the roadblocB near the
home of (inister PaulineI
,--./-.--00/1.-23 PA$E+ 1?
. RCH./68 the appellant drove from one roadblocB to another8 checBing the
status of the situation at each oneI
. RCH./0+ the roadblocBs @ere run b> gun.carr>ing individuals8 one of @hom
@as the appellantI
. C./,+ the appellant @as in charge of the roadblocB near CheD VenantI
. C.6-+ the appellant spent time at the roadblocB near CheD VenantI
<3-1= n addition to the criticisms regarding the credibilit> of these @itnesses8 the
@eaBness of the identification evidence given b> some of them8 and the need for the
judge to @arn himself @ith regard to some of the testimon>8 the appellant submits that+
. Contrar> to @hat @as affirmed b> the trial judge8 RCH.5 testified that she
never sa@ or heard the appellant give orders to the guards at the roadblocBsI
. RCH./- said that the appellant @as in charge of the roadblocB erected near
the home of (inister Pauline8 @hile DD(./68 @ho @as @orBing there8 said
that he @as not one of the guardsI DD(.0, also testified that the appellant
@as not in charge of this roadblocBI
. RCH./6 never set foot in the cit> of #utare during the genocide and therefore
his testimon> concerned onl> the roadblocB set up near his home in (at>aDo8
a commune north of NgomaI the judge therefore erred b> accepting his
testimon> that the appellant @as in charge of the roadblocBs in the cit> of
#utare* (oreover8 his testimon> as to the appellantGs presence in (at>aDo
@as contradicted b> RCH./- and DD(.3?*
Analysis
<3-5= As the respondent argues8 the Cro@n did not tr> to establish that the appellant
@as in charge of one roadblocB in particular8 but rather that he @ould drive from one
roadblocB to another to give orders or instructions* &his evidence tended to demonstrate
not the commission of a specific underl>ing offence but8 through the role he pla>ed as
an Interahame leader in the prefecture of #utare8 his Bno@ledge of the situation*
<3-?= t is indeed true that RCH.5 said that he never personall> received orders from
the appellant and that he never sa@ him actuall> Bill an>one* Ae did8 ho@ever8 testif>
that the appellant and %halom patrolled from one roadblocB to another and that the>
recruited guards* &he @itness freJuentl> sa@ the appellant in the compan> of CBillersC8
@earing militar> clothing and carr>ing a rifle*
<3-2= RCH./- testified that he sa@ the appellant at the roadblocB near the home of
(inister Pauline* #ut he never stated that he @as <&RAN%)A&ON= Cin charge ofC the
roadblocB or that he @as there permanentl>* On the contrar>8 his testimon> is consistent
@ith the Cro@nGs submission that the appellant and %halom @ould drive from one
roadblocB to another8 as the @itness also told the RC(P*
<3/-= RCH./6 stated that8 at the roadblocB @here he @orBed8 the appellant behaved
liBe an Interahame leader 4he drove around in a vehicle8 spoBe to the guards to find
,--./-.--00/1.-23 PA$E+ 12
out @hether the> had performed their @orB properl>8 @ore militar> clothing8 and carried a
LalashniBov7*
<3//= &he testimon> of RCH.?8 RCH.28 RCH./08 C./, and C./1 also support the
Cro@nGs theor> as to the appellantGs role at the various roadblocBs* Ae @as seen at
several of them and is consistentl> described as a person of importance8 a leader8 b>
@itnesses @ho in most cases did not see each other during the genocide and @ho have
no connection @ith each other*
<3/6= n this conte:t8 the contradictions the appellant raises 9 often minor8 secondar>8
and concerned @ith details 9 are not sufficient to set aside the judgeGs conclusion that
the appellant @as one of the leaders of the Interahame in #utare*
5ii6 .he murders committed at the road"loc- near Chez 3enant
<3/3= &he trial judge concluded that the appellant had participated in the murders of
four &utsi individuals at the roadblocB near CheD Venant8 @hich @as ver> near the
prefectural office8 on the basis of the testimon> given b> C./,8 C./18 and C./2*
<3/0= According to C./,8 the appellant @as one of the leaders8 and she sa@ him
murder a >oung man b> beating him @ith a sticB @hen she @as just a fe@ metres a@a>*
<3/,= C./1 testified that she sa@ the appellant and other members of the Interahame
bring four &utsis near CheD Venant8 hang them b> their feet8 and beat them to death*
&he appellant8 @ho @as carr>ing a gun8 allegedl> said that all &utsis must die*
<3/1= As for C./28 from her vantage point at the prefectural office8 she sa@ the
appellant and t@o of his associates beat a >oung &utsi named %ebuBaa@ire to death*
<3/5= !irst8 the appellant challenges the identification evidence of the @itnesses+
. C./, did not clearl> identif> the appellant in a lineup in 6--,8 sa>ing onl> that
