Semanza Judgement 15 May 2003

410. The Indictment charges the Accused with criminal responsibility based on Articles 2(3), 6(1), and 6(3) of the Statute. The Chamber will determine whether the Accused bears criminal responsibility as a superior under Article 6(3) or for ordering under Article 6(1) in this section. The Chamber will assess the Accused’s criminal responsibility pursuant to Articles 2(3) and 6(1), except for ordering, in its subsequent legal findings.

411. The Indictment alleges that the Accused had de jure and/or de facto authority over militiamen, in particular Interahamwe, and other persons, including members of the Rwandan Armed Forces, commune police, and other government agents. [682] Based on his alleged authority, the Prosecutor asserts that the Accused is criminally responsible for the crimes committed at Ruhanga church, Musha church, Mabare mosque, and Mwulire Hill as well as the crimes committed against Victims A through H and J.

412. The Prosecutor posited that the Accused had de jure authority in April 1994 because he was appointed to parliament, allegedly served as MRND Chair for Kigali-Rural, and allegedly formed several political parties. [683] The Chamber recalls that the Prosecutor did not establish that the Accused served as an MRND Chair during the relevant events and that she submitted no evidence that the Accused held a de jure leadership role in any other party. The Chamber did find that the Accused was appointed to the transitional parliament. However, the Prosecutor did not establish the scope and nature of a parliamentarian’s authority at that time or demonstrate that this position gave the Accused de jure authority over militiamen and other persons. The Prosecutor, therefore, did not establish that the Accused exercised any de jure authority over the perpetrators of the crimes committed in Bicumbi and Gikoro communes.

413. The Prosecutor also asserted that the Accused exercised de facto authority over the principal perpetrators of the crimes committed in Bicumbi and Gikoro based on his influence in the community as illustrated, for example, by: (i) his more than twenty years of service as bourgmestre ending in 1993; (ii) the support and good will he enjoyed from the majority of the community based on his prior good works; (iii) his “promotion” to serve in parliament for the Kigali-Rural prefecture; (iv) his continued public presence alongside the new bourgmestre, Rugambarara, and many people’s belief that he was still the bourgmestre; (v) his alleged role as chairman of the MRND party in Kigali-Rural; (vi) his alleged close connections to President Habyarimana and other high government officials; and (vii) his wealth. [684] From its factual findings the Chamber recalls that the Accused was widely viewed as an important and influential personality. However, the Chamber also recalls that the Prosecutor failed to prove the extent, nature, and effect of any personal or political connections.

414. The Prosecutor also submitted that in a number of instances the Accused appeared to be “commanding” or “coordinating” principal perpetrators, thus demonstrating his effective control over them. [685] In particular, Prosecution Witnesses VAK, VA, and VM stated that the Accused led the massacres at Mabare mosque and Musha church. [686] In addition, there were various instances where the Accused appeared to have given orders or permission to kill or rape Tutsis. [687]

415. The Chamber emphasises that the Prosecutor’s theory, which is similar to the approach taken and rejected in Musema, [688] fails to take full account of the correct legal standard. A superior-subordinate relationship is established by showing a formal or informal hierarchical relationship involving an accused’s effective control over the direct perpetrators. A simple showing of an accused’s general influence in the community is insufficient to establish a superior-subordinate relationship. [689]

416. The assertions of Witnesses VA, VM, and VAK that the Accused commanded the attacks are only bare conclusions which lack adequate detail to reliably substantiate that the Accused possessed effective control. Moreover, the Chamber notes that witnesses who are outside of or unfamiliar with an alleged formal or informal hierarchy do not necessarily provide the best indication of an individual’s actual superior authority. [690] Other than general evidence of the Accused’s influence, there is no credible or reliable evidence detailing the specific nature of the superior-subordinate relationship between the Accused and any of the known perpetrators, including those to whom he gave instructions or encouragement to rape and kill. Absent this type of evidence, there is no concrete indication that the Accused had actual authority over the principal perpetrators.

417. The Chamber finds that the evidence of the Accused’s influence in this case does not sufficiently demonstrate that he was a superior in some formal or informal hierarchy with effective control over the known perpetrators. Additionally, the Prosecutor presented insufficient evidence to establish beyond a reasonable doubt that the Accused had the material ability to prevent the crimes in Bicumbi or Gikoro or to punish the known perpetrators.

418. As the Prosecutor did not establish the existence of a superior-subordinate relationship, it is unnecessary to consider whether the Accused knew or had reason to know about the criminal acts of the principal perpetrators or whether he failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators.

419. The Chamber therefore finds that the Accused cannot be held responsible for the crimes charged in the Indictment under Article 6(3) of the Statute or for ordering under Article 6(1).

422. The Chamber took judicial notice of the fact that: “Between 6 April 1994 and 17 July 1994, citizens native to Rwanda were severally identified according to the following ethnic classifications: Tutsi, Hutu and Twa”. [691] Accordingly, it has been established for the purposes of this case that the Tutsi in Rwanda were an “ethnical” group.

424. Based on the factual findings concerning the killings that took place at the four sites in Bicumbi and Gikoro communes enumerated in the Indictment, namely, Ruhanga church, Musha church, Mwulire Hill, and Mabare mosque, the Chamber holds that the situation demonstrates that soldiers, Interahamwe, and other principal authors of the killings were engaged in furthering the general campaign to kill persons identified as Tutsi that was prevalent throughout Rwanda at that time. Moreover, because the killings that occurred at the four sites named in this Indictment were systematically directed against Tutsi civilians, the Chamber infers that the principal perpetrators acted with the intent to destroy the Tutsi ethnical group, as such. Therefore, the Chamber finds that genocide was committed in Bicumbi and Gikoro communes.

425. In its factual findings regarding paragraph 3.11 of the Indictment, the Chamber has found that before the killings, on 8 or 9 April 1994, the Accused, along with Bisengimana and others, went to Musha church to assess the situation. Following his assessment, the Accused was overheard telling Bisengimana that the church had to be burned to kill the refugees inside. The Chamber has found that soldiers, gendarmes, and Interahamwe killed a large number of Tutsi civilian refugees at Musha church on 13 April 1994. On that date, the Accused gathered additional Interahamwe for the attack on Musha church. The attackers showered the church and the substantial number of Tutsi refugees who had gathered there with gunfire and grenades. The attackers fired a rocket-propelled grenade at the wall of the church so that they could enter and continue the killings and assault upon the Tutsi refugees.

426. The Chamber finds that the Accused provided substantial assistance to the principal perpetrators of the genocide by gathering Interahamwe for the attack on Musha church and by directing the attackers to kill the Tutsi refugees at the church.

427. The Accused’s intent is evident from the context in which he committed his acts that provided substantial assistance to the principal perpetrators. The specific acts of the Accused must be viewed in the context of the then existing state of attacks that took place against civilian persons identified as Tutsi at various sites in Bicumbi and Gikoro communes. The Chamber has found that the Accused was present at various sites, including Musha church, Mwulire Hill, and Mabare mosque in April 1994, where a substantial number of Tutsi civilians was systematically massacred on account of their identification as Tutsi. [693] The Accused, having been present at these massacre sites, knew that the principal perpetrators of the killings were killing Tutsi based on their ethnical identification. This knowledge provides evidence of the Accused’s intent for complicity to commit genocide.

