SEPARATE OPINION OF JUDGE LENNART ASPEGREN

As to the factual findings:

1. I agree and share the factual findings by the Trial Chamber in its Judgement with the exception of certain findings which I am not able to support, namely:
   

•those in Section 5.2 of the Judgement relating to events which are said to have occurred on 26 April 1994 at Gitwa hill, between 27 April and 3 May 1994 on Rwirambo hill, and at the end of May 1994 at Nyakavumu cave; and

•those in Section 5.3 of the Judgement relating to events which are said to have occurred on 14 April 1994 (paragraph 4.8 of the Indictment).

2. For these dates and events, I remain unconvinced that it has been established beyond reasonable doubt that Musema participated in the events as alleged.
3. Below is the reasoning behind this partially dissenting position of mine.
4. Reference should of course be made to the relevant facts and presentation of the alibi as developed in said Sections 5.2 and 5.3 of the Judgement.

   
   
   

   26 April 1994, Gitwa hill

5. As noted in the Judgement, the alibi of Musema is not specific to 26 April 1994, but is linked with the mission order (exhibit D10, Annex B to the Judgement) and the travel consequent thereto. I agree with the facts set forth below, as presented in the Judgement, but dissent on the rejection of the alibi for 26 April. Rather, it is my opinion that the alibi here stands.
6. I recall, as stated in the Judgement, that the Defence purports that on 18 April 1994, Musema, while searching for the heads of service of OCIR-thé in Gitarama, had run into the Minister of Industry, Trade & Handicraft, Justin Mugenzi. Having conveyed to Musema his concerns for the Gisovu Tea Factory, the Minister indicated that Musema would be sent on mission to contact the Director-General of OCIR-thé to start up the factories.
7. According to the alibi, Musema, who during this period was staying in Rubona, returned to Gitarama on 21 April 1994 where again he ran into Justin Mugenzi and also the Minister of Public Works, Water & Energy, this time at a FINA petrol station. Mugenzi told Musema of the security measures he had taken for the factory, and informed him that he had been unable to contact the Director-General of OCIR-thé, Baragaza. As such, Musema was to go to the North of the country to find him. Mugenzi said he himself would prepare the necessary paperwork which Musema should pick up from the residence of Faustin Nyagahima, a director within the Ministry of Industry, Trade & Handicraft. During the meeting at the FINA station, Mugenzi authorized the Public Works, Water & Energy Minister to sign the eventual mission order.
8. On 22 April, Musema said, he picked up the mission order (exhibit D10) from Faustin Nyagahima. This order was stamped by the Minister of Foreign Affairs, who, according to Musema, was the only minister at that time in Gitarama to possess an official stamp. For security reasons, Musema was given two gendarmes from the military camp in Gitarama to accompany him and then travelled up to the tea factory of Pfunda where he stayed until 25 April. With reference to the said exhibit D10, where Musema wrote "arrivée à Pfunda le 21/04/1994", he attributed this date to an error, and affirmed that he arrived at the factory in Pfunda on 22 April. Evidence in support of this include exhibit D28, a "Déclaration de Créances" for expenses incurred by OCIR-thé (Gisovu Tea Factory) for the use of two gendarmes from 22 April 1994 up to 2 May 1994, which is signed by the factory's Chief Accountant of the Gisovu Tea Factory.
9. Although he only visited the Pfunda Tea Factory during this part of his mission, Musema stated that he was able to include the tea factories of Nyabihu and Rubaya in his interim report (exhibit D29), having met the respective directors during the trip. I note, at this juncture, that the Defence uncovered this report in the Gisovu Tea Factory archives.
10. According to the alibi, on 25 April Musema returned to Gitarama after meeting at Mukamara the Director-General of OCIR-thé, who read the interim report and confirmed that Musema could continue his mission. Having stayed overnight in Gitarama, Musema travelled on to Rubona.
11. Defence Witness Claire Kayuku, Musema's spouse, confirmed that he left Rubona on 22 April for Gisenyi and on 26 April returned to Rubona where he stayed overnight.
12. I have also considered the contentions of the Prosecutor that the mission order was false and that the stamps of the ministries were fabrications. She contends that chance encounters with ministers, as described by Musema, were hardly convincing as the basis of the mission. In the Prosecutor's opinion, the mission order was designed simply to mislead the Tribunal and to conceal the extent of Musema's involvement in the massacres. The Prosecutor further contends that the interim report was strikingly thin considering the apparent nature of the mission. Moreover, Prosecution Witness BB stated that the mission order was unusual, and not one normally used by OCIR-thé.
    
