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The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-T held that physical perpetrators of the crimes can be identified by category in relation to a particular crime site. 24 52. The Appeals Chamber has stated that the facts relevant to the acts of persons for which an accused is alleged to be responsible as a superior will usually be stated with less precision because the details of those acts are often unknown, and because the acts themselves are often not very much an issue. 25 Furthermore, in certain circumstances, the sheer scale of the alleged crimes makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates of the commission of the crimes. 26 53. Finally, a Trial Chamber may infer knowledge of the crimes from their widespread nature and may infer a superior’s failure to prevent or punish them from the continuing nature of the violations. The superior’s knowledge of the crimes and his or her failure to prevent or punish them follow from reading the indictment as a whole. 27 54. An indictment lacking this precision is defective. The defect may be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charge. 28 The Pre-Trial Brief can provide such information in certain circumstances. 29 However, the principle that a defect in an indictment can be cured is not without limits. 30 55. Objections based on lack of notice should be specific and timely. They should be raised at the pre-trial stage, for instance in a motion challenging the indictment, or at the time the evidence of a new material fact is introduced. Although failure to object at that time does not prohibit the Defence from objecting at a later date, the Trial Chamber should determine whether the objection was untimely such that the burden of proof has shifted from the Prosecution to the Defence to demonstrate that the accused’s ability to defend himself has been materially impaired. Relevant factors to consider include whether the Defence has provided a reasonable explanation for its failure to raise its objection at the time the evidence was introduced, and whether it has shown that the objection was raised as soon as possible. 31 24 See e.g., Simba Appeal Judgement paras. 71-72 (concerning identification of other members of a joint criminal enterprise), quoting Simba Trial Judgement paras. 393-396. 25 Ntagerura et al. Appeal Judgement para. 26 fn. 82, quoting Blaškić Appeal Judgement para. 218. See also Muvunyi Appeal Judgement para. 58. 26 Muvunyi Appeal Judgement para. 58; Muhimana Appeal Judgement para. 79; Gacumbitsi Appeal Judgement para. 50; Kupreškić et al. Appeal Judgement para. 89. 27 Muvunyi Appeal Judgement para. 62. 28 Muvunyi Appeal Judgement para. 20; Seromba Appeal Judgement para. 100; Simba Appeal Judgement para. 64; Muhimana Appeal Judgement paras. 76, 195, 217; Gacumbitsi Appeal Judgement para. 49. See also Ntagerura et al. Appeal Judgement paras. 28, 65. 29 Muhimana Appeal Judgement para. 82; Gacumbitsi Appeal Judgement paras. 57, 58; Ntakirutimana Appeal Judgement para. 48; Naletilić and Martinović Appeal Judgement para. 45. 30 In this respect, the Appeals Chamber has emphasised: “[T]he “new material facts” should not lead to a “radical transformation” of the Prosecution’s case against the accused. The Trial Chamber should always take into account the risk that the expansion of charges by the addition of new material facts may lead to unfairness and prejudice to the accused. Further, if the new material facts are such that they could, on their own, support separate charges, the Prosecution should seek leave from the Trial Chamber to amend the Indictment and the Trial Chamber should only grant leave if it is satisfied that it would not lead to unfairness or prejudice to the Defence.” See Bagosora et al. Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Chamber 1 Decision on Motion for Exclusion of Evidence (AC), 18 September 2006 para. 30 (internal citations omitted). 31 Bagosora et al. Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Chamber 1 Decision on Motion for Exclusion of Evidence (AC), 18 September 2006 paras. 45-46. Judgement and Sentence 16 of 201 6 December 2010
1.1.2 General Challenges to the Indictment The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-T 56. The Defence has submitted that the Indictment is vague and defective in several respects, thereby causing prejudice to Hategekimana and violating his fair trial rights. 32 In particular, the Defence contends that 30 out of 49 paragraphs of the Indictment insufficiently specify the location or the time frame of the alleged crimes, the identities of the perpetrators or the form of liability asserted. 33 57. According to the Prosecution, the allegations of vagueness of the pleadings were resolved prior to the commencement of the trial, and the failure of the Defence to challenge the form of the Indictment during the trial proceedings “establishes the fact that the pleadings had provided the Accused sufficient notice of the case that he had to face. ”34 58. The Chamber observes that allegations of vagueness should normally be addressed during the pre-trial stage of the proceedings. 35 The Defence has not provided any explanation for its delay in raising its challenges to the Indictment until its Closing Brief. 36 Nonetheless, the Chamber finds that its duty to ensure the integrity of the proceedings and to safeguard the rights of the Accused warrants full consideration of the arguments of the Defence. 59. According to the Appeals Chamber, blanket objections that the entire indictment is defective are insufficiently specific. 37 Indeed, the Chamber notes that the arguments of the Defence regarding the vagueness of the present Indictment are overly general. Before the commencement of trial, the Defence raised similarly general objections to the entirety of the Indictment. The Trial Chamber addressed these objections and rejected them. 38 Specifically the Chamber determined that the approximate dates or date ranges in the Indictment, which the Defence had challenged, were reasonable, given the nature of the allegations against Hategekimana. 39 60. In its Closing Brief, the general focus of the Defence shifted to the Indictment’s lack of precision in identifying alleged perpetrators, other than Hategekimana. According to the Appeals Chamber, physical perpetrators of crimes may be identified by category in relation to a particular crime site. 40 Such is the pleading in the present Indictment, where the physical perpetrators are consistently identified in many paragraphs as Ngoma Camp soldiers, Interahamwe and/or armed civilians. 41 However, certain alleged physical perpetrators are also identified by name in several 32 Defence Closing Brief paras. 15, 17, 732. 33 Defence Closing Brief paras. 15, 17-19, 20-21, 732. The Defence challenges paragraphs 33, 46, 47 and 48 on the ground that they insufficiently specify the location at which the alleged criminal acts occurred; paragraphs 32, 33, 47 and 48 on the basis that they insufficiently specify the time frame in which the alleged criminal acts occurred; and paragraphs 6, 7, 9, 12, 14, 15, 17, 19, 20, 21, 22, 25, 26, 27, 30, 31, 32, 33, 35, 37, 38, 39, 41, 42, 44, 45, 46, 47, 48 and 49 on the ground that they insufficiently identify the alleged perpetrators. 34 Prosecution Closing Arguments T. 26 April 2010 p. 7. 35 Kupreškić et al. Appeal Judgement para. 79. See also Rule 72 (F). 36 Defence Closing Brief paras. 15-23. 37 Bagosora et al. Decision on Exclusion of Evidence (AC) para. 46. 38 See The Prosecutor v. Idelphonse Nizeyimana and Idelphonse Hategekimana, Case No. 00-55-I, Decision on the Prosecutor’s Application for Severance and Leave to Amend the Indictment against Idelphonse Hategekimana (TC), 25 September 2007 paras. 23 (“[T]he added particulars provide further notice to the Accused of the case against him and will allow the Accused to tailor his investigations and enhance his ability to prepare his defence.”), 31-34 (“Decision on Severance and Leave to Amend Indictment”). See also Oral Decision T. 16 March 2009 p. 2. 39 Decision on Severance and Leave to Amend Indictment (TC) para. 33. 40 Simba Appeal Judgement paras. 71, 72 (concerning identification of other members of a joint criminal enterprise). 41 See Indictment paras. 7-12, 14-33, 35-41. Judgement and Sentence 17 of 201 6 December 2010
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DISSENTING OPINION OF JUDGE MASANCH
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ANNEX B: CITED MATERIALS AND DEFINE
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DEFINED TERMS AND ABBREVIATIONS CDR
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