he looBed liBe the individual in photograph number ?* %he @as also unable to
describe the appellant to the RC(P officers*
. C./1 did not Bno@ the appellant before /220 and she learned his name from
other people* %he @as unable to identif> him in the photo lineup organiDed b>
the RC(P officers8 although she @as able to do so in the photo lineup
presented to her at trial because the appellant @as present* &his identification
therefore is of no valueI
. C./2 @as not able to identif> the appellant in the photo lineup* %he @as able
to do so onl> at trial8 @hich is of no value*
<3/?= Ae also impugns their credibilit> for the reasons alread> stated in the section on
the rapes that tooB place at the prefectural office*
Analysis
<3/2= &he criticisms of @itnesses C./,8 C./1 and C./2 have alread> been discussed8
and the Court has found that there @as no reason to set aside the judgeGs findings as to
their credibilit>* ConseJuentl>8 the judgeRs conclusions regarding the murders committed
near the roadblocBs at CheD Venant are not unreasonable*
,--./-.--00/1.-23 PA$E+ 5-
5iii6 .he murders committed at the university la"oratory
<36-= &he judge relied on the testimon> of RCH./- and RCH./0 to conclude that the
appellant directl> participated in the murder of &utsis behind or ver> near the universit>
laborator>*
<36/= RCH./- stated that the appellant8 @ho @as at the roadblocB near the home of
(inister Pauline8 forced about fort> &utsis into three small trucBs and carried them
behind the universit> laborator>* &here the> @ere forced to undress and then e:ecuted
b> the appellant8 %halom8 and another member of the Interahame* &he appellant used
a Bnife*
<366= RCH./0 testified that there @as a grave behind the laborator>* Ae @itnessed the
appellant along @ith %halom and another member of the Interahame bring si: &utsis
there to be e:ecuted* On another occasion he sa@ the appellant bring &utsis there but
he did not @itness their e:ecution* Ae did hear the gunfire8 ho@ever*
<363= &he appellant faults the judge for failing to consider that8 in 6---8 @hen RCH./-
@as Juestioned b> the RC(P8 he stated that he never sa@ the appellant Bill an>one at
all* Although he stated the contrar> in intervie@s in 6--3 and 6--08 these statements
@ere not used b> the defence and could not be used in ree:amination b> the Cro@n8 as
the> in fact @ere* Citing R. v. (llard8 6--2 %CC 658 <6--2= 6 %*C*R* /28 the appellant
submits that the judge could not allo@ the Cro@n to enhance the credibilit> of the
@itness b> adducing subseJuent statements in ree:amination* Ae argues that the judge
should not have assigned an> credibilit> to this @itness because of his participation in
the murder of &utsis8 his collusion @ith other detained @itnesses8 his participation in the
+acaca meetings8 and contradictions @ith his o@n statements and those of other
@itnesses*
<360= Regarding RCH./08 the appellant points out that the @itness @as unable to
identif> him in photo lineups in 6--3 and in (arch of 6--,8 but the judge relied onl> on a
later identification at the rogator> commission* (oreover8 during his testimon>8 RCH./0
contradicted a prior statement in @hich he had stated that he did not see the appellant
Bill an>one @hatsoever* !inall>8 he @as a detained @itness @ho @as convicted for his
participation in the genocide8 @ho participated in the +acaca meetings8 and @ho @as
tard> in implicating the appellant* As a result of all of these factors8 he is not credible*
Analysis
<36,= "pon reading the Cro@nGs ree:amination of RCH./-8 it is clear that the objective
@as solel> to enhance the @itnessGs credibilit> follo@ing his cross.e:amination b>
presenting other statements made to the RC(P* Aside from a fe@ e:ceptions not
applicable here8 such evidence is inadmissible and should not have been considered b>
the judge for the purposes of assessing the credibilit> of RCH./- 4(llard8 at paras* 3/
and 367*
<361= As the follo@ing e:cerpt from his judgment sho@s8 the judge tooB these
statements into consideration+
<&RAN%)A&ON=
,--./-.--00/1.-23 PA$E+ 5/
<,13= Comments+ Ae testified at length8 @ith precision and rigour* Ae remained
credible despite contradictions bet@een his testimon> in court and some of his
@ritten statements* Other @ritten statements @ere consistent @ith his testimon>*
4see also para* 6/1 of the Confidential %chedule7*
<365= &he Court does not find that this @as a mere technical error @ith no negative
conseJuences for the appellant* Rather8 it concludes that this @as a serious error of la@
4see R. v. $.$.S.8 6--1 N%CA 30 at para* ?07*
<36?= n the circumstances8 the Court must taBe no account of the testimon> of RCH.
