1. I fully agree
with and share in the Judgement with the exception of the Majority’s view
that Article 4(a) of the Tribunal’s Statute was violated. This article coincides
with Article 4(2)(a) of Additional Protocol II which reproduces without substantial
changes Article 3 common to the Geneva Conventions (“Common Article 3”).
2. Thus, from
the point of view of the Majority, there was a serious violation of Common
Article 3 and Additional Protocol II. These two international instruments
enumerate the violations of the laws or customs of war, which were determined
to be war crimes in Article 6 of the Nuremberg Charter.
3. In my opinion,
the Majority position on this issue is not grounded in law and is, furthermore,
not supported by the Chamber’s factual findings.
A. Background
4. 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 of the Tribunal.
5. In light
of the Chamber’s factual and legal findings, I agree to assess Counts 7, 9,
and 13 in the context of the events occurring at Musha church (paragraph 3.11),
Mwulire Hill (paragraph 3.12), and Mabare mosque (paragraph 3.13) [“three
sites”]. I also agree to assess the alleged violations committed against Rusanganwa
(paragraph 3.18) and Victims A and B (paragraph 3.17).
6. The Chamber
established that the victims at the three sites and the other above-mentioned
crimes were Tutsi refugees, who were not taking part in the non-international
armed conflict, which existed on the territory of Rwanda during the relevant
period covered by the Indictment.
7. The Chamber
also established that these Tutsi refugees were victims of the policy of genocide
that was unleashed in the country after the death of the President on 6 April
1994.
8. The fundamental
question that must be answered is whether these civilians became the victims,
not only of genocide and of certain crimes against humanity, but also of the
armed conflict.
9. Pursuant
to Common Article 3, each party to a conflict is bound to apply certain provisions
for the protection of war victims. In accordance with Article 1 of Additional
Protocol II, the parties in the armed conflict on the territory of Rwanda,
during the relevant period covered by the Indictment, were the Rwandan governmental
armed forces, the FAR, and the dissident armed forces, the RPF. Violation
by one of the parties of the laws or customs of war inevitably means a breach
of Common Article 3 and Additional Protocol II, which comprise these laws
and customs.
B. Protection
of the Civilian Population
10. The preamble of Additional Protocol II emphasises
the need to ensure a better protection for the victims of internal armed conflict.
In practice, it means that the parties in the conflict should conduct military
operations so as not to affect the civilian population. Therefore, Common
Article 3 and Additional Protocol II intend to protect the victims of an internal
conflict, and not simply to protect all individuals from crimes unrelated
to the conflict. This principle is confirmed by Additional Protocol II, which
states that “[t]he civilian population and individual civilians shall enjoy
general protection against the dangers arising from military operations.” [775]
11. Therefore, the purpose of Additional Protocol II is to ensure better
protection for victims of internal armed conflict. The protection of the civilian
population against its own authorities is a different matter which is not
covered by Common Article 3 and Additional Protocol II. This protection does
fall within the scope of numerous related international human rights instruments.
12. During wartime different crimes may be committed,
but not all of them relate to international humanitarian law. The Trial Chamber
in Aleksovski noted: “not all unlawful acts occurring during an armed
conflict are subject to international humanitarian law. Only those acts sufficiently
connected with the waging of hostilities are subject to the application of
this law.” [776]
13. In this respect, it is important to recall a statement
of the International Committee of the Red Cross, that in wartime international
humanitarian law coexists with human rights law, and a state at war cannot
use the armed conflict as a pretext for ignoring the provisions of human rights
law. [777]
C. Nexus
as a Main Requirement
14. In view of the foregoing, the jurisprudence of the ICTR and ICTY use
the term “nexus” as a main requirement in order to determine whether crimes
committed during an armed conflict constitute war crimes. It has been the
position of this Tribunal and the ICTY that the nexus requirement is met if
the alleged offence is “closely related to the hostilities”, or is “committed
in conjunction with armed conflict”, or is “a part of it.” The wording could
be different, but the main criterion is to establish that the offence is committed
as a result of a violation of the laws or customs of war during an internal
armed conflict. This is the real meaning of the term “nexus”.
15. As the Judgment in Kayishema and Ruzindana makes clear:
25. Thus, the Appeals Chamber underlines the impact of
the armed conflict on the perpetrators of crimes. In Kunarac, the crime
was committed in specific circumstances when “the three accused, in their
capacity as soldiers, took an active part in carrying out military tasks during
the conflict, fighting on behalf of one of the parties to the armed conflict,
namely the Serb side and that they therefore knew that an armed conflict was
taking place.” [786]
26. Consequently, the armed conflict was not causal to the commission of
this crime, but played a substantial part in these soldiers’ ability to commit
a crime, in their decision to do it, in the manner in which it was committed,
or the purpose for which it was committed.