428. The Chamber also finds that the Accused acted with the knowledge of the intent of the primary perpetrators who killed Tutsi at the following sites: Musha church, Mwulire Hill, and Mabare mosque. Accordingly, the Chamber finds that the Accused’s actions at those sites were executed with the intent to aid and abet the principal perpetrators of the killings at those sites.

429. In addition to having knowledge of the genocidal intent of the principal perpetrators at the various massacre sites in Bicumbi and Gikoro communes, the Chamber finds that the Accused possessed an independent intent to destroy the Tutsi ethnical group, as such. The trial record provides clear and unequivocal evidence of the Accused’s genocidal intent at the time of the massacres at Musha church. The Chamber has inferred the Accused’s specific intent to aid and abet in the commission of genocide from his actions and from his words. On 8 or 9 April 1994, the Accused told Bisengimana that the church had to be burned to kill the predominantly Tutsi refugees inside. In addition, the Accused’s specific intent to destroy the Tutsi group, as such, is reflected by the fact that he instructed soldiers to separate Hutu from Tutsi, who were then killed by gunfire and grenades. Moreover, the Chamber infers the Accused’s genocidal intent from the statement he made to the principal attackers after they had completed the killings at Mabare mosque on 12 April 1994: “We came to assist you, and I believe that those who have not been killed would not be able to resist you. Go and find them and exterminate them.”

430. The Chamber finds that in gathering Interahamwe for the attack on refugees at Musha church, the Accused provided substantial assistance, and thereby aided and abetted the principal perpetrators in committing the acts of genocide that occurred there. In addition, it was immediately after the direction of the Accused that the attackers killed the Tutsi refugees after they had been separated from the Hutus. By reason of the foregoing acts, coupled with his specific intent, the Chamber finds that the Accused aided and abetted in the massacres at Musha church, as described above.

431. In its factual findings regarding paragraph 3.12 of the Indictment, the Chamber has found that the Accused “participated” in the killings at Mwulire Hill on 18 April 1994 by arriving armed and bringing along with him soldiers, Interahamwe, and their “equipment” to the site, and by firing his weapon into a crowd of predominantly Tutsi refugees at the football field located near the sector office. Although the Chamber has found that the Accused fired his weapon into the crowd of refugees, the Prosecutor failed to provide proof beyond a reasonable doubt about any serious bodily or mental harm or killing that may have resulted from the Accused’s firing into the crowd. However, the Chamber finds that the Accused again provided substantial assistance to the principal attackers by bringing soldiers and Interahamwe and their “equipment” to Mwulire Hill. Moreover, the Chamber finds that the Accused was still operating with the same specific intent, within the same context, and with the knowledge that his acts contributed substantial assistance to the principal perpetrators of the attacks that predicated his participation in killings that took place at Musha church on 13 April 1994.

432. Moreover, by bringing the Interahamwe and their “equipment” to the site where a large-scale massacre of Tutsi refugees was already under way, the Accused provided substantial assistance to the genocidal enterprise undertaken by the assailants who were killing Tutsi at Mwulire Hill. The Accused provided additional Interahamwe and their equipment, the very instruments that assured the commission of the genocidal massacre that was unfolding on Mwulire Hill.

433. For such forms of participation, together with his genocidal intent, the Chamber finds the Accused to be criminally responsible for complicity in genocide for aiding and abetting the principal perpetrators who killed members of the Tutsi ethnic group at Mwulire Hill.

434. The Chamber has also found with respect to paragraph 3.13 of the Indictment that the Prosecutor proved beyond a reasonable doubt that the Accused was armed and present on 12 April 1994 during the killings of Tutsi refugees at Mabare mosque. The Chamber finds that the Accused incurs no criminal liability with respect to the killings and injuries that occurred at Mabare mosque. The Accused’s presence alone at the time of the killings at Mabare mosque does not give rise to criminal liability.

435. In conclusion, the Chamber finds that the Accused aided and abetted the principal perpetrators who killed Tutsi because of their ethnic identification as such. The Chamber has found that the Accused: (1) gathered Interahamwe to assist in the killings that took place at Musha church on 13 April 1994; (2) participated in the separation of Tutsi from Hutu refugees at Musha church on 13 April 1994 and directed the killing of the Tutsi refugees; and (3) participated in the killings at Mwulire Hill on 18 April 1994 by bringing soldiers and Interahamwe to assist in the killings. For such forms of participation, coupled with his genocidal intent, and applying the previously pronounced legal standards and factual findings, the Chamber finds the Accused guilty, beyond a reasonable doubt, of complicity in genocide, as charged in Count 3 of the Indictment.

436. The Chamber finds that the nature of the participation of the Accused is most accurately described as that of an accomplice rather than a principal perpetrator. Because Counts 1 and 3 of the Indictment arise out of the same factual allegations, the Chamber holds that the Accused may be criminally liable only as an accomplice and not as a principal perpetrator, as charged in Count 1 of the Indictment. Therefore, the Chamber finds the Accused guilty on Count 3 and not guilty on Count 1.

437. In Count 2 of the Indictment the Prosecutor charged the Accused as follows:

438. Because the Chamber has found that the allegations in paragraphs 3.7 and 3.8 of the Indictment are too vague to maintain a criminal charge, they are disregarded, and no criminal liability may attach on account of such allegations. Moreover, were the Chamber to consider the factual allegations contained in paragraphs 3.7 and 3.8 of the Indictment, the Chamber would nevertheless find that the evidence is insufficient to sustain the allegations. Therefore, the Chamber finds the Accused not guilty on Count 2.

439. The Accused is charged with the following crimes against humanity: murder (Counts 4, 12, and 14), rape (Counts 8 and 10), torture (Count 11), persecution (Count 6), and extermination (Count 5).

440. As explained in the legal section above, the Prosecution is required to prove that all crimes against humanity are committed as part of a widespread or systematic attack on a civilian population on the enumerated discriminatory grounds.

441. The Chamber took judicial notice of the fact that there was a widespread or systematic attack in Rwanda:

442. The Chamber is now in a position to make a more specific legal finding. In light of the judicially noticed facts, the factual findings made in relation to the internal armed conflict in Rwanda, [695] and the evidence of massacres of civilians between 6 April 1994 and 31 July 1994, [696] the Chamber finds that there were massive, frequent, large scale attacks against civilian Tutsis in Bicumbi and Gikoro communes. These attacks were carried out by groups of attackers and were directed against large numbers of victims on the basis of their Tutsi ethnicity. The Chamber thus finds beyond a reasonable doubt that at all relevant times there was a widespread attack on the Tutsi civilian population of Bicumbi and Gikoro communes on ethnic grounds. Having found that the attack was widespread, the Chamber need not consider whether it was also systematic.

443. The Defence argued that the Prosecutor must also prove that the crimes against humanity were committed to advance a war effort in an internal armed conflict because such allegations are contained in the Indictment. [697] The Chamber sees no merit in this argument because there is no legal requirement in the Statute that crimes against humanity be committed in connection with an armed conflict.

445. In light of its factual and legal findings, the Chamber will not consider the allegations in paragraphs 3.7, 3.8, 3.9, 3.10, 3.15, and 3.16. [698] The Chamber has made factual findings in relation to paragraphs 3.11 through 3.14 about the Accused’s participation in massacres at Musha church, Mabare mosque, and Mwulire Hill.

