5. LEGAL FINDINGS
5.1 Count 1: Genocide
5.2 Legal Findings - Count 2: Crimes against Humanity
(extermination)
5.3 Legal Findings - Count 3: Crimes against Humanity (murder)
5.4 Legal Findings - Count 5: Crimes against Humanity (murder)
5.5 Legal Findings - Count 7: Crimes against Humanity (murder)
5.6 Counts 4, 6, and 8 - Violations of Common Article 3
(murder).
5.1 Count 1: Genocide
- Count 1 covers all the acts described in the Indictment. It is the Prosecutor's
contention that, by his acts as alleged in paragraphs 10 to 19 of the Indictment, the
Accused committed the crime of genocide punishable by Article 2(3)(a) of the Statute.
- In its findings supra(1) on the law applicable
to the crime of genocide, the Chamber held that for the crime of genocide to be
established, it was necessary, firstly, that one of the acts enumerated under Article 2(2)
of the Statute be perpetrated; secondly, that such act be directed against a group
specifically targeted as such on ethnic, racial or religious grounds; and thirdly, that
such act be committed with intent to destroy the targeted group in whole or in part.
Regarding the acts alleged in paragraphs 10 to 19 of the Indictment and based on
its factual findings supra, the Chamber is satisfied beyond any reasonable doubt of the
following:
- Regarding the facts alleged in paragraph 10, the Chamber finds that it is
established beyond any reasonable doubt that, on the afternoon of 8 April 1994, the
Accused arrived at Nyarugenge in a pick-up truck, filled with firearms and machetes. The
Accused personally distributed weapons to the Interahamwe and ordered them to go
to work stating that there was a lot of dirt that needed to be cleaned up. The Accused was
carrying a rifle slung over his shoulder and a machete hanging from his belt. The Chamber
also finds that it is established beyond any reasonable doubt that on 15 April 1994 in the
afternoon, the Accused arrived at the Cyahafi Sector, Nyarugenge Commune, in a
pick-up truck. The pick-up was parked near a public standpipe. The Accused got out of the
vehicle, opened the back of the truck where the guns were kept. The men who had come with
him distributed the weapons to members of the Interahamwe. Immediately after the
distribution of rifles, those who received them started shooting. Three persons were shot
dead; all were Tutsis. The Chamber also finds that it is established beyond a reasonable
doubt that on or about 24 April 1994, in the Cyahafi Sector, the Accused distributed Uzzi
guns to the President of the Interahamwe of Cyahafi during an attack by the Interahamwe
on the Abakombozi.
- In the opinion of the Chamber, the Accused is individually criminally responsible by
reason of such acts for having aided and abetted in the preparation for and perpetration
of killings of members of the Tutsi group and for having caused serious bodily or mental
harm to members of said group.
- With respect to the acts alleged under paragraph 11 of the Indictment,
the Prosecutor failed to satisfy the Chamber that such acts are proven beyond any
reasonable doubt and that the Accused incurs criminal responsibility as a result.
- Regarding the allegations included in paragraph 12 of the Indictment,
the Chamber is satisfied beyond any reasonable doubt that in April 1994, Tutsis who had
been separated at a roadblock in front of Amgar garage were taken to the office of the
Accused inside Amgar garage and that the Accused thereafter directed that these Tutsis be
detained within Amgar. The Accused subsequently directed men under his control to take
fourteen detainees, at least four of whom were Tutsis, to a deep hole near Amgar garage.
On the orders of the Accused and in his presence, his men killed ten of the detainees with
machetes. The bodies of the victims were thrown into the hole.
- In the opinion of the Chamber, the Accused is individually criminally responsible as
charged for having ordered, committed, aided and abetted in the preparation and execution
of killings of members of the Tutsi group and caused serious bodily or mental harm to
members of said group.
- As concerns the acts alleged in paragraphs 13, 14, 15 and 16 of the Indictment, the
Chamber finds that these have been established beyond any reasonable doubt. From 7 April
to 11 April 1994, several thousand persons, most of them Tutsis, sought refuge at the ETO.