27. As to the second sentence of the Appeals Chamber,
a very important part of this sentence is omitted, namely that this statement
is related to the specific crimes in Kunarac. In that case, the
existence of a nexus was not questioned because during this armed conflict,
“Muslim civilians were killed, raped, or otherwise abused as a direct result
of the armed conflict, and because the armed conflict apparently offered blanket
impunity to the perpetrators.”
[787]
28. Therefore, according to the Majority, because the Appeals Chamber acknowledged
the existence of the nexus in Kunarac, the requisite nexus also exists
in our case despite the fact that our Accused was not a combatant like the
three Serb soldiers, and the circumstances in which he committed the crimes
are completely different.
29. The existence of a nexus should not be proved in such a way. It is
obvious that the statement of the Appeals Chamber with regard to a particular
case must not be automatically applied to another case without any analysis
showing that there is a ground for such an application.
30. Hence, it is clear that in Kunarac the crimes
were committed by three soldiers in conjunction with the armed conflict and
that the victims were Muslim civilians. In Krnojelac, the Trial Chamber
took notice of the widespread and systematic attacks by the Serb forces against
non-Serb civilian population.
[788] Moreover, in Tadic, the Trial Chamber used even more clear
language, considering the nature of such armed conflicts as an ethnic war. [789]
31. The character of the armed conflict in Rwanda was different. Having
started the war in 1990, the RPF did not target any ethnicity. It was a war
for power in the country. There is no evidence that there was a genocide in
1990, 1991, 1992, and 1993. The policy of genocide was unleashed only after
6 April 1994, and not by the RPF, and not against the RPF and its members.
32. The evidence shows that this policy of genocide was
unleashed by the Rwandan authorities against their own civilian population
of a particular ethnicity. This crime was parallel to the armed conflict,
but never intersected with it. This is why such a criminal policy is beyond
the scope of Common Article 3 and Additional Protocol II, which aim to protect
the victims of the armed conflict. [790] As the Trial Chamber in Akayesu stated:
“it should be stressed that although the genocide against the Tutsi occurred
concomitantly with the . . . conflict, it was, evidently, fundamentally different
from the conflict.” [791]
E. Policy
of Genocide
33. As a result of this policy of genocide, the Tutsi civilians were attacked
everywhere, including their traditional refuges where they sought sanctuary.
34. In accordance with the evidence, the main driving force of these attacks
were young members of the MRND, the so-called “Interahamwe”. The overwhelming
majority of the attackers were Hutu civilians armed with traditional weapons.
Very often, all the assailants were called Interahamwe.
35. In addition, as the human rights organization African
Rights explains: “the Interahamwe were sent to rural areas not just
to kill, but to force the local people to kill.”
[792] By one estimate, nearly half of the Hutu population of Rwanda participated
in the genocide. [793]
36. This genocidal campaign was supported in different forms and to a different
extent by governmental and local officials. In certain cases, these officials
also involved gendarmes and soldiers in this genocidal campaign, which was
approved by the mass media, some ministers, prefets, bourgmestres, and other
influential persons.
F. Massacres
at the Three Sites
37. It is in light of the foregoing facts that the Chamber
must consider what happened at the three sites where Tutsi civilians were
attacked. Neither the RPF, the FAR, nor the military operations between them,
had any link with the massacres at these sites. It is clear from the evidence
that these massacres occurred as a result of the crime of genocide. Interahamwe,
who attacked Tutsi civilians at all three sites, in certain cases were supported
by the guns and grenades of some soldiers, who were not with the army in the
field fighting against the RPF. According to the evidence, many of these soldiers
“had fled from the battlefield”. [794] The participation of these soldiers in
the anti-Tutsi genocidal campaign, which appeared to be almost official in
the country, does not, however, create a nexus between these crimes and the
armed conflict because these soldiers were closely related, not to the armed
conflict, but to the genocidal campaign and were part of it.
G. Departure
from the Requisite Nexus
38. Instead of proving the existence of a nexus between the Accused’s crimes
committed at the three sites and the armed conflict, the Prosecutor as well
as the Majority oversimplify the matter. They interpret the war and its influence
on the criminal situation in the country as the requisite nexus. Thus, they
depart from the definition and understanding of this notion in the ICTR and
ICTY jurisprudence.