446. After considering the evidence adduced in support of paragraph 3.11, the Chamber has found that on 13 April 1994, the Accused gathered Interahamwe to participate in the massacre of Tutsi refugees at Musha church and that he directed the assailants to separate the Tutsi refugees from the Hutu refugees and to kill only the Tutsis.

447. The Chamber finds that the perpetrators at Musha church murdered the refugees. The Chamber further finds that these murders were premeditated, in particular because the attackers who arrived with the Accused brought their weapons and because the attackers listened to the Accused’s directions to kill the Tutsi refugees. In light of the various attacks on Tutsis in the Bicumbi and Gikoro region during the month of April 1994, the Chamber finds that this attack formed part of the widespread attack and that the attackers at Musha church were aware that their actions in murdering Tutsi refugees formed part of the widespread attack. Therefore, the Chamber finds that the principal perpetrators committed murder as a crime against humanity.

448. The Chamber also finds that the Accused’s act of gathering Interahamwe to the church substantially supported the principal perpetrators in their acts of premeditated murder. Shortly after the refugees began to gather at the church, the Accused visited the site and expressed an intention to kill the refugees. The Chamber thus finds that in gathering the Interahamwe for the massacre at the church, the Accused acted intentionally and with the awareness that he was assisting the principal perpetrators to commit the crimes of murder at Musha church as part of the widespread attack on the civilian population in the region on ethnic grounds. The Chamber finds that the Accused was aware of what would occur when he gathered Interahamwe for the massacre at the church because the previous day he had been at Mabare mosque where Interahamwe had participated in the murders of refugees.

449. The Chamber also finds that the Accused encouraged and supported the murder of the refugees by ordering the separation of Tutsi from Hutu refugees, by assisting in identifying Tutsi refugees to be murdered, and by directing Interahamwe and soldiers to kill them. The Chamber finds that these acts substantially contributed to the premeditated murder of the refugees because the assailants executed the Accused’s instructions shortly after he gave them. The Accused’s personal involvement in the identification of Tutsi refugees and his direction to kill them reflects that he acted intentionally and with the awareness that he was assisting the principal perpetrators to commit murder as a crime against humanity.

450. The Chamber therefore concludes beyond a reasonable doubt that the Accused aided and abetted the principal perpetrators in committing premeditated murder of the Tutsi refugees at Musha church and is therefore criminally responsible for a crime against humanity.

451. In its factual findings concerning paragraph 3.12, the Chamber has found that the Accused brought Interahamwe and soldiers and their “equipment” to the massacre of the refugees at Mwulire Hill on 18 April 1994 and that he shot at the refugees gathered there.

452. The Chamber finds that on 18 April 1994, the principal perpetrators murdered a large number of civilian refuges on Mwulire Hill. The Chamber is further satisfied that the principal perpetrators acted with premeditation, as evidenced by the daily attacks mounted against the refugees from 8 April 1994 until the final assault on 18 April 1994. On the basis of the totality of the evidence, demonstrating a series of attacks against Tutsi civilians throughout the Bicumbi and Gikoro communes during the month of April 1994, the Chamber also finds that the principal perpetrators acted with the knowledge that, by murdering large numbers of Tutsi civilians, their actions formed part of the widespread attack on the civilian population on discriminatory grounds. The Chamber thus finds that the principal perpetrators committed murder as a crime against humanity at Mwulire Hill.

453. The Chamber finds that the Accused’s acts of bringing Interahamwe, soldiers, and their weapons to the massacre provided substantial support to the principal perpetrators who were murdering the Tutsis civilians at Mwulire hill. It is significant that the refugees were finally vanquished on 18 April 1994 after the Accused brought Interahamwe and armed soldiers to participate in a massive assault on them. The Chamber finds that in bringing the Interahamwe and soldiers to participate in the attack, the Accused acted intentionally and with the awareness that he was assisting the principal perpetrators to commit the crimes. The Accused’s earlier presence at Mabare mosque and his participation in the Musha church massacre demonstrate that he was aware that bringing Interahamwe, soldiers, and weapons to the massacre would assist in the murders and that he knew that these murders formed part of a widespread attack on the civilian Tutsi population.

454. The Chamber has also found that the Accused fired a gun into the crowd of refugees. On the available evidence, the Chamber is not convinced that the Accused personally murdered any refugee. Nevertheless, this act strongly supports the conclusion that the Accused was intentionally acting to assist the principal perpetrators in murdering the refugees and that he did so with full knowledge of the consequences of his actions.

455. The Chamber therefore finds beyond a reasonable doubt that the Accused aided and abetted the premeditated murder of Tutsi civilians at Mwulire Hill on 18 April 1994, and that he is therefore criminally responsible for a crime against humanity.

456. In relation to paragraph 3.13, the Chamber has found that the Accused, armed with a small shotgun, was present during the killing of refugees at Mabare mosque on 12 April 1994. After the massacre, the Accused then told the Interahamwe that “we came to assist you”.

457. The Chamber notes that the Prosecutor failed to prove that the Accused used his firearm, or that he actually assisted the attackers in any other manner such as transporting weapons or reinforcements. The Chamber is not satisfied that the Accused’s statement uttered after the attack provides sufficient evidence of his criminal participation in the massacres. The Chamber recalls that assistance only gives rise to criminal liability under the Statute if it is substantial. Therefore in the absence of specific evidence as to the exact nature of the assistance that the Accused purported to give, the Chamber has no basis on which to find that it was substantial. The Prosecutor adduced no evidence capable of demonstrating that the Accused’s influence and presence at the massacre site during the attack had a substantial effect on the massacre.

458. After the killings, the Accused stated that “I believe that those who have not been killed would not be able to resist you. Go and find them and exterminate them”. However, there was no evidence that any further killings took place as a result of the Accused’s direction.

459. Therefore, the Chamber cannot ascribe criminal responsibility to the Accused for crimes against humanity in relation to the crimes that occurred at Mabare mosque.

460. The Chamber therefore finds beyond a reasonable doubt that the Accused aided and abetted the principal perpetrators of the murders at Musha church and at Mwulire Hill. However, for the reasons explained below, a conviction will not be entered on Count 4 because it is an included offence in Count 5 (extermination as a crime against humanity).

462. In light of its factual and legal findings, the Chamber will not consider the allegations in paragraphs 3.7, 3.8, 3.9, 3.10, 3.15, and 3.16. [699] The Chamber has made factual and legal findings in relation to paragraphs 3.11 through 3.14 about the Accused’s participation in massacres at Musha church, Mabare mosque, and Mwulire Hill. The Chamber notes, however, that the Accused was not proved to have made a substantial contribution to the killings at Mabare mosque.

463. The material element of extermination is the mass killing of a substantial number of civilians. In foregoing legal findings, the Chamber has found that the Accused aided and abetted the principal perpetrators of the murders of civilians at Musha church and Mwulire Hill. The Chamber is not, however, in a position to make a specific finding of the number of deaths at either the Musha church or the Mwulire Hill massacres. The Chamber recalls that a substantial number of refugees were killed at Musha church. One witness recalled seeing around 100 bodies at this site. The Chamber also recalls that on 18 April 1994 there were up to 10,000 refugees at Mwulire Hill and that after the attack the hill was full of corpses. On the basis of the reliable and credible evidence of these two massacres, the Chamber is satisfied that the element of mass killing has been proven beyond a reasonable doubt. The Chamber finds that the scale of killings at these two massacres is sufficient to be termed extermination. The Chamber therefore finds that the principal perpetrators committed extermination as a crime against humanity.