/- as it concerns the incident of the murders behind the universit> laborator>*
<362= &he fact remains8 ho@ever8 that @itness RCH./0 testified as to the appellantGs
participation in the murders of &utsis near the universit> laborator>*
<33-= Despite his failure to identif> the appellant during the photo lineup in 6--,8 RCH.
/0 positivel> identified the appellant @ithout an> hesitation @hen the lineup @as
presented to him again during the rogator> commission8 @hen the appellant @as not
present* At the time8 he also testified that there @as a ver> visible scar on the appellantGs
face*
<33/= n short8 although there admittedl> are discrepancies bet@een the RCH./0Gs
testimon> before the judge and some of the statements he made to the RC(P officers8
the fact remains that each of his accounts attested to the presence and active
participation of the appellant in the murder of &utsis behind the laborator>8 albeit to
var>ing degrees* n one version8 the appellant @as giving orders8 @hile in the other8 he
shot at some of the refugees* &o determine his guilt8 ho@ever8 it matters little @hether
the appellant committed the underl>ing offence of ordering the murders or @hether he
pulled the trigger himself*
<336= !or these reasons8 the Court finds that the conclusions of the judge as to the
appellantGs participation in the murder of the &utsis behind the universit> laborator>
should not be set aside*
(() The other incidents
<333= &he Cro@nGs @itnesses also reported other murders8 rapes and pillage committed
b> the appellant in various other locations @ithin the commune*
5i6 Murder of a girl in the yard "ehind the merchant #eliciJs home
<330= According to RCH.//8 the appellant Billed a girl in the court>ard behind the house
belonging to !elici8 a rich &utsi from the Ngoma commune8 @hile the house @as being
pillaged*
<33,= &he appellant submits that RCH.// @as contradicted b> DD(.368 a @itness for
the defence8 regarding his presence at the scene* (oreover8 RCH.// is not
corroborated b> an> other @itness* &he appellant argues that8 considering his poor
credibilit>8 his participation in +acaca meetings8 and the fact that he signed the letter to
the Canadian authorities8 there is no reliable evidence of his participation in the murder
of a >oung girl at !eliciGs residence*
,--./-.--00/1.-23 PA$E+ 56
Analysis
<331= %etting aside the judgeGs conclusion on this incident because he failed to
e:plicitl> discuss the contradiction bet@een RCH.// and DD(.36 @ould be unjustified*
n fact8 because the judge stated that he assigned no credibilit> to DD(.368 @ho also
tended to minimiDe his o@n participation in the attacBs against the &utsis8 it follo@s that
the apparent contradiction no longer e:ists*
<335= As for the other grounds raised8 the> have alread> been rejected*
5ii6 .he re%eated ra%e of his .utsi cousin
<33?= C.6/8 a &utsi8 is the appellantGs cousin* During the genocide8 she tooB refuge at
the home of the appellantGs father to hide* %he states that she @as assaulted b> the
appellant on five occasions in the room of an anne: of the residence @here she @as
hiding out*
<332= n addition to his arguments relating to the <&RAN%)A&ON= CprivateC or
<&RAN%)A&ON= CpersonalC nature of the assaults committed against C.6/8 @hich do not
merit our attention8 the appellant impugns the credibilit> of this @itness* Ae argues that
she did not report the assaults until 6--, and that she @rote a letter in 6--/ to
mmigration Canada in support of the appellant* (oreover8 her version of the facts is
contradicted b> @itnesses for the defence8 and particularl> b> DD(./?8 @ho @as sta>ing
in the same room as C.6/ and states that she never sa@ the appellant8 never heard C.
