Musema

SUMMARY

of the Judgement in the Alfred Musema Case, ICTR-96-13-T,

27 January 2000

1. Trial Chamber I of the United Nations International Criminal Tribunal for Rwanda, composed of Judge Lennart Aspegren, presiding, Judge Laïty Kama, and Judge Navanethem Pillay, is sitting this 27th day of January 2000 to render its Judgement in the matter of "The Prosecutor versus Alfred Musema".

2. The Judgement, which will be available in written form and on the Tribunal's website in English and French, after this hearing, covers over 300 pages. The Chamber will limit its oral delivery to a summary of the content of the Judgement and its Verdict on each of the counts charged against Musema. The Judgement, and not this summary, is the authoritative text.

3. Attached to the Judgement are two separate opinions which we will also summarize here.

Introduction

4. In the Judgement, the Chamber provides an overview on the International Tribunal, established by the United Nations Security Council. The proceedings before the Tribunal are governed by its Statute, annexed to Security Council Resolution 955, and its own Rules of Procedure and Evidence. The jurisdiction of the Tribunal is to prosecute persons charged with genocide or other serious violations of humanitarian law, committed in Rwanda during 1994.

The Indictment and Procedural Background

5. On 11 February 1995, Musema was arrested in Switzerland.

6. After the Prosecutor submitted an Indictment against Musema on 11 July 1996, which was confirmed by Judge Ostrovsky on 15 July 1996, he was transferred to the Tribunal's Detention Facility in Arusha on 20 May 1997. On 18 November 1997, he pleaded not guilty to all the counts preferred against him.

7. On 20 November 1998 the Prosecutor submitted an amended Indictment. The Chamber confirmed it on 14 December 1998; on the same day, Musema pleaded not guilty to the new charges.

8. The trial commenced on 25 January 1999. The Prosecutor submitted a further amended Indictment on 29 April 1999. The Chamber granted leave to amend this Indictment on 6 May 1999, at which time Musema pleaded not guilty to the new charges.

9. This Indictment, which is the basis of the present Judgement, charges Musema with genocide, with crime against humanity and with serious violations of Article 3 common to the Geneva Conventions and their Additional Protocol II.

10. During the trial, both parties presented extensive evidence to the Chamber, including thirty witnesses and 182 documents.

11. The parties made their closing arguments on 25 and 28 June 1999, after which the Chamber adjourned for deliberation.

The Accused

12. The accused, Alfred Musema-Uwimana, was born on 22 August 1949 in the Byumba Préfecture. He began his university studies in 1968 in Belgium and graduated in 1974. He married in 1975 and has three children.

13. Musema began his career in the Rwandan Ministry of Agriculture & Livestock Breeding. In 1984, by a presidential decree, he was appointed director of a public enterprise, the Gisovu Tea Factory.

14. This tea factory was in production for only a short time before Musema assumed responsibility, which encompassed the Préfectures of Kibuye and Gikongoro. By 1993 the tea factory was one of the most successful in Rwanda.

15. Musema was a member of the "conseil préfectorial" in Byumba Préfecture and a member of the Technical Committee in the Butare Commune. Both positions involved socio-economic and developmental matters and did not focus on préfectorial politics.

The Applicable Law

16. By his participation in the events described in the Indictment, Musema is alleged to be individually criminally responsible under Articles 6(1) and 6(3) of the Statute.

17. The Chamber, in its Judgement, considers these two sub-Articles.

18. The Chamber recalls the constitutive elements under Articles 2 and 3 of the Statute. Count 1 charges Musema with genocide. The Chamber recalls that the definition found in Article 2 of the Statute is taken verbatim from the 1948 Genocide Convention. The Chamber adheres to the definition of genocide in the Akayesu Judgement.

19. In the alternative to Count 1, the Prosecutor, in Count 2, charges Musema with complicity in genocide. The Chamber finds that an accused cannot be convicted of both genocide and complicity in genocide for the same act. The Chamber adheres to the definition of complicity in genocide in the Akayesu Judgement.

