II.    APPEAL OF GÉRARD NTAKIRUTIMANA

A.    Legal Errors

16.Gérard Ntakirutimana submits that the Trial Chamber made errors of law invalidating the decision. His Appeal Brief divides them into six general categories: (a) errors relating to the Indictments; (b) errors relating to the burden of proof; (c) errors relating to the treatment of prior inconsistent statements; (d) indicia of witness coaching; (e) errors relating to the alibi, and (f) evidence relating to motive.

17.As a general matter, the Prosecution responds that many of Gérard Ntakirutimana’s arguments regarding perceived legal errors in the Indictments have been waived as they were not presented to the Trial Chamber. [16] The Appeals Chamber will address the issue of waiver in the context of each separate argument.

(a)    Double Jeopardy

18. Gérard Ntakirutimana contends that the Appellants’ genocide convictions violate principles of double jeopardy because the convictions under the Mugonero and Bisesero Indictments rely “on the same delicts.” [17] The Prosecution argues that this argument was not included in the Notice of Appeal and does not respond to it in substance. [18] The Appeals Chamber notes that Gérard Ntakirutimana’s Notice of Appeal does not contend that his convictions violate double jeopardy, nor is it clear that this issue was raised before the Trial Chamber. The Appeals Chamber is of the view that Gérard Ntakirutimana has waived the right to adduce this argument on appeal. [19]

19. Moreover, the Appeals Chamber considers that Gérard Ntakirutimana’s argument, to the extent it is developed, lacks merit. The Appeal Brief asserts that “₣cğonvicting the Accused of two counts based on the same conduct is contrary to principles of double jeopardy” and that his two genocide convictions rely “on the same delicts.” [20] This is an inaccurate description of the Judgement. The actus reus supporting the genocide conviction under the Mugonero Indictment was the finding that Gérard Ntakirutimana was “individually criminally responsible for the death of Charles Ukobizaba,” [21] whereas the genocide conviction under the Bisesero Indictment was for other acts enumerated in paragraph 832 of the Trial Judgement that do not include the killing of Ukobizaba. Counsel for Gérard Ntakirutimana acknowledged this when he argued that the Trial Chamber should refuse a Prosecution request to combine the allegations in a single indictment, a move he opposed because the Mugonero and Bisesero allegations “do not come out of the same act or … same transaction.” [22]

20.Gérard Ntakirutimana appears to take issue with the Trial Chamber’s reliance on all of the genocidal acts he was found to have committed, both in Mugonero and Bisesero, as a basis for concluding that he had the requisite mens rea for the two genocide convictions, namely that he intended “to destroy, in whole, the Tutsi ethnic group.” [23] However, the Appeals Chamber notes that his Appeal Brief does not elaborate any argument that double jeopardy principles are offended by two convictions with mental elements established by the same conduct but each with an actus reus distinguishable in time, location, and identity of victims. There is no need to decide whether such an argument could be successfully mounted; it suffices for present purposes that Gérard Ntakirutimana has failed to do so here.

(b)    Failure to Plead Material Facts

21. Gérard Ntakirutimana’s principal allegation of error regarding the Indictments concerns the alleged failure of the Indictments to plead various material facts underlying his convictions. [24] The Appellant submits that the Indictments did not “set₣ğ out the material facts of the Prosecution case with enough detail to inform ₣himğ clearly of the charges against him so that he may prepare his defence,” [25] such as “the identity of the victim, the time and place of the events and the means by which the acts were committed.” [26] The Appellant has also challenged certain of the allegations concerning Elizaphan Ntakirutimana.

22. The Prosecution contends that Gérard Ntakirutimana waived this argument by failing to present it to the Trial Chamber. [27] It adds that, normally, the Defence must challenge the admissibility of evidence of material facts not pleaded in the indictment by interposing a specific objection at the time the evidence is introduced. The Defence may also choose to file a timely motion to strike the evidence or to seek an adjournment in order to conduct further investigations in order to respond to the unpleaded allegation. The Prosecution submits that the Appellant took none of these steps during trial. [28]

23.In this case, however, the Trial Chamber’s Judgement makes clear that the Appellants challenged the admission of evidence of unpleaded facts in a manner that the Trial Chamber considered adequate. The Judgement contains a detailed discussion entitled “Specificity of the Indictments” [29] and explicitly states that “the Chamber does not accept the Prosecution’s submission that the Defence sat on its rights and did not challenge the lack of specificity in the Indictments.” [30] In some situations, the Trial Chamber refused to make findings against the Appellants because it found that the Bisesero Indictment was defective due to its failure to plead the relevant allegation and that the defect was not subsequently cured. [31] Given that the Trial Chamber expressly found that the vagueness challenge was properly presented, the issue may also be properly raised on appeal.

