Human Rights BriefA Legal Resource for the International Human Rights Community
Eliézer Niyitegeka v. Prosecuter
Case No. ICTR-96-14-A
by Christian De Vos*
edited by Anne Heindel**
On July 9, 2004, the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) delivered its judgment in the case of Eli�zer Niyitegeka v. Prosecutor. The case was brought on appeal from a May 16, 2003, trial judgment finding Niyitegeka guilty on six counts: genocide; conspiracy to commit genocide; direct and public incitement to commit genocide; and murder, extermination, and other inhumane acts as crimes against humanity. The Trial Chamber sentenced Niyitegeka, who served as Rwanda's Minister of Information during the course of the 1994 genocide, to life imprisonment. Niyitegeka (Appellant) raised 53 grounds for appeal, alleging errors of both law and fact. The Appeals Chamber (Chamber) divided Appellant's grounds of appeal into eight categories, noting that, pursuant to Article 24 of the ICTR Statute, it must defer to the factual findings of the Trial Chamber and would only "revoke or revise" them if they found them to be "wholly erroneous" and if the error(s) "occasioned a miscarriage of justice." The Chamber further noted that it "cannot be expected to consider a party's submissions in detail if they are obscure, contradictory, vague, or suffer from other formal and obvious insufficiencies." Thirteen of Appellant's grounds for appeal were dismissed for their failure to meet this standard. The Chamber also dismissed the eight categories of claims it considered at length and affirmed the Trial Chamber's sentence.
The Appellant's sole substantive ground of appeal alleged that the Trial Chamber erred in its interpretation of the specific intent requirement for the crime of genocide under Article 2(2) of the ICTR Statute. This article states, in part, "Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." In particular, Appellant argued that the Trial Chamber erred in law because it should have interpreted the words "as such" to mean "solely." He contended that, in failing to do so, the Trial Chamber impermissibly expanded the definition of genocidal intent, interpreting it as the commission of "specified acts against a gathering of persons because they were believed to be the enemy or supporters of the enemy," rather than acts against a group solely because of their membership in it. The Chamber disagreed and cited the Kayishema and Ruzindana ruling, which held that even if a perpetrator is not motivated solely by the intention to destroy a certain group, the existence of other personal motives does not exclude his or her criminal responsibility. "In other words," the Chamber noted, "the term 'as such' clarifies the specific intent requirement," and the Trial Chamber was correct in interpreting it to mean that the proscribed acts were committed against the victims "because of their membership in the protected group, but not solely because of such membership."
Appellant also alleged that the integrity of the trial process had been undermined by the participation of Prosecution counsel Melinda Pollard, who had been under suspension from the practice of law at the time. The Chamber held that the integrity of the trial process could not have been undermined per se by counsel Pollard's suspension, noting the Tribunal's Rules of Procedure and Evidence (Rules) stipulate admission qualifications only for defense counsel and are silent on corresponding qualifications for Prosecution counsel. Nevertheless, Prosecution counsel are required to adhere to the Tribunal's standards of professional conduct, as well as to the Charter of the United Nations and its Staff Rules and Regulations, "which include a duty to act with integrity and honesty." The Chamber found no concrete evidence, nor did Appellant identify any specific instance, that the suspension of Counsel Pollard's license to practice law in New York "affected his trial or rendered it unfair." Moreover, because it was never shown that Pollard's representations at trial were factually incorrect-indeed, they were confirmed by the senior trial attorney on appeal-the Trial Chamber did not err in law by relying on Pollard's "representations and undertaking."
Appellant then argued that the Trial Chamber erred as a matter of law by not recusing itself after counsel Pollard, in cross-examining a witness, alleged that Appellant had implicated himself in commissions of rape. Appellant said this was a "highly prejudicial matter" that the judges could not expunge from their minds. The Chamber disagreed, affirming the holding in Akayesu (and the International Criminal Tribunal for the Former Yugoslavia's [ICTY] holding in Prosecutor v. Furundzija) that an appellant has the burden to rebut the presumption of impartiality that attaches to a judge or a tribunal. The Chamber determined that Appellant failed do this, noting in particular that the Trial Chamber had not found him guilty of rape as a crime against humanity.