6/Rs cries8 and never observed the injuries that C.6/ claims she suffered*
Analysis
<30-= &he appellant is mistaBen @hen he states that DD(./?Gs testimon> should have
raised a doubt in the mind of the judge because he deemed her to be generall>
<&RAN%)A&ON= CcredibleC* Although the judge did indeed sa> this8 care must be taBen not
to isolate this comment from the rest of his reasons* ndeed8 he also stated that DD(./?
<&RAN%)A&ON= C@as not credible @hen she said she did not discuss her testimon> @ith
her famil>8 particularl> her mother or Delphine8 @ho had alread> testifiedN*
<30/= &he judge also said that Delphine8 the appellantGs sister8 had no credibilit>
concerning C.6/ and the famil> discussions8 because she obviousl> @anted to help her
brother* Ae came to the same conclusion @ith regard to the appellantGs mother
4<&RAN%)A&ON= CCertain of her sonRs innocence8 she @ould do an>thing to help himC7 and
added that her ans@ers often seemed prepared to counter the Cro@nGs evidence*
<306= (ore generall>8 the judge considered the testimon> of the famil> of the accused
to have little credibilit>+
<&RAN%)A&ON=
</23,= Although the> denied it8 the @itnesses from the accusedGs famil> prepared
their testimon> together in order to help him* &hat might be a natural reaction8 but
b> repeatedl> den>ing the obvious8 one loses much credibilit>*
<303= (oreover8 on the basis of C.6/Gs testimon>8 the judge found that some members
of the appellantGs famil> had asBed her to sa> nothing to Canadian police officers* DD(.
,--./-.--00/1.-23 PA$E+ 53
/? allegedl> contacted her so that the people living at the appellantGs fatherGs house
could meet <&RAN%)A&ON= Cto see @hat @as said8 if itGs properl> transcribed or if there
@as something @e forgot or that should be addedC*
<300= n short8 it is erroneous to state that the judge attributed total credibilit> to DD(.
/? for ever>thing she said and that he held t@o contradictor> beliefs b> accepting both
her testimon> and that of C.6/* On the contrar>8 his reasons reveal that he did not
accept the evidence of the appellantGs famil> about the incidents involving C.6/ and
accepted the latterGs version instead* n this respect8 the appellant submits no valid
argument that @ould justif> the Court in setting aside this conclusion*
<30,= C.6/ also provided a plausible e:planation of @h> she dela>ed before reporting
the assaults 4she felt guilt> and @as ashamed8 emotions that she overcame thanBs to
the support of an organiDation helping genocide victims7 and of the conte:t of her
signing of the letter recommending the appellant to mmigration Canada 4after constant
pressure from one of the appellantGs cousins8 @ho dictated the contents of the letter7*
5iii6 &illage of the houses and "usinesses "elonging to .utsis
<301= &he acts of pillage concern onl> the seventh count* &he Cfro@n tried to prove
three distinct incidents+ pillage of RCH.3Gs home8 pillage of RCH.,Gs business8 and
pillage of the shops on the commercial street of the cit> of #utare*
<305= &he judge @as of the vie@ that the appellant tooB part in the pillage of RCH.3Gs
house in Ngoma* Ais conclusion @as based on the testimon> of RCH.3 and RCH.//*
<30?= RCH.3 stated that the appellant and his group @ent to her house three times 4in
April8 earl> (a>8 and ;une7* On the first t@o occasions8 she @as hiding and heard the
assailants looting the home* &he third time8 she states that she @as assaulted b> the
appellant8 @ho then thre@ her out of her house* %he also spoBe of her television being
stolen during this third attacB*
<302= RCH.// stated that the assailants @ere unable to enter RCH.3Gs house* Ae
acBno@ledged8 ho@ever8 that the appellant @ent to RCH.3Rs residence on t@o
occasions and tried to attacB her*
<3,-= Regarding RCH.38 the appellant faults the judge for failing to deal @ith the
elements relating to the voice identification8 pointing out that no evidence established
ho@ RCH.38 @ho @as hidden8 could have recogniDed the appellantGs voice since8
contrar> to @hat she claimed8 she did not Bno@ him* (oreover8 @hen she referred to the
third visit8 she did not mention a scar on his face and8 @hen asBed @hether he had an>
