The Appeals Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January and 31 December 1994 (“the Appeals Chamber” and “the Tribunal” respectively) is seized of appeals lodged by Jean-Paul Akayesu (“Akayesu” or “the Appellant”) and the Prosecutor against the Judgment and the Sentencing Judgment rendered by Trial Chamber I of the Tribunal (“the Trial Chamber”) on 2 September 1998 and 2 October 1998 respectively in the case of The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T. (“The Judgment” and “the Sentencing Judgment” respectively).[1]

1.                  Having heard the parties and their submissions, the Appeals Chamber

HEREBY RENDERS ITS JUDGMENT.

I.          INTRODUCTION

A.        Trial Proceedings

3.                  The original indictment charged Akayesu, as bourgmestre of Taba commune, Murehe secteur, with involvement in criminal acts committed between 7 April and the end of June 1994 in this commune.(“the original indictment”) Akayesu was charged under Article 6(1) of the Statute (individual criminal responsibility, with 12 counts of crimes within the jurisdiction of the Tribunal as follows: Genocide, punishable by Article 2(3)(a) of the Statute (count 1); Complicity in Genocide, punishable by Article 2(3)(e) of the Statute (count 2); Crimes against Humanity, punishable by Article 3(a), 3(b) and 3(f) (counts 3, 5, 7, 9, and 11); Direct and Public Incitement to Commit Genocide, punishable by Article 2(3)(c) of the Statute (count 4); violations of Article 3 common to the Geneva Conventions of 1949, as incorporated in Article 4(a) of the Statute (counts 6, 8, 10 and 12).[2]

4.                  On 17 June 1997, the original indictment was amended with three additional counts of sexual violence, violence and murder perpetrated at the bureau communal between 7 April and the end of June 1994 being included (“The indictment”). Akayesu was thus charged (individual criminal responsibility) under Article 6(1) and /or Article 6(3) of the Statute with: Crimes Against Humanity, (rape) punishable by Article 3(g) of the Statute (count 13),  crimes against Humanity (other inhumane acts) punishable by Article 3(i) of the Statute, (count 14), and violations of Article 3 common to the Geneva Conventions of 1949 and of Article 4(2)(e) of Additional Protocol II,  as incorporated in Article 4(e) of the Statute (outrages upon personal dignity, in particular rape, humiliating and degrading treatment and indecent assault (count 15).[3]

5.                  Akayesu pleaded not guilty to all counts in the original indictment (on 30 May 1996) and the amended indictment (on 23 October 1997). The trial commenced on 9 January 1997 and concluded on 26 March 1998 when it was adjourned for deliberations.

6.                  By Judgment dated 2 September 1998 the Trial Chamber found Akayesu guilty of the following crimes under Article 6(1) of the Statute:

7.                  It found him not  guilty of:

8.                  Akayesu was found individually criminally responsible under Article 6(1) alone. By Sentencing Judgment dated 2 October 1998, Akayesu was sentenced to several terms of imprisonment ranging from 10 years to life in respect of the counts he was convicted of. The Trial Chamber decided that each sentence should be served concurrently and therefore directed that Akayesu should serve a single sentence of life imprisonment.

B.  Proceedings on Appeal[4]

9.                  Both Akayesu and the Prosecutor appealed from the Judgment. In addition, Akayesu lodged an appeal against the Sentencing Judgment.

10.              The grounds of appeal raised by Akayesu can be summarized as follows:[5]

1.                  Akayesu was denied the right to be defended by Counsel of his own choice.

2.                  Akayesu was denied the right to competent Counsel.

3.                  The Tribunal was biased and lacked independence.

4.                  Absence of the Rule of law/Errors invalidating the finding of guilty.

i.                     Unlawful amendment of the original indictment;

ii.                   Improper treatment of prior statements;

iii.                  Failure to apply the “beyond a reasonable doubt”, standard of proof; substantive errors of fact;

iv.                 Out-of-court evidence;

v.                   Other issues;

(a)                Judicial notice of United Nations reports;

(b)               Interpretation;

(c)                Non conforming transcripts;

(d)               Disclosure of evidence;

(e)                Expert witnesses;

(f)                 Witness Protection;

(g)                Unlawful treatment of defence witnesses and court interference;

(h)                Informal conversations between a judge and a witness before the Tribunal.

5.                  Total absence of the Rule of Law.

6.                  Improper treatment of hearsay evidence.

7.                  Irregularities during direct examination and cross-examination.

8.                  Unlawful disclosure of defence witness statements.

9.                  Letter of Witness DAAX to the judges.

10.              Unlawful detention.[6]

11.              Appeal against the sentencing judgment.

(i)                  Denial of right to counsel during pre-sentencing hearing on 28 September 1998;

(ii)                Denial of right to counsel during the 2 October 1998 hearing;

(iii)               Unreasonable and unwarranted sentence.

11.              The Prosecution’s grounds of appeal, are as follows:[7]

1.                  The Trial Chamber erred in law in applying a “public agent of government representative test” in determining who can be held responsible for Serious Violations of Common Article 3 and Additional Protocol II thereto. (para. 630-631 and 640);

2.                  Alternative Ground of Appeal: Having applied the “public agent or government representative test,” the Trial Chamber erred in fact in finding that Jean-Paul Akayesu did not fall within the category of persons who could be responsible under Article 4. (para. 641-643);

3.                  The Trial Chamber erred in law in finding that discriminatory intent is required for a crime mentioned in Article 3 to constitute a crime against humanity by holding that “The victim must have been murdered because he was discriminated against on national, ethnic racial, political or religious grounds” (para. 590);

4.                  The Trial Chamber erred in law in holding that instigation[8] in Article 6(1) must be direct and public.