464. The Chamber has found that the Accused intentionally aided and abetted the principal perpetrators at Musha church and Mwulire Hill with the knowledge that he was assisting them to commit murder as a crime against humanity. On the same evidence, and in light of the scale of these events, the Chamber is further satisfied that the Accused also acted to assist the principals to commit extermination as a crime against humanity with the necessary knowledge and awareness. Having regard to the totality of the evidence, and in particular the Accused’s attendance at various massacre sites and his personal statements, the Chamber is convinced beyond a reasonable doubt that the Accused acted intentionally to assist the principal perpetrators to commit extermination as a crime against humanity.

465. Accordingly, the Chamber finds that the Accused is individually criminally responsible for aiding and abetting extermination as a crime against humanity. However, for the reasons expressed in his separate opinion, Judge Dolenc considers that it would be impermissible to convict on Count 5 because of the apparent ideal concurrence of the crime charged therein with the crime of complicity in genocide charged in Count 3. The Chamber, by a majority, finds the Accused guilty on Count 5.

467. In support of the charge of persecution, the Prosecutor has relied on paragraphs 3.7 to 3.16, which allege that the Accused participated in killing, causing serious bodily and mental harm, and raping civilians. The Indictment specifies, at paragraph 3.14, that the massacres targeted the Tutsi ethnic group.

468. In its factual findings, the Chamber has found that the Accused participated in killing civilians, mainly of Tutsi ethnicity, at Musha church and Mwulire Hill, but did not find that the Accused participated in any rapes at these sites. In light of its factual and legal findings, the Chamber will not address the allegations in paragraphs 3.7, 3.8, 3.9, 3.10, 3.15, and 3.16. [700]

469. The material element of persecution is the severe deprivation of fundamental rights on discriminatory grounds. The Chamber considers that it is obvious that killing is a severe violation of the fundamental right to life, [701] which could form the material element of persecution if the killings are perpetrated on discriminatory grounds.

470. The Indictment charges that the Accused committed persecution on political, racial, or religious grounds. The Chamber notes that the Prosecution Closing Brief did not advance any argument that the persecution was committed on racial or religious grounds and that, moreover, there was no evidence to support such grounds. [702] The Closing Brief does, however, advance the new argument that the persecution was ethnically based. Since this ground was not alleged in the Indictment, and is not a ground of persecution enumerated in the Statute, the Chamber will not take it into consideration.

471. The Prosecutor has submitted that the persecutory acts were committed on political grounds against moderate Hutus and others sympathetic to the Tutsi. [703] However, the Prosecutor failed to demonstrate that this is a “political” group. The Chamber further observes that there is nothing in the concise statement of the facts that suggests that any killings were committed on political grounds. After reviewing the evidence, noting in particular the separation of Tutsis from Hutus at Musha church and the public and private statements of the Accused, the Chamber concludes that the primary target of the killings was the Tutsi ethnic group. There is insufficient evidence on the record to explain the reasons for the deaths of Hutus during these attacks. This finding is, moreover, consistent with the Prosecutor’s own characterization of the killings and the Chamber’s legal findings concerning the counts of genocide.

472. Therefore, the Chamber finds that the Prosecutor failed to prove that the Accused is criminally responsible for persecution as a crime against humanity.

474. In light of the Chamber’s finding that paragraphs 3.15 and 3.16 provide insufficient notice to the Accused, the Chamber finds the Accused not guilty on Count 8. Moreover, the Prosecutor has not satisfied the Chamber that the Accused is responsible for any rapes, other than the rape of Victim A charged in Count 10.

476. The Chamber has found, in relation to paragraph 3.17 of the Indictment, that the Accused, in the presence of commune and military authorities, addressed a crowd and asked them how their work of killing the Tutsis was progressing and then encouraged them to rape Tutsi women before killing them. Immediately thereafter, one of the men from the crowd had non-consensual sexual intercourse with Victim A, who was hiding in a nearby home. The Chamber has found that Victim B was killed by two other men from this crowd, but has had insufficient evidence to draw any conclusions about whether she had also been raped.

477. The Chamber finds beyond a reasonable doubt that Victim A was raped by one of the assailants who heard the Accused encouraging the crowd to rape Tutsi women. In light of the generalized instructions about raping and killing Tutsis, the ethnic group targeted by the widespread attack, and the fact that the assailant arrived at Victim A’s hiding place with two others who then killed Victim B, the Chamber finds that this rape was part of the widespread attack against the civilian Tutsi population and that the assailant was so aware. The Chamber therefore finds that the principal perpetrator committed rape as a crime against humanity.

478. Having regard, inter alia, to the influence of the Accused and to the fact that the rape of Victim A occurred directly after the Accused instructed the group to rape, the Chamber finds that the Accused’s encouragement constituted instigation because it was causally connected and substantially contributed to the actions of the principal perpetrator. The assailant’s statement that he had been given permission to rape Victim A is evidence of a clear link between the Accused’s statement and the crime. The Chamber also finds that the Accused made his statement intentionally with the awareness that he was influencing the perpetrator to commit the crime.

479. The Chamber finds beyond a reasonable doubt that the Accused instigated the rape of Victim A as a crime against humanity. Therefore, the Chamber finds the Accused guilty on Count 10.

481. The Chamber has found, in relation to paragraph 3.17 of the Indictment, that the Accused, in the presence of commune and military authorities, encouraged a crowd to rape Tutsi women before killing them. The Chamber has found that Victim A was raped immediately thereafter by one of the men from this crowd. The Chamber has found that Victim B was killed by two other men from this crowd, but has had insufficient evidence to draw any conclusions about whether she had also been raped or tortured.

482. Noting, in particular, the extreme level of fear occasioned by the circumstances surrounding the event and the nature of the rape of Victim A, the Chamber finds that the perpetrator inflicted severe mental suffering sufficient to form the material element of torture. It is therefore unnecessary to determine whether this rape also inflicted severe physical pain or suffering, for which the Prosecutor only adduced evidence of the fact that non-consensual intercourse occurred.

483. The Chamber finds that the rape was committed on the basis of discrimination, targeting Victim A because she was a Tutsi woman. The Chamber recalls that severe suffering inflicted for the purposes of discrimination constitutes torture and, therefore, finds that the principal perpetrator tortured Victim A by raping her for a discriminatory purpose.

484. The Chamber also finds that the torture formed part of the widespread attack on the civilian population since the victim was raped because she was a Tutsi, the ethnicity targeted by the attack. The Chamber finds that the perpetrator was aware of the larger context of his actions, since he acknowledged that he was acting on the encouragement of the Accused to rape women as part of their broader work of killing Tutsis and he knew that others from the crowd were similarly targeting Tutsis for rape and murder. The Chamber therefore finds that the principal perpetrator committed torture as a crime against humanity.

485. The Chamber finds that by encouraging a crowd to rape women because of their ethnicity, the Accused was encouraging the crowd to inflict severe physical or mental pain or suffering for discriminatory purposes. Therefore, he was instigating not only rape, but rape for a discriminatory purpose, which legally constitutes torture. The Chamber finds that his words were causally connected to and substantially contributed to the torture of Victim A because immediately after the Accused made his remarks to the crowd, the assailant went to a nearby home and tortured Victim A by raping her because she was a Tutsi woman. The Chamber notes that the Accused’s general influence in the community and the fact that his statements were made in the presence of commune and military authorities gave his instigation greater force and legitimacy. The Chamber finds that the Accused acted intentionally and with the awareness that he was influencing others to commit rape for a discriminatory purpose as part of a widespread attack on the civilian population on ethnic grounds. Therefore, the Chamber finds that the Accused is criminally responsible for instigating torture as a crime against humanity.