39. In order to prove the existence of a nexus, the Majority states the
following: the ongoing armed conflict between the Rwandan government forces
and the RPF both created the situation and provided a pretext for the extensive
killings and other abuses of Tutsi civilians (paragraph 518); the killing
began in Gikoro and Bicumbi shortly after the death of President Habyarimana
when the active hostilities resumed between the RPF and government forces
(paragraph 518); the armed conflict was exploited for the killing and mistreatment
of Tutsi in Bicumbi and Gikoro (paragraph 519); the armed conflict also substantially
motivated the attacks perpetrated against the Tutsi civilians in Bicumbi and
Gikoro (paragraph 521); as the RPF army advanced toward Bicumbi and Gikoro,
the killings of Tutsi civilians in these two communes intensified (paragraph
521).
40. Such statements oversimplify the matter. They only illustrate a motive
for the commission of crimes and the environment in which these crimes were
committed, but this has no impact on the proof necessary to show a violation
of the laws or customs of war.
41. Indeed, I agree that there is a tangential relationship between the
armed conflict and the crimes under consideration. It could be recognized
that the armed conflict was used as a pretext to unleash and intensify the
policy of genocide. It could also be said that this crime was committed under
the cover and under the guise of the war that created favorable conditions
for the implementation of the crime of genocide and encouraged the perpetrators
of this crime.
42. However, these circumstances did not create a legal ground for the
conclusion of the existence of a nexus between the massacres at the three
sites and the armed conflict.
43. The clearest example of this oversimplification is
when the Prosecutor states that any offence is a war crime as long as it was
committed under the guise or under cover of the armed conflict.
[795]
44. Such a superficial approach leads to a situation where it would not
be necessary to consider each case on its merits because every crime automatically
could be qualified as a war crime.
45. The third oversimplification is when the Prosecutor without any explanation
states that the alleged offences constitute war crimes because, as indicated
in Counts 7, 9, and 13, they occurred “in the course of a non-international
armed conflict.”
46. This language fails to properly allege nexus, which is an essential
element necessary to establish a violation of Article 4 of the Statue. Apparently,
according to this position, a crime merely needs to occur during an armed
conflict to constitute a war crime. As such, the Prosecutor has no need to
introduce any evidence that these crimes were related to the armed conflict
beyond the fact that they occurred during it.
47. Nonetheless, the Majority overlooks this deficiency in the Indictment
by stating that: “[t]he Chamber understands this phrase as meaning that the
alleged crimes had a nexus to the armed conflict” (paragraph 516). The Majority’s
observation and the Prosecutor’s approach reveal that they are not accurately
applying the requisite legal standard.
48. The fourth oversimplification of the matter is when
the Prosecutor argues that the crimes of genocide and crimes against humanity
as “‘extremely serious crimes’ ought to be sufficient to engage the application
of the war crimes instruments in question, since these instruments forbid
in the most extreme cases ‘violence to the 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’ of victims of armed
conflict.” [796]
49. The Prosecutor on the one hand recognizes in her
closing argument that the “law requires a connection or nexus between violation
and conflict.” [797] On
the other hand, the Prosecutor contradicts it in her Closing Brief believing
that the nexus is not necessary and Common Article 3 and Additional Protocol
II must be applicable because we are dealing with extremely serious crimes.
50. In this respect, it will be proper to recall the position of the Chamber,
which recognized in paragraph 368, that the purpose of Common Article 3 and
Additional Protocol II is the protection of people as victims of internal
armed conflict, “not the protection of people against crimes unrelated to
the conflict however reprehensible such crimes may be.” (emphasis added).
H. Applicability
of Common Article 3 and Additional Protocol II
51. There is a complete confusion in the position of the Prosecutor and
the Majority with regard to the applicability of Common Article 3 and Additional
Protocol II. In Counts 7, 9, and 13, the Prosecutor refers to certain provisions
of these international instruments which provide criminal responsibility for
crimes such as murder, cruel treatment, rape, and torture. I agree that at
least some of these crimes were committed during the massacres of Tutsi civilians,
as discussed in the Chamber’s legal findings concerning genocide and crimes
against humanity.
52. However, the Prosecutor and the Majority disregard that the provisions
of these international instruments are applicable only where the crimes are
committed as a result of the violations of the laws or customs of war, thus
constituting a violation of the provisions of Common Article 3 and Additional
Protocol II.
53. In paragraph 3.17 of the Indictment, the Prosecutor states that the
Accused told a small group of men in Gikoro commune that before killing Tutsi
women they must rape them. As a result, the inhabitants of Gikoro raped Victim
A and killed Victim B. The Judgement’s discussion on this matter explains
everything about the rape and murder as well as the role of the Accused with
regard to these particular crimes. What cannot be found, however, in this
discussion is any attempt to show the existence of a nexus between these crimes
and the armed conflict.
