OR: ENG

TRIAL CHAMBER II

Before:          
Judge William H. Sekule, Presiding
Judge Arlette Ramaroson
Judge Solomy Balungi Bossa

Registrar:       Mr Adama Dieng

Date:               16 December 2004

The PROSECUTOR
v.
Pauline NYIRAMASUHUKO and Arsène Shalom NTAHOBALI (Case No. ICTR-97-21-T)
Sylvain NSABIMANA and Alphonse NTEZIRYAYO (Case No. ICTR-97-29A-T)
Joseph KANYABASHI (Case No. ICTR-96-15-T)
Elie NDAYAMBAJE (Case No. ICTR-96-8-T)
Joint Case No. ICTR-98-42-T

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DECISION ON DEFENCE MOTIONS FOR ACQUITTAL UNDER RULE 98BIS

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Office of the Prosecutor

Silvana Arbia

Adelaïde Whest

Adesola Adeboyejo

Althea Alexis

Michael Adenuga

Astou Mbow, Case Manager

TABLE OF CONTENTS

SUBMISSIONS OF THE PARTIES . 5

I.     Submissions of the Parties on Nyiramasuhuko’s Motion .. 5

Rule 98bis Standards . 5

Acquittal on Count 1 (Conspiracy to Commit Genocide) 5

Acquittal on Count 4 (Direct and Public Incitement to Commit Genocide) 7

Acquittal on Counts Pleaded Under Article 6(3) of the Statute . 9

Acquittals on Counts 10 and 11 (Serious Violations of Article 3 Common to the Geneva Conventions and Additional Protocol II) 10

Acquittal on Miscellaneous Charges Pleaded in the Amended Indictment 10

II.       Submissions of the Parties on Ntahobali’s Motion .. 11

Acquittal on Count 1 (Conspiracy to Commit Genocide) 12

Acquittal on Counts 10 and 11 (Serious Violations of Article 3 Common to the Geneva Conventions and Additional Protocol II) 13

Acquittal on Miscellaneous Charges Pleaded in the Amended Indictment 13

III.     Submissions of the Parties on Nsabimana’s Motion .. 15

Rule 98bis Standards . 15

Acquittal on Count 5 (Crime Against Humanity – Murder) 15

Acquittal on Count 6 (Crime Against Humanity – Extermination) 16

Acquittal on Count 8 (Crime Against Humanity – Other Inhumane Acts) 16

Acquittal on Count 9 (Serious Violations of Article 3 Common to the Geneva Conventions and Additional Protocol II) 16

Acquittal on Miscellaneous Charges Pleaded in the Amended Indictment 17

IV.     Submissions of the Parties on Kanyabashi’s Motion .. 19

Rule 98bis Standards . 19

Acquittal on Miscellaneous Charges Pleaded in the Amended Indictment 19

V.      Submissions of the Parties on Ndayambaje’s Motion .. 22

Preliminary Issue: Deletion of Introductory Formulation to Each Count 22

Acquittal on Count 1 (Conspiracy to Commit Genocide) 23

Acquittal on Miscellaneous Charges Pleaded in the Amended Indictment 24

Credibility and Reliability of Prosecution Witness QAR . 25

DELIBERATIONS . 26

Issues That Fall Beyond the Scope of Rule 98bis: Form and Alleged Defects of the Indictment . 27

Issues That Fall Beyond the Scope of Rule 98bis: Reliability and Credibility of Evidence . 29

Issues That Fall Beyond the Scope of Rule 98bis: Acquittal on Paragraphs of the Indictment Not Relating to the Accused .. 30

I.     Deliberation on Nyiramasuhuko’s Motion .. 32

Request for Acquittal on Article 6(3) Charges under Counts 1 to 3 and 5 to 11 . 32

Request for Acquittal on Count 1 (Conspiracy to Commit Genocide) 34

Request for Acquittal on Count 4 (Direct and Public Incitement to Commit Genocide) 38

Request for Acquittal on Counts 10 and 11 (Serious Violations of Article 3 Common to the Geneva Conventions and Additional Protocol II) 40

Request for Acquittal in Relation to Paragraph 5.1 of the Amended Indictment 42

Request for Acquittal in Relation to Paragraph 5.8 of the Amended Indictment 42

Request for Acquittal in Relation to Paragraph 6.13 of the Amended Indictment 42

Request for Acquittal in Relation to Paragraph 6.14 of the Amended Indictment 43

Request for Acquittal in Relation to Paragraph 6.30 of the Amended Indictment 43

Request for Acquittal in Relation to Paragraph 6.38 of the Amended Indictment 43

Request for Acquittal in Relation to Paragraph 6.39 of the Amended Indictment 44

Request for Acquittal in Relation to Paragraph 6.42 of the Amended Indictment 45

Request for Acquittal in Relation to Paragraph 6.52 of the Amended Indictment 45

Request for Acquittal in Relation to Paragraph 6.54 of the Amended Indictment 45

Request for Acquittal in Relation to Paragraph 6.55 of the Amended Indictment 45

Request for Acquittal in Relation to Paragraph 6.56 of the Amended Indictment 46

II.       Deliberation on Ntahobali’s Motion .. 46

Request for Acquittal on Count 1 (Conspiracy to Commit Genocide) 46

Request for Acquittal on Counts 10 and 11 (Serious Violations of Article 3 Common to the Geneva Conventions and Additional Protocol II) 48