20. Count 3 charges Musema with conspiracy to commit genocide under Article 2(3)(b) of the Statute. The Chamber defines conspiracy to commit genocide as an agreement between two or more persons to commit genocide.

21. Counts 4 to 7 charge Musema with crime against humanity under Article 3 of the Statute. The Chamber recalls the case law on this crime and discusses the elements required to establish the crime.

22. With respect to crime against humanity, Musema is indicted for murder, extermination, rape and other inhumane acts. The Chamber adopts the definitions of murder and extermination articulated in the Akayesu and Rutaganda Judgements. The Chamber also concurs with the definition of rape, as a crime against humanity, articulated in the Akayesu Judgement.

23. Finally, Counts 8 and 9 charge Musema under Article 4 of the Statute, with serious violations of Article 3 common to the Geneva Conventions and the Additional Protocol II thereto. Common Article 3 extends a minimum threshold of humanitarian protection to all persons affected by non-international conflicts.

24. The Chamber holds, firstly, that this protection is afforded throughout Rwanda, secondly, that the protection afforded extends to all civilians who do not take a direct part in the hostilities and, thirdly, that Musema, as a civilian, may be held responsible for serious violations of this kind.

25. The Chamber endorses the principle of cumulative charges. Multiple offences may be charged on the basis of the same acts, in order to capture the full text of the crimes committed by an accused. In this regard, the Chamber recalls that in Rwanda a doctrine exists which allows multiple charges for the same act under certain circumstances.

The Defence

26. In the Judgement, the Chamber thoroughly discusses the defences presented by Musema. The Defence put particular emphasis on Musema's alibi, developing it in detail.

27. The Defence argued that the Prosecution did not discharge its burden of proving Musema guilty, that it did not satisfy the Trial Chamber beyond reasonable doubt of Musema's guilt, and that it did not rebut the Defence alibi.

28. In addition, the Defence argued that Musema had no case to answer on Counts 7, 8 and 9 of the Indictment, since the Indictment containing those counts was never served on him.

29. The Chamber finds that Musema does have a case to answer on the Counts 7, 8, and 9, noting that Musema entered pleas of not guilty to these counts, establishing his knowledge and possession of the amended Indictment. Additionally, the presentation of the defence made it clear that the lack of service of the amended indictment did not significantly impede Musema's ability to defend himself.

30. The Defence also argued that Musema's political activity was minimal and that no evidence was presented with respect to his alleged influence, importance or civic authority. It was the Defence's position that Musema was not part of the interim government, politically or in any other manner.

31. Finally, the Defence argued against the reliability of the evidence presented by the Prosecution, alleging weaknesses in the investigations which produced the Prosecution evidence, and challenging the reliability of the testimony of Prosecution witnesses.

Factual Findings

32. In Section 5.1 of the Judgement, the Chamber, in light of the admissions made by Musema, finds that the general allegations set forth in paragraphs 4.1, 4.2 and 4.3 of the Indictment have been proved. The Chamber thus finds that in 1994 widespread or systematic attacks were directed against civilians on the grounds of ethnic or racial origin. The massacres in 1994 were targeted and directed against the Tutsi civilians not as individuals but as members of the said group. In the days following the crash of the plane transporting Rwandan President Juvénal Habyarimana, Musema witnessed massacres, the destruction of houses and the displacement of people from Kigali, marking the beginning of massacres which he described as constituting genocide.

33. In Section 5.2 of the Judgement, with respect to the events alleged in paragraphs 4.4, 4.5, 4.6 and 4.11, the Chamber first recalls the testimony of Prosecution witnesses relevant to the events as they occurred, in chronological order. If there is a case to answer, the Chamber then, day by day, reviews the alibi presented by Musema, after which its factual findings are presented.

34. With respect to 15 April 1994, the Chamber notes that the testimony supporting the allegation that Musema was present in the communes of Musebeya and Muko at the wheel of a Daihatsu truck transporting individuals armed with spears and machetes is hearsay corroborated by no other witnesses. Consequently this allegation has not been established beyond reasonable doubt.