Members of the Interahamwe, armed with rifles, grenades, machetes and cudgels
gathered outside the ETO. Prior to the attack, the Hutus were separated from the Tutsis
who were at the ETO, following which hundreds of Hutus then left the ETO compound. When
UNAMIR troops withdrew from the ETO on 11 April 1994, members of the Interahamwe
and of the Presidential Guard surrounded the compound and attacked the refugees, throwing
grenades, firing shots and killing people with machetes and cudgels. The attack resulted
in the deaths of a large number of Tutsis. The Accused was present during the ETO attack,
armed with a rifle in the midst of a group of attackers who proceeded to throw grenades
and fire shots. He was seen about fifty metres away from the entrance to the ETO. The
Chamber finds that it is established beyond any reasonable doubt that the Accused was at
the ETO and that he participated in the attack against the Tutsi refugees.
- A large number of the refugees who managed to escape or survived the attack on the ETO
then headed in groups for the Amahoro Stadium. On their way, they were intercepted by
soldiers who assembled them close to the Sonatube factory and diverted them towards
Nyanza. They were insulted, threatened and killed by soldiers and members of the Interahamwe
who were escorting them and who were armed with machetes, cudgels, axes and other weapons.
At Nyanza, the Interahamwe forced the refugees to stop; they were assembled and
made to sit at the foot of a hill where armed soldiers stood. The refugees were surrounded
by Interahamwe and soldiers. The Hutus were asked to stand up and identify
themselves and were subsequently allowed to leave. Some Tutsis who tried to leave
pretending to be Hutus were killed on the spot by members of the Interahamwe who
knew them. Grenades were then hurled into the crowd by the Interahamwe and the
soldiers on the hill started shooting. Those who tried to escape were escorted back by the
Interahamwe. Many people were killed. After firing shots and throwing grenades at
the refugees, the soldiers ordered the Interahamwe to start killing them.
Thereupon the Interahamwe started killing, using cudgels and other weapons. Some
young girls were singled out, taken aside and raped before being killed. Many of the women
who were killed were stripped of their clothing. The soldiers then ordered the Interahamwe
to check for survivors and to finish them off. The Accused directed the Interahamwe who
were armed with grenades, machetes and clubs into position to surround the refugees just
prior to the massacre. The Chamber finds that it has been established beyond any
reasonable doubt that the Accused was present and participated in the Nyanza attack.
Furthermore, it holds that by his presence, the Accused abetted in the perpetration of the
crimes.
- With respect to the acts alleged against the Accused, as described in paragraphs 13 to
16 of the Indictment, the Chamber finds that individual criminal responsibility attached
to the Accused for having committed, aided and abetted in the killings of members of the
Tutsi group and having caused serious bodily or mental harm to members of the Tutsi group.
- With respect to the allegations made in paragraph 17 of the
Indictment, the Chamber notes that the Prosecutor has failed to lead evidence in support
of the allegations that, in April 1994, the Accused conducted searches in the Masango Commune.
Nor has the Prosecutor satisfied the Chamber beyond any reasonable doubt that the Accused
instructed that all Tutsis be tracked down and thrown into the river.
- The Chamber finds, with regard to the events alleged in paragraph 18,
that it is established beyond any reasonable doubt that, on 28 April 1994, Interahamwe
conducted house-to-house searches in the Agakingiro neighbourhood demanding
identity cards from people. Tutsis and people belonging to certain political parties were
taken to the "Hindi Mandal" temple, near Amgar garage. The Accused was present
at the location where the detainees had been gathered. He was dressed in military uniform,
including a coat and trousers, and was carrying a rifle. Among the detainees was Emmanuel
Kayitare, alias Rujindiri, a Tutsi. A man called Cekeri told Emmanuel that he knew him and
that he was aware that he was going to the National Development Council (CND). Emmanuel
became frightened and took off running. The Accused caught Emmanuel by the collar of his
shirt to prevent him from running away. He struck Emmanuel Kayitare on the head with a
machete, killing him instantly.
- The Chamber finds that the Accused incurs individual criminal responsibility for such
acts for having personally killed a Tutsi and for having aided and abetted in the
preparation or causing of serious bodily and mental harm on members of the Tutsi group.