54. On the contrary, there is an acknowledgment that the rape of these
Tutsi women by the three perpetrators is part of their broader work of killing
Tutsi (paragraph 547). This admission shows that these Tutsi women have been
tortured, raped, and murdered as a result of a widespread genocidal attack
and that there is no nexus to the armed conflict.
55. A similar situation occurs with respect to Rusanganwa. During the massacre
at Musha church, the Accused asked him when the RPF was going to arrive. He
replied: “I am not God. I know neither the day nor the time.” (paragraph 170).
Every refugee could have been asked about it, and likely would have given
the same answer. There is no evidence that Rusanganwa knew or could have known
anything about the arrival of the RPF. There is also no evidence that he had
any ties with the RPF allowing him to possess this kind of information. However,
there is evidence that during the massacre the Accused and Bourgmestre Bisengimana
killed Rusanganwa after inflicting severe injuries on him as a prominent Tutsi.
In my opinion, this crime happened because of a genocidal intention, and not
because Rusanganwa knew something about the RPF or some other subject. In
this Judgement, there is also no attempt to show that there is a nexus between
this particular crime and the armed conflict.
56. The Prosecutor, however, attempts to fill in this lacuna with respect
to Rusanganwa and Victims A and B by stating in paragraphs 3.17 and 3.18 of
the Indictment that the Accused intended the acts described in these two paragraphs
to be part of a non-international armed conflict against the RPF. However,
there is no evidence to confirm that this was the Accused’s belief. Furthermore,
it is necessary to have factual confirmation of the existence of the requisite
nexus. The beliefs of the Accused or somebody else cannot be taken as proof
of this requirement.
57. Therefore, in accordance with the evidence, these crimes were committed
as a result of genocide. There is no evidence that these crimes were committed
because of a violation of the laws or customs of war.
58. In such circumstances, Common Article 3 and Additional Protocol II
are not applicable, and this is an error of law when the Prosecutor and the
Majority apply the provisions of these international instruments to offences
which are not war crimes.
59. This indisputable principle of law is disregarded in the Indictment
when in paragraph 3.4.2, the Prosecutor asserts that Common Article 3 and
Additional Protocol II protect civilians without recognising that civilians
are protected by these international instruments only against war crimes,
and not against all crimes that could be committed during war. Unfortunately,
the Majority agrees with the Prosecutor’s erroneous position by applying the
provisions of Common Article 3 and Additional Protocol II to crimes that have
no nexus to the armed conflict.
I. Defects
in the Majority Position
60. There are some additional defects in the Majority’s position that deserve
to be addressed.
61. The Majority’s reference to the Accused’s participation in military
operations conducted against civilian refugees (paragraph 522) is not correct.
The genocidal attacks against Tutsi civilians cannot be qualified as a military
operation. It is obvious that the Accused did not participate in any military
operations between the RPF and the FAR. In any case, there is no such evidence.
62. The Majority states that civilians were displaced by the armed conflict
and because of fears of the increasing violence in their localities (paragraph
518). This general assertion does not properly reflect the real situation.
The Tutsi civilians, who became victims, were not displaced by the armed conflict.
They were displaced because genocidal killers were seeking them.
63. The Majority also states that Rwandan government soldiers played an
active role in the attacks against the concentrated refugee populations at
Musha church, Mabare mosque, and Mwulire Hill (paragraph 518). Such an assertion
is not supported by the Chamber’s factual findings.
64. According to the Chamber’s factual findings, soldiers were not among
the assailants at Mabare mosque. The attacks against Tutsi civilians at Mwulire
Hill started on 8 April 1994. The evidence shows that Tutsi refugees were
attacked daily until 18 April 1994. During these ten days, the Tutsis were
attacked without the participation of the soldiers. Only on 18 April 1994,
when there were about 10,000 refugees, the Accused pursuant to the evidence
brought Interahamwe, soldiers, and their equipment in a red Toyota
pickup truck to participate in final attack. From the evidence, the role of
the soldiers appears to be overstated.
65. As to the massacre at Musha church, the role of the soldiers is also
exaggerated. As it was indicated above, many people joined the anti-Tutsi
genocidal campaign, which appeared to be based on official policy, and some
soldiers who were not with army in the field fighting against the RPF also
were involved. However, this is not a reason to overemphasise their role.
66. The attempt of the Majority to show the existence of a nexus by using
exaggerated military references is not appropriate. Such terms as “military
authorities”, “military officials”, “high ranking military”, and “military
operations,” are not based as a rule on the factual findings and cannot substitute
for the necessary analysis required to prove the existence of a nexus between
the war and the Accused’s specific crimes.