35. With respect to the events which took place at the Karongi Hill FM Station on 18 April 1994, although a credible witness was heard, the Chamber finds that Musema's alibi, that he had left Gisovu and was in Rubona and Gitarama at this time, creates doubt in the facts alleged by the Prosecutor. The Chamber thus finds that it has not been proven beyond reasonable doubt that Musema was present at the meeting on Karongi hill on 18 April 1994 or that he participated in an attack on a refugee camp in Gitwa immediately thereafter.

36. It is alleged that on or about 20 April 1994, Musema transported armed attackers in the vicinity of the Gisovu Tea Factory to the Bisesero region to kill Inyenzi. The Chamber finds that the evidence presented is insufficient and that the allegations are therefore not proved.

37. With regard to the events that took place on Gitwa Hill on 26 April 1994, during which it is alleged that Musema took part in a large scale attack, the Chamber finds, on the evidence presented, that Musema took part in this attack. The Chamber does not accept Musema's alibi that he was in Gitarama at this time.

38. With regard to the alleged attacks at the end of April and the beginning of May 1994, the Chamber is not satisfied beyond reasonable doubt that Musema participated in the alleged attacks between 17 and 30 April. However, the Chamber is convinced that on one day between 27 April and 3 May Musema participated in an attack on Rwirambo hill.

39. With respect to the attack alleged to have taken place on 13 May 1994 on Muyira hill, the Chamber finds that attackers from Gisovu, Gishyita, Gitesi, Cyangugu, Rwamatamu and Kibuye arrived at Muyira hill in an array of vehicles, including Daihatsu vehicles belonging to the Gisovu Tea Factory. Among the attackers were communal policemen, workers from the tea factory wearing their uniforms, Interahamwe, prison guards, armed civilians and soldiers. Musema was one of the leaders of the attack. It was estimated that only 10,000 of the 40,000 to 50,000 Tutsi refugees survived the attack. The Chamber finds that the attackers, including Musema, launched the attack with gunfire and shot at refugees.

40. As pertains to the alleged attack of 14 May 1994 on Muyira hill, the Chamber finds that Musema was one of the leaders of a large scale attack against Tutsis, in which the assailants were armed with firearms, grenades and traditional weapons, singing "Let's exterminate them." However, the Chamber is not convinced that Musema shot at Ntambiye or Iamuremye during this attack.

41. With respect to the two other attacks alleged to have taken place in mid-May 1994, the Chamber finds that Musema led attackers from Gisovu, including Interahamwe, and factory workers in uniform in an attack against Tutsi refugees on Muyira hill. Musema launched the attack with a gunshot and personally shot at refugees. The Chamber is also convinced that Musema took part in an attack near the middle of May on Mumataba hill and in Birembo, in which the assailants attacked a place of refuge for 2000 to 3000 Tutsis, most of whom were killed.

42. As pertains to Musema's alibi for the period of 7 to 19 May 1994, the Chamber rejects Musema's alibi for 13 and 14 May and the rest of mid-May 1994, as there were a number of inconsistencies and material discrepancies in the evidence presented in support of the alibi.

43. As pertains to the alleged attack at the end of May 1994 at the Nyakavumu cave, the Chamber finds that Musema participated in an attack on approximately 300 to 400 Tutsis seeking refuge in the cave, by ordering, along with others, that the entrance to the cave be sealed with wood and set on fire. Only one person survived the attack. The Chamber rejects Musema's alibi for this time.

44. With respect to the attack of 31 May 1994 at Biyiniro, the Chamber finds that Musema's alibi and the documents tendered in support thereof, including copies of Musema's passport stamped by Rwandan and Zairean immigration authorities on 31 May 1994, cast doubt on the allegations of the Prosecutor. Therefore the Chamber does not find that Musema participated in the attack on Biyiniro hill on 31 May 1994.

45. With regard to the attack of 5 June 1994 near Muyira Hill, the Chamber finds that the alibi presented by Musema for this period, that he was in Shagasha with his family until 10 June 1994, casts doubt on the allegations of the Prosecutor. As such, the Chamber finds that it has not been proven beyond reasonable doubt that Musema participated in the attack.