24. The law governing challenges to the vagueness of an indictment is set out in detail in the ICTY Appeals Chamber’s Judgement in Kupreškić. As in that case, because this issue is being raised after the Accused have been tried and a verdict rendered, the complaint will be considered only in relation to the counts under which the Accused were actually convicted, [32] namely the genocide counts for both Accused and the count of crimes against humanity (murder) for Gérard Ntakirutimana.

25.The Kupreškić Appeal Judgement stated that Article 18(4) of the ICTY Statute, read in conjunction with Articles 21(2), 4(a) and 4(b), “translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such material facts are to be proven.” [33] Whether certain “facts” are “material” depends on the nature of the case. Kupreškić discussed several possible factors that could bear on the determination of materiality. For example, if the Prosecution charges personal physical commission of criminal acts, the indictment should set forth “the identity of the victim, the time and place of the events and the means by which the acts were committed.” [34] On the other hand, such detail need not be pleaded if the “sheer scale of the alleged crimes makes it impracticable to require a high degree of specificity in such matters.” [35] Even in cases where a high degree of specificity is “impractical,” however, “since the identity of the victim is information that is valuable to the preparation of the defence case, if the Prosecution is in a position to name the victims, it should do so.” [36]

26. Kupreškić also envisioned the possibility in which the Prosecution was unable to plead with specificity because the material facts were not in the Prosecution’s possession. As a general matter, “the Prosecution is expected to know its case before it goes to trial” and cannot expect to “mould₣ğ the case against the accused in the course of the trial depending on how the evidence unfolds.” [37] If the Defence is denied the material facts of the accused’s alleged criminal activity until the Prosecution files its pre-trial brief or until the trial itself, it will be difficult for the Defence to conduct a meaningful investigation for trial until then. A trial chamber must be mindful of whether proceeding to trial in such circumstances is fair to the accused. Kupreškić indicated that while there are “instances in criminal trials where the evidence turns out differently than expected,” such situations may call for measures such as an amendment of the indictment, an adjournment, or the exclusion of evidence outside the scope of the indictment. [38]

27.If an indictment is insufficiently specific, Kupreškić stated that such a defect “may, in certain circumstances cause the Appeals Chamber to reverse a conviction.” [39] However, Kupreškić left open the possibility that a defective indictment could be cured “if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him or her.” [40] The question whether the Prosecution has cured a defect in the indictment is equivalent to the question whether the defect has caused any prejudice to the Defence or, as the Kupreškić Appeal Judgement put it, whether the trial was “rendered unfair” by the defect. [41] Kupreškić considered whether notice of the material facts that were omitted from the indictment was sufficiently communicated to the Defence in the Prosecution’s pre-trial brief, during disclosure of evidence, or through proceedings at trial. [42] In this connection, the timing of such communications, the importance of the information to the ability of the Accused to prepare its defence, and the impact of the newly-disclosed material facts on the Prosecution’s case are relevant. [43] As has been previously noted, “mere service of witness statements by the ₣Pğrosecution pursuant to the disclosure requirements” of the Rules does not suffice to inform the Defence of material facts that the Prosecution intends to prove at trial. [44]

28. In Kupreškić, the omitted facts were not clearly stated in the pre-trial brief or in the Prosecution’s opening statement; [45] the underlying witness statement was not disclosed until “one to one-and-a-half weeks prior to trial and less than a month prior to ₣the witness’sğ testimony in court”; [46] and the omitted fact was indicative of a “radical transformation” of the Prosecution’s case from one alleging “wide-ranging criminal conduct … during a seven-month period” to a targeted prosecution for persecution because of participation “in two individual attacks.” [47] Moreover, the Appeals Chamber concluded that “whether the Trial Chamber would take into account ₣the unpleaded factsğ as a possible basis for liability in respect of the persecution count was, until the very end of trial, not settled,” [48] and that this uncertainty “materially affected” the ability of the accused to prepare their defence. [49] These factors eliminated the possibility that the failure to plead material facts in the indictment had not prejudiced the accused in Kupreškić; rather, their “right to prepare their defence was seriously infringed” and their trial “rendered unfair.” [50]

29The allegations against Elizaphan and Gérard Ntakirutimana must be assessed in light of these standards. The Trial Chamber acknowledged that “some paragraphs of the Mugonero and Bisesero Indictments are rather generally formulated.” [51] The question, then, is whether these general formulations meet the Kupreškić test for sufficient pleading of the material facts on which the Trial Chamber based the convictions and, if they do not, whether the Prosecution cured the defects through post-indictment communications.