Appellant next alleged that he had suffered an incurable disadvantage at trial because the indictment provided him inadequate notice of certain allegations made against him. In its response, the Chamber reiterated the ICTY Appeals Judgment in Kupresckic, which held that in an indictment the Prosecution is obligated to state the material facts underpinning all charges brought, but not the evidence by which such materials are to be proven. Failure to set forth the specific material facts of a crime constitutes a "material defect" in the indictment that may, in certain circumstances, cause the Appeals Chamber to reverse a conviction -though not automatically. The Chamber agreed that Appellant "had insufficient notice of two material facts underpinning the charges against him" regarding his alleged participation in two attacks on the towns of Kivumu and Muyira Hill in mid-May 1994. The Chamber therefore agreed that the Trial Chamber had committed an error of law in relying on this evidence. Nevertheless, it found that such errors did not invalidate the Trial Chamber's decision, as no conviction on any count of the indictment rested solely on Appellant's alleged involvement in those two attacks.
Standard of Proof
The Chamber found without merit Appellant's claim that the Trial Chamber had required him to prove his alibi beyond a reasonable doubt, and rejected his assertion that his evidentiary burden should only have been to show that, "on the balance of probabilities, he was where he says he was." It held that the approach articulated at trial conformed to the settled jurisprudence that "a defendant need only produce evidence likely to raise a reasonable doubt in the Prosecution's case" and that the Trial Chamber "correctly stated that the Prosecution bears the burden of proof and that an alibi defense does not bear a separate burden." The Chamber also found that Appellant had failed to show any instance in which the Trial Chamber did not apply the same standards in assessing Defense and Prosecution evidence.
The Chamber also dismissed Appellant's argument that the Trial Chamber erred in permitting the Prosecution to call witnesses without providing a reasonable explanation for the alleged unavailability of their original statements, and by treating the Prosecution's investigation notes as privileged under Rule 70. The Chamber acknowledged that, while the Prosecution has a duty to make available all "statements" of witnesses it intends to call at trial (pursuant to Rule 66(A)(ii) of the Rules), the jurisprudence has not made a clear distinction between "statements" and "internal documents prepared by a party which are not subject to disclosure." The Chamber determined that records of questions put to witnesses by the Prosecution, and the answers given, constitute witness statements under the Rules. Private notes jotted down during the course of an interrogation, or questions noted but never asked, however, are privileged under Rule 70 and their non-disclosure in this case did not constitute an error by the Trial Chamber. Furthermore, Appellant had not "sufficiently demonstrated" that the witness statements he objected to in fact existed. Indeed, the senior trial attorney stated that the Prosecution had "no such documents in its possession."
As to Appellant's allegation that he had suffered prejudice when the Trial Chamber allowed the Prosecution to call witnesses even though he had not seen their allegedly unavailable statements, the Chamber noted that Appellant had failed to demonstrate how he had suffered prejudice as a result, particularly as his counsel made no attempt to call any of the Prosecution's investigators to testify as to the contents of the alleged statements. Appellant's additional claim that the Prosecutor had violated Rule 41 by not properly preserving all the evidence at trial was dismissed by the Chamber for vagueness, since no actual instance of such a violation was identified.
The Chamber also addressed Appellant's claim that the Trial Chamber made general errors of law in its approach to the evidence of several witnesses, including reliance on uncorroborated testimony, the testimony of accomplices, and in-Chamber testimony inconsistent with prior statements. In each instance, the Chamber noted that the acceptance of, and reliance on, such evidence did not per se constitute an error in law, so long as the Trial Chamber took any inconsistencies into account when weighing its probative value. Moreover, when accomplice testimony is thoroughly cross-examined, as it was in the instant case, no error of law has been committed. Appellant further argued that the Trial Chamber had erred in its assessment of identification/ recognition evidence and in relying on witnesses of questionable credibility. Considering these claims on a witness-by-witness basis, the Chamber concluded that "in no instance" did the Trial Chamber's assessment of evidence or testimony occasion a violation of Rule 24's "miscarriage of justice" standard.
Due to the severity of Appellant's crimes, the Chamber concurred with the Trial Chamber that the mitigating evidence offered at trial as to Appellant's good character was insufficient to merit a lesser penalty and upheld his sentence of life imprisonment.
*Christian De Vos is a J.D. candidate at the Washington College of Law
**Anne Heindel is the assistant director of the War Crimes Research Office at the Washington College of Law