Request for Acquittal in Relation to Paragraph 5.1 of the Amended Indictment 49

Request for Acquittal in Relation to Paragraph 6.35 of the Amended Indictment 49

Request for Acquittal in Relation to Paragraph 6.52 of the Amended Indictment 49

Request for Acquittal in Relation to Paragraph 6.55 of the Amended Indictment 49

Request for Acquittal in Relation to Paragraph 6.56 of the Amended Indictment 50

III.     Deliberation on Nsabimana’s Motion .. 50

Request for Acquittal on Count 5 (Crime Against Humanity - Murder) 50

Request for Acquittal on Count 8 (Crime Against Humanity – Other Inhumane Acts) 51

Request for Acquittal in Relation to Paragraph 6.25 of the Amended Indictment 52

Request for Acquittal in Relation to Paragraph 6.28 of the Amended Indictment 52

IV.     Deliberation on Kanyabashi’s Motion .. 53

Request for Acquittal in Relation to Paragraph 6.26 of the Amended Indictment 53

Request for Acquittal in Relation to Paragraph 6.37 of the Amended Indictment............... 54

Request for Acquittal in Relation to Paragraph 6.38 of the Amended Indictment 54

Request for Acquittal in Relation to Paragraph 6.41 of the Amended Indictment 54

Request for Acquittal in Relation to Paragraph 6.43 of the Amended Indictment 55

Request for Acquittal in Relation to Paragraph 6.45 of the Amended Indictment 56

Request for Acquittal in Relation to Paragraph 6.63 of the Amended Indictment 56

V. Deliberation on Ndayambaje’s Motion .. 56

 

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (the “Tribunal”),

SITTING as Trial Chamber II composed of Judge William H. Sekule, Presiding, Judge Arlette Ramaroson and Judge Solomy Balungi Bossa (the “Chamber”);

BEING SEISED of:

• “Nyiramasuhuko’s Motion For Acquittal Under Rule 98bis” (“Nyiramasuhuko’s Motion”) filed on 25 October 2004; [1]
• “Ntahobali’s Motion For Acquittal Under Rule 98bis” (“Ntahobali’s Motion”) filed on 25 October 2004; [2]
• “Nsabimana’s Motion For Acquittal Under Rule 98bis” (“Nsabimana’s Motion”) filed on 25 October 2004; [3]
• “Kanyabashi’s Motion Under Rule 98bis” (“Kanyabashi’s Motion”) filed on 25 October 2004; [4]
• “Ndayambaje’s Motion For Acquittal Under Rule 98bis” (“Ndayambaje’s Motion”) filed on 25 October 2004; [5]

NOTING that no Motion was filed by Nteziryayo under Rule 98bis;

CONSIDERING:

• The “Prosecutor’s Response to Nsabimana’s Motion Under Rule 98bis” (the  “Response to Nsabimana”) filed on 2 November 2004;
• The “Prosecutor’s Response to the Motions of Ntahobali and Nyiramasuhuko for Partial Acquittal—Rule 98bis” (the “Response to Nyiramasuhuko and Ntahobali”) filed on 1 November 2004;
• The Prosecutor’s Response to Kanyabashi’s Motion Under Rule 98bis (the “Response to Kanyabashi”) filed on 1 November 2004;
• The Prosecutor’s Response to Ndayambaje’s Motion for Partial Acquittal – Rule 98bis” (the “Response to Ndayambaje”) filed on 1 November 2004;

CONSIDERING:

• “Nsabimana’s Reply to the Prosecutor’s Response” (“Nsabimana’s Reply”) filed on 9 November 2004; [6]
• “Ntahobali’s Reply to the Prosecutor’s Response to the Motions of Ntahobali and Nyiramasuhuko for Partial Acquittal” (“Ntahobali’s Reply”) filed on 18 November 2004; [7]
• “Ndayambaje’s Reply to the Prosecutor’s Response to Ndayambaje’s Motion for Partial Acquittal” (“Ndayambaje’s Reply”) filed on 18 November 2004; [8]
• “Kanyabashi’s Reply to the Prosecutor’s Response to Rule 98bis Motion” (“Kanyabashi’s Reply”) filed on 29 November 2004; [9]
• “Nyiramasuhuko’s Reply to the ‘Prosecutor’s Response to the Motions of Ntahobali and Nyiramasuhuko for Partial Acquittal’” (“Nyiramasuhuko’s Reply”) filed on 30 November 2004; [10]

CONSIDERING the Statute of the Tribunal (the “Statute”) and the Rules of Procedure and Evidence (the “Rules”);

NOW DECIDES the matter pursuant to Rule 98bis on the basis of the written submissions of the Parties.

Request for Acquittal on Count 1 (Conspiracy to Commit Genocide) 57

Request for Acquittal in Relation to Paragraph 5.1 of the Amended Indictment 60

Request for Acquittal in Relation to Paragraph 5.8 of the Amended Indictment 60

Request for Acquittal in Relation to Paragraph 5.13 of the Amended Indictment 60

Request for Acquittal in Relation to Paragraph 6.28 of the Amended Indictment 61

Request for Acquittal in Relation to Paragraph 6.34 of the Amended Indictment 61

Request for Acquittal in Relation to Paragraph 6.36 of the Amended Indictment 61

Request for Acquittal in Relation to Paragraph 6.54 of the Amended Indictment 61