Untitled Document

402. In this Chapter, the Chamber will present its legal findings on the charges alleged against the Accused in the order of the Counts as they appear in the Indictment.

403. The Chamber took judicial notice of the fact that in Rwanda, in 1994, including the period April to July 1994, attacks were suffered by civilians on the grounds of their perceived political affiliation or ethnic identification. The Chamber also took judicial notice of the fact that on 13 and 14 May 1994, a large-scale attack occurred on Muyira Hill against Tutsi refugees. [360]

404. It is admitted by the Defence that the Interim Government was sworn in on 9 April 1994, and that the Accused became a Minister of the Interim Government that day. [361]

405. It was further admitted that the President of Rwanda, Juv�nal Habyarimana, and Chief of Staff of the Rwandan Army, Major-General D�ogratias Nsabimana, were both killed in the plane crash of 6 April 1994. [362]

406. It was not disputed that killings were carried out in Kibuye Prefecture from 13 or 14 April to after 3 May 1994. [363]

407. The Chamber recalls its findings that the alibi evidence adduced by the Defence did not raise a reasonable doubt that the Accused was present during the events alleged in the Indictment.

408. Count 1 of the Indictment charges the Accused with genocide pursuant to Article 2(3)(a) of the Statute, in that on or between the dates of 6 April 1994 and 17 July 1994, notably, though not exclusively, in Kibuye Prefecture, Rwanda, the Accused did kill and cause serious bodily or mental harm to members of the Tutsi population with the intent to destroy, in whole or in part, a racial or ethnic group.

409. Article 2(2) of the Statute defines genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

410. The Trial Chamber in Akayesu interpreted “as such” to mean that the act must be committed against an individual because the individual was a member of a specific group and specifically because he belonged to this group, so that the victim is the group itself, not merely the individual. [364]

411. The Chamber found, in II.2.1.4 above, that on 10 April 1994, in Gisovu, the Accused and three soldiers transported guns. Approximately ten days after 6 April 1994, the Accused procured gendarmes for an attack on Mubuga Church against Tutsi, whom he called “Inyenzi”, sheltering inside. These gendarmes took ammunition, grenades and bullets with them to the attack (see II.2.2.4 above).

412. In II.2.4.4 above, the Chamber found that on a day sometime between 17 and 30 April 1994, at 9.30 a.m. and later, between 10.30 a.m. and noon, the Accused was one of the leaders of two large-scale attacks by more than 6,000 armed attackers, comprising soldiers, policemen and Interahamwe, against Tutsi refugees at Muyira Hill. The Accused was armed with a gun at the time, and he shot at Tutsi refugees during the attacks. In II.2.5.5 above, the Chamber found that sometime between the end of April and beginning of May 1994, from between 8.30 a.m. and 9.30 a.m. to 3.00 p.m., the Accused was one of the leaders of a large-scale attack by armed attackers against Tutsi refugees at Kivumu in Bisesero. The Accused was armed with a gun during the attack, in the course of which he shot at Tutsi refugees.

413. In addition, the Chamber found that on 13 May 1994, sometime between 7.00 a.m. and 10.00 a.m., the Accused was one of the leaders of a large-scale attack by thousands of armed attackers against Tutsi refugees at Muyira Hill. The attackers, comprising Interahamwe, soldiers, policemen and Hutu civilians, were chanting “Tuba Tsemba Tsembe”, which means “Let’s exterminate them”, a reference to the Tutsi. The Accused was armed with a gun during the attack, in the course of which he shot at Tutsi refugees. Thousands of Tutsi died as a result of the attack. During the attack, the Accused also instructed the attackers, showing them where to go and how to attack the refugees (see II.2.6.4 above).

414. As a continuation of the 13 May attack, the Chamber found that on the morning of 14 May, the Accused and many armed attackers, comprising civilians, soldiers, Interahamwe, gendarmes and communal policemen, launched a large-scale attack against the Tutsi refugees at Muyira Hill. The Accused was armed with a gun and shot at Tutsi refugees at Muyira Hill (see II.2.7.5 above).

415. The Chamber found that around 18 June 1994, the Accused led armed attackers in an attack at Kiziba in Bisesero against Tutsi refugees, in the course of which he shot at Tutsi refugees (see II.2.9.4 above).

416. In ascertaining the intent of the Accused, the Chamber has also taken into account incidents charged elsewhere, in addition to his acts relevant to this charge. The Chamber has considered the Accused’s act of ordering Interahamwe to undress a Tutsi woman, and to insert a sharpened piece of wood into her genitalia, after ascertaining that she was of the Tutsi ethnic group (see II.7.2.4 above). The body was then left, with the piece of wood protruding from it, in plain view on a public road for some three days thereafter. Further, the Chamber has taken into account the murder of an old man and young boy, both Tutsi, by the Accused (see II.5.1.4 above).