30.The principal allegations in the Mugonero Indictment are as follows:

4.7 On or about the morning of 16 April 1994, a convoy, consisting of several vehicles followed by a large number of individuals armed with weapons went to the Mugonero Complex. Individuals in the convoy included, among others, Elizaphan Ntakirutimana, Gerard Ntakirutimana & Charles Sikubwabo, members of the National Gendarmerie, communal police, militia and civilians.

4.8  The individuals in the convoy, including Elizaphan Ntakirutimana, Gerard Ntakirutimana & Charles Sikubwabo, participated in an attack on the men, women and children in the Mugonero Complex, which continued throughout the day.

4.9 The attack resulted in hundreds of deaths and a large number of wounded among the men, women and children who had sought refuge at the Complex.

4.10During the months that followed the attack on the Complex, Elizaphan Ntakirutimana, Gerard Ntakirutimana & Charles Sikubwabo, searched for an ₣sicğ attacked Tutsi survivors and others, killing and causing serious bodily or mental harm to them. [52]

31.Under this Indictment, the Prosecution alleged and the Trial Chamber found that Gérard Ntakirutimana “procured ammunition and gendarmes for the attack on the Complex” and “killed Charles Ukobizaba by shooting him in the chest, from a short distance, in Mugonero Hospital courtyard around midday on 16 April 1994.” [53] These findings supported the Trial Chamber’s conclusion that Gérard Ntakirutimana had the requisite intent for genocide and, in the case of the killing of Ukobizaba, the conclusion that Gérard Ntakirutimana was “individually criminally responsible” for his death and therefore was guilty of genocide. [54] The killing of Ukobizaba also grounded the conclusion that Gérard Ntakirutimana was guilty of murder as a crime against humanity. [55] Gérard Ntakirutimana was therefore found guilty of genocide at Mugonero because of acts committed by him personally, namely the killing of Ukobizaba and the procurement of ammunition and gendarmes. Similarly, Elizaphan Ntakirutimana was pronounced guilty of genocide because the Trial Chamber found that he “conveyed armed attackers to the Mugonero Complex in his vehicle on the morning of 16 April 1994.” [56]

32. Under Kupreškić, criminal acts that were physically committed by the accused personally must be set forth in the indictment specifically, including where feasible “the identity of the victim, the time and place of the events and the means by which the acts were committed.” [57] The Appeals Chamber must therefore consider whether the material facts underlying the Mugonero convictions were sufficiently pled in the Indictment and, if not, whether that failure was cured by other means.

33.The Mugonero Indictment does not state Ukobizaba’s name or any of the circumstances surrounding his killing that were eventually found in the Judgement. Yet nothing suggests that it was “impracticable to require a high degree of specificity” in this matter. [58] On the contrary, as the Trial Chamber pointed out, the witness statements of several Prosecution witnesses and the Prosecution’s Pre-Trial Brief mentioned Ukobizaba’s name and alleged that Gérard Ntakirutimana personally killed him. [59] The Prosecution was therefore in a position to plead specific material facts regarding Ukobizaba’s killing in the Mugonero Indictment, yet it failed to do so. This failure renders the counts of genocide and crimes against humanity (murder) against Gérard Ntakirutimana defective.

34. Kupreškić next requires consideration of whether the defect was cured by other Prosecution communications regarding the material facts underlying its case, and of whether such information was timely, clear and consistent enough to ensure that the Appellant suffered no undue prejudice from the Mugonero Indictment’s failure to plead Ukobizaba’s killing in detail. The Trial Chamber held that the Prosecution’s Pre-Trial Brief and witness statements disclosed to the Accused cured the omission, and the Prosecution relies on this conclusion on appeal. [60]

35. The witness statements of Witnesses GG and HH, disclosed to the Appellant no later than 10 April 2000, aver that Gérard Ntakirutimana killed Ukobizaba at Mugonero on 16 April 1994, with Witness GG specifically stating that Ukobizaba was shot with a gun. [61] The Prosecution also refers to a statement of Witness AA, but AA explicitly stated that he could not say whether Gérard Ntakirutimana shot anyone. [62] Moreover, AA gave investigators a list of Mugonero victims that states that Ukobizaba “was killed with a machete,” not with a gun. [63] The disagreement between the statements of Witnesses GG and HH, on the one hand, and the statement of Witness AA, on the other, demonstrates that disclosure of those statements alone did not offer “clear” or “consistent” information with respect to the role of Ukobizaba’s killing in the Prosecution’s case.