distinguishing marBs8 she even ans@ered in the negative* During a photo lineup8 she
hesitated bet@een t@o photos and said that she <&RAN%)A&ON= MpreferredC the one of the
appellant* !inall>8 she claimed that she Bne@ the appellantGs famil> members @ell8 but
she @as unable to name them* &he famil> members said that the> Bne@ her* &here are
also numerous contradictions @ith her prior statements* &he appellant submits that8 for
all of these reasons8 the judge should not have accepted RCH.3Gs testimon>8 especiall>
since there @ere flagrant contradictions bet@een it and that of RCH.//*
,--./-.--00/1.-23 PA$E+ 50
<3,/= n the vie@ of the Court8 the evidence establishes that the appellant @ent to
RCH.3Gs house at least t@ice and8 because clearl> the judge decided that RCH.3 @as
credible8 that a television had been stolen*
<3,6= &he judge found8 on the basis of the testimon> of RCH., and his emplo>ee8
RCH.18 that the appellant participated in the looting of RCH.,Gs business*
<3,3= &he business of RCH.,8 a #utare merchant8 @as located near the universit>* Ae
stated that the appellant8 %halom8 and a group of members of the Interahame arrived
carr>ing @eapons8 pillaged his store8 and stole some motorbiBes*
<3,0= RCH.18 @ho lived at the store and @orBed there seven da>s a @eeB8 stated that
he @itnessed three attacBs 4April 668 (a> /?8 and ;ul> 67 b> a group of members of the
Interahame8 including the appellant* &he group allegedl> pillaged the store and stole
eJuipment 4refrigerator8 television8 RCH.,Gs vehicle8 motorbiBes8 and other propert>7*
<3,,= !irst8 the appellant argues that the identification evidence given b> these t@o
@itnesses is @eaB* !or e:ample8 RCH., said that he identified the appellant during the
first incident b> his voice8 even though he had not seen him in four >ears* As for the
visual identification8 the @itness allegedl> sa@ the appellant in conditions that made it
difficult to observe clearl> and reliabl> 4distance8 @eather8 stress8 fear7* As for RCH.18
he @as not able to positivel> identif> the appellant in a photo lineup8 sa>ing onl> that
one of the photographs <&RAN%)A&ON= Cresembled himC* &he appellant also raises
contradictions bet@een their testimon> and prior statements*
<3,1= &he respondent recogniDes that there are contradictions and discrepancies
bet@een the testimon> given b> RCH., and that of RCH.18 particularl> in respect of the
seJuence of the attacBs8 the acts committed during each one8 and @hen it @as that the
assailants stole the motorbiBes* According to the Cro@n8 these contradictions and
discrepancies ma> be e:plained b> the passage of time and the difficult conditions the
@itnesses @ere in at the time of the events* &herefore8 the contradictions raised b> the
appellant are not sufficient to set aside the conclusions of the judge8 @ho in fact tooB
into account the imprecision and considered the @eaBnesses of the testimon>*
<3,5= &he Court shares the opinion of the respondent*
<3,?= !irst8 several of the alleged contradictions concern facts that are peripheral to
@hether the appellant participated in the attacB on RCH.,Gs business* !or e:ample8 this
is the case @ith respect to the possible counterfeiting of RCH.,Gs identit> card8 his
solvenc>8 and @hat happened once he @as forcibl> brought outside*
<3,2= %econd8 @hile it is true that the seJuence of the attacBs as related b> RCH., and
RCH.18 @ho did not necessaril> observe the same things from @here the> @ere at the
time8 do not coincide in ever> respect8 the fact remains that the> provided relativel>
similar details about at least one of the attacBs+
. &he appellant @as @earing a militar> shirt and civilian pantsI
. Ae @as carr>ing a long rifle8 part of @hich @as @ooden 4RCH., added that it
@as a LalashniBov7I
,--./-.--00/1.-23 PA$E+ 5,
. Ae opened the doors of the business b> pulling on them @ith his gunI
. Ae used a red &o>ota trucB into @hich he put the propert> taBen b> the
assailantsI
. (otorbiBes belonging to RCH., @ere taBen 4although the date on @hich this
theft occurred differs bet@een the t@o versions7I