- Regarding the events alleged in paragraph 19 of the Indictment, the
Chamber finds that, while it is established that the Accused ordered that the bodies of
the victims be buried, the Prosecutor, however, failed to satisfy the Chamber beyond
reasonable doubt that the Accused gave such orders in order to conceal his crimes from the
international community.
- In light of the foregoing, the Chamber is satisfied beyond reasonable doubt that the
Accused incurs criminal responsibility, under Article 6(1) of the Statute, for having
ordered, committed or otherwise aided and abetted in the preparation or execution of
murders and the causing of serious bodily or mental harm on members of the Tutsi group.
As to whether the above-mentioned acts were committed against the Tutsi group,
specifically targeted, as such, and whether the Accused had the requisite intent in
committing the above -mentioned acts for which he incurs criminal responsibility:
- In its findings on the applicable law with respect to the crime of genocide(2), the Chamber held that, in practice, intent
may be determined, on a case by case basis, through a logical inference from
the material evidence submitted to it, and which establish a consistent pattern
of conduct on the part of the Accused. Quoting a text from the findings in
the Akayesu Judgement, it holds:
"On the issue of determining the offender's specific intent, the Chamber
considers that the intent is a mental factor which is difficult, even impossible,
to determine. This is the reason why, in the absence of a confession from
the Accused, his intent can be inferred from a certain number of presumptions
of fact. The Chamber considers that it is possible to deduce the genocidal
intent inherent in a particular act charged from the general context of
the perpetration of other culpable acts systematically directed against
that same group, whether these acts were committed by the same offender
or by others. Other factors, such as the scale of atrocities committed,
their general nature, in a region or a country, or furthermore, the fact
of deliberately and systematically targeting victims on account of their
membership of a particular group, while excluding the members of other groups,
can enable the Chamber to infer the genocidal intent of a particular act".(3)
- The Chamber notes that many corroborating testimonies presented at trial
show that the Accused actively participated in the widespread attacks and
killings committed against the Tutsi group. The Chamber is satisfied that
the Accused, who held a position of authority because of his social standing,
the reputation of his father and, above all, his position within the Interahamwe,
ordered and abetted in the commission of crimes against members of the
Tutsi group. He also directly participated in committing crimes against Tutsis.
The victims were systematically selected because they belonged to the Tutsi
group and for the very fact that they belonged to the said group. As a result,
the Chamber is satisfied beyond any reasonable doubt that, at the time of
commission of all the above-mentioned acts which in its opinion are proven,
the Accused had indeed the intent to destroy the Tutsi group as such.
- Moreover, on the basis of evidence proffered at trial and discussed in this
Judgement under the section on the general allegations,(4)
the Chamber finds that, at the time of the events referred to in the Indictment,
numerous atrocities were committed against Tutsis in Rwanda. From the widespread
nature of such atrocities, throughout the Rwandan territory, and the fact
that the victims were systematically and deliberately selected owing to their
being members of the Tutsi group, to the exclusion of individuals who were
not members of the said group, the Chamber is able to infer a general context
within which acts aimed at destroying the Tutsi group were perpetrated. Consequently,
the Chamber notes that such acts as are charged against the Accused were part
of an overall context within which other criminal acts systematically directed
against members of the Tutsi group, targeted as such, were committed.
- The Chamber recalls that, in its findings on the general allegations, it
also indicated that, in its opinion, the Tutsi group clearly constitutes a
protected group, within the meaning of the Convention on genocide.
- In light of the foregoing, the Chamber is satisfied beyond any reasonable
doubt; firstly, that the above-mentioned acts for which the
Accused incurs individual responsibility on the basis of the allegations under
paragraphs 10, 12, 13, 14, 15, 16 and 18 of the Indictment, are constitutive
of the material elements of the crime of genocide; secondly,
that such acts were committed by the Accused with the specific intent to destroy
the Tutsi group as such;, and thirdly, that the Tutsi group
is a protected group under the Convention on genocide. Consequently, the Chamber
finds that the Accused incurs individual criminal responsibility for the crime
of genocide.