13. I have specifically considered the issue of the alleged falsification by Musema of the mission order so as to camouflage his participation in the massacres.
14. In my view, it should be recalled, first and foremost, that this document, exhibit D10, was uncovered by the Swiss investigating magistrate while in Rwanda, and was thus afterwards brought to the attention of Musema while he was under arrest in Switzerland. As such, until it was appropriately disclosed, whether it be by the Swiss authorities or the Prosecutor, Musema did not have possession of it.
15. With this in mind, as regards the issue of alleged falsification, as addressed by the Prosecutor, I thus find it hard to see why, had Musema taken the time and care meticulously to create a false mission order in 1994 in Rwanda before fleeing abroad, he would have abandoned the document, a document which he must have deemed essential to his alibi in case of a possible investigation or trial concerning the events. Surely, were the mission order falsified to create such an alibi, Musema would most probably have seen to it that it was not left behind at the end of the conflict in Gisovu, especially in view of the advancing war front, and the uncertain fate of the Gisovu Tea Factory.
16. As pertains to the allegedly unconvincing nature of Musema's chance encounters with the ministers in Gitarama, I note that the prevailing circumstances during this period were far from normal. Indeed, evidence has shown that, around 18 April 1994 in Rwanda, an armed conflict was raging between the FAR and the FPR, widespread massacres of civilians were occurring, thousands of civilians were displaced, and the interim government was fleeing Kigali to seek temporary refuge in Gitarama. Consequently, it is my opinion that, in these circumstances, such chance encounters with ministers in Gitarama cannot be ruled out or deemed unconvincing per se.
17. As such, I find that the arguments advanced by the Prosecutor in support of the allegation that the mission order was a fake are insufficient to demonstrate that Musema purposefully falsified this order to conceal for the future his involvement in the 1994 massacres.
18. During Musema's testimony, he also dealt with the other issues pertaining in the main to the plausibility of such a mission. He explained that the prevailing circumstances, namely the insecurity caused by the armed conflict and the displacement of the interim government to Gitarama, would account for stamps of ministries other than that governing OCIR-thé appearing on the mission order.
19. I note that, although Musema included the Nyahibu and Rubaya tea factories in his interim report, yet did not visit them in person, he did meet and discuss these factories with the respective Director. It was on the basis of these discussions that Musema compiled this report. The contentions of the Prosecutor that the report is not derived from information gathered by Musema during his mission and is "strikingly thin" compared to the importance of the mission are, as I see it, unsubstantiated by evidence within the trial. It should be recalled that Musema had explained that this was just an interim report covering the initial stages of his mission, and that it did not even represent the "half-way" stage of his mission. Moreover, the argument of the Prosecutor that the report could have been written anywhere is similarly unsubstantiated during trial.
20. The Defence Witness Claire Kayuku, although married to Musema, appeared credible during her testimony, and testified that Musema returned to Rubona on 26 April.
21. This supports his alibi.
22. I agree with the majority as regards the testimony of Witness M. However, I do not share the majority position that the alibi should be rejected on this point. Rather, I am of the opinion that the alibi of Musema for these dates, which was heavily scrutinized during the trial and supported by documentary evidence and oral testimony, is such as to at least cast a reasonable doubt on the allegation of the Prosecutor as to the involvement of Musema in the attack of 26 April 1994 on Gitwa hill.
    
    •27 April - 3 May, Rwirambo hill
    
23. Like the majority, I have considered the testimony of Witness R and the arguments of the Defence as to the discrepancies and the answers of the witness thereon between the witness' testimony in this case and his testimony in the Kayishema and Ruzindana case. However, unlike the majority, I find the evidence of Witness R must be considered to be unreliable and to cast doubt in the present matter.
24. There, of particular concern to me are the discrepancies which relate to Witness R's injuries and the treatment he received for them. I recall that R had indicated to the Chamber that as he had been unable to get hospital treatment, a benefactor put cow butter on his injury. However, this contrasts with his testimony as a witness in the Kayishema and Ruzindana case, where, in answer to a question from Judge Khan, he stated: "At that time the situation was not yet too serious and one could find one or two Hutus who were kind hearted and one could give them money for the purchase of penicillin". R had also testified that he had been treated in Rwirambo.
25. Yet, during the course of his testimony in this trial, Witness R denied having ever said anything about going to Rwirambo, it being impossible to reach Rwirambo hospital as there were barriers. He was able to recall before the Chamber that he did speak about penicillin as regards to serious injuries and that some individuals were able to find ways of getting this medicine. Following more questions from the Defence and the Chamber, he added that he did apply penicillin to his injury much later when his injury had scarred, but that he had never gone to a Hutu to ask for penicillin.
26. Although the divergent answers given by Witness R during his testimonies are not specific to the involvement of Musema in the attack, they touch upon serious matters and represent discrepant answers given under solemn declaration before this Tribunal. By their very nature therefore, their reliability should be equivalent, and discrepancies between such testimonies in my view must affect the credibility of the witness. Consequently, I am of the opinion that the contradictions raised by the Defence are serious and important enough to cast doubt on R's credibility in the present matter and that he is not, therefore, reliable enough.
27. I therefore find that it has not been established beyond reasonable doubt that Musema participated in an attack on Rwirambo hill around 27 April - 3 May 1994.
    