. &here @ere bet@een /, and 6- assailants*
<31-= Considering that RCH.,Gs business @as the target of the Interahame and the
soldiers on a fe@ occasions8 as @ell as the length of the armed conflict and its intensit>8
the confusion as to the dates of the various incidents related b> the @itnesses is
understandable8 especiall> @hen their traumatiDing nature is considered* t should also
be noted that8 in cross.e:amination8 RCH.1 ultimatel> admitted that he @as confused
and that he @as having trouble @ith his sense of time*
<31/= n short8 despite a certain amount of confusion about dates and some differences
in the details8 it @as open to the judge to accept the testimon> of RCH., and RCH.1 in
support of his conclusion that the appellant participated in the attacBs on RCH.,Gs
business8 its pillage8 and in the theft of the propert> in it*
<316= !inall>8 the trial judge affirmed that the appellant <&RAN%)A&ON= Clooted stores
belonging to &utsiC @ithout providing an> more detail* !rom his summar> of the
evidence8 it is clear that he based this conclusion on the testimon> of RCH.28 @ho
stated that he t@ice sa@ the appellant breaB into shops in the business district of the cit>
of #utare8 loot them8 and steal eJuipment that he loaded into a small @hite trucB*
<313= According to the appellant8 the procedure in @hich he @as identified b> RCH.2
@as invalid8 since the police had implied to him that he had a scar on his face* Hhile
RCH.2 had ans@ered in the negative8 the description of the appellant that he gave in
the rogator> commission @as different* (oreover8 he never positivel> identified the
appellant in a photo lineup8 sa>ing onl> that he <&RAN%)A&ON= CbelievedC that one of the
photographs @as of him* &he appellant adds that this @itness tooB part in the +acaca
meetings8 co.signed the letters from the detainees8 and discussed the appellantGs trial
@ith the said detainees*
<310= &he argument of lacB of credibilit> due to participating in the +acaca meetings
and signing the letter from the detainees has alread> been addressed and rejected*
<31,= As for the identification evidence8 it @as sufficient* n 6--,8 @hen Canadian
investigators carried out a lineup8 he positivel> identified the appellantGs photograph8
although @ith difficult>* n his testimon> before the rogator> commission8 he again
identified the correct photograph8 @hile e:plaining in cross.e:amination that the initial
identification @as difficult because of the passage of time and because he did not Bno@
@hen the photographs he @as given had been taBen*
<311= &he fact that8 during an intervie@ in 6---8 the Canadian police officers asBed him
@hether the appellant had scars on his face does not affect the probative value of this
evidence8 since the scars are not apparent on the appellantGs photograph that @as used
in the lineup*
,--./-.--00/1.-23 PA$E+ 51
<315= &herefore8 there is no justification to set aside the testimon> of RCH.28 @hich
@as accepted b> the judge*
ARE THE 7ER"CT% !U%TFE"A
<31?= n this final section8 the Court @ill discuss the reasonabilit> of the verdicts
rendered on each of the counts against the accused in light of the elements of each of
the offences8 the evidence accepted b> the Court8 and the admissions*
<312= &he appellant admitted that there @as a @idespread and s>stematic attacB
directed against the civilian &utsi population in #utare prefecture* Ae also admitted that8
on April 3-8 /2208 the &utsis @ho had taBen refuge in the Ngoma church @ere
massacred*
<35-= Almost all of the Cro@n @itnesses8 @ho for the most part @ere in no @a>
connected @ith each other8 stated that the appellant acted as a leader during the events
that tooB place in the #utare prefecture bet@een April and ;ul> of /220* &hat is @h> the
judge found that he @as <&RAN%)A&ON= Cat the forefront of the genocidal movementC8
nstead of refraining and refusing to taBe part in the genocide8 he chose to participate
activel> as Interahame leader and as a member of the local elite*
<35/= &he judge also concluded that the appellant had distributed @eapons and
uniforms to the Interahame8 basing this finding on the testimon> of RCH.6 and RCH.