5.2 Count 2: Crime Against Humanity (extermination)
- Count 2 of the Indictment charges the Accused with crimes against humanity
(extermination), pursuant to Article 3(b) and Article 6(1) of the Statute, for the acts
alleged in paragraphs 10 to 19 of the Indictment.
- In respect of paragraph 10 of the Indictment, the Chambers finds that on 8 April 1994,
the Accused arrived at Nyarugenge Commune in a pick-up truck, carrying firearms
and machetes. The Accused distributed weapons to the Interahamwe and ordered them
to go to work, stating that there was a lot of dirt that needed to be cleaned up.
- The Chamber finds that on the afternoon of 15 April 1994, the Accused went to Cyahafi
Sector, Nyarugenge Commune in a pick-up truck. The Accused opened the back of the
truck and the men who were with him distributed weapons to the Interahamwe. The
Chamber also finds that on or about 24 April 1994 and in the Cyahafi sector, the Accused
distributed fire arms to the President of the Interahamwe of Cyahafi, during an
attack by the Interahamwe on the Abakombozi.
- In respect of the allegations in paragraph 12 of the Indictment, the Chamber finds that
in April 1994 Tutsis were singled out at a roadblock near the Amgar garage and taken to
the Accused, who ordered the detention of these people. The Accused subsequently ordered
that 14 detainees be taken to a hole near the Amgar garage. On the orders of the Accused
and in his presence, ten of these detainees were killed and their bodies were thrown into
the hole.
- In respect of the allegations in paragraphs 13 and 14 of the Indictment, the Chamber
finds that several thousand people, mostly Tutsis, sought refuge at the ETO, from 7 to 11
April 1994. Following the departure of UNAMIR from the ETO, on 11 April 1994 , Colonel
Leonides Rusatila went into the ETO compound and separated Hutus from Tutsis and several
hundred Hutus left the ETO. Thereafter the Interahamwe, together with the
Presidential Guard attacked the people in the compound. The Accused was present and
participated in this attack. A number of Tutsis, including many family members and others
known to the witnesses were killed in the attack.
- In respect of the allegations in paragraphs 15 and 16 of the Indictment, the Chamber
finds that the Accused was present and participated in the forced diversion of refugees to
Nyanza and that he directed and participated in the attack at Nyanza on 11 April 1994.
- The Chamber notes that paragraph 16 of the Indictment alleges that certain events,
namely the separation of Hutus and Tutsis refugees and the attack on the Tutsis refugees,
took place on or about 12 April 1994. As noted by the Prosecutor, these events took place
on 11April 1994. The Chamber does not consider this variance to be material, particularly
in light of the language "on or about". The sequence of events leading to the
massacre is described in paragraphs 14, 15 and 16 of the Indictment as having commenced on
11 April 1994. Moreover, the killing at Nyanza was resumed on the morning of 12 April
1994. The Chamber considers that 11 April 1994 constitutes "on or about April 12,
1994".
- The Chamber further notes that paragraphs 15 and 16 of the Indictment allege that
refugees were transferred to a gravel pit near the primary school of Nyanza, where they
were surrounded and attacked. As the Defence indicated in her closing statement, none of
the witnesses described the site of the massacre as a gravel pit. The evidence establishes
that the refugees were assembled and surrounded at a site at Nyanza, at the base of a
nearby hill. The Chamber does not consider the description of this site as a gravel pit in
the allegation, to be of the essence to the charges set forth in the Indictment and finds
that the allegations set forth in paragraph 15 and 16 of the Indictment have been proved,
beyond a reasonable doubt.
- In respect of the allegations in paragraph 18 of the Indictment, the Chamber finds
beyond a reasonable doubt that on 28 April 1994, Emmanuel Kayitare, together with other
people, were taken to the "Hindi Mandal" temple, near the Amgar Garage, where
they were detained. The Accused was present at this location, and when Emmanuel Kayitare
tried to escape by running off, the Accused grabbed him by his collar and struck him on
his head with a machete, which resulted in his death.