67. In paragraph 522, the Majority refers to the attempt of the Accused
“to elicit information concerning the advance of the enemy.” Such a general
assertion is not supported by the Chamber’s factual finding. There is only
one fact in the evidence: during the massacre at Musha church, the Accused
asked Rusanganwa, a Tutsi teacher, when the RPF was going to arrive. Rusanganwa
replied, “I am not God. I know neither the day nor the time.” (paragraph 170).
After that he was killed by the Accused and Bisengimana who showed by this
act to all Tutsi inhabitants of Gikoro what could happen to those who were
waiting for the arrival of the RPF. The Majority’s interpretation of this
fact goes too far because there is no evidence that Rusanganwa possessed any
military information. In my view, he was tortured and killed simply as an
eminent Tutsi.
68. In paragraph 522, at the end of the section discussing the nexus element,
the Majority makes the following conclusion: “the Chamber therefore has no
doubt that a nexus existed between the Accused’s alleged offences and the
armed conflict in Rwanda.”
69. This conclusion is based on:
78. The Majority did not address these and many other factors, which are
of extreme importance in order to determine whether there was a nexus between
the Accused’s criminal acts and the armed conflict. The Majority’s general
and superficial approach towards this matter does not result in a conclusion
that is grounded in law and in the factual findings.
J. Conclusion
79. Considering the above, and based on all the evidence presented in this
case, I came to the conclusion that it was not proved beyond a reasonable
doubt that the criminal acts of the Accused were committed in direct conjunction
with the armed conflict. These criminal acts had no direct connection with
the military operations or with the victims of the armed conflict.
80. It was not proved that these criminal acts constitute, not only crimes
against humanity and complicity in genocide, but also war crimes. Instead,
the evidence clearly shows that Tutsi civilians became victims of these criminal
acts as a result of a policy of genocide unleashed against them by the authorities
of their own country.
81. Therefore, it cannot be concluded that the material provisions of Common
Article 3, Additional Protocol II, and Article 4(a) of the Statute have been
violated in this particular case.
82. Thus, the question of the Accused’s criminal responsibility for violations
of these international instruments does not arise. As such, the Accused, in
my opinion, does not incur liability under Counts 7, 9, and 13.
83. For all the above reasons, I respectfully submit this separate opinion.
Done in English and French, the English text being authoritative.
Arusha, 15 May 2003.
Yakov Ostrovsky
Presiding Judge
(Seal of the Tribunal)
[775] Protocol Additional to
the Geneva Conventions of 12 August 1949, and Relating to the Protection
of Victims of Non-International Armed Conflicts (Protocol II), art. 13 (emphasis
added).
[776] Aleksovski, Judgement, TC, para. 45.
[777] Report by ICRC, Meeting of Experts, Geneva 27-29 October 1998,
p. 2.
[778] Kayishema and Ruzindana, Judgement, TC, para. 188.
[779] Rutaganda, Judgement, TC, paras. 442-444.
[780] Rutaganda, Judgement, TC, paras. 442-444; see also Musema, Judgement, TC, para 974; Kayishema and Ruzindana, Judgement,
TC, para. 619.
[781] Akayesu, Judgement, TC, paras. 641-643. While the Appeals Chamber in Akayesu
disagreed with the Trial Chamber’s holding that an accused must have link
with one of the warring parties, it did not however overturn the Trial Chamber’s
finding that the Prosecutor did not prove beyond a reasonable doubt that
the Accused’s acts were committed in conjunction with the armed conflict.
[782] Tadic Judgement, TC, para. 573.
[783] Akayesu, Judgement, AC, para. 444.
[784] Kunarac, Judgement, AC, para. 58.
[785] Kunarac, Judgement, AC, para. 58.
[786] Kunarac, Judgement, TC, para. 569.
[787] Kunarac, Judgement, TC, para. 568. (emphasis added).
[788] Krnojelac, Judgement, TC, para. 61.
[789] Tadic, Judgement, TC, para. 574.
[790] Kayishema and Ruzindana, Judgement, TC, para. 621.
[791] Akayesu, Judgement, TC, para. 128.
[792] African Rights, Rwanda: Death, Despair, and Defiance p. xx (rev. ed.
1995).
[793] Elizabeth Neuffer, Amid Tribal Struggles, Crimes Go Unpunished,
The Boston Globe, 8 December 1996, p. A20.
[794] Testimony of Witness VN, T. 9 November 2000 p. 101.
[795] T. 17 June 2002 p. 87.
[796] Prosecution Closing Brief para. 103.
[797] T. 17 June 2002 p. 65.