    •End of May attack at Nyakavumu cave
    
28. Like the majority, I have considered the testimonies of Prosecution Witnesses H, S, D, AC and AB, and Musema's and Claire Kayuku's testimonies, as well as documentary evidence in support of the alibi. However, unlike the majority, I cannot find that it has been proven beyond reasonable doubt that Musema participated in the attack on Nyakavumu cave.
29. My reasons follow.
30. Witness H speaks of the attack occurring around the end of May or early June, Witness S testifies to it taking place near the end of May, while Witnesses D and AC make no specific mention of dates in their testimony. Witness AB stated that Musema came to the Kibuye military camp asking for firewood sometime in June.
31. The alibi places Musema in Gisovu on 27 and 28 May 1994, leaving for Shagasha on 29 May. According to the alibi, on 31 May he visited Zaïre as part of a technical mission. Copies of his passport were tendered in support thereof. His absence from the Gisovu tea factory lasted until 10 June 1994. It should be noted that all these dates are corroborated by exhibit P68, being Musema's handwritten calendar (Annex C to the Judgement).
32. The majority finding in the Judgement is based on the overwhelming consistent evidence of the Prosecution witnesses. The fact that the exact date of the attack is not clear from the said evidence, does not, in the opinion of the majority, deter from the reliability of the evidence. The alibi, in its opinion, does not refute this evidence.
33. I have to disagree. The witnesses, as I have indicated above, speak in turn of the 'end of May', 'early June' and 'sometime in June' as the possible time of the attack. One could, therefore, logically imply therefrom that the attack would have occurred on any date between the end of May and the end of June. Of course, I agree, in view of the prevailing situation in the Bisesero region during the events alleged, the likely trauma suffered by witnesses to the events, and the time lapse between the events and testimony thereon before this Tribunal, that it may be harder than usual for the witnesses to remember dates from five years ago with exactitude. Even though the evidence presented by these witnesses, is, I concede, consistent, there remains the fact that doubt prevails in the matter, inasmuch as it cannot be adduced with more precision when the attack occurred.
34. To state that the attack has taken place, and merely place it in a loose temporal setting, cannot be considered as removing doubt from the matter, and consequently, it my opinion, shall not be the basis of a finding of guilt, proved beyond reasonable doubt. Moreover, as in all cases, the burden being on the Prosecutor to prove the facts alleged, a lack of specificity in such a serious matter should not be of prejudice to the Defence. As the alibi stands from the end of May to early June, to find the events proved beyond reasonable doubt on the basis of consistent witness testimonies as to the events and yet, not as to time, is to place the burden of proof on the Defence. Moreover, an inability to be more precise as to the date of the attack in this instance does not allow Musema to adequately answer the relevant charges against him.
35. Therefore, I find that Musema's participation in the attack on Nyakavunu cave is not established beyond reasonable doubt.
    
    
    •Annunciata Mujawayezu, 14 April 1994
    
36. I agree with the Chamber's majority that it has not been proven that on 14 April 1994, Annunciata Mujawayesu was raped or that Musema ordered that she be killed together with her son, Blaise.
37. However, the majority is convinced that the rape was ordered by Musema. In my view, this was not proven.
38. The main evidence on the raping comes from witness I, whose testimony was partially inconsistent, and to some extent contradicted by witnesses L and PP.
39. In my mind, these inconsistencies and contradictions cast doubt on witness I's testimony.
40. Therefore, I am not convinced, beyond reasonable doubt, by the evidence presented that on 14 April 1994, Musema, as alleged in paragraph 4.8 of the Indictment, ordered or encouraged the raping of Annunciata Mujawayezu.

As to the legal findings, verdict and sentencing:

41. I concur with the legal findings in the Judgement (Section 6) to the extent they pertain to the acts other than those above.
42. Concerning the alleged rape of Annunciata Mujaweyezu on 14 April 1994, as just pointed out, the majority in its factual findings found it proved that Musema ordered the rape. On this point, as I have stated, I disagree, since I am not convinced that he did.
43. Being overruled in this matter, I join the majority in its legal findings on this point in Section 6.1 of the Judgement, to say, in short, that the order as such is not punishable.
44. I also agree with the majority's findings of guilt in the Judgement to the extent they pertain to the acts other than those above. Being partially overruled as to the factual and legal findings, I concur with the verdict (Section 7) and the sentence (Section 8).