36. The Pre-Trial Brief, filed 16 July 2001, states: “Dr. Gerard Ntakirutimana personally killed several Tutsi individuals including the hospital accountant, Charles Ukobizaba and one Kajongi.” [64] Annex B to the Pre-Trial Brief, which was filed 15 August 2001, summarized the planned testimony of Prosecution witnesses. Annex B gave notice of Witness GG’s testimony that “₣dğuring the attack he saw Dr. Gérard Ntakirutimana kill Ukobizaba, the hospital accountant, and take the keys of his office,” [65] and of Witness HH’s testimony that “₣iğn the course of the attack the witness saw Dr. Gérard Ntakirutimana kill the hospital accountant Ukobizaba Charles after confiscating the key to his office.” [66]

37.In contrast to the witness statements alone, the Pre-Trial Brief made it unequivocal that the Prosecution intended to prove that Gérard Ntakirutimana personally killed Ukobizaba. Annex B further indicated that the Prosecution planned to rely on the testimony of Witnesses GG and HH in this regard. Thus, the Prosecution had clearly and consistently informed the Defence by 16 July 2001 that it planned to assert that Gérard Ntakirutimana killed Ukobizaba at Mugonero on 16 April 1994. The Prosecution further informed the Defence on 15 August 2001 of the witnesses on whose testimony this charge was based.

38. In order to satisfy Kupreškić, however, the disclosure made in the Pre-Trial Brief and Annex B must also be found to be timely, such that the Defence suffered no prejudice from the failure of the Indictment to allege specifically that Gérard Ntakirutimana killed Ukobizaba. The Pre-Trial Brief was filed two months before the opening of trial, and Annex B was filed one month before trial, both pursuant to an oral order of the Trial Chamber on 2 April 2001 that was later reaffirmed in a written decision. [67] The proximity of these filings to trial, however, is not the only consideration. The Mugonero Indictment stated that Gérard Ntakirutimana was responsible for “the killings and causing of serious bodily or mental harm to members of the Tutsi population” [68] and “the murder of civilians.” [69] In this context, allegations that Gérard Ntakirutimana personally killed a Tutsi individual, particularly allegations supported by two witnesses, would necessarily be of significant importance.

39.Unlike in Kupreškić, where the unpleaded facts represented a “drastic change in the Prosecution case” and were coupled with “ambiguity as to the pertinence” of the underlying evidence, which was only disclosed in the weeks before trial, [70] here the fact of Ukobizaba’s killing fit directly into the Prosecution’s case as pleaded in the Mugonero Indictment, was clearly supported by two previously-disclosed witness statements, and was made unambiguously known to the Appellants two months before trial.

40. Gérard Ntakirutimana argues that the two witness statements cannot, on their own, remedy the Indictment alone because they were “inconsistent.” [71] First of all, Gérard Ntakirutimana does not identify any inconsistencies between the two statements, but only purported inconsistencies between the trial testimony of Witnesses GG and HH, [72] which, though relevant to their credibility at trial, are irrelevant to the question of whether their statements aided in curing an error in the Indictment. More importantly, however, the Kupreškić test is not directed to the clarity and consistency of the Prosecution’s evidence as disclosed to the accused, but rather to the clarity and consistency of the Prosecution’s announcement of the material facts it intends to prove. Here, the Appellants were informed by the Pre-Trial Brief and Annex B that the Prosecution would argue that Gérard Ntakirutimana killed Ukobizaba and rely on the evidence of Witnesses GG and HH as support. Whether Witnesses GG and HH gave consistent testimony in their statements would affect the Prosecution’s ability to prove the charge, but it has no bearing on Gérard Ntakirutimana’s notice of that charge against him or his ability to prepare a defence against it.