?8 @hich confirmed the important role he pla>ed*
<356= &hus8 the evidence establishes that the appellant had the intent to attacB &utsis
specificall> and that he @as at the forefront of the armed conflict in the #utare
prefecture*
F,-./ c0un/: ;en0c,1e By :u-1e-
<353= &o succeed8 the Cro@n had to demonstrate be>ond an> reasonable doubt that8
bet@een April / and ;ul> 3/8 /2208 in the prefecture of #utare8 the appellant caused or
contributed substantiall> to deaths8 and that he had the intent to cause the death of the
victims or to inflict serious injur> that he Bne@ @as liBel> to cause death and @as
recBless as to @hether death ensued8 @ith the intention of destro>ing the &utsis*
<350= &he evidence summariDed in the previous section establishes each of these
elements8 in particular the murders at the prefectural office8 at the Ngoma church8 and
at the roadblocB near CheD Venant8 and the intent to cause death because the victims
@ere members of the &utsi ethnic group*
%ec0n1 c0un/: ;en0c,1e By .e-,0u. B01,<y 0- :en/a< 2a-:
<35,= &o succeed8 the Cro@n had to demonstrate be>ond an> reasonable doubt that8
bet@een April / and ;ul> 3/8 /2208 in the prefecture of #utare8 the appellant committed
or aided in committing serious acts such as se:ual violence and rape in particular8 and
that he intended to commit such acts @ith the intent of destro>ing &utsis*
<351= &he evidence establishes each of these elements8 in particular the rapes at the
prefectural office and at his parentsG home8 @hich @ere committed because the victims
@ere members of the &utsi ethnic group*
,--./-.--00/1.-23 PA$E+ 55
T2,-1 c0un/: c-,:e. a;a,n./ 2u:an,/y By :u-1e-
<355= &o succeed8 the Cro@n had to demonstrate be>ond an> reasonable doubt that8
bet@een April / and ;ul> 3/8 /2208 in the prefecture of #utare8 the appellant caused or
contributed substantiall> to deaths8 and that he intended to cause the death of the
victims or to inflict serious injur> that he Bne@ @as liBel> to cause death and @as
recBless as to @hether death ensued8 as part of a @idespread attacB directed against
the &utsi of @hich the appellant had Bno@ledge and @ith the a@areness that his acts
@ere part of it*
<35?= &he evidence establishes each of these elements8 in particular the murders at
the prefectural office8 at the Ngoma church8 and at the roadblocB at CheD Venant8 the
intent to cause death as part of a @idespread attacB against the &utsi of @hich he had
Bno@ledge8 and that he @as a@are that the murders he @as committing @ere a part of
this attacB*
F0u-/2 c0un/: c-,:e a;a,n./ 2u:an,/y By .e4ua< 5,0<ence
<352= &o succeed8 the Cro@n had to demonstrate be>ond an> reasonable doubt that8
bet@een April / and ;ul> 3/8 /2208 in the prefecture of #utare8 the appellant committed
se:ual violence or aided in the commission thereof8 as part of a @idespread attacB
directed against the &utsi of @hich the appellant had Bno@ledge and @ith the a@areness
that his acts @ere part of it*
<3?-= &he evidence establishes each of these elements8 in particular the rapes at the
prefectural office and his parentsG home8 @ithout the consent of the victims because the>
@ere committed b> force or under threat as part of a @idespread attacB against the
&utsis of @hich he @as a@are8 and that he @as a@are that the acts of se:ual violence he
@as committing @ere a part of this attacB because he @as one of its leaders*
F,3/2 c0un/: Ca- c-,:e. By :u-1e-
<3?/= &o succeed8 the Cro@n had to demonstrate be>ond an> reasonable doubt that8
bet@een April / and ;ul> 3/8 /2208 in the prefecture of #utare8 there @as an armed
conflict8 that the appellant caused the death or contributed substantiall> to the death of
persons @ho @ere not parties to the armed conflict8 that intended to cause the death of
the victims or to inflict serious injur> on them that @as liBel> to cause their death and he
@as recBless as to @hether death ensued8 and finall>8 that there @as a ne:us bet@een
the Billings and the conflict*
<3?6= &he e:istence of an armed conflict bet@een the Ra@ndan Armed !orces and the
Ra@andan Patriotic !ront8 @hich tooB place in R@anda8 including the prefecture of
#utare8 has on numerous occasions been characteriDed as a non.international armed
conflict* ts e:istence and its characteriDation are admitted b> the appellant and reJuire
no further discussion*
<3?3= (oreover8 the evidence establishes that the appellant had Bno@ledge of the
conflict8 that he murdered civilian &utsis not involved in the conflict at the prefectural
office in the cit> of #utare8 at the church8 and at the roadblocB near CheD Venant8 his
intent to cause death8 and a ne:us bet@een this conflict and the murders8 the latter
,--./-.--00/1.-23 PA$E+ 5?
