Alfred Musema - Appeals Chamber Judgement

371. The Trial Chamber, having found the Appellant guilty of genocide, of a crime against humanity (extermination) and of a crime against humanity (rape), imposed a single sentence of life imprisonment for all counts. The Appeals Chamber upholds those convictions, with the exception of the conviction entered in respect of Count 7 of the Indictment (crime against humanity: rape).[620] Indeed, the Appeals Chamber found that in light of the new evidence, no reasonable tribunal of fact could have reached a conclusion different from that of the Trial Chamber and, accordingly, the conviction in respect of Count 7 is quashed. In addition to appealing against conviction, the Appellant also appealed against sentence on the grounds that the sentence imposed by the Trial Chamber is excessive, and based on errors of law and fact.[621] As a remedy, he requests that the sentence be set aside and replaced with a sentence of fixed duration.[622]

372. Before ruling on the arguments put forward by the Appellant, the Appeals Chamber must first address the issue as to whether a quashing of the conviction on Count 7 would impact on the sentence, that is, whether it is necessary to revise the sentence imposed for the subsisting guilty verdicts. The parties had the opportunity to state their views on the issue at the hearing of 17 October 2001. The Prosecution submitted that, in the event that the Appellant is acquitted on the count of sexual violence, the sentence imposed on the Appellant by the Trial Chamber must remain the same.[623] The Appellant did not contest this proposition. Counsel for the Defence acknowledged that since Musema was convicted of genocide (Count 1 of the Indictment), it would be difficult to argue for another sentence.[624]

373. The Appeals Chamber entertains the arguments of the parties on this point and confirms Musema’s conviction on the two counts of genocide and crime against humanity (extermination). The Appeals Chamber notes that the crimes with which the Accused is charged are of such gravity that a quashing of the conviction on Count 7 would have no effect. With respect to Count 1 (genocide), Musema was found guilty of involvement in several attacks that resulted in a considerable number of victims. Subject to the findings relating to Appellant’s arguments in his appeal against sentence, the Appeals Chamber holds that a quashing of the conviction on Count 7 of the Indictment does not, in principle, entail a revision of the sentence imposed by the Trial Chamber in the exercise of its discretion.

374. In support of his appeal against the sentence, the Appellant advances the following three arguments:

375. The relevant provisions of the Statute and Rules applicable to the Appellant’s arguments are as follows:

1. The Trial Chamber failed to take into account the need to develop a range of sentences based upon his relative role in the broader context of the conflict in Rwanda

376. The Appellant argues that the Trial Chamber failed to raise the need to develop a range of sentences "in order to reflect the relative position of the accused in the Rwandan conflict".[628] He submits that the Trial Chamber was under a duty to take this factor into account, and erred by failing to do so.[629] In support of this arguments, he refers to the dicta of the Appeals Chamber of ICTY in the Tadic Sentencing Appeal Judgement, in which it was held that the Trial Chamber erred in sentencing the accused, Dusko Tadic, by failing to adequately consider the "need for sentences to reflect the relative significance of the role of the Appellant in the broader context of the conflict in former Yugoslavia".[630]

377. Musema also refers to the finding of the Trial Chamber that, while he exercised de jure and de facto control over the employees of the Tea Factory, he did not wield control over the Kibuye pr�fecture population.[631] On the basis of that finding he argues that the Trial Chamber did not find him to be exercising "any political or civic authority in the [Kibuye] region, or in Rwanda as a whole".[632] Further, he submits that by failing to take into consideration the factor that the Appellant’s "sphere of influence was limited to his position in the Tea Factory", the Trial Chamber erred in law.[633]

378. In response, the Prosecution asserts that, contrary to the Appellant’s submission, the Trial Chamber did take the relative position of authority of the Appellant in the Rwandan conflict into account, in holding that:

The population of the Kibuye pr�fecture, including the villageois plantation workers, … perceived Musema as a figure of authority and as someone who wielded considerable power in the region.[634]