46. With regard to the attack at Nyarutovu cellule on 22 June 1994, the Chamber finds that Musema's alibi for this date casts doubt on the allegations of the Prosecutor. Evidence was presented that Musema was in Gisenyi from 22 to 27 June 1994, during which period he also visited Goma, Zaire. As a result, the Chamber finds that it has not been proven beyond reasonable doubt that Musema led or participated in the attack of 22 June 1994.

47. In Section 5.3 of the Judgement, with respect to the sexual crimes with which Musema has been charged, under paragraphs 4.7, 4.8, 4.9 and 4.10 of the Indictment, the Chamber finds that the allegations that Musema ordered the rape of Tutsi women on Karongi hill on 18 April 1994, are not proved by the evidence presented. The evidence does not prove beyond reasonable doubt that Musema was present at the meeting on 18 April 1994 on Karongi hill.

48. In regard to the alleged rape and murder of Annunciata Mujawayezu on 14 April 1994, the Chamber finds that it has been proved beyond reasonable doubt that Musema ordered the rape and the cutting off of her breast to be fed to her son. No evidence was introduced that Musema ordered her to be killed. There is no conclusive evidence that she was raped or that her breast was cut off.

49. With respect to the alleged rape and murder of Immaculée Mukankuzi on 13 May 1994 by Musema, in concert with others, and the allegations that Musema thereafter ordered others accompanying him to rape and kill Tutsi women seeking refuge from attacks, the Chamber finds unexplained inconsistencies in the testimony presented in support of this allegation. While the Chamber recognizes that it is especially difficult to testify about rape and sexual violence in a public forum, the Chamber must question the accuracy of this evidence. Recalling the high burden of proof on the Prosecutor and the lack of any corroborating evidence, the Chamber cannot find beyond reasonable doubt that these allegations have been proved.

50. With respect to the alleged rape of a woman called Nyiramusugi on 13 May 1994 by Musema, acting in concert with others, and his alleged encouragement of others to rape and kill her, the Chamber finds that before the attack, Musema ordered a policeman to bring Nyiramusugi to him and that after bringing her to Musema, four youths held her down while Musema raped her. The Chamber accepts that after Musema left, the four took turns raping her and then left her for dead. Concerning Musema's alibi, the Chamber finds that it does not stand with respect to this time period. The Chamber finds that Musema raped Nyiramusugi and by his example encouraged others to rape her. However, there is no evidence that he encouraged them to kill her.

51. In Section 5.4 of the Judgement, with respect to any individual criminal responsibility on the part of Musema, in terms of Article 6(3) the Chamber is satisfied beyond reasonable doubt that Musema exercised both de facto and de jure authority over employees of the Gisovu Tea Factory, and the resources of the tea factory.

52. The Chamber finds it proved beyond a reasonable doubt that at the time of the events alleged in the Indictment, a de jure superior-subordinate relationship existed between Musema and the employees of the Gisovu Tea Factory.

53. The Chamber is not satisfied beyond reasonable doubt that Musema exercised de jure and de facto power over other members of the population of Kibuye Préfecture.

Legal Findings

54. In Section 6.1 of the Judgement, the Chamber reviews its legal findings with respect to Count 1, genocide, and Count 2, complicity in genocide.

55. The Chamber reviews the factual findings regarding whether Musema committed the alleged acts to determine if Musema incurs individual responsibility for those acts. The Chamber then determines whether those acts are constituent elements of genocide or complicity in genocide.

56. The Chamber finds beyond reasonable doubt that Musema participated in an attack on Gitwa hill on 26 April, on Rwirambo hill between 27 April and 3 May, on Muyira hill on 13 May, 14 May and mid-May, on Mumataba in mid-May, and at the end of May at Nyakavumu cave. The Chamber finds that Musema incurs individual criminal responsibility for these acts under Article 6(1) of the Statute for having ordered, and by his presence and participation, aided and abetted in the murder of members of the Tutsi ethnic group and the causing of serious bodily and mental harm to the members of the group.