41. Of course, if the only arguable notice to the Defence regarding the Prosecution’s intent to prove a particular material fact is its inclusion in conflicting or ambiguous disclosure, the chamber will be unlikely to find that the accused had “timely, clear, and consistent information detailing the factual basis underpinning the charges against him or her.” [73] In this regard, the mere fact of disclosure of witness statements on 10 April 2000 was insufficient to cure the indictment error, because of the contradiction between the statements of Witnesses GG and AA with regard to the method of Ukobizaba’s murder. The Pre-Trial Brief and Annex B made plain that the Prosecution planned to rely on Witnesses GG’s and HH’s testimony, not AA’s – a decision that is hardly surprising given the obvious importance of an allegation of direct commission of murder to the Prosecution’s case. Thus, while Gérard Ntakirutimana is correct that the witness statements alone were not sufficient to overcome the defect in the Indictment, the explicit mention of Ukobizaba’s murder in the Pre-Trial Brief and Annex B’s identification of Witnesses GG and HH as the witnesses on which the Prosecution would rely, when combined with the previously-disclosed statements of those two witnesses, constitute the “timely, clear, and consistent information” required by Kupreškić.

42.Gérard Ntakirutimana lastly argues that the Pre-Trial Brief was not a reliable source of information for the Prosecution’s charges, because it included an allegation that Gérard Ntakirutimana killed “one Kajongi,” [74] an allegation that was not presented at trial. The Prosecution has the discretion to forgo presentation of material facts, even if they are specifically alleged in the indictment. In this situation, the Pre-Trial Brief put the Appellants on sufficient notice that the Prosecution would seek to prove that Gérard Ntakirutimana killed Ukobizaba. The fact that the Appellants were also on notice of another charge that was later dropped does not alter this conclusion.

43.Naturally, the Prosecution cannot intentionally seek to exhaust its opponent’s resources by leaving the Defence to investigate charges that it has no intent to prosecute. The Prosecution should make every effort to ensure not only that the indictment specifically pleads the material facts that the Prosecution intends to prove but also that any facts that it does not intend to prove are removed. The same applies to other communications that give specific information regarding the Prosecution’s intended case, such as the Pre-Trial Brief. It would be a serious breach of ethics for the Prosecution to draw the Defence into lengthy and expensive investigations of facts that the Prosecution does not intend to prove at trial. Gérard Ntakirutimana does not claim that the Prosecution did so in this case. For present purposes, then, it suffices to state that the Pre-Trial Brief’s allegation regarding Kajongi does not affect the conclusion that the Pre-Trial Brief, Annex B, and the statements of Witness GG and HH cured the Mugonero Indictment’s failure to allege that Gérard Ntakirutimana murdered Charles Ukobizaba.

44.In light of all the circumstances, the Appeals Chamber is satisfied that the Prosecution has met its burden of showing that its failure to mention Ukobizaba’s killing in the Indictment did not actually prejudice Gérard Ntakirutimana’s ability to defend against this charge.

45.The allegation that Gérard Ntakirutimana procured weapons, ammunition and gendarmes for the attack at Mugonero Complex does not appear in the Indictment. Like the allegation relating to the murder of Charles Ukobizaba, the Prosecution was in a position to plead specific details regarding this matter, given that it possessed the statement of Witness OO dated 12 August 1998, which contains a lengthy description of Gérard Ntakirutimana’s activities at the Kibuye gendarmerie camp and was the sole evidentiary basis for the Prosecution’s allegation. [75] The Prosecution’s failure to include a specific pleading of this fact therefore rendered the Indictment defective.

46.The Trial Chamber found, however, that the defect was cured by the fact that the allegation of procurement of weapons, ammunition and gendarmes was included in the Pre-Trial Brief. [76] The Pre-Trial Brief asserts that “₣bğetween 10 and 16 April 1994 Dr. Gerard Ntakirutimana frequently visited the Kibuye Gendarme camp headquarters from where he procured arms, ammunition and gendarmes, for purposes of launching an attack on Tutsi refugees gathered at the Mugonero complex.” [77] Annex B announces that Witness OO would testify that “in April 94 he saw Dr. Gerard Ntakirutimana at the base on several occasions, sometimes with soldiers and gendarmes. On one or two such occasions the witness saw Dr. Gerard Ntakirutimana being supplied with arms, ammunition and gendarmes for purposes of 'mounting operations' at the Mugonero complex.” [78] The statement of Witness OO, as noted above, contains a lengthy narrative description of events at the Kibuye gendarmerie camp, including of Gérard Ntakirutimana’s arrival at the camp on the morning of the Mugonero attack, driving a white pick-up “filled with about 10 Interahamwe militiamen,” who shot their guns in the air and said “we need weapons and ammunition because you have failed.” [79] Although it is not clear from the record when OO’s witness statement was first disclosed to the Defence, a confidential memorandum from the Prosecution filed with the Registry of the Tribunal states that it was disclosed on 29 August 2000. [80]