486. The Chamber found, in relation to paragraph 3.18 of the Indictment, that on 13 April 1994, the Accused, in the presence of Bourgmestre Bisengimana, intentionally inflicted serious injuries on Victim C, Rusanganwa, during questioning. The Accused asked Rusanganwa when the Inkotanyi were going to arrive, and the victim responded that he did not know. The Accused then inflicted injuries upon Rusanganwa with a machete, resulting in his death. On this basis, the Chamber finds that the physical and mental pain and suffering were severe. The Chamber also finds that the Accused acted with the aim of obtaining information from the victim. The intentional nature of the Accused’s conduct is demonstrated by his search for Rusanganwa in the crowd and the nature of his question concerning the RPF advance.

487. The Accused’s torture of Rusanganwa occurred during the attack at Musha church, where a large number of Tutsis were killed and which has already been determined to have been part of the widespread attack. The Chamber finds that the torture of Rusanganwa to obtain information about the RPF advance similarly formed part of the widespread attack and that the Accused had such knowledge. Therefore, the Chamber finds that the Accused committed torture as a crime against humanity.

488. On the basis of the foregoing, the Chamber finds that the Accused is individually criminally responsible for torture as a crime against humanity as a principal perpetrator in relation to Victim C and for instigating the torture of Victim A. The Chamber therefore finds the Accused guilty on Count 11.

490. In the factual and legal findings in relation to paragraph 3.17 of the Indictment, the Chamber has found that the Accused instigated a crowd to kill Tutsi women after raping them. Immediately after the Accused’s address, two men from the crowd killed Victim B, who was hiding in a nearby house.

491. The Chamber finds that the principal perpetrators acted with premeditated intention in purposefully seeking out a Tutsi female victim pursuant to the Accused’s instruction and then killing her. From the generalized nature of the Accused’s instructions and the principal’s knowledge that one of their co-attackers was committing crimes against another female Tutsi victim at the same place, the Chamber finds that the principals knew that these acts formed part of the widespread attack on the Tutsi civilian population. Therefore, the Chamber finds that the principal perpetrators committed murder as a crime against humanity by killing Victim B.

492. The Chamber finds that the Accused’s instruction constituted instigation because his words were causally connected to and substantially contributed to the killing of Victim B. In reaching this conclusion the Chamber has noted, inter alia, that the principal perpetrators were present during the Accused’s statement and that they immediately attacked female Tutsi victims as specified by the Accused. The Chamber finds that the Accused made his statement with the awareness and intention that his words would influence the crowd to commit murder as a crime against humanity. The Chamber therefore finds that the Accused is criminally responsible for instigating the principal perpetrators to commit murder as a crime against humanity.

493. The Chamber also recalls its factual findings in relation to paragraph 3.18, in which it has concluded that the Accused intentionally inflicted serious injuries on Rusanganwa, resulting in his death. The Accused looked for Rusanganwa and found him within a large crowd of people, demonstrating the premeditated nature of his conduct. The Chamber finds that by repeatedly striking Rusanganwa with a machete, even after the completion of the questioning, the Accused was acting with a premeditated intent to kill. The Chamber has already found that these actions formed part of the widespread discriminatory attack on the civilian Tutsi population and that the Accused had such knowledge. Therefore, the Chamber finds that the Accused is criminally responsible for the murder of Rusanganwa as a crime against humanity.

494. Therefore, the Chamber finds beyond a reasonable doubt that the Accused is criminally responsible for murder as a crime against humanity for instigating the murder of Victim B and for personally committing the murder of Rusanganwa. The Chamber accordingly finds the Accused guilty on Count 12.

496. The Chamber has found that the Accused told a group of Interahamwe that a particular Tutsi family had not yet been killed and that no Tutsi should survive. Shortly thereafter, the Interahamwe searched for, located, and killed four members of the said family and two neighbours.

497. The Chamber finds that the principal perpetrators followed the Accused’s instructions and intentionally searched for the family, four members of which they then killed along with two neighbours. The Chamber therefore finds that these killings were intentional and premeditated. The Chamber finds that these murders formed part of the widespread attack, and that the principal perpetrators were so aware, since the subjects were clearly targeted because of their Tutsi ethnicity and because one member of the family was alleged to have been among the Tutsis who were defending themselves at Mwulire Hill. The Chamber, therefore, finds that the principal perpetrators committed murder as a crime against humanity.

498. The Chamber is convinced that the Accused’s statements were causally connected to and contributed substantially to the commission of the murders of both the family and their neighbours who were hiding in the same field. The Prosecutor established that at least one of the killers, Antoine Rutikanga, was present when the Accused made the statement. A few hours after the Accused gave his instructions, the principal perpetrators searched for the family named by the Accused, killing four of its members and two neighbours. The Chamber finds that the Accused made his statements with the awareness and intent that his words would influence the principal perpetrators to commit murder as a crime against humanity.

499. The Chamber accordingly finds that the Accused is individually criminally responsible for instigating the murders of Victims D, E, F, G, H, and J as a crime against humanity and is therefore guilty on Count 14.

500. The Accused has been found individually criminally responsible for murder and extermination as crimes against humanity in respect of the same factual circumstances, namely the massacres at Musha church and Mwulire Hill. Applying the test set out in Musema, the Chamber finds that murder and extermination as crimes against humanity each require proof of an element that is not required for the other crime. Murder as a crime against humanity as defined by the Statute has the element of premeditation, which is not required for killings which form extermination. Extermination, on the other hand, has an element of mass killing, which is not required for murder. Thus, the two crimes are legally distinct.

501. Cumulative convictions based on the same facts are permissible when the crimes have distinct elements, as they serve to describe the full culpability of the Accused and to provide a complete picture of his criminal conduct. [704] However, the Chamber takes note of the recent instruction of the ICTY Appeals Chamber that the distinct elements test for permissible cumulative convictions should not be applied mechanically or blindly. The ICTY Appeals Chamber has urged that care is needed in applying the elements test so as to avoid prejudice to the accused. [705]

502. The single distinguishing element of murder as a crime against humanity in the Statute is the requirement that it be committed with premeditation. Faced with an ambiguity between the English and French versions of the Statute, the Chamber adopted the higher mental element of premeditation, inter alia, because it was more consistent with a bilingual interpretation of the Statute and because it was apparently more favourable to the Accused. [706] The Chamber observes, however, that in this case the net result of the application of this higher mental element is that the Accused now faces cumulative convictions for murder and extermination.

503. The Chamber observes, moreover, that the elements of murder and extermination by means of direct killing are not substantially different. Premeditation, which requires planning, preparation, or at least a cool moment of reflection, [707] is not legally required for extermination by killing. However, it is difficult to imagine how a person could intend to perpetrate a mass killing of members of a civilian population with knowledge that this formed part of a wider attack on discriminatory grounds, without a level of intent very closely approaching or identical to premeditation. In practical terms, the same facts are used to prove the mental element of murder as are used to prove the mental element for extermination by killing. It therefore cannot be said that the elements of each of the crimes are materially distinct. [708]

504. In this case, where the murder and extermination are based on identical facts of premeditated killings and on the same mode of participation, convicting for both counts would not provide a better or more complete description of the entire criminal culpability of the Accused.