57. Additionally, the Chamber finds Musema criminally responsible for these acts under Article 6(3) of the Statute. The Chamber finds that: (1) employees of the tea factory, over whom Musema had not only de jure but also de facto control, among others, participated in the above-mentioned attacks and their participation resulted, inevitably, in the commission of acts referred to under Articles 2 to 4 of the Statute; (2) Musema was present at the attack sites, thus he knew or had reason to know the employees were committing these crimes; and (3) Musema failed to take any measures to prevent or punish the commission of these crimes, rather he abetted in their commission by his presence and, in some cases, his participation.

58. With respect to the allegation of the rape of Annunciata Mujawayezu, although it has been proven that Musema ordered the rape, he does not incur individual criminal responsibility for this act because no evidence was adduced to show that a rape took place as a result of the order. Furthermore it has not been shown that Musema ordered the killing of Annunciata Mujawayezu and her son.

59. With respect to the alleged rape of Nyiramusugi, the Chamber finds that Musema incurs individual criminal responsibility under Article 6(1) for having raped her, for having caused serious bodily and mental harm to a member of the Tutsi group, and for having abetted others to rape by his example. However, the Prosecutor did not establish that the assailants who attacked Nyiramusugi were Musema's subordinates. Thus, the Chamber holds that Musema does not incur individual criminal responsibility as a superior under Article 6(3) for the rape.

60. The Chamber then reviews the evidence adduced to determine whether the acts were committed by Musema with genocidal intent. Musema acknowledged that the genocide against the Tutsis took place at the time of the events alleged in the Indictment and at the sites where the acts with which he is charged were committed. The Chamber notes that these acts were committed as part of a widespread and systematic perpetration of other criminal acts against members of the Tutsi group. The Chamber finds that anti-Tutsi slogans made during the attacks, and humiliating utterances made during acts of serious bodily and mental harm, including rape and other forms of sexual violence, demonstrate that the objective of Musema and other attackers was the destruction of the Tutsis.

61. Thus the Chamber finds that, firstly, Musema incurs individual criminal responsibility for these acts which are the constituent elements of genocide, secondly, Musema committed these acts with the specific intent to destroy the Tutsi group, and thirdly, the Tutsi group constitutes a protected group within the meaning of the Genocide Convention and Article 2 of the Statute. Thus Musema incurs individual criminal responsibility under Articles 6(1) and 6(3) of the Statute for genocide, punishable under Article 2(3)(a) of the Statute.

62. Considering that the Chamber finds that these acts constitute genocide as charged in Count 1, the Chamber does not consider whether these acts constitute complicity in genocide, as charged in Count 2.

63. In Section 6.2 of the Judgement, the Chamber considers Count 3 of the Indictment, which charges Musema with conspiracy to commit genocide, punishable under Article 2(3)(b) of the Statute.

64. The Chamber holds that conspiracy to commit genocide is defined as an agreement between two or more persons to commit genocide. The Chamber finds that the Prosecutor neither has alleged, nor has adduced evidence that Musema conspired with others to commit genocide nor that he and such persons reached an agreement to act to that end.

65. Furthermore, the alleged facts on which the Prosecutor based the count of conspiracy to commit genocide are the same as those adduced by the Prosecutor to establish Musema's participation in the commission of genocide, the substantive offence in relation to the conspiracy.

66. Therefore, the Chamber holds that Musema does not incur criminal responsibility for the crime of conspiracy to commit genocide.

67. In Section 6.3 of the Judgement, the Chamber considers Count 5 of the Indictment which charges Musema with crime against humanity (extermination), pursuant to Articles 3(b), 6(1) and 6(3) of the Statute.

68. The Chamber notes that the Defence admitted: that the Tutsi were either a racial or ethnic group; that there were widespread or systematic attacks throughout Rwanda, between January 1 and 31 December 1994; and that these attacks were directed against civilians on the grounds of ethnic affiliation and racial origin. Thus, the Chamber finds that these elements of crime against humanity have been proved.

69. The Chamber finds that Musema had knowledge of a widespread or systematic attack directed against the civilian population in Rwanda in 1994 and that his participation in the events in which he has been found to be involved was consistent with the pattern of this attack and formed part of this attack.

70. The Chamber finds that Musema's conduct in ordering and participating in the attacks on Tutsi civilians who sought refuge on Muyira hill and on Mumataba hill, in aiding and abetting in the aforementioned attacks by providing motor vehicles belonging to the Gisovu Tea Factory for the transport of attackers to Muyira hill and Mumataba hill, and his participation in attacks on Tutsi civilians who sought refuge in the Nyakavumu cave, Gitwa hill and Rwirambo hill, renders Musema individually criminally responsible for crime against humanity (extermination), pursuant to Articles 3(b) and 6(1) of the Statute, with respect to these acts.

71. Additionally the Chamber finds that at the time of the events alleged in the Indictment, Musema exercised de jure control over the employees of the Gisovu Tea Factory. The Chamber has found that Musema failed to prevent or punish participation by these employees, or use of the tea factory property, in the attacks. Thus, the Chamber finds that Musema is also individually criminally responsible for crime against humanity (extermination) pursuant to Article 6(3) of the Statute for these acts.

72. In Section 6.4 of the Judgement, the Chamber considers Count 4 of the Indictment which charges Musema with crime against humanity (murder), for the acts alleged in paragraphs 4.1 to 4.11 of the Indictment, pursuant to Articles 3(a), 6(1) and 6(3) of the Statute.

73. The Chamber notes that Musema is also charged with crime against humanity (extermination) under Count 5 of the Indictment for the same alleged acts.

74. The Chamber concurs with the reasoning in the Akayesu Judgement that it is acceptable to convict an accused of two offences in relation to the same set of facts where: the offences have different elements; the provisions creating the offences protect different interests; or it is necessary to record a conviction for both offences in order to describe fully what the accused did. However the Chamber finds that it cannot convict an accused of two offences in relation to the same facts where one offence is a lesser and included offence of the other.

75. The Chamber finds that Musema cannot be held criminally responsible for both crime against humanity (murder) and crime against humanity (extermination), for the same acts, on the basis that murder and extermination, as crimes against humanity, share the same constituent elements of the offence.

76. The Chamber finds that the killings at Gitwa hill, Muyira hill, Rwirambo hill, Mumataba hill and the Nyakavumu cave represent killings of a collective group of individuals, hence they constitute extermination and not murder. Therefore, Musema is not individually criminally responsible for crime against humanity (murder) in respect of these killings.

77. In Section 6.5 of the Judgement, the Chamber reviews the allegations of crime against humanity (other inhumane acts), pursuant to Articles 3(i), 6(1) and 6(3) of the Statute, as set out in Count 6 of the Indictment. The Chamber finds that the Prosecutor has failed to specify which acts constitute this offence and to prove the relevant allegations beyond reasonable doubt.

78. In Section 6.6 of the Judgement, the Chamber reviews the allegations of crime against humanity (rape), pursuant to Articles 3(g), 6(1) and 6(3) of the Statute, as set out in Count 7 of the Indictment.

79. The Chamber has found that on 13 May 1994, Musema raped Nyiramusugi. Based on the finding of Musema's knowledge of a widespread or systematic attack on the civilian population and the finding that his participation was consistent with the pattern of this attack and formed part of the attack, the Chamber finds Musema individually criminally responsible for crime against humanity (rape), pursuant to Articles 3(g) and 6(1) of the Statute. However, the Chamber finds that the Prosecutor has failed to establish beyond reasonable doubt the individual criminal responsibility of Musema pursuant to Article 6(3) of the Statute.

80. In Section 6.7 of the Judgement, with respect to Counts 8 and 9 alleging serious violations of Common Article 3 to the Geneva Conventions and the Additional Protocol II thereto, the Chamber finds that the Prosecutor failed to establish the existence of a nexus between the acts for which Musema is individually criminally responsible under Articles 6(1) and 6(3) and the internal armed conflict. Consequently, the Chamber finds Musema not guilty of serious violations of Common Article 3.

