8. SENTENCING

  1. The Chamber will now summarize the legal provisions relating to sentences and penalties and their enforcement, before discussing the scale of sentences and the general principles applicable in the determination of penalties.

8.1 Applicable texts

  1. The Chamber will apply the following statutory and regulatory provisions: Article 22 of the Statute on judgement, Articles 23 and 26 of the Statute dealing respectively with penalties and enforcement of sentences, and Rules 101, 102, 103, and 104 of the Rules covering, respectively, sentencing procedure upon a conviction, status of the convicted person, and place and supervision of imprisonment.

8.2 Scale of sentences applicable to an accused convicted of one of the crimes listed in Articles 2, 3, or 4 of the Statute of the Tribunal

  1. The Tribunal may sentence an accused who pleads guilty or is convicted to imprisonment for a fixed term or the remainder of his life. The Statute of the Tribunal does not allow for other forms of punishment, such as the death penalty, penal servitude or a fine.
  2. In most national systems the scale of penalties is determined in accordance with the gravity of the offence. The Chamber notes that the Statute of the Tribunal does not rank the various crimes within the Tribunal's jurisdiction. The same scale of sentences applies to each of the crimes, with the maximum penalty being life imprisonment.
  3. It should be noted, however, that in imposing a sentence, the Chamber should take into account, as one of the factors specified in Article 23(2) of the Statute, the gravity of the offence. In the opinion of the Chamber, it is difficult to rank the gravity of genocide and crime against humanity relative to each other. Both genocide and crime against humanity are crimes which are particularly shocking to the collective conscience.
  4. Regarding the crime of genocide, the preamble of the Genocide Convention recognizes that at all periods of history, genocide has inflicted great losses on humanity and reiterates the need for international co-operation to liberate humanity from such an odious scourge. The crime of genocide is unique because of its element of dolus specialis (special intent) which requires that the crime be committed with the intent "to destroy in whole or in part, a national, ethnic, racial or religious group as such", as stipulated in Article 2 of the Statute. The Chamber is thus of the opinion that genocide constitutes the "crime of crimes", and that this must be taken into account in deciding the sentence.
  5. Crime against humanity must also be punished appropriately, duly recognizing their gravity. Article 27 of the Charter of the Nuremberg Tribunal empowered that Tribunal to sentence any accused found guilty of crimes against humanity, as defined in Article 6(c) of the said Charter, to death or other punishment deemed to be just.
  6. Rwanda, like all the States that have incorporated crime against humanity or genocide in their domestic legislation, provides the most severe penalties for these crimes in its criminal legislation. The Rwandan Organic Law on the Organization of Prosecutions for Offences constituting Genocide or Crimes against Humanity, committed since 1 October 1990,(1) groups accused persons into four categories, according to their acts of criminal participation. Included in the first category are the masterminds of the crimes (planners, organizers), persons in positions of authority, persons who have exhibited excessive cruelty and perpetrators of sexual violence. All such persons may be punished by the death penalty. The second category covers perpetrators, conspirators or accomplices in criminal acts, for whom the prescribed penalty is life imprisonment. Included in the third category are persons who, in addition to committing a substantive offence, are guilty of other serious assaults against the person. Such persons face a short-term imprisonment. The fourth category is that of persons who have committed offences against property.
  7. Reference to the practice of sentencing in Rwanda and to the Organic Law is for purposes of guidance. While referring as much as practicable to such practice, the Chamber maintains its discretion to pass on persons found guilty of crimes within the Tribunal's jurisdiction any sentence authorized by the Statute, taking into account the circumstances of the case and the individual circumstances of the convicted person.

8.3 General principles regarding the determination of sentences

  1. In determining the sentence, the Chamber shall be mindful of the fact that the Security Council, acting under Chapter VII of the United Nations Charter, established the Tribunal to prosecute and punish perpetrators of genocide and serious violations of international humanitarian law in Rwanda in 1994 with a view of ending impunity, promoting national reconciliation, and restoring peace.
  2. The penalties imposed by this Tribunal must be directed at retribution, so that the convicted perpetrators see their crimes punished, and, over and above that, at deterrence, to dissuade for ever others who may be tempted to commit atrocities by showing them that the international community does not tolerate serious violations of international humanitarian law and human rights.
  3. The Chamber also recalls that in the determination of sentences it is required, under Article 23(2) of the Statute and Rule 101(B) of the Rules, to take into account a number of factors including the gravity of the offence, the individual circumstances of the convicted person, and the existence of aggravating and mitigating circumstances. It is a matter, as it were, of individualizing the penalty.
  4. In individualizing the penalty, the Chamber is not limited to consideration of the factors enumerated above. The Judges may consider any factor or fact that will enable the penalty to reflect the totality of the circumstances present in the given case and thus to ensure justice in sentencing.
  5. Finally, the Chamber recalls that nothing in the Statute or the Rules requires a separate penalty for each proven count. In other words, the Chamber may impose one penalty for all the counts on which the accused has been found guilty.


8.4 Submissions of the Parties

Prosecutor's submissions

  1. In her closing brief and in her closing argument made in open court on 24 June 1999, the Prosecutor submitted that the crimes committed by Musema, in particular genocide and crime against humanity, are crimes of extreme gravity. She submitted that the Chamber should take into account the status of Musema in society at the time of the commission of the crimes, including his resulting duty vis-à-vis the population; his individual role in the execution of the crimes; his motivation and his goals, as well as the extent of planning and premeditation; his disposition and will in regard to the criminal acts and the extent of behaving in a manner contrary to his duty; the way the crimes were executed; and his behaviour after the criminal acts.
  2. The Prosecutor submitted that the following aggravating circumstances should be taken into account in this case:

      1. Musema was known in society;

      2. His criminal participation extended to all levels;

      3. He was committed to the genocidal program of the interim government. At the same time, he seized the occasion to promote his personal ambitions;

      4. He abused his position as Director of a parastatal company by diverting workers and property to further unlawful acts;

      5. The way the crimes were committed;

      6. After the criminal acts, Musema did nothing to punish the perpetrators. Indeed, he was one of the main perpetrators;

      7. He lied before the Chamber when dealing with the defence of alibi; and

      8. He showed no remorse whatsoever with respect to the role he played in the commission of the unlawful acts.

  1. Furthermore, the Prosecutor submitted that there are no mitigating circumstances. Musema did not co-operate with the Prosecutor. Nor has he shown that in committing the unlawful acts he was following orders.
  2. With regard to the issue of multiple sentences which could be imposed on Musema as envisaged by Rule 101(c) of the Rules, the Prosecutor asked for a separate sentence for each of the counts on which Musema was found guilty while requesting that he serve the more severe sentence. The Prosecutor submitted that the Chamber should impose a sentence for each offence committed in order to fully recognise the severity of each crime and the particular role of the convicted person in its commission.
  3. In conclusion, the Prosecutor recommended life imprisonment for each count on which Musema is convicted.

    4. Defence's submissions

  4. In its closing argument, the Defence submitted that the Prosecutor failed to prove Musema's guilt and that Musema should be set free.
  5. The Defence further submitted that Musema deeply regrets that factory facilities may have been used by the perpetrators of atrocities and that he was unable to prevent this.
  6. Moreover, it was submitted that Musema admitted publicly the genocide against the Tutsi people in Rwanda in 1994 and that he publicly expressed his distress about the deaths of so many innocent people and that he paid tribute to all victims of the tragic events which took place in Rwanda.
  7. Finally, the Defence underlined that Musema co-operated with the Prosecutor by admitting facts to facilitate an expedient prosecution and trial.

8.5 Personal circumstances of Alfred Musema

  1. Musema was born in 1949. At the age of 35, Musema was appointed Director of the Gisovu Tea Factory by a presidential decree and he continued to serve in that capacity during April, May, and June 1994. The Gisovu Tea Factory was one of the most successful tea factories in Rwanda and it was a major economic enterprise in Kibuye. As Director of the factory, Musema exercised legal and financial control over its employees.

8.6 The Chamber

  1. The Chamber has examined all the submissions presented by the parties in determination of the sentence, and finds as follows.

Aggravating circumstances

  1. Amongst the aggravating circumstances, the Chamber finds, first of all, that the offences of which Musema is found guilty are extremely serious, as the Chamber already pointed out when it described genocide as the 'crime of crimes'.
  2. As to Musema's role in the execution of the crimes, the Chamber notes that he led attackers who killed a large number of Tutsi refugees in the Bisesero region on 26 and between 27 April and 3 May 1994, in mid-May 1994, including on 13 and 14 May, and at the end of May 1994. Musema was armed with a rifle and used the weapon during the attacks. He took no steps to prevent tea factory employees or vehicles from taking part in the attacks.
  3. The Chamber recalls that it found that individuals perceived Musema as a figure of authority and as someone who wielded considerable power in the region. The Chamber is of the opinion that, by virtue of this capacity, Musema was in a position to take reasonable measures to help in the prevention of crimes.
  4. The Chamber however finds that Musema did nothing to prevent the commission of the crimes and that he took no steps to punish the perpetrators over whom he had control. As the Chamber found in Section 5, Musema had powers enabling him to remove, or threaten to remove, an individual from his or her position at the Gisovu Tea Factory if he or she were identified as a perpetrator of crimes punishable under the Statute.

Mitigating circumstances

  1. The Chamber, amongst the mitigating circumstances, takes into consideration that Musema admitted the genocide against the Tutsi people in Rwanda in 1994, expressed his distress about the deaths of so many innocent people, and paid tribute to all victims of the tragic events in Rwanda.
  2. Additionally, the Chamber notes that Musema expressed deep regret that the Gisovu Tea Factory facilities may have been used by the perpetrators of atrocities.
  3. Furthermore, the Chamber notes that Musema's co-operation through his admission of facts pertaining to the case, not the least the fact that a genocide occurred in the Bisesero region in April, May, and June 1994, facilitated an expeditious trial. Finally, the Chamber notes that Musema's co-operation continued throughout the trial and similarly contributed to proceedings without undue delay.

Conclusion

  1. Having reviewed all the circumstances of the case, the Chamber is of the opinion that the aggravating factors outweigh the mitigating factors, especially as on several occasions Musema personally led attackers to attack large numbers of Tutsi refugees and raped a young Tutsi woman. He knowingly and consciously participated in the commission of crimes and never showed remorse for his personal role in the atrocities.


TRIAL CHAMBER I

FOR THE FOREGOING REASONS,

DELIVERING its decision in public, inter partes and in the first instance;

PURSUANT to Articles 22, 23, and 26 of the Statute and Rules 101, 102, 103, and 104 of the Rules;

NOTING the general practice regarding sentencing in Rwanda;

NOTING that Musema has been found guilty of:

Genocide - Count 1,

Crime against humanity (extermination) - Count 5, and

Crime against humanity (rape) - Count 7;

NOTING the closing briefs submitted by the Prosecutor and the Defence; and

HAVING HEARD the Prosecutor and the Defence;

IN PUNISHMENT OF THE ABOVE MENTIONED CRIMES,

SENTENCES Alfred Musema to:

A SINGLE SENTENCE OF LIFE IMPRISONMENT

FOR ALL THE COUNTS ON WHICH HE HAS BEEN FOUND GUILTY

RULES that the imprisonment shall be served in a State designated by the President of the Tribunal in consultation with the Trial Chamber; the Government of Rwanda and the designated State shall be notified of such designation by the Registrar;

RULES that this Judgement shall be enforced immediately, and that, however:

    1. until his transfer to the designated place of imprisonment, Alfred Musema shall be kept in detention under the present conditions;

    2. upon notice of appeal, if any, the enforcement of the sentence shall be stayed until a decision has been rendered on the appeal, with Musema nevertheless remaining in detention.

Judge Aspegren and Judge Pillay append their Separate Opinions to this Judgement.

Arusha, 27 January 2000.

Lennart Aspegren Laïty Kama Navanethem Pillay

Presiding Judge Judge Judge

(Seal of the Tribunal)

1. Organic Law No. 8/96 of 30 August 1996, published in the Gazette of the Republic of Rwanda, 35th year. No. 17, 1 September 1996.