having been committed to eliminate civilian &utsis believed to be members of an enem>
ethnic group*
%,4/2 c0un/: Ca- c-,:e. By .e4ua< 5,0<ence
<3?0= &o succeed8 the Cro@n had to demonstrate be>ond an> reasonable doubt that8
bet@een April / and ;ul> 3/8 /2208 in the prefecture of #utare8 there @as an armed
conflict8 that the appellant committed se:ual violence or contributed substantiall> to its
commission against persons @ho @ere not parties to the armed conflict8 and8 finall>8 that
there @as a ne:us bet@een the acts of se:ual violence and the conflict*
<3?,= &he evidence and the admissions establish each of these elements8 in particular
an armed conflict in all of R@anda8 including in the prefecture of #utare8 of @hich the
appellant had Bno@ledge8 the repeated rapes of civilian &utsi @omen not involved in the
conflict8 at the prefectural office in the cit> of #utare and at his parentsG home8 the lacB of
consent but especiall> the use of force and threats8 and a ne:us bet@een the conflict
and the rapes8 the rapes having been committed to crush and destro> the &utsi civilians8
to maBe them lose their dignit>8 and to @ipe them out on the grounds that the> belonged
to an enem> group*
%e5en/2 c0un/: Ca- c-,:e By ?,<<a;e
<3?1= &o succeed8 the Cro@n had to demonstrate be>ond an> reasonable doubt that8
bet@een April / and ;ul> 3/8 /2208 in the prefecture of #utare8 there @as an armed
conflict8 that the appellant committed pillage or aided in committing pillage against
persons @ho @ere not parties to the armed conflict8 that he intended to commit such
acts8 and finall>8 that there @as a ne:us bet@een the conflict and the pillage*
<3?5= &he evidence and the admissions establish each of these elements8 in particular
an armed conflict in all of R@anda8 of @hich the appellant had Bno@ledge8 theft of
private propert>8 of propert> belonging to &utsi merchants @ho @ere not parties to the
armed conflict8 to @it+ RCH.,Gs business and the stores on the commercial street of the
cit> of #utare8 led b> the appellant as the head of an organiDed group8 and a ne:us
bet@een the conflict and the pillage8 the pillage having been committed to allo@ the
appellant and the members of his Autu group to appropriate the propert> of &utsi
merchants* As for the acts alleged to have been committed at RCH.3Rs home8 the
evidence does not justif> concluding be>ond an> reasonable doubt that acts of pillage
occurred there*
,--./-.--00/1.-23 PA$E+ 52
CONCLU%ON
<3??= !or these reasons8 the Court dismisses the appeal*

PERRE ;* DA)PAOND8 ;*A
A))AN R* A)&ON8 ;*A*
!RANdO% DO'ON8 ;*A*
(tre Richard Perras
CORDEA" PARc (E"NER et A%%OCc%
(tre (>lUne Dimitri
#O")c D(&R AVOCA&%
(tre (arie.Pier #arbeau
!or the appellant
(tre (ichel !* Denis
(tre Pascale )edou:
Director of Criminal and Penal Prosecution
!or the respondent
(tre David $rossman
(tre Audre> #octor
(tre DaphnF Hermenlinger
RVN$ (&CAE)) LA)CA(AN
!or the interveners
Date of hearing+ April 66 to 6,8 6-/3

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