417. The Chamber has also considered the Accused’s jubilation at the killing of Assiel Kabanda and his subsequent decapitation and castration, and the piercing of his skull through the ears with a spike. Kabanda was a prominent Tutsi whose capture was met with rejoicing by the Accused and others (see II.7.1.4 above).

418. In this regard, the Chamber has also taken into consideration the Accused’s attendance and participation at meetings held to plan and organize the killing of Tutsi in Bisesero (see II.3.1.3 above), his acts of incitement (see II.4.2.4, and II.4.4.4. above), and his expression of support at the 3 May meeting of the Prime Minister, Jean Kambanda, and the Interim Government, and actions or inactions in failing to protect the Tutsi population (see II.4.3.4 above).

419. Based on the above, together with the Accused’s leadership role and personal participation in attacks in Bisesero, where the Interahamwe were chanting “Let’s exterminate them”, being a reference to the Tutsi; the Accused’s association with officials and prominent figures at these attacks; his acts of shooting at Tutsi during these attacks; his act of killing the old man and young boy, both Tutsi, his transportation of weapons and procurement of gendarmes for an attack on Mubuga Church against the Tutsi hiding inside, the Chamber finds that the Accused perpetrated these acts with the requisite intent to destroy, in whole or in part, the Tutsi ethnic group.

420. The Chamber finds that in leading and participating in attacks against Tutsi, in shooting at Tutsi refugees, the Accused is individually criminally responsible pursuant to Article 6(1) of the Statute for the killings and serious bodily and mental harm inflicted on Tutsi refugees in Bisesero, as provided in Article 2(2)(a) and (b). Accordingly, the Chamber finds that the Accused is guilty of genocide as charged in Count 1 of the Indictment.

421. In light of the finding above in relation to Count 1, the Chamber finds the Accused not guilty of Complicity in Genocide as charged in the alternative Count 2 of the Indictment.

422. Count 3 of the Indictment charges the Accused with conspiracy to commit genocide pursuant to Article 2(3)(b) of the Statute, in that on or between the dates of 1 January 1994 and 17 July 1994, the Accused did conspire with others, including, but not limited to, local administrative officials, such as the prefet of Kibuye, Cl�ment Kayishema, and various conseillers de secteur, Interahamwe leaders, communal police, and the political leadership of the MRND or the MDR-Power at the national levels, including, though not limited to, members of the Interim Government of 8 April 1994, to kill or cause serious bodily or mental harm to members of the Tutsi population with intent to destroy, in whole or in part, a racial or ethnic group.

423. In Musema, the Trial Chamber held that “conspiracy to commit genocide is to be defined as an agreement between two or more persons to commit the crime of genocide”. The mens rea is the specific intent to commit genocide. As it is an inchoate offence, the act of conspiracy itself is punishable, even if the substantive offence has not actually been perpetrated. [365]

424. In II.3.1.3 above, the Chamber found that on or about 10 June 1994, the Accused was one of the leaders, together with Kayishema, Ruzindana and others, at a meeting at Kibuye Prefectural Office to plan the killing of the Tutsi in Bisesero, wherein the Accused promised to supply weapons for the killing of the Tutsi in Bisesero. The next week, a follow-up meeting was held by the Accused to distribute the weapons the Accused had promised at the last meeting. Kayishema and Ruzindana were present as well. After the distribution of the weapons, the Accused sketched a plan for the next day’s attack against the Tutsi hiding in Bisesero. He designated leaders for five attacks involving five groups of attackers departing from five different locations. The Accused was the leader for one of those attacks, at Kiziba, and he encouraged people to participate in the attacks. The attack took place the day after the meeting as planned.

425. The Chamber found that the Accused attended a meeting in the canteen of Kibuye Prefectural Office on or about 18 June 1994, and promised to supply gendarmes for the next day’s attack. He urged bourgmestres and others to do all they could to ensure participation in the attacks so that all the Tutsi in Bisesero could be killed. The next day’s attack took place as planned (see II.3.2.4 above).

426. The Chamber found that the Accused attended a meeting at Kibuye Prefectural Office sometime in June 1994, at approximately 5.00 p.m., where Kayishema, Ruzindana, Interahamwe and others were also present. The Interahamwe were chanting: “Exterminate them, flush them out of the forest”, referring to the Tutsi. The Accused told the audience that he had come so they could pool their efforts in overcoming the enemy, that is, the Tutsi, and promised they would get his contribution in due course. He promised that not less than a hundred Interahamwe would assist in the attacks against the Tutsi (see II.3.3.4 above).