505. The Chamber thus considers that, in the circumstances of this case, the crimes against humanity of murder and extermination constitute the same core offence and that murder is best understood to be an included offence in the crime of extermination committed by killing. Two convictions on the basis of ideal concurrence of crimes are not justified in these circumstances. The Chamber will, therefore, not enter a conviction for murder as a crime against humanity charged in Count 4.

506. The Accused has been found to have instigated both rape and torture as crimes against humanity on the basis of the same facts. Applying the Musema test, the Chamber has carefully considered the elements of crimes against humanity of rape and torture. The ICTY Appeals Chamber in Kunarac concluded that convictions for both crimes on the basis of the same facts are permissible because rape and torture each contain one materially distinct element not contained in the other; rape requires sexual penetration, while torture requires that harm be inflicted for a prohibited purpose. [709] Therefore, both convictions will be entered in order to give a complete picture of the Accused’s criminal conduct.

507. The Accused has been found criminally responsible for both torture and murder in relation to Rusanganwa. Applying the Musema test, it is clear that torture and murder as crimes against humanity have distinct elements. Torture is the infliction of severe pain and suffering for a prohibited purpose, while murder is the premeditated killing of the victim. When acts of torture lead to the killing of the victim, the culpable torturous conduct remains of such great independent importance that it must be reflected in the cumulative conviction on both crimes. In the circumstances of this case, where Rusanganwa died as a result of the torture, both convictions must stand in order to properly describe the totality of the Accused’s culpable conduct.

508. The Chamber observes that the Prosecutor employed an inconsistent methodology, charging the Accused with three separate, yet overlapping, counts of murder as a crime against humanity. The Chamber considers that, as a starting point, one count should ordinarily represent a single crime. The nature of international crimes dictates that one crime may encompass a continuing or repeated pattern of actions that are logically connected by factors including time, place, victims, co-perpetrators, method, position of authority, mode of participation, motives, or intention, and which thereby form part of the same transaction.

509. In making the legal finding for Count 5, the Chamber has found that the Accused incurred criminal responsibility for aiding and abetting extermination in relation to the killings of a large number of refugees at Musha church. The Accused has also been found responsible in Count 12 for personally committing the murder of Victim C during the extermination at Musha church. The Chamber finds that although both of these crimes are based on the events at Musha church on 13 April 1994, they are actually premised on different subsets of facts. The Accused’s responsibility for extermination was based on aiding and abetting the principal perpetrators in the massacre at Musha church. Responsibility for the murder of Victim C was based on the Accused’s personal participation in seeking out, torturing, and killing Rusanganwa at the same site during the extermination.

510. In this instance, the Chamber is of the view that both convictions may stand in order to describe the totality of the Accused’s culpable behavior at Musha church.

511. Counts 7, 9, and 13 charge the Accused with serious violations of Common Article 3 and Additional Protocol II under Article 4 of the Statute.

512. At the threshold, the Prosecutor must prove the following three elements beyond a reasonable doubt: (1) that a non-international armed conflict existed on the territory of the concerned state; (2) that the victims were not taking part in the hostilities at the time of the alleged violation; and (3) that a nexus existed between the Accused’s alleged crimes and the non-international armed conflict. If these three elements are proved, the Chamber will then assess whether a specific violation of Common Article 3 or Additional Protocol II occurred.

513. In light of its findings, the Chamber will assess only Counts 7, 9, and 13 in the context of the alleged violations occurring at Musha church (paragraph 3.11), Mwulire Hill (paragraph 3.12), and Mabare mosque (paragraph 3.13), as well as the alleged violations committed against Rusanganwa (paragraph 3.18) and Victims A and B (paragraph 3.17).

514. Based on its findings with respect to paragraph 3.4.2 of the Indictment, the Chamber finds beyond a reasonable doubt that during the relevant period, an armed conflict of a non-international character existed on the territory of Rwanda. [710]

515. The Chamber recalls that Rusanganwa, Victims A and B, and the victims at Musha church, Mwulire Hill, and Mabare mosque were not taking part in the hostilities at the time of the alleged offences. In reaching this conclusion, the Chamber has fully considered the suggestions of the Defence that armed RPF infiltrators provoked the attacks or were involved in the fighting. This contention is not supported, however, by any credible or reliable evidence. Moreover, the Chamber emphasises that the possible presence of combatants within groups of refugees does not deprive those who are non-combatants of their protected status.

516. A majority of the Chamber finds that the relevant crimes charged against the Accused in Counts 7, 9, and 13 were closely related to the hostilities; Judge Ostrovsky dissents from the finding of nexus discussed herein for the reasons set out in his separate opinion. In Counts 7, 9, and 13, the Prosecutor averred that the Accused committed the alleged crimes “in the course of a non-international armed conflict”. The Chamber understands this phrase as meaning that the alleged crimes had a nexus to the armed conflict.

517. A nexus exists between the alleged offence and the non-international armed conflict when the alleged offence is closely related to the hostilities. In determining whether the requisite close relation exists, the Chamber agrees with the following observation of the ICTY Appeals Chamber in Kunarac:

518. In the Chamber’s opinion, the ongoing armed conflict between the Rwandan government forces and the RPF, which was identified with the Tutsi ethnic minority in Rwanda, both created the situation and provided a pretext for the extensive killings and other abuses of Tutsi civilians. The Chamber recalls that in this case the killings began in Gikoro and Bicumbi communes, shortly after the death of President Habyarimana, when the active hostilities resumed between the RPF and government forces. Civilians displaced by the armed conflict, as well as those fearing the increasing violence in their localities, who were mostly Tutsi, sought refuge at sites such as Mabare mosque, Musha church, and Mwulire Hill, or went into hiding, such as Victims A and B.

519. In the Chamber’s opinion, certain civilian and military authorities, as well as other important personalities, exploited the armed conflict to kill and mistreat Tutsis in Bicumbi and Gikoro. Rwandan government soldiers and gendarmes played an active role in the attacks against the concentrated refugee populations at Musha church, Mabare mosque, and Mwulire Hill. The participation of armed soldiers and gendarmes in the massacres substantially influenced the manner in which the killings were executed. The evidence reflects that these attacks generally involved a number of armed soldiers, gendarmes, Interahamwe militiamen, and commune authorities. The involvement of military officials and personnel in the killings of local Tutsi civilians tied these killings to the broader conflict.

520. The Accused participated in these operations by gathering or bringing Interahamwe militiamen and soldiers to the attacks. He also worked in tandem with the soldiers and Interahamwe to identify and kill Tutsi civilian refugees. The Chamber also recalls that with soldiers and high ranking military and commune officials at his side, the Accused asked a crowd how their work of killing the Tutsis was progressing and encouraged them to rape Tutsi women before killing them.