47.Gérard Ntakirutimana contends that the Pre-Trial Brief’s statement that he visited the Kibuye camp “₣bğetween 10 and 16 April 1994” did not give proper notice of what he submits is the Prosecution’s “unequivocal trial allegation of 15 April” as the date of the procurement of weapons and gendarmes; he also argues that the 15 April date “falls outside the period specified for the Mugonero allegations.” [81] The Trial Chamber found that Gérard Ntakirutimana took gendarmes and ammunition with him from the Kibuye camp on 16 April, not 15 April. [82] This finding was well within the time period specified in the Mugonero Indictment, which states that Gérard Ntakirutimana was part of a “convoy, consisting of several vehicles followed by a large number of individuals armed with weapons” that went to the Mugonero Complex “₣oğn or about the morning of 16 April 1994.” [83] The statement in the Pre-Trial Brief that Gérard Ntakirutimana visited the Kibuye camp “₣bğetween 10 and 16 April 1994” is precise enough to enable the preparation of a defence to the charge of procurement, particularly when viewed in combination with Annex B and the statement of Witness OO. Annex B makes clear that the allegation of procurement rests on the testimony of Witness OO, whose statement in turn makes clear that Gérard Ntakirutimana physically obtained arms and personnel at the Kibuye camp on the morning of the day of the attack on the hospital and the church. Based on these three documents, the Appellants were clearly informed that the Prosecution intended to prove that Gérard Ntakirutimana visited the camp between 10 and 16 April and that he obtained arms and gendarmes there on the morning of 16 April.

48.Gérard Ntakirutimana submits that the allegation of procurement was “buried among 83 statements disclosed.” [84] This argument would have great force if the allegation were insignificant in the context of the case pleaded in the Indictment and if it were never mentioned except in isolated references in a witness statement. In this situation, however, the assertion in Witness OO’s statement that Gérard Ntakirutimana procured weapons and attackers on the morning of the attack on the Mugonero Complex is obviously one of direct relevance to the pleaded allegation that Gérard Ntakirutimana “participated in an attack on the men, women and children in the Mugonero Complex.” [85] While the importance of the allegation might not have been enough to cure an Indictment defect on its own given that it was contained in a single witness statement, it must be viewed together with the unambiguous information in the Pre-Trial Brief and Annex B that the Prosecution intended to rely on Witness OO’s evidence as proof that Gérard Ntakirutimana was “supplied with arms, ammunition and gendarmes” for the purpose of an attack on Mugonero. [86] As with the killing of Ukobizaba, this information sufficed to cure the vagueness in the Indictment. Gérard Ntakirutimana failed to identify any particular prejudice to his ability to defend against the charge of procurement at trial by the fact that the Prosecution failed to communicate it specifically until the Pre-Trial Brief was filed on 15 July 2001. These circumstances compel the conclusion that the Prosecution sufficiently cured the defect in the Indictment by subsequent clear, consistent, and timely information regarding the nature of its case.

c.    The Allegation That Elizaphan Ntakirutimana Conveyed Armed Attackers [87]

49. The Trial Chamber also found that Elizaphan Ntakirutimana “conveyed armed attackers to the Mugonero Complex in his vehicle on the morning of 16 April 1994, and that these attackers proceeded to kill Tutsi refugees at the Complex.” [88] Although the Mugonero Indictment alleges that Elizaphan Ntakirutimana was one of the “₣iğndividuals in the convoy” that went to Mugonero on 16 April [89] and that he “participated in an attack” on the Complex, [90] the allegation that he conveyed other attackers to the Complex is not alleged in the Indictment. In the view of the Appeals Chamber, the distinction is important because Elizaphan Ntakirutimana’s genocide conviction under the Mugonero Indictment was based not on a finding of personal physical “participat₣ionğ in an attack,” [91] as alleged in the Indictment, but rather on the finding that “in conveying armed attackers to the Comp