- The Chamber relies on this factual finding to hold the Accused criminally responsible
for crimes against humanity (murder), as charged in Count 7 of the Indictment. The Chamber
finds that the act of killing Emmanuel Kayitare, taken together with other proven acts,
such as, the distribution of fire arms and machetes to the Interahamwe and the
killings at ETO and Nyanza, cumulatively form the basis for crimes against humanity
(extermination). The Chamber will therefore take into consideration the factual findings
in paragraph 18, together with other proven acts, when assessing the responsibility of the
Accused, in respect of Count 2.
- In respect of the allegation in paragraph 19 of the Indictment, the Chamber finds that
the accused ordered the burial of bodies, in order to conceal the dead from the
"'foreigners". The Chamber finds that there is no evidence to suggest that the
Accused ordered the burial of bodies to conceal his crimes from the international
community. The allegation in paragraph 19 has therefore only been proved in part.
- In respect of the allegations in paragraphs 11 and 17 of the Indictment, the Chamber
finds that these allegations have not been proved, beyond a reasonable doubt.
- The Chamber notes that Article 6(1) of the Statute, provides that a person who
"planned, instigated, ordered, committed or otherwise aided and abetted in the
planning, preparation or execution of a crime referred to in Articles 2 to 4 of the
present Statute, shall be individually responsible for the crime."
- The Chamber finds beyond a reasonable doubt that the Accused: aided and abetted in the
killings by distributing weapons to the Interahamwe on 8, 15 and 24 April 1994;
ordered the killing of 10 people in April 1994 who were subsequently killed in his
presence; participated in an attack on the people who sought refuge at the ETO; directed
and participated in the attack at Nyanza; murdered Emmanuel Kayitare and by his conduct
intended to cause the death of a large number of people belonging to the Tutsi ethnic
group, because of their ethnicity.
- The Chamber finds beyond a reasonable doubt that in the time periods referred to in the
indictment there was a widespread and systematic attack on the Tutsi ethnic group, on
ethnic grounds. The accused had knowledge of this attack, and he intended his conduct to
be consistent with the pattern of this attack and to be a part of this attack.
- The Chamber therefore finds beyond a reasonable doubt that the Accused is individually
criminally responsible for crimes against humanity (extermination), pursuant to Articles
2(3)(b) and 6(1) of the Statute.
5.3 Count 3: Crime Against Humanity (murder)
- Count 3 of the Indictment charges the Accused with crimes against humanity
(murder), pursuant to Articles 3(a) and 6(1) of the Statute, for the acts
alleged in paragraph 14 of the Indictment.
- The Chamber notes that pursuant to Count 2 of the Indictment, the Accused
is charged for crimes against humanity (extermination), under Articles 3(b)
and 6(1) of the Statute of the Tribunal, for the acts alleged in paragraphs
10-19 of the Indictment, which acts include the attack on the ETO compound,
as alleged in paragraph 14. The allegations in paragraph 14 of the indictment
also form the basis for Count 3, crimes against humanity (murder)
- The Chamber concurs with the reasoning in the Akayesu Judgement(5)
that:
"[...] it is acceptable to convict the accused of two offences in
relation to the same set of facts in the following circumstances: (1) where
the offences have different elements; or (2) where the provisions creating
the offences protect different interests; or (3) where it is necessary to
record a conviction for both offences in order fully to describe what the
accused did. However, the Chamber finds that it is not justifiable to convict
an accused of two offences in relation to the same set of facts where (a)
one offence is a lesser included offence of the other, for example, murder
and grievous bodily harm, robbery and theft, or rape and indecent assault;
or (b) where one offence charges accomplice liability and the other offence
charges liability as a principal, e.g. genocide and complicity
in genocide."
- As crimes against humanity, murder and extermination share the same constituent
elements of the offence of a crime against humanity, that it is committed
as part of a widespread or systematic attack against any civilian population
on national, political, ethnic, racial or religious grounds. Both murder and
extermination are constituted by unlawful, intentional killing. Murder is
a the killing of one or more individuals, whereas extermination is a crime
which is directed against a group of individuals.
- The Chamber notes that in the Akayesu Judgement, a series of murder
charges set forth in individual paragraphs of the Indictment were held collectively
to constitute extermination. In that case the individual allegations which
formed the basis for counts of murder and at the same time formed the basis
for a collective count of extermination were incidents in which named persons
had been murdered. In this case, the single allegation of the ETO attack,
although charged as murder, is in itself an allegation of extermination, that
is the killing of a collective group of individuals.
- Having held the Accused criminally responsible for his conduct, as alleged
in paragraph 14 of the Indictment, in respect of crimes against humanity (extermination),
as charged in Count 2, the Chamber finds that he cannot also be held criminally
responsible for crimes against humanity (murder), as charged in Count 3 of
the Indictment on the basis of the same act.
5.4 Count 5: Crime Against Humanity (murder)
- Count 5 of the Indictment charges the Accused with crimes against humanity (murder),
pursuant to Articles 3(a) and 6(1) of the Statute, for the acts alleged in paragraph 15
and 16 of the Indictment.
- The Chamber notes that the Accused is charged, pursuant to Count 2 of the Indictment for
crimes against humanity (extermination), under Articles 3(b) and 6(1) of the Statute, for
the acts alleged in paragraphs 10-19 of the Indictment, which acts include the massacre of
Tutsi refugees at Nyanza, as alleged in paragraphs 15 and 16. These allegations also
support Count 5, crimes against humanity (murder).
- For the reasons set forth in the legal findings pertaining to Count 3 above, the Chamber
finds that the Accused cannot be held criminally responsible for crimes against humanity
(murder), as charged in Count 5 of the Indictment.
5.5 Count 7: Crime Against Humanity (murder)
- Count 7 of the Indictment charges the Accused with crimes against humanity (murder),
pursuant to Articles 3(a) and 6(1) of the Statute, for the acts alleged in paragraph 18 of
the Indictment.
- The Chamber finds beyond a reasonable doubt that on 28 April 1994, Emmanuel Kayitare
together with other people were taken near the Amgar Garage, where they were detained. The
Accused was present at this location and when Emmanual Kayitare tried to escape by running
off, the Accused grabbed hold of him by his collar and struck him on his head with a
machette, which resulted in his death.
- The Chamber notes that Article 6(1) of the Statute of the Tribunal provides that a
person who "planned, instigated, ordered, committed or otherwise aided and abetted in
the planning, preparation or execution of a crime referred to in articles 2 to 4 of the
present Statute, shall be individually responsible for the crime." The Chamber finds
beyond a reasonable doubt that the Accused detained or alternatively aided and abetted in
the detention of Tutsis and other people belonging to certain political parties and that
he murdered Emmanual Kayitare when the said Kayitare attempted to escape.
- The Chamber finds beyond a reasonable doubt that Emmanual Kayitare was a
civilianbelonging to the Tutsi ethnic group.
- The Chamber finds beyond a reasonable doubt that in April 1994 there was a widespread
and systematic attack on the Tutsi ethnic group, because of their ethnicity. The accused
had knowledge of this attack and he intended the murder of Kayitare to be consistent with
the pattern of this attack and to be a part of this attack.
- The Chamber finds beyond a reasonable doubt that the Accused is individually criminally
responsible for crimes against humanity (murder), as charged in Count 7 of the Indictment.
5.6 Counts
4, 6, and 8 : Violation of Common Article 3 of the Geneva Conventions (murder)
- Counts 4, 6 and 8 of the Indictment charge the Accused with violations of
Common Article 3 of the 1949 Geneva Conventions, as incorporated in Article
4 of the Statute. The Prosecutor has chosen to restrict the wording of these
counts to violations of Common Article 3 only, even though Article 4 of the
Statute covers both Common Article 3 and also Additional Protocol II of 1977
to the Geneva Conventions of 1949. As indicated supra by the Chamber(6),
Additional Protocol II merely supplements and reaffirms Common Article 3,
without modifying the article's field of applicability. The only true difference
between the Article and the Protocol is the higher threshold to be met for
internal conflicts to be characterized as meeting the requirements of the
Additional Protocol.
- The Prosecutor, in her closing brief, outlined the elements of the offences
and the burden of proof with which she was laden. In so doing, she developed
not only the material requirements to be met for an offence to constitute
a serious violation of Common Article 3, but also presented to the Chamber
the material requirements to be met for Additional Protocol II to be applicable.