Verdict

FOR THE FOREGOING REASONS, having considered all of the evidence and the arguments, THE CHAMBER finds Musema:

Count 1: Guilty of Genocide

Count 2: Not Guilty of Complicity in Genocide

Count 3: Not Guilty of Conspiracy to Commit Genocide

Count 4: Not Guilty of Crime against Humanity (Murder)

Count 5: Guilty of Crime against Humanity (Extermination)

Count 6: Not Guilty of Crime against Humanity (Other Inhumane Acts)

Count 7: Guilty of Crime against Humanity (Rape)

Count 8: Not Guilty of Violation of Common Article 3 to the Geneva Conventions and the Additional Protocol II thereto, Article 4(a) of the Statute

Count 9: Not Guilty of Violation of Common Article 3 to the Geneva Conventions

and the Additional Protocol II thereto, Article 4(e) of the Statute

Sentence

81. Regarding sentencing, the Chamber summarizes the legal provisions relating to sentences and penalties and their enforcement, and discusses the scale of sentences and general principles applicable in the determination of penalties. The Chamber also reviews the submissions of the parties concerning the determination of the sentence.

82. The Prosecutor submitted a number of aggravating circumstances to be taken into account.

83. The Prosecutor asked for a separate sentence for each of the counts on which Musema is found guilty in order to fully recognize the severity of each crime and Musema's particular role in its commission. The Prosecutor recommended life imprisonment for each count on which Musema is convicted.

84. The Defence submitted that the Prosecutor failed to prove Musema's guilt and that Musema should be found not guilty and released. In the alternative, the Defence submitted certain mitigating circumstances in the event that he is found guilty of any of the alleged crimes.

85. The Chamber, with respect to aggravating circumstances, considers the following:

(i) The offences of which Musema is guilty are extremely serious, as the Chamber pointed out when it described genocide as the "crime of crimes".

(ii) Musema led attackers who killed a large number of Tutsi refugees in the Bisesero region in mid-May 1994, including on 13 and 14 May 1994. Musema was armed with a rifle and used the weapon during the attacks. He took no steps to prevent the participation of tea factory employees or the use of its vehicles in the attacks. Moreover, Musema raped a young Tutsi woman and by his example encouraged others to rape her.

(iii) Musema did nothing to prevent the commission of the crimes and he took no steps to punish the perpetrators over whom he had control. Musema had the power 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 a perpetrator of crimes punishable under the Statute.

86. With respect to mitigating circumstances, the Chamber considered that Musema admitted that a genocide occurred against the Tutsi people in Rwanda in 1994, expressed his distress about the deaths of so many innocent people, paid tribute to all victims of the tragic events in Rwanda and expressed regret that the Gisovu Tea Factory facilities may have been used by the perpetrators of atrocities. Additionally, Musema's co-operation, through his admission of facts, continued during the trial and facilitated expeditious proceedings.

87. Having reviewed all the circumstances of the case, the Chamber concludes that the aggravating factors outweigh the mitigating factors, especially as 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 commission of 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 of the Tribunal and Rules 101 to 104 of the Rules;

NOTING the general practice regarding prison sentences 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 imprisonment shall be served in a State designated by the President of the Tribunal in consultation with the Trial Chamber, and that the Government of Rwanda and the Government of the designated State shall be notified of such designation by the Registrar;

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

(i) Until his transfer to the designated place of imprisonment, Musema shall be kept in detention under the present conditions;

(ii) Upon notice of appeal, if any, the enforcement of the sentence shall be stayed until a decision has been rendered on the appeal, with the convicted person nevertheless remaining in detention.

88. The Judgement was signed in Arusha, on the 27th day of January 2000, by the three Judges.

89. Judge Aspegren and Judge Pillay attach their separate opinions to the Judgement.

Separate Opinion of Judge Aspegren

90. In a separate opinion, Judge Aspegren expresses his dissent from the majority concerning certain events during 1994 in respect of which he remains unconvinced that Musema participated, as alleged.

91. Judge Aspegren concurs with all the Chamber's factual findings except those made in Section 5.2 of the Judgement with regard to the alleged events of 26 April at Gitwa hill, 27 April to 3 May at Rwirambo hill, and the end of May at Nyakavumu cave, and the findings made in Section 5.3 with regard to the alleged events of 14 April 1994. Judge Aspegren remains unconvinced that it has been established beyond reasonable doubt that Musema participated in the events as alleged.

92. With respect to 26 April 1994, Gitwa hill, Judge Aspegren finds that Musema's alibi casts reasonable doubt on the allegation that Musema was involved in this attack.

93. In respect of 27 April to 3 May 1994, Rwirambo hill, Judge Aspegren finds that the evidence that the Prosecutor presented to show that Musema participated in the attack is unreliable due to material contradictions in the testimony of the sole witness. Judge Aspegren finds these contradictions to be serious enough to cast doubt on its credibility. Thus he finds that it has not been established beyond reasonable doubt that Musema participated in the alleged attack on Rwirambo hill.

94. With respect to the alleged attack at the end of May 1994 at Nyakavumu cave, Judge Aspegren finds that doubt prevails in the matter as it cannot be adduced from the evidence when the attack occurred. Moreover, an inability to specify the date of the attack does not allow Musema to fully answer the relevant charges against him. Therefore Judge Aspegren finds that Musema's participation in the attack is not proved beyond reasonable doubt.

95. With respect to the alleged rape of Annunciata Mujawayezu, Judge Aspegren is not convinced beyond reasonable doubt that Musema ordered or encouraged the rape.

96. Regarding the legal findings (Section 6 of the Judgement), Judge Aspegren, concurs to the extent that they pertain to acts other than these events. Being overruled concerning Musema's ordering of the rape, he joins the majority in its legal finding that the order, as such, is not punishable.

97. Judge Aspegren agrees with the majority's findings of guilt to the extent that they pertain to the acts other than those above. Being partially overruled as to the factual and legal findings, he concurs with the verdict (Section 7) and the sentence (Section 8).

Separate Opinion of Judge Pillay

98. In her separate opinion, Judge Pillay expresses her dissent from the majority solely with respect to a number of factual findings in Sections 5.2 and 5.3 of the Judgement.

99. With respect to the alibi presented by Musema, Judge Pillay assesses the evidence presented in support of the alibi as a whole, rather than day by day. Judge Pillay reviews the evidence given by the Prosecution witnesses and the evidence presented by the Defence and evaluates its credibility, as well as the credibility of the alibi, generally. Musema denied his presence at the alleged attacks. A number of documents were tendered in support of this position, along with the testimony of Musema, and other witnesses, which Judge Pillay does not find persuasive. She notes numerous inconsistencies between Musema's evidence at trial and evidence he gave prior to trial. Judge Pillay notes that the testimony of Musema's wife does not specifically corroborate his account of his whereabouts. Finally she questions the probative value, and in some cases, the authenticity, of documents produced in support of the alibi. In light of the evidence presented by the Prosecutor with respect to Musema's whereabouts, she rejects Musema's alibi.

100. With respect to 18 April, Karongi hill, Judge Pillay finds that Musema's alibi does not stand, and thus she finds that it has been proved beyond reasonable doubt that Musema took part in the meeting and the attack, at which he encouraged the rape of Tutsi women, as alleged. Judge Pillay holds that these findings should be considered as cumulative evidence when assessing culpability for genocide and crime against humanity (extermination and rape).

101. With respect to 31 May, Biyiniro hill, 5 June near Muyira hill and 22 June at Nyarutovu cellule, Judge Pillay concurs with the findings of the majority, but for different reasons. She finds reasonable doubt in the evidence presented by the Prosecutor but this doubt has not been created by the defence of alibi.

102. On all other issues in the Judgement, including the verdict and sentence, Judge Pillay is in agreement with the majority.