521. The armed conflict also substantially motivated the attacks perpetrated against Tutsi civilians in Bicumbi and Gikoro. During the massacre at Musha church, the Chamber recalls, the Accused specifically sought out Rusanganwa, who was a prominent Tutsi, and questioned him about the RPF advance. When Rusanganwa did not provide any information, the Accused struck him with a machete contributing to his death. Moreover, as the RPF army advanced toward Bicumbi and Gikoro, the killings of Tutsi civilians in these two communes intensified. This is illustrated in particular by the Mwulire Hill massacre, where the refugees had successfully defended themselves between 8 and 18 April 1994 from daily attacks. The Chamber recalls, however, that on 18 April 1994, as the RPF army neared the commune, the Accused brought Interahamwe and armed soldiers to Mwulire Hill to participate in a massive assault, which decisively defeated the refugees’ resistance and resulted in the massacre of most of the civilians there.

522. The Accused’s participation in the military operations conducted against civilian refugees and, in particular, his attempt to elicit information concerning the advance of the enemy army reveal that his conduct was closely related to the hostilities. The Chamber therefore has no doubt that a nexus existed between the Accused’s alleged offences and the armed conflict in Rwanda.

a. Count 7: Violence to life, health and physical or mental well-being of persons, in particular, murder, as well as cruel treatment such as torture, mutilation or any form of corporal punishment

524. The Accused is charged with serious violations of Common Article 3 and Additional Protocol II in relation to his acts at Musha church (paragraph 3.11), Mwulire Hill (paragraph 3.12), and Mabare mosque (paragraph 3.13).

525. The Accused gathered and brought Interahamwe to participate in the killings of hundreds of Tutsi refugees at Musha church and instructed Interahamwe and soldiers to separate the Tutsi refugees from the Hutu refugees and to kill the Tutsis.

526. The actus reus of “murder” requires that the perpetrator engage in the intentional killing of civilians. The Chamber finds beyond a reasonable doubt that the perpetrators at Musha church engaged in the intentional killing of civilians as evidenced by the killing of the Tutsi civilians on the Accused’s directions after their separation from the Hutu refugees.

527. The Chamber finds that the Accused’s acts of gathering Interahamwe to participate in the massacre provided substantial support to the killing of civilians at Musha church because the assailants brought by the Accused engaged in the killings. The Chamber also finds that in gathering the Interahamwe for the massacre at the church, the Accused acted intentionally and with the awareness that he was assisting the principal perpetrator to commit the crimes. The Chamber finds that the Accused was aware of what would occur when he gathered the Interahamwe because the previous day he had been at Mabare mosque where Interahamwe had participated in the killings. In addition, before going to Musha church, he urged people in a crowd to rape and kill Tutsi women.

528. The Chamber also finds that the Accused encouraged and supported the murder of civilians when he instructed soldiers to separate Tutsi from Hutu refugees, assisted in identifying Tutsi refugees to be murdered, and then directed the Interahamwe and soldiers to kill the refugees. The Chamber finds that these acts substantially contributed to the murder of these civilian refugees because the assailants executed the directions shortly after the Accused gave them, and the Accused personally pointed out specific civilian Tutsi refugees who were then killed. The Chamber also finds that the Accused’s personal and integral involvement in the identification of Tutsis and his directions given to the assailants reflect that he acted intentionally and with the awareness that he was assisting the principal perpetrators to commit the crime.

529. The Accused brought Interahamwe and soldiers to the decisive attack on the Tutsi civilians at Mwulire Hill on 18 April 1994 and shot into a crowd of refugees.

530. The Chamber finds beyond a reasonable doubt that the perpetrators at Mwulire Hill engaged in the intentional killing of Tutsi civilian refugees.

531. The Chamber finds that the Accused’s acts of bringing Interahamwe, soldiers, and their “equipment” to the massacre provided substantial support to the murder of Tutsi civilians because these assailants engaged in the killings which only occurred on a large scale during this attack. The Chamber also finds that in bringing the Interahamwe and soldiers to the attack, the Accused acted intentionally and with the awareness he was assisting the principal perpetrators in committing the crimes. The Accused’s earlier presence at Mabare mosque and his participation in the Musha church massacre demonstrate that he was aware that bringing Interahamwe, soldiers, and their “equipment” to Mwulire Hill would assist in the killings.

532. The Chamber also found that the Accused fired his weapon into a crowd of refugees. On the available evidence, the Chamber is not convinced that the Accused thereby personally killed or injured any refugee. However, this act further reflects that the Accused acted intentionally to assist the principal perpetrators in murdering the refugees and that he did so with full knowledge of the consequences of his actions.

533. The Accused was armed and present during the massacre at Mabare mosque and afterwards told the attackers that “we came to assist” and urged the attackers to seek out and exterminate those who had not been killed.

534. The Prosecutor did not prove that the Accused used his firearm or actually assisted the attackers, for example, by bringing weapons or reinforcements. The Chamber is not satisfied that the Accused’s statement, “we came to assist you”, uttered after the attack, provides sufficient evidence of his criminal participation in the massacre. The Chamber recalls that assistance only gives rise to criminal liability under the Statute where it is substantial. Therefore, in the absence of specific evidence as to the exact nature of the assistance the Accused purported to give, the Chamber has no basis for determining that it was substantial. Moreover, the Prosecutor provided no evidence that would definitively indicate that the Accused’s mere presence or his statements at the end of the massacre had a substantial effect on the execution of the massacre or any further killings.

535. The Chamber finds beyond a reasonable doubt that the Accused aided and abetted in the intentional murders committed at Musha church and Mwulire Hill. The majority, Judge Ostrovsky dissenting for reasons set out in his separate opinion, finds that these acts constitute violations of Article 4(a) of the Statute.

536. Judge Williams is of the view that based on the law and the facts a conviction should be entered on this Count for the reasons stated herein. However, for the reasons expressed in his separate opinion, Judge Dolenc considers that it would be impermissible to convict on Count 7 because of the apparent ideal concurrence of the crime charged therein with the crime of complicity in genocide charged in Count 3. Therefore, by a majority, no conviction will be entered for Count 7.

b. Count 9: Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault

538. The Accused is charged with serious violations of Common Article 3 and Additional Protocol II for his conduct in relation to acts of rape and sexual violence allegedly occurring at Musha church (paragraph 3.11), Mwulire Hill (paragraph 3.12), and Mabare mosque (paragraph 3.13).

539. The Chamber recalls that the Prosecutor failed to introduce any evidence of the occurrence of rape or other forms of sexual violence at these sites. Therefore, the Chamber finds the Accused not guilty on Count 9.

c. Count 13: Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment

541. The Accused is charged with serious violations of Common Article 3 and Additional Protocol II for his acts in relation to the alleged violations committed against Victims A and B (paragraph 3.17) and Rusanganwa (paragraph 3.18).

542. The Accused, in the presence of commune and military authorities, addressed a crowd and asked them how their work of killing the Tutsis was progressing, and then encouraged them to rape Tutsi women before killing them. Three men from this crowd came to the nearby house where Victims A and B were hiding. One of these assailants had non-consensual sexual intercourse with Victim A. Two others took Victim B outside where she was killed.

543. The actus reus of rape is non-consensual sexual penetration. The Chamber finds that Victim A was raped by one of the assailants who heard the Accused encourage the crowd.

544. The actus reus of torture involves the intentional infliction of severe mental or physical pain for the purpose of obtaining information or a confession; or punishing, intimidating or coercing the victim or a third person; or discriminating, on any ground, against the victim or a third person. The Chamber also notes that an act of rape may constitute torture if committed for a prohibited purpose.

545. The Chamber finds that the rape of Victim A constitutes torture because the assailant raped her because she was a Tutsi, which is a discriminatory purpose. In particular, the Chamber notes that the perpetrator acted intentionally and with this prohibited purpose because he acknowledged the Accused’s discriminatory instructions to rape Tutsi women as part of their broader work of killing Tutsis.

546. Prosecution Witness VV heard Victim B scream that she preferred that the two attackers who took her outside kill her and that, when the witness left the house after the assailants had left, she found Victim B dead. There is insufficient evidence to establish whether Victim B was raped or tortured. The Chamber finds, however, that Victim B was intentionally murdered by the two men.

547. The Chamber finds that the Accused’s encouragement to the crowd to rape Tutsi women as part of their work of killing Tutsis had a substantial effect on the rape and torture of Victim A and the murder of Victim B. The assailants, who perpetrated the acts, heard the Accused speak and immediately afterwards committed the acts. The admission by Victim A’s assailant, who heard the Accused speak, that he had authorisation to rape her indicates that he was acting on Accused’s directions to rape Tutsi women. The Chamber also notes that the Accused’s general influence in the community and the fact that he made the statement in the presence of commune and military authorities gave his encouragement greater force and seeming legitimacy.

548. The Chamber also finds that in encouraging the crowd, the Accused acted intentionally and with the awareness that he was contributing to the commission of the crimes by the principal perpetrators. The Accused’s discussion with the crowd about their progress of killing Tutsis reflects that he was aware that this crowd would engage in criminal acts.

549. During the Musha church massacre, the Accused and Bisengimana, the bourgmestre of Gikoro, specifically sought out Rusanganwa and questioned him about the RPF advance. When Rusanganwa did not provide any information, the Accused repeatedly struck him with a machete. The Chamber finds that by these acts, the Accused tortured Rusanganwa by inflicting serious physical pain with the aim of obtaining information about the RPF advance. The intentional nature of the Accused’s conduct is demonstrated by his seeking out Rusanganwa for questioning and using the machete for inflicting serious injury shortly after Rusanganwa’s negative response to the question.

550. The Chamber also finds that the Accused intentionally contributed to the killing of Rusanganwa. In the Chamber’s opinion, the Accused’s infliction of blows with a machete reflects that he intended to kill Rusanganwa.

551. The Chamber finds beyond a reasonable doubt that the Accused instigated the rape and torture of Victim A and the murder of Victim B and that the Accused committed torture and intentional murder of Rusanganwa. The majority, Judge Ostrovsky dissenting for reasons set out in his separate opinion, finds that these acts constitute violations of Article 4(a) of the Statute.

552. Judge Williams is of the view that based on the law and the facts a conviction should be entered on this Count for the reasons stated herein. However, for the reasons expressed in his separate opinion, Judge Dolenc considers that it would be impermissible to convict on Count 13 because of the apparent ideal concurrence of the crime charged therein with rape, torture, and murder as crimes against humanity charged in Counts 10, 11, and 12. Therefore, by a majority, no conviction will be entered for Count 13.

[682] The Prosecutor has also advanced a novel theory that the Accused must be held criminally responsible as a superior of the Interahamwe based on the “de son tort principle”. Prosecution Closing Brief paras. 122-124. The Prosecutor explains that “if in the absence of lawful warrant or authority a meddlesome stranger elects to intermeddle in matters of no concern to him, he will be forbidden from escaping responsibility for any wrongs that resulted from his involvement in the transaction in question by simply claiming to have no authority.” Id. para. 122. The Prosecutor notes that “this principle follows from the theory of intermeddling and is grounded in plain common sense.” Id. The Chamber notes that the sole legal support that the Prosecutor has advanced in support of her theory is an allusion to the law of succession and a citation to Black’s Law Dictionary, which discusses this concept in the context of civil liability for a person who acts as an executor of a will without lawful authority. The Chamber finds that the Prosecutor has advanced no relevant authority to justify the application of her unusual theory based curiously on intermeddling in the execution of a will to impose international criminal responsibility on a superior for the acts of his subordinates. Such a theory would run counter to the essential requirement of effective control.

[684] Prosecution Closing Brief paras. 113-114.

[685] Prosecution Closing Brief paras. 115-116.

[686] Prosecution Closing Brief para. 115; Testimony of VAK, T. 15 March 2001 pp. 92-93 (Mabare mosque); Testimony of VA, T. 7 March 2001 pp. 57-58, 105 (Musha church); Testimony of VM, T. 6 March 2001 pp. 90, 91, 99, 144 (Musha church).

[687] Testimony of VV, T. 29 March 2001 pp. 8-9; Testimony of VAM, T. 13 March 2001 pp. 31-32, 96, 99, 100; Testimony of VAK, T. 15 March 2001 p. 92; Testimony of VAV, T. 20 March 2001 p. 28; Testimony of VP, T. 4 December 2000 p. 93.

[688] As in this case, several Prosecution witnesses in Musema testified that the Accused, a tea factory director, “was perceived as a figure of authority and considerable influence in the region,” was “‘very well respected’ in the locality”, “occupied an important position in Rwanda”, “was considered to have the same powers as a Prefet” and was seen sitting with officials at political meetings. Musema, Judgement, TC, para. 868. Based on the evidence, the Trial Chamber in Musema found that the Accused was “a figure of authority and someone who wielded considerable power in the region”, but nonetheless found that the evidence was not sufficient to show that the Accused exercised de jure or de facto authority over the population of his prefecture. Musema, Judgement, TC, para. 881.

[689] Bagilishema, Motifs de l’Arrêt, AC, para. 50; Celebici, Judgement, AC, paras. 266, 303; Kvocka, Judgement, TC, paras. 439, 440; Musema, Judgement, TC, para. 881.

[690] See, e.g., Kvocka, Judgement, TC, paras. 431-440.

[691] Prosecutor v. Semanza, Case No. ICTR-97-20-I, Decision on Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, TC, 3 November 2000, Annex A, para. 1. See Annex II, Part A, para. 1.

[692] Semanza, Decision on Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, Annex A, para. 2. See Annex II, Part A, para. 2.

[693] See Semanza, Decision on Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, Annex A, para. 2. See Annex II, Part A, para. 2.

[694] Semanza, Decision on Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, Annex A, para. 2. See Annex II, Part A, para. 2.

[701] Universal Declaration of Human Rights, G.A. Res. 217A (III), UN Doc A/810, p. 71 (1948), art. 3; International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16), p. 49, UN Doc. A/6316 (1966), 993 U.N.T.S. 3, art. 6.

[702] Prosecution Closing Brief paras. 73-78.

[703] Prosecution Closing Brief paras. 77-78.

[705] Kunarac, Judgement, AC, paras. 168-174.

[706] But see Musema, Judgement, TC, para. 214; Rutaganda, Judgement, TC, para. 79; Akayesu, Judgement, TC, para. 588; Vasiljevic, Judgement TC, para. 205; Kvocka, TC, para. 132; Krstic, Judgement, TC, para. 485; Kordic, Judgement, TC, para. 235; Blaskic, Judgement, TC, para. 216; Jelisic, Judgement, TC, para. 51.

[707] Kayishema and Ruzindana, Judgement, TC, para. 139.

[708] Kayishema and Ruzindana, Judgement, TC, para. 633.

[710] See Prosecutor v. Semanza, Case No. 97-20-I, Decision on the Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, TC, 3 November 2000, para. 48, Annex A, para. 3. See Annex II, Part A, para. 3.