It thus transpires from her argumentation that she intended to prove that
the material requirements of both Common Article 3 and Additional Protocol
II had to be met before any finding of guilt could be made with regard to
counts 4, 6 and 8 of the Indictment. Moreover, were any doubt to remain as
to whether the Prosecutor needs to demonstrate that Common Article 3 is applicable,
or that both Common Article 3 and Additional Protocol II are applicable, the
Chamber recalls that in criminal proceedings, matters in doubt should be interpreted
in favour of the Accused. Furthermore, the Trial Chamber considers the material
requirements of Article 4 of the Statute to be indivisible, in other words,
that Common Article 3 and Additional Protocol II must be satisfied conjunctively,
before an offence can be deemed to be covered by Article 4 of the Statute.
Thus, it is the opinion of the Chamber that for a finding of guilt to be made
for any one of counts 4, 6 and 8 of the Indictment, the Chamber must be satisfied
that the material requirements of Common Article 3 and Additional Protocol
II have to be met. Consequently, the Prosecutor must prove that at the time
of the events alleged in the Indictment there existed an internal armed conflict
in the territory of Rwanda, which, at the very least, satisfied the material
requirements of Additional Protocol II, as these requirements subsume those
of Common Article 3.
- On the basis of evidence presented in this case by Professor Reyntjens,
Mr. Nsanzuwera, Professor Mbonimpa and Captain Lemaire, the Chamber is satisfied
that at the time of the events alleged in the Indictment, namely, in April,
May and June 1994, there existed an internal armed conflict between, on the
one hand, the government forces and, on the other, the dissident armed forces,
the RPF. The RPF were under the responsible command of General Kagame and
exercised such control over part of their territory as to enable them to carry
on sustained and concerted military operations. The RPF also stated to the
International Committee of the Red Cross that it considered itself bound by
the rules of international humanitarian law(7).
Moreover, the theater of combat in April 1994 included the town of Kigali,
as the opposing forces fought to gain control of the capital.
- Evidence adduced in support of the paragraphs contained in the general allegations,
and more specifically paragraphs 7 and 8, and also the allegations set out
in paragraphs 14, 15, 16 and 18 of the Indictment, demonstrate that the victims
of the offences were unarmed civilians, men, women and children who had been
identified as the "targets" on the basis of their ethnicity. Those
persons who had carried weapons were disarmed by the UNAMIR troops on entering
the ETO compound. The Chamber does not consider that the bearing of these
weapons prior to being disarmed deprived the victims of the protection afforded
to them by Common Article 3 of the Geneva Conventions and Additional Protocol
II. Indeed, the Chamber is not of the opinion that these "armed"
civilians were taking a direct part in the hostilities, but rather finds that
the bearing of these weapons was a desperate and futile attempt at survival
against the thousands of armed assailants.
- The Chamber is satisfied that the victims were persons taking no active
part in the hostilities and were thus protected persons under Common Article
3 of the Geneva Conventions and Additional Protocol II.
- 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.
- 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.
- Thus, the Chamber is also satisfied that the Accused, as second vice-president
of the youth wing of the MRND, being 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 individually responsible
for serious violations of the provisions of Article 4 of the Statute.
- The Prosecutor argues that the Interahamwe orchestrated massacres
as part of their support to 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 Prosecutor 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.
- 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.
- 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.
- Consequently, the Chamber finds the Accused not guilty of Counts 4, 6, and
8 of the Indictment, being serious violations of Common Article 3 of the Geneva
Conventions (murder), as incorporated under Article 4 (a) of the Statute.
1. See Chapter 2, Section 2 of this Judgement.
2. See Chapter 2, Section 2 of this Judgement.
3. Akayesu Judgement, para. 523.
4. See Chapter 4, Section 8 of this Judgement.
5. Akayesu Judgement, para. 468.
6. See section 2.4 of Applicable Law
7. See Report of the United Nations High
Commissioner for Human Rights on his Mission to Rwanda 11-12 May 1994, paragraph
20.
1. Introduction
| 2. The Applicable Law | 3. The Defence
Case | 4. Factual Findings | 5. Legal Findings | 6.
Verdict | 7. Sentencing