427. Considering the Accused’s participation and attendance at meetings with, amongst others, Kayishema and Ruzindana, to discuss the killing of Tutsi in Bisesero, his planning of attacks against Tutsi in Bisesero, his promise and distribution of weapons to attackers to be used in attacks against Tutsi, his expression of support at the 3 May meeting of the Prime Minister, Jean Kambanda, and the Interim Government, and actions or inactions in failing to protect the Tutsi population, and his leadership role in conducting and speaking at the meetings, together with the evidence discussed in paragraphs 416, 418 and 419 above, the Chamber finds that the Accused had the requisite intent, together with his co-conspirators, to destroy, in whole or in part, the Tutsi ethnic group.

428. Bearing in mind that the Accused and others acted together as leaders of attacks against Tutsi as detailed in III.3.1 above, taking into account the organized manner in which the attacks were carried out, which presupposes the existence of a plan, and noting, in particular, that the Accused sketched a plan for an attack in Bisesero at a meeting on or about 10 June, to which the people in attendance, including Kayishema and Ruzindana, agreed, the Chamber finds that the above facts evidence the existence of an agreement between the Accused and others, including Kayishema and Ruzindana, to commit genocide. [366]

429. The Chamber finds that in attending and speaking at meetings with, amongst others, Kayishema and Ruzindana, and planning, leading and participating in attacks against Tutsi, the Accused is individually criminally responsible, pursuant to Article 6(1) of the Statute, for conspiring to cause the death and serious bodily and mental harm of the Tutsi refugees in Bisesero, as provided in Article 2(3)(b). Accordingly, the Chamber finds that the Accused is guilty of conspiracy to commit genocide as charged in Count 3 of the Indictment.

430. Count 4 of the Indictment charges the Accused with Direct and Public Incitement to Commit Genocide pursuant to Article 2(3)(c) of the Statute, in that on or between the dates of 1 January 1994 and 17 July 1994 throughout Rwanda, particularly in Kibuye Prefecture, the Accused did directly and publicly incite persons, including, but not limited to, soldiers, local administrative officials, communal police, civilian militias and local residents, to kill or cause serious bodily or mental harm to members of the Tutsi population with intent to destroy, in whole or in part, a racial or ethnic group.

431. The elements of this crime were discussed in Akayesu. [367] Regarding the “public” element of the crime, the Trial Chamber in Akayesu stated that “[it] may be better appreciated in light of two factors: the place where the incitement occurred and whether or not assistance was selective or limited.” [368] This element includes words spoken aloud in public places, as well as broadcasts to members of the general public by such means as the mass media. The Trial Chamber held that the “direct” element “should be viewed in the light of its cultural and linguistic content”, noting that “a particular speech may be perceived as ‘direct’ in one country, and not so in another, depending on the audience.” The Trial Chamber in that case further recalled that “incitement may be direct, and nonetheless implicit.” [369] The mens rea required for this crime is the intent to directly prompt or provoke another to commit genocide, and the perpetrator must have the specific intent to commit genocide. [370] As it is an inchoate offence, the crime is punishable even where the incitement failed to produce the result expected by the perpetrator. [371]

432. The Chamber found in II.4.2.4 above, that the Accused was in Rugarama in Bisesero on 13 April 1994 with armed attackers when he told the attackers to go back “to work”, a reference to the killing of Tutsi, which led to an attack being launched against Tutsi at Rugarama.

433. The Chamber found in II.4.4.4 above that the Accused held a meeting at Kucyapa after the large-scale attack on 13 May at Muyira Hill, for the purpose of deciding on the programme of killings for the next day and to organize these killings of Tutsi in Bisesero. The Accused thanked attackers for their participation in attacks and commended them for “a good work”, that is, the killing of Tutsi civilians. The Accused told them to share the people’s property and cattle, and eat meat so that they would be strong to return the next day to continue the “work”, that is, the killing. The next day, the Tutsi in Bisesero were pursued and attacked throughout the day.

434. The Chamber found that on or about 17 June 1994, the Accused held a meeting in which he told bourgmestres to tell able-bodied men in the population to participate in the killing of Tutsi and said he would be personally present at the attack (see II.4.7.4 above).

435. The Chamber is satisfied that the Accused’s words, including the call to “work”, were understood by his audience as a call to kill the Tutsi, and that the Accused knew his words would be interpreted as such.

436. Considering the Accused’s spoken words, urging the attackers to work, thanking, encouraging and commending them for the “work” they had done, “work” being a reference to killing Tutsi, together with the evidence discussed in paragraphs 416-419 above, the Chamber finds that the Accused had the requisite intent to destroy, in whole or in part, the Tutsi ethnic group.

437. The Chamber finds that in urging attackers to work, and to eat meat so that they would be strong to return the next day to continue the “work”, the Accused is individually criminally responsible, pursuant to Article 6(1) of the Statute, for inciting attackers to cause the death and serious bodily and mental harm of Tutsi refugees in Bisesero, as provided in Article 2(3)(c). Accordingly, the Chamber finds that the Accused is guilty of direct and public incitement to commit genocide as charged in Count 4 of the Indictment.

438. Before examining the individual crimes against humanity charged, the Chamber will first consider an element common to all crimes against humanity, that is, the existence of a widespread or systematic attack against a civilian population on national, political, ethnic, racial or religious grounds (Article 3).

439. The crime must be committed as part of a widespread or systematic attack, and need not be a part of both. “Widespread” is defined as massive or large-scale, involving many victims; “systematic” refers to an organized pattern of conduct, not a mere random occurrence. [372]

440. The Chamber heard testimony about massacres by Hutu against Tutsi in various parts of Kibuye Prefecture. There is evidence of daily attacks in Bisesero against the Tutsi seeking shelter there, leading to thousands of Tutsi being killed, and of a large number of corpses in Kibuye town at the relevant time, the corpses being that of Tutsi refugees. The evidence further shows that the Tutsi being targeted were of all ages and both sexes. The attacks were methodical, organized and on a large scale, involving many armed attackers, especially those on 13 and 14 May 1994. Therefore, the Chamber finds that there was a widespread and systematic attack against the civilian Tutsi population on ethnic grounds in Kibuye Prefecture, in particular, in Bisesero, from April to July 1994.

441. Count 5 of the Indictment charges the Accused with Murder as a Crime Against Humanity pursuant to Article 3(a) of the Statute, in that on or between the dates of 6 April 1994 and 17 July 1994, notably, though not exclusively, in Kibuye Prefecture, Rwanda, the Accused did kill persons, or cause persons to be killed, as part of a widespread or systematic attack against a civilian population on political, ethnic or racial grounds.

442. Article 3 of the Statute provides that the crime must be committed as part of a widespread or systematic attack against a civilian population on national, political, ethnic, racial or religious grounds. The Accused need not act with discriminatory intent, but he must know that his act is part of this widespread or systematic attack. [373] In respect of this count, the Accused must be found to have murdered one or more civilians.

443. In II.5.1.4 above, the Chamber found that on or about 18 June 1994, during an attack at Kiziba in Bisesero, the Accused shot and killed two civilian Tutsi, an old man and a young boy, whom he called “Inyenzi”, which he meant to be a reference to the Tutsi.

444. The Chamber found in II.6.4 above that on 20 May near the Gisovu-Kibuye road, the Accused shot and killed a young civilian girl of 13-15 years of age.

445. The Chamber finds that the conduct of the Accused formed part of the widespread and systematic attack found in paragraph 440 above.

446. Given the Accused’s characterization of the old man and young boy as “Inyenzi” or “Tutsi”, participation in and leadership of attacks against Tutsi, his shooting of Tutsi refugees, his procurement of weapons and gendarmes for attacks against Tutsi, and the evidence discussed in paragraphs 416-418 above, the Chamber finds that in killing the old man, the young boy and the young girl, the Accused had the requisite intent to kill them and knew that it was part of a widespread and systematic attack against the civilian Tutsi population on ethnic grounds.

447. The Chamber finds the Accused individually criminally responsible, pursuant to Article 6(1) of the Statute, for killing the old man, the young boy and the teenage girl, and finds that such acts constitute murder committed as part of a widespread and systematic attack on the civilian Tutsi population on ethnic grounds and as such constitute a crime against humanity, as provided in Article 3(a) of the Statute. Accordingly, the Chamber finds that the Accused is guilty of Crime Against Humanity (Murder) as charged in Count 5 of the Indictment.

448. Count 6 of the Indictment charges the Accused with extermination as a crime against humanity pursuant to Article 3(b) of the Statute, in that on or between the dates of 6 April 1994 and 17 July 1994, notably, though not exclusively, in Kibuye Prefecture, Rwanda, the Accused did kill persons, or cause persons to be killed, during mass killing events as part of a widespread or systematic attack against a civilian population on political, ethnic or racial grounds.

449. Article 3 of the Statute provides that this crime must be committed as part of a widespread or systematic attack against a civilian population on national, political, ethnic, racial or religious grounds. The Accused need not act with discriminatory intent, but he must know that his act is part of this widespread or systematic attack. [374] In respect of this count, the Accused must be found to have participated in the extermination of individuals.

450. The Chamber notes that in Akayesu, extