XII. PROSECUTION’S APPEAL ON WAR CRIMES

556. Pursuant to Article 4(a) of the Statute, Rutaganda (the “Respondent”) was charged under Counts 4, 6 and 8 of the Indictment with violations of Article 3 common to the Geneva Conventions (murder). [1047] Count 4 concerns the killings at the ETO school, as described in paragraphs 13 and 14 of the Indictment.  Count 6 relates to the killings at the gravel pit in Nyanza, as described in paragraphs 15 and 16 of the Indictment.  Count 8 concerns the killing of Emmanuel Kayitare, as described in paragraph 18 of the Indictment.

557. In defining the elements required for conviction under Counts 4, 6 and 8, the Trial Chamber held that there must be a nexus [1048] between the offence and an armed conflict in order to satisfy the material requirements of common Article 3 of the Geneva Conventions and of Article 1 of Additional Protocol II to the Geneva Conventions. According to the Trial Chamber, the nexus requirement means that “the offence must be closely related to the hostilities or committed in conjunction with the armed conflict”. [1049]

558. The Trial Chamber acquitted Rutaganda of Counts 4, 6 and 8 on the ground that the Prosecution had failed to establish the required nexus beyond a reasonable doubt. [1050] The Trial Chamber stated the basis of its conclusion in paragraphs 442 through 444 of its Judgement: [1051]

442. The Prosecutor argues that the Interahamwe orchestrated massacres as part of their support of the RAF in the conflict against the RPF, and as the Accused was in a position of authority over the Interahamwe, that, ipso facto, the acts of the Accused also formed part of that support. Such a conclusion, without being supported by the necessary evidence, is, in the opinion of the Chamber, insufficient to prove beyond reasonable doubt that the Accused is individually criminally responsible for serious violations of Common Article 3 and Additional Protocol II. Consequently, the Chamber finds that the Prosecution has not shown how the individual acts of the Accused, as alleged in the Indictment, during these massacres were committed in conjunction with the armed conflict.

443. Moreover, in the opinion of the Chamber, although the Genocide against the Tutsis and the conflict between the RAF and the RPF are undeniably linked, the Prosecutor cannot merely rely on a finding of Genocide and consider that, as such, serious violations of Common Article 3 and Additional Protocol II are thereby automatically established. Rather, the Prosecutor must discharge her burden by establishing that each material requirement of offences under Article 4 of the Statute are met.

444. The Chamber therefore finds that it has not been proved beyond reasonable doubt that there existed a nexus between the culpable acts committed by the Accused and the armed conflict. (Emphasis added)

559. The Prosecution appealed the acquittals on Counts 4, 6 and 8 of the Indictment. The Appeals Chamber recalls that as it found, under Part IX of this Judgement, no reasonable trier of fact could have found that the testimonies of Witnesses AA and U were corraborative and established beyond reasonable doubt that Rutaganda was guilty of the killing of Emmanuel Kayitare, described in paragraph 18 of the Indictment. Considering that paragraph 18 of the Indictment also forms the factual basis of Count 8 of the Indictment, the Appeals Chamber finds that the Prosecution’s arguments concerning the said count cannot prosper. The Appeals Chamber therefore dismisses the ground of appeal concerning Count 8 of the Indictment and will, thus, focus its analysis on the arguments in respect of Counts 4 and 6.

560. The Prosecution asserts that it does not challenge the definition of the nexus requirement used by the Trial Chamber.  Rather, it contends that the Trial Chamber made a reversible factual error when it found that the nexus had not been established beyond a reasonable doubt.  In other words, the Prosecution argues that, based on the evidence presented at trial, no reasonable trier of fact could have concluded that the crimes charged in Counts 4 and 6 of the Indictment had not been shown beyond a reasonable doubt either to have been closely related to the armed conflict or to have been committed in conjunction with the armed conflict.

561. The Appeals Chamber notes that it was not disputed at trial that, at the time of the ETO and Nyanza killings  – which form the basis of  Counts 4 and 6 of the Indictment – the government and army of Rwanda (Rwandan Armed Forces, or “RAF”), on the one hand, and the Rwandan Patriotic Front (“RPF”), on the other, were engaged in a non-international armed conflict [1052] satisfying the requirements of common Article 3 of the Geneva Conventions and Article 1 of Additional Protocol II. The Appeals Chamber also notes that it was not disputed on appeal that the victims of the ETO and Nyanza killings were persons protected under Common Article 3 of the Geneva Conventions and Additional Protocol II. [1053]

562.The Prosecution’s contention that no reasonable trier of fact could have failed to find that it had established beyond a reasonable doubt that a nexus existed between that armed conflict and the crimes charged in Counts 4 and 6 rests in significant part on the testimony of two expert witnesses, Francois-Xavier Nsanzuwera and Filip Reyntjens.  According to the Prosecution, the expert testimony of Nsanzuwera and Reyntjens established that the Interahamwe za MRND transformed itself over the period between the end of 1991 and April 1994 from a political party youth group into a well-trained paramilitary group closely allied with the RAF. [1054] The Prosecution contends that their experts showed that soldiers of the RAF provided military training to the members of the Interahamwe za MRND and that some of the army leaders most involved in the genocide influenced the activities of the Interahamwe za MRND. [1055] The experts also demonstrated connections between the Interahamwe za MRND and the national gendarmerie. [1056]

563.In the Prosecution’s account, their experts established that those who carried out killings of civilians in 1994,  in particular, members of the Interahamwe who participated, viewed their attacks on Tutsis as part of the war effort.  From the point of view of the killers, the RPF’s invasion of the country threatened to overturn the 1959 revolution and restore a Tutsi-dominated government to power.  According to the ideology used to justify the killings, all Tutsis (and those Hutus unwilling to attack the Tutsis) were suspected collaborators of the invading RPF.  Thus, killing them was a way of preventing the RPF from gaining either a military or a political victory.  The government’s civil defence mobilization of April 1994, in which the Interahamwe played a central role, was aimed at ensuring the success of the campaign against the supposed internal enemy.  Furthermore, Rutaganda’s position of influence in the Interahamwe za MRND meant that he played a significant role in the campaign. [1057] Thus, “because of the nature and activities of the Interahamwe, the fact that the Tutsi were considered as ‘enemy’ during the time of the armed conflict, as well as the role played by Rutaganda in that organisation, there existed a close link between culpable acts of the Appellant and the armed conflict.” [1058]

564. In the Appeals Chamber’s understanding of the Prosecution’s claim, the Prosecution contends that the Trial Chamber actually found that the Prosecution had established all propositions beyond a reasonable doubt, save the assertion which suggests a nexus between Rutaganda’s actions and an armed conflict. [1059] In support of this contention, the Prosecution refers to conclusions reached by the Trial Chamber in considering the issue as to whether Rutaganda was among the persons to whom responsibility could be imputed under Article 4(a) of the Statute – an issue which the Appeals Chamber subsequently found to be unnecessary to prove for establishing responsibility for such violations. [1060] The relevant passages of the Trial Judgement read as follows:

439.The Accused was in a position of authority vis-à-vis the Interahamwe militia. Testimonies in this case have demonstrated that the Accused exerted control over the Interahamwe, that he distributed weapons to them during the events alleged in this Indictment, aiding and abetting in the commission of the crimes and directly participating in the massacres with the Interahamwe. The expert witness, Mr. Nsanzuwera, testified that the Interahamwe militia served two roles during April, May and June 1994, on the one hand, they supported the RAF war effort against the RPF, and on the other hand, they killed Tutsi and Hutu opponents.

440. Moreover, as testified by Mr. Nsanzuwera, there is merit in the submission of the Prosecutor that, considering the position of authority of the Accused over the Interahamwe, and the role that the Interahamwe served in supporting the RAF against the RPF, there is a nexus between the crimes committed and the armed conflict. In support thereof, the Prosecutor argues that the Interahamwe were the instrument of the military in extending the scope of the massacres.

441. Thus, the Chamber is also satisfied that the Accused, as second vice-president of the youth wing of the MRND known as the Interahamwe za MRND and being the youth wing of the political majority in the government in April 1994, falls within the category of persons who can be held responsible for serious violations of the provisions of Article 4 of the Statute.

565. Finally, in tying these general claims to the specific crimes charged in Counts 4 and 6 of the Indictment, the Prosecution recounts the evidence at trial showing that the Interahamwe took a lead role in the killings charged in those counts with the support of RAF soldiers and that Rutaganda took part as a leader of the Interahamwe. [1061]

566.The Respondent offers essentially three responses to the Prosecution’s argument. First, the Respondent contends that under cover of a claim of factual error, the Prosecution is really seeking to demonstrate a legal error, namely, a mistaken definition of the nexus requirement. [1062]   According to the Respondent, the Prosecution’s approach would so weaken the nexus requirement that, in order to show a close relation between an offence and a qualifying armed conflict, it would suffice either to show that the accused was a member of an organization – here, the Interahamwe za MRND – that played a role in the war effort, or that crimes of the same kind as those with which the accused was charged were committed in support of the war effort.  The Respondent submits that if the Tribunal were to endorse these “guilt by association” or “similarity of conduct” approaches to the nexus requirement, it would blur the distinction between war crimes and crimes against humanity.  “It neither advances justice nor respects the integrity of the concept of a ‘war crime,’” in the Respondent’s view, “to describe as war crimes, those acts of victimization that are not part of the armed conflict and which can be prosecuted in any event as ‘crimes against humanity”. [1063]

567.Second, the Respondent challenges the Prosecution’s claim that the Trial Chamber did in fact find that the Prosecution had established a link between acts of genocide by the Interahamwe za MRND in general and the armed conflict.  The Respondent maintains that in paragraphs 439 and 440, quoted at length above, the Trial Chamber was merely characterizing claims by Prosecution witnesses, not endorsing those claims itself. [1064]

568. Third, the Respondent argues that, even on the loose definition of the nexus requirement urged by the Prosecution, the evidence at trial simply was insufficient to establish the required nexus beyond a reasonable doubt. [1065]

569. The Appeals Chamber of the ICTR has not previously endorsed a particular definition of the nexus requirement. [1066] The Appeals Chamber of the ICTY has done so twice. The first time, in the Tadic Jurisdiction Decision, the Appeals Chamber stated that the offences had to be “closely related” to the armed conflict, but it did not spell out the nature of the required relation. [1067] In the Kunarac Appeal Judgement, it endorsed the same standard.  It then provided the following details, which appear relevant to the Prosecution appeal in this case:

58.  What ultimately distinguishes a war crime from a purely domestic offence is that a war crime is shaped by or dependent upon the environment – the armed conflict – in which it is committed. It need not have been planned or supported by some form of policy. The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed. Hence, if it can be established, as in the present case, that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict. The Trial Chamber’s finding on that point is unimpeachable.

59. In determining whether or not the act in question is sufficiently related to the armed conflict, the Trial Chamber may take into account, inter alia, the following factors: the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties . [1068]

570. This Chamber agrees with the criteria highlighted and with the explanation of the nexus requirement given by the ICTY Appeals Chamber in the Kunarac Appeal Judgement.  It is only necessary to explain two matters.  First, the expression “under the guise of the armed conflict” does not mean simply “at the same time as an armed conflict” and/or “in any circumstances created in part by the armed conflict”.  For example, if a non-combatant takes advantage of the lessened effectiveness of the police in conditions of disorder created by an armed conflict to murder a neighbour he has hated for years, that would not, without more, constitute a war crime under Article 4 of the Statute.  By contrast, the accused in Kunarac, for example, were combatants who took advantage of their positions of military authority to rape individuals whose displacement was an express goal of the military campaign in which they took part.  Second, as paragraph 59 of the Kunarac Appeal Judgement indicates, the determination of a close relationship between particular offences and an armed conflict will usually require consideration of several factors, not just one.  Particular care is needed when the accused is a non-combatant.

571.Although the Trial Chamber’s Judgement and the Prosecution’s appeal against it both predated the Kunarac Appeal Judgement, this Chamber understands both the Trial Judgement and the Prosecution’s appeal as resting on an understanding of the nexus requirement consistent with the one just explained. [1069] The Appeals Chamber therefore dismisses the Respondent’s contention that the Prosecution is attempting to establish a new definition of the nexus requirement.

572.The Appeals Chamber’s understanding of paragraphs 439 through 441 of the Trial Chamber’s Judgement accords with neither of the parties’ interpretations.  In those paragraphs, the Trial Chamber, on the one hand, characterized both the testimony by various witnesses and arguments by the Prosecution, and on the other stated its own findings, one of those findings being that “there is merit in the submission of the Prosecutor that ... there is a nexus between the crimes committed and the armed conflict.” [1070] The Appeals Chamber considers that that assertion appears to contradict the Trial Chamber’s statements in paragraphs 442 and 444 that the Prosecution had failed to establish a nexus between “the individual acts of the Accused” or the “culpable acts committed by the Accused” and the armed conflict. [1071]

573.The Prosecution’s contention is that every reasonable trier of fact, (1) having found a general link between Rutaganda and one of the parties to the armed conflict; (2) having found a general link between killings by the Interahamwe za MRND and the armed conflict, and (3) having made several other findings about the role of the Interahamwe and Rutaganda in the particular crimes of conviction, could not help but find the required nexus between the crimes for which the respondent was convicted and the armed conflict. The Appeals Chamber notes that the error alleged by the Prosecution does not concern as such the factual conclusions reached by the Trial Chamber; rather, it concerns the Trial Chamber’s refusal to make a last inference leap based on those observations. [1072] In its Reply, the Prosecution states its argument concisely in the following terms:

It is the Prosecution’s case that there is clear and reliable evidence leading to the only reasonable conclusion that the crimes for which the Respondent was convicted ... were linked to the armed conflict between the State of Rwanda and the RPF in 1994.  The reasons are as follows:

(1) the Government had a policy of targeting Tutsis
(2)  the Interahamwe was created[,] trained and utilised by the Government to execute the policy
(3)  the respondent played a leading role in the Interahamwe; and
(4)  the Interahamwe and the Respondent actively targeted and murdered Tutsi civilians pursuan[t] to this policy. [1073]

574. The Appeals Chamber stresses that the only issue in the present appeal is whether  the Trial Chamber committed an error of fact that occasioned a miscarriage of justice by finding that the Prosecutor had established beyond a reasonable doubt the existence of a nexus between the crimes for which Rutaganda was convicted and the armed conflict. Before examining the Prosecution’s argument concerning the acquittals entered in respect of Counts 4 and 6, the Appeals Chamber deems it necessary to recall the applicable standard of review with respect to allegations of factual error in an appeal against acquittal. [1074] In this instance, it is not enough for the Prosecution to show that a reasonable trier of fact could have come to a different conclusion from that reached by the Trial Chamber by making the inferential leap it urges this Chamber to make. The Prosecution must show that no reasonable trier of fact would have failed to make that leap, that is, that no reasonable trier of fact would have had any reasonable doubt that the required nexus between the crimes for which the Respondent was convicted and the armed conflict had been established.

575.Moreover, the Appeals Chamber recalls that, under the section of this Judgement relating to the Interahamwe za MRND movement, it found that the question whether “Interahamwe za MRND” was the same organisation as the group of attackers designated in the Trial Judgement by the term “Interahamwe” was of no relevance in this case. [1075] The Trial Chamber’s factual conclusions and the convictions handed down do not rest on Rutaganda’s criminal responsibility for the acts committed by the Interahamwe by virtue of his position of authority he held within the movement, but rather, on the acts he personally committed. His position as second vice-president of the Interahamwe za MRND was considered only in assessing his capability to direct and incite the commission of the alleged crimes, as he was a well-known figure in society owing to this position. As stated by the Appeals Chamber, the question as to whether Rutaganda actually held a position of authority in either of the movements after 6 April 1994 is of no moment, as the evidence presented reveals that he exercised, de facto, a position of influence over the Interahamwe attackers present at the ETO and Nyanza. The Appeals Chamber will now examine the arguments advanced by the Prosecution with respect to each of the impugned counts.

576.The Appeals Chamber will first consider the killings at ETO that form the basis of Count 4 of the Indictment.  The Trial Chamber found that on or before 11 April 1994:

The Interahamwe, armed with guns, grenades, machetes and clubs, gathered outside the ETO compound, effectively surrounding it […] When the UNAMIR troops left the ETO on 11 April 1994, the Interahamwe entered and attacked the compound, throwing grenades, firing guns and killing with machetes and clubs. A large number of Tutsis, including many family members and others known to the witness, were killed in this attack. […] the Accused was present and participated in the attack on Tutsi refugees. [1076]

577.The Appeals Chamber is of the view that no reasonable trier of fact could have concluded, as did the Trial Chamber, that the Prosecution had failed to establish a nexus between the acts committed by Rutaganda and the armed conflict, with respect to the ETO killings.  As noted above, in paragraph 440 of its Judgement, the Trial Chamber found that the Prosecution had established a nexus between the ETO killings and the armed conflict. Given the Trial Chamber’s other conclusion that:

- Rutaganda participated in the attack on Tutsi refugees at the ETO school;
-  He exercised de facto influence and authority over the Interahamwe;
- The Interahamwe were armed with guns, grenades and clubs;
-  The Interahamwe, alongside the soldiers of the Presidential Guard, entered the ETO compound throwing grenades, firing guns and killing the refugees with machetes and clubs; and
-  The victims of the killings were persons protected under common Article 3 of the Geneva Conventions and Additional Protocol II,

the Appeals Chamber concludes that no reasonable trier of fact could have failed to find that a nexus between the armed conflict and Rutaganda’s participation in the particular killings charged in Count 4 had been established beyond a reasonable doubt.

578.With respect to the killings on the way to Nyanza and at Nyanza itself, the Trial Chamber found that many of the refugees from the ETO School tried to get to the Amahoro Stadium, where they thought they would find sanctuary under RPF protection. They were stopped on the way and diverted to Nyanza.  The Trial Chamber then concluded that:

Flanked on both sides by Interahamwe, approximately 4 000 refugees were forcibly marched to Nyanza. Along the way, these refugees were abused, threatened and killed by soldiers and by the Interahamwe surrounding them, who were armed with machetes, clubs, axes and other weapons […] When they arrived at Nyanza, the refugees were stopped by the Interahamwe, assembled together and made to sit down in one spot, below a hill on which there were armed soldiers. They were surrounded by Interahamwe and soldiers.

The Hutus were allowed to leave the group, then:

Grenades were […] thrown into the crowd by the Interahamwe, and the soldiers began to fire their guns from the hillside. […]  Following the shooting and grenades, the soldiers told the Interahamwe to begin killing people.

After more than one hour of killing, “[t] soldiers then told the Interahamwe to look for those who were not dead and finish them off.” The Interahamwe did so, both that night and the following morning […] “[T]he Accused was present and participated in the forced diversion of refugees to Nyanza and […] directed and participated in the attack at Nyanza.” [1077]

579. Again, the Appeals Chamber is of the view that no reasonable trier of fact could have failed to find, as did the Trial Chamber, that the Prosecution had not established, beyond a reasonable doubt, the nexus between Rutaganda’s acts and the armed conflict, in relation to the forced diversion of refugees to Nyanza and the attack that took place there. Indeed, the Appeals Chamber considers that, in view of the Trial Chamber’s conclusions, namely, on the one hand, that the Prosecution had established beyond a reasonable doubt the existence of a nexus between the killings at Nyanza and the armed conflict, and, on the other hand:

- that Rutaganda had participated in and directed the attack at Nyanza;
- that Rutaganda exercised influence putting him in a position of authority over the Interahamwe;
- that the RAF and the Interahamwe threatened and killed refugees on the way to Nyanza;
- that Rutaganda transported Interahamwe as reinforcements;
- that the soldiers and the Interahamwe were armed, inter alia, with machetes, clubs and axes;
- that upon arrival at Nyanza, the Interahamwe stopped the refugees and made them sit down below a hill on which there were armed soldiers;
-  that Rutaganda ordered the Interahamwe to position themselves around the refugees and surround them before the killing;
- that the soldiers subsequently participated in the killing of refugees alongside the Interahamwe;
- that the RAF soldiers told the Interahamwe to kill and look for those who were not dead and finish them off;
- that the victims of the killings were persons protected under common Article 3 of the Geneva Conventions and Additional Protocol II,

no reasonable trier of fact could have failed to make the inferential leap to find beyond a reasonable doubt that there existed a nexus between Rutaganda’s participation in the killings at Nyanza and the armed conflict. In the instant case, the role of RAF troops in directing the activities of the Interahamwe makes particularly clear the unreasonableness in failing to find the required nexus. [1078]

580. To have concluded that no reasonable trier of fact could have made all the factual findings reached by the Trial Chamber and yet found that the Prosecution had failed to establish beyond a reasonable doubt a nexus between Rutaganda’s participation in the ETO and Nyanza killings and the armed conflict, the Appeals Chamber considers that the Trial Chamber committed an error of fact.  The Trial Chamber’s erroneous conclusion that a nexus had not been established is the only basis for its acquittal of Rutaganda on Counts 4 and 6.  The Appeals Chamber considers that the error is thus one which has occasioned a miscarriage of justice, in that the Trial Chamber failed to discharge it obligation by not deducing all the legal implications from the evidence presented.

581.The Appeals Chamber holds that correction of the error would require entry of convictions on both counts 4 and 6 of the Indictment. [1079] However, before reversing the acquittal entered by the Trial Chamber, the Appeals Chamber must be satisfied that it can find the Respondent guilty of murder as violation of common Article 3 of the Geneva Conventions based on the facts already forming the basis of the convictions for genocide and extermination as crimes against humanity.

582. Although the Respondent did not raise this question, the Appeals Chamber observes that, in accordance with the principles it endorses in Musema, the convictions on Counts 4 and 6 of the Indictment do not constitute unlawful multiple convictions for the same crimes. In Musema, the Appeals Chamber, endorsing the principles adopted by the ICTY Appeals Chamber in Celebici, stated that:

[…] multiple convictions […] are permissible only if each statutory provision involved has a materially distinct element not contained in the other. [1080]

In the instant case, the Trial Chamber found Rutaganda guilty of genocide (Count 1), and extermination and murder as crime against humanity (Counts 2 and 7, respectively). Since the Appeals Chamber quashed the conviction for the killing of Emmanuel Kayitare (Count 7), the convictions for Counts 1 and 2 rest on the Respondent’s participation in separate criminal acts, namely: the killing of several people at Nyarugenge on 8, 15 and 24 April 1994; the shooting to death of 14 persons behind the Amgar garage in April 1994; the ETO and Nyanza massacres.

583.The Appeals Chamber considers that each of the convictions against Rutaganda on Counts 4 and 6 (murder as violation of common Article 3 of the Geneva Conventions) has a materially distinct element not required for the convictions on Counts 1 and/or 2, namely the existence of a nexus between the alleged crimes and the armed conflict satisfying the requirements of common Article 3 of the Geneva Conventions and Article 1 of Additionnal Protocol II. The conviction on Count 1 requires proof of a materially distinct element not required for the convictions on Counts 4 and 6, namely specific intent (dolus specialis). Finally, the conviction on Count 2 requires proof of a materially distinct element not required for the convictions on Coutns 4 and 6, namely a widespread or systematic attack against a civilian population.

584. For these reasons, the Appeals Chamber allows the Prosecution’s appeal and, pursuant to Articles 6(1) and 4(a) of the Statute, holds that it has been established beyond reasonable doubt that Georges Rutaganda is individually responsible for the crimes of murder as violations of common Article 3 of the Geneva Conventions and, accordingly, convicts him on Counts 4 and 6 of the Indictment.

585.The consequences of these convictions on Rutaganda’s sentence are discussed in Part XIII of this Judgement.