The Prosecution notes that this finding was referred to by the Trial Chamber in the sentencing section of the Trial Judgement, when addressing the aggravating circumstances, to hold that, by virtue of this perception of authority and power, Musema "was in a position to take reasonable measures to help in the prevention of crimes".[635] It submits that the Trial Chamber fulfilled its duty to take into account the need to develop a range of sentences based upon the relative position of the Accused in the Rwandan conflict.[636]

379. Under Article 24 of the Statute, the Appeals Chamber may "affirm, reverse or revise" a sentence imposed by a Trial Chamber. The jurisprudence of ICTY and ICTR reveals that the Appeals Chamber will not revise a sentence unless it believes that the Trial Chamber has committed a "discernible" error in exercising its discretion, or has failed to follow the applicable law.[637] The onus of demonstrating how the Trial Chamber ventured outside its "discretionary framework" in imposing sentence in an appeal against sentence is upon the Appellant.[638]

380. The factors that a Trial Chamber is obliged to take into account in sentencing a convicted person are set forth in Article 23 of the Statute and Rule 101 of the Rules. Those factors are: the general practice regarding prison sentences in the courts of Rwanda; the gravity of the offence; the individual circumstances of the convicted person; any aggravating circumstances; any mitigating circumstances, including the substantial cooperation with the Prosecutor by the convicted person before or after conviction; and the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served. This list is not exhaustive; it was held by the Appeals Chamber of ICTY that it is inappropriate for it "to attempt to list exhaustively the factors that […] should be taken into account by a Trial Chamber in determining sentence".[639]

381. In Tadic, the Appeals Chamber of ICTY also considered the relative position of a convicted person in a command structure to be a relevant factor in determining sentence. In that case, the Appeals Chamber considered that, while Tadic’s criminal conduct was "incontestably heinous", his level in the command structure in comparison to his superiors was low",[640] and consequently, the sentence passed by the Trial Chamber was excessive.[641] In subsequent ICTY Appeals Chamber decisions, the need to establish a gradation of sentencing has been endorsed.[642] In the Celebici appeal, the Appeals Chamber held that:

382. It went on to state that "while the Appeals Chamber has determined that it is important to establish a gradation in sentencing, this does not detract from the finding that it is as essential that a sentence take into account all the circumstances of an individual case".[644] It follows that the jurisprudence of ICTY acknowledges the existence of a general principle that sentences should be graduated, that is, that the most senior levels of the command structure should attract the severest sentences, with less severe sentences for those lower down the structure. This principle is, however, always subject to the proviso that the gravity of the offence is the primary consideration for a Trial Chamber in imposing sentence.[645]

383. As to whether this principle should be applicable to the Trial Chambers of this Tribunal, as a general principle, this Appeals Chamber agrees with the jurisprudence of ICTY that the most senior members of a command structure, that is, the leaders and planners of a particular conflict, should bear heavier criminal responsibility than those lower down the scale, such as the foot soldiers carrying out the orders. But this principle is always subject to the crucial proviso that the gravity of the offence is the primary consideration of a Trial Chamber in imposing sentence; if the offence is serious enough, a Trial Chamber should not be precluded from imposing a severe penalty upon the accused, just because he is not at a high level of command.

384. In paragraphs 999 to 1004 of the Trial Judgement, the Trial Chamber sets out the circumstances of the case. It found that Musema was the Director of the Gisovu Tea Factory, one of the most successful tea factories in Rwanda, and that he exercised legal and financial control over his employees. He personally led certain attacks, and was perceived by individuals as a figure of authority and as someone who wielded considerable power in the region, and had powers enabling him to remove, or threaten to remove, an individual from his or her position at the tea factory. These findings show that, while no reference was made to the role played by Musema in the context of the larger political picture in Rwanda, the Trial Chamber did consider Musema’s role in the Kibuye pr�fecture, and found him to be an influential figure of considerable importance. It follows that Musema was not a low-level figure in the overall Rwandan conflict. Taking into account all the circumstances of the case, including the fact that Musema was an influential figure of considerable importance in the Kibuye pr�fecture, it can be said that the offences were of utmost gravity. The Appellant has therefore failed to demonstrate that the Trial Chamber ventured outside its discretionary framework in imposing the maximum sentence of life imprisonment. Accordingly, the Appeals Chamber finds no error on the part of the Trial Chamber, and rejects this argument.

2. The Trial Chamber erred by failing to pass a sentence commensurate with other sentences passed by ICTR for the crime of genocide

385. The Appellant notes that a conviction for the crime of genocide does not necessarily have to attract a sentence of life imprisonment.[646] He submits that the sentence of life imprisonment imposed upon Musema was "out of proportion with the crimes of which he was convicted", in comparison with the sentence of 15 years’ imprisonment imposed upon the Accused Omar Serushago in the case of The Prosecutor v. Serushago.[647] While acknowledging that Serushago benefited from pleading guilty and cooperating with the Prosecution, the Appellant argues that the appropriate credit gained by the plea and cooperation should not be such that Serushago received a 15-year sentence, whereas Musema received a life sentence.[648] In comparing the two cases, he notes that Serushago’s criminal conduct spanned a three month period, whereas Musema was convicted of crimes occurring on six occasions. Further, Serushago was a leader of a group of Interahamwe militia, while Musema had control only over the actions of the Tea Factory workers.[649]

386. In response, the Prosecution submits that the Appellant has failed to discharge the burden of showing that the Trial Chamber made a discernible error in imposing a sentence of life imprisonment; it also submits that the sentence was well within the discretion of the Trial Chamber.[650]

387. In Celebici, the Appeals Chamber of ICTY held that "as a general principle such comparison [of one case with another] is often of limited assistance", and while

388. As to whether the Appellant’s sentence was manifestly disproportionate to the sentence imposed in the Serushago case, Musema was convicted of genocide and two counts of crimes against humanity (extermination and rape) on the basis of his involvement in several incidents.[653] He pleaded not guilty, but was found guilty at the end of the trial. The aggravating circumstances of the offences, as set out in paragraphs 1001 to 1004 of the Trial Judgement, included the following: Musema’s role in leading the attackers during the six incidents; his use of a rifle during the attacks; his failure to prevent tea factory employees from taking part in the attacks and tea factory vehicles from being used to that effect; his failure to take reasonable measures to help in the prevention of crimes; and his failure to punish the perpetrators over whom he had control. As to the incidents, the Trial Chamber found that thousands of Tutsi refugees were killed at Muyira Hill on 13 May, and that Musema was among the leaders of that attack.[654] If found that at the end of May, Musema participated in the attack on Nyakavuma cave, during which over 300 Tutsi civilians died.[655] The mitigating circumstances included his admission that genocide occurred against the Tutsi people in Rwanda in 1994; his distress about the deaths of so many innocent people; his expression of regret that the Gisovu Tea Factory facilities may have been used by the perpetrators of atrocities; and his cooperation through his admission of facts pertaining to the case, thus, facilitating an expeditious trial.[656]

389. As for Serushago, he was charged with genocide and four counts of crimes against humanity (murder, extermination, torture and rape). He pleaded guilty to the genocide count and three of the counts of crimes against humanity (murder, extermination and torture), following which, a plea agreement was also entered into between the Prosecution and Serushago, which formed the basis for the sentence. The aggravating circumstances of the case included Serushago’s personal murder of four Tutsi, and the killing of 33 Tutsi by militiamen under his authority;[657] his leading role and enjoyment of definite authority in the region, and participation in numerous meetings during which the fate of the Tutsi was decided;[658] and his commission of the crimes with pre-meditation.[659] The mitigating circumstances consisted of Serushago’s cooperation with the Prosecutor, which enabled the arrest of several high-ranking suspected persons to be carried out, including his agreement to testify for the Prosecution in other cases before the Tribunal; his voluntary surrender; his guilty plea; the political background of his family; the assistance provided by him to several Tutsi and a moderate Hutu; his individual circumstances, suggesting possible rehabilitation; and his expression of remorse and contrition.[660] The Trial Chamber expressed the opinion that "exceptional circumstances in mitigation" could afford him some clemency.[661]

390. The Appeals Chamber finds that while there may appear to be some superficial similarities between the convictions of the two accused, the circumstances are essentially different. There are material differences between Serushago’s case and that of the Appellant. While Serushago personally murdered four Tutsi, and his militiamen killed 33 others, Musema was involved as a leader of perpetrators in several incidents, resulting in the death of thousands of Tutsis. In Serushago’s case, exceptional circumstances in mitigation were found to exist. The same cannot be said for the Appellant. The Appeals Chamber also understands Musema to be arguing that, because Serushago’s criminal conduct spanned a greater period of time than Musema’s (three months rather than five weeks), Serushago’s culpability is graver than Musema’s. This argument is not persuasive: in both cases, the criminal conduct spanned substantial periods of time. Similarly, the Appeals Chamber rejects the Appellant’s argument that because Serushago was the leader of a group of Interahamwe militia, whereas Musema was "only" the leader of tea factory workers, the culpability of Serushago as a leader was greater than that incurred by Musema. Both accused were leaders who exercised considerable authority. Consequently, the circumstances of the two cases are not so similar to justify a claim that the Trial Chamber erred by imposing a disproportionate sentence in respect of Musema. As the Appellant has failed to demonstrate that the Trial Chamber committed a discernible error in exercising its discretion, this argument is dismissed.

3. The Trial Chamber erred by failing to take due account of the mitigating factors in this case

391. The Appellant contends that "there was substantial mitigation which the Trial Chamber failed to take sufficiently into account"[662] The factors to which he refers are his "limited area of authority", his participation "in crimes on a limited number of occasions", his admission "from the outset that the crime of genocide had been committed in Rwanda", and his expression of "regret for what had happened and sympathy for the victims of genocide".[663]

392. Additionally, Musema argues that the Trial Chamber should not (para. 1008 of the Trial Judgement) have expected him to show remorse for his personal role in the atrocities, as such sentiment can never be expected from a defendant who pleads not guilty.

393. In response, the Prosecution argues that while Rule 101(B)(ii) requires a Trial Chamber to consider any mitigating circumstances, the question of the due weight to be attached thereto is a matter of discretion for the Trial Chamber.[664] It relies upon the holding in the Serushago Sentencing Appeal Judgement that the Trial Chamber’s decision "may not be disturbed on appeal unless the Appellant shows the following: (a) the Trial Chamber either took into account what it ought not to have, or failed to take into account what it ought to have taken into account in the weighing process involved in the exercise of its discretion; and (b) if it did, that this resulted in a miscarriage of justice".[665] The Prosecution contends that the Appellant’s argument is not that the Trial Chamber failed to take into account a particular mitigating circumstance, but that the Trial Chamber failed to take sufficiently into account the mitigating circumstances.[666] It also submits that the Trial Chamber was free to note the absence of any remorse on the part of the Appellant.[667]

394. The Appeals Chamber understands the Appellant to be not merely arguing that the Trial Chamber failed to take due account of mitigating circumstances, as suggested by the Prosecution, but, in effect, to be advancing two separate arguments. The first of these arguments is that the Trial Chamber failed to take into account mitigating circumstances that it ought to have taken into consideration in imposing sentence, namely, his "limited area of authority", and his participation in offences "on a limited number of occasions". The second argument is that, while acknowledging that the Trial Chamber took certain mitigating circumstances into account for the purpose of sentencing Musema, insufficient weight was accorded to them; those circumstances include his admission from the outset that genocide took place in Rwanda, and his expression of "regret for what had happened and sympathy for the victims of genocide".

395. As regards the first argument, in order for the Appeals Chamber to revise a sentence, the Appellant must show that the Trial Chamber committed a discernible error in exercising its discretion, or failed to follow the applicable law. Under Rule 101(B)(ii), a Trial Chamber is required, as a matter of law, to take into account any mitigating circumstances. What constitutes a mitigating circumstance is a matter for the Trial Chamber to determine in the exercise of its discretion. The Appellant contends that the Trial Chamber should have taken into account his "limited area of authority", and his participation in offences "on a limited number of occasions". The Appeals Chamber disagrees. The Trial Chamber found that "Musema exercised de jure power and de facto control over Tea Factory employees and the resources of the Tea Factory",[668] and

The Givuso Tea Factory was held to be "one of the most successful tea factories in Rwanda and … a major economic enterprise in Kibuye"[670] The Appeals Chamber has already considered the manner of Musema’s participation in the offences. The Appeals Chamber is not, therefore, satisfied that the Trial Chamber erred in its determination of the applicable mitigating circumstances by failing to find that Musema’s authority in the Kibuye pr�fecture, and his participation in the offences, were limited.

396. The second argument is whether the mitigating circumstances that were found by the Trial Chamber to exist,[671] namely, Musema’s admission that genocide took place in Rwanda, and his expression of regret and sympathy for the victims of genocide, were properly taken into account by the Trial Chamber when imposing sentence. With regard to the former circumstance, it is the Appeals Chamber’s understanding that, although Musema did not admit any personal involvement in any genocidal activity, his admission that a genocide occurred in Rwanda considerably shortened the length of his trial, by expediting proof. Upon finding that mitigating circumstances exist, a decision as to the weight to be accorded thereto lies within the discretion of the Trial Chamber.[672] In sentencing the Appellant, the Trial Chamber stated that "[h]aving reviewed all the circumstances of the case, the Chamber is of the opinion that the aggravating factors outweigh the mitigating factors". The gravity of the offence is the primary consideration for a Trial Chamber in sentencing a convicted person. If a Trial Chamber finds that mitigating circumstances exist, it is not precluded from imposing a sentence of life imprisonment, where the gravity of the offence requires the imposition of the maximum sentence provided for. The Appeals Chamber agrees with the finding of the Trial Chamber that the offences for which Musema was convicted were extremely serious, and finds that the Appellant has failed to demonstrate that the Trial Chamber erred in exercising its discretion as to the weight to be accorded to the mitigating circumstances. Accordingly, this argument must fail.

397. Finally, the Appellant argues that the Trial Chamber, in paragraph 1008 of the Trial Judgement, should not have expected Musema to have shown remorse for his personal role in the atrocities, as such sentiment can never be expected from a defendant who pleads not guilty. Under Article 20 of the Statute, which sets out the rights of the accused, an accused is entitled to a fair and public trial. Where the right to stand trial is exercised, and the accused is convicted, the Appeals Chamber agrees with the Appellant that it would be unreasonable to penalise him additionally for his failure to show remorse at trial. But whether this is what the Trial Chamber did has to be gathered from a contextual reading of the Trial Chamber’s findings on the point. The Trial Judgement sets out the aggravating circumstances in four paragraphs,[673] and the mitigating circumstances in three.[674] It then concludes at paragraph 1008 as follow:

On considering the context in which reference to remorse was made, the Appeals Chamber finds that the Trial Judgement was, on this point, alluding to the acknowledged circumstances which showed that the Accused exhibited a feeling of satisfaction in committing the crimes of which he was found guilty. In the view of the Appeals Chamber, it is that discernible feeling of satisfaction that the Trial Chamber was referring to when it found that the Accused "never showed remorse for his personal role in the atrocities". There is no reason why the conduct of the accused could not be regarded as an aggravating circumstance.

399. It follows that the Appellant has failed to demonstrate any error on the part of the Trial Chamber invalidating the sentence of life imprisonment which it imposed. The Appeals Chamber’s quashing of the conviction on Count 7 has no impact on this finding. There is no doubt that the Trial Chamber’s findings as to the sentence to be imposed on Musema would have been the same if it had acquitted Musema of the charge in question. Accordingly, the Appeals Chamber affirms the sentence imposed upon Musema by the Trial Chamber.

[620] See paras. 184 to 194, supra.

[621] Appellant’s Brief, paras. 532 and 545.

[622] Ibid., paras. 533 and 546.

[623] T(CB and EB), pp. 70 to 71.

[624] Ibid., p.75.

[625] Appellant’s Brief, paras. 506-514.

[626] Ibid., paras. 515-522.

[627] Ibid., paras. 527-531.

[628] Appellant’s Brief, para. 506.

[629] Ibid., para.507.

[630] Tadic Sentencing Appeal Judgement, para. 55.

[631] Trial Judgement, paras. 880 and 881.

[632] Appellant’s Brief, para. 511.

[633] Ibid., para. 512 to 514.

[634] Prosecution’s Response, para. 8.4, referring to Trial Judgement, para. 881.

[635] Trial Judgement, para. 1003.

[636] Prosecution’s Response, para. 8.7.

[637] Serushago Sentencing Appeal Judgement, para. 32; Jelisic Appeal Judgement, para. 99; Celebici Appeal Judgement, para. 725; Furundzija Appeal Judgement, para. 239; Aleksovski Appeal Judgement, para. 187; and Tadic Appeal Judgement, paras. 20 and 22.

[638] Celebici Appeal Judgement, para. 725.

[639] Celebici Appeal Judgement, para. 718; Furundzija Appeal Judgement, para. 238.

[640] Ibid., para. 56.

[641] The sentences imposed by the Trial Chamber, which ranged from 6 to 25 years, were revised, and a sentence of 20 years’ imprisonment was passed in respect of each count, to be served concurrently.

[642] See Celebici Appeal Judgement, para. 849, and Aleksovski Appeal Judgement, para. 184.

[643] Celebici Appeal Judgement, para. 847.

[644] Celebici Appeal Judgement, para. 849.

[645] Celebici Appeal Judgement, para. 731; Aleksovski Appeal Judgement, para. 182; Krstić Trial Judgement, para. 698; Todorović Trial Judgement, para. 31; Kupreskić Trial Judgement, para. 852; and Celebici Trial Judgement, 1225.

[646] Appellant’s Brief, para. 515. At the time that the Appellant filed his brief, two persons convicted of the crime of genocide at ICTR, Ruzindana and Serushago, had received sentences of imprisonment of 25 and 15 years respectively.

[647] Appellant’s Brief, para. 522.

[648] Ibid., para. 521.

[649] Ibid., para. 519.

[650] Prosecution’s Response, paras. 8(10) and 8(11).

[651] Celebici Appeal Judgement, para. 719.

[652] Furundzija Appeal Judgement, para. 250.

[653] The incidents occurred at Gitwa Hill on 26 April 1994; Rwirambo Hill between 27 April and 3 May; Muyira Hill on 13 May; Muyira Hill on 14 May; Muyira Hill in mid-May (between 10 to 20 May); Mumataba Hill in mid-May; and Nyakavuma Cave at the end of May.

[654] Trial Judgement, para. 902.

[655] Ibid., para. 921.

[656] Ibid., para. 1005 to 1007.

[657] Serushago Trial Judgement, para. 27.

[658] Ibid., para. 28.

[659] Ibid., para. 30.

[660] Ibid., paras. 31 to 42.

[661] Ibid., para. 42.

[662] Appellant’s Brief, para. 527.

[663] Ibid., paras. 528 to 530.

[664] Prosecution’s Response, para. 8.18.

[665] Serushago Sentencing Appeal Judgement, para. 23.

[666] Prosecution’s Response, para. 8.19.

[667] Ibid., para. 8.22.

[668] Trial Judgement, para. 880.

[669] Ibid., para. 881.

[670] Ibid., para. 999.

[671] Trial Judgement, paras. 1005 to 1007.

[672] Celebici Appeal Judgement, para. 775, Kambanda Appeal Judgement, para. 124.

[673] Trial Judgement, paras. 1001-1004.

[674] Ibid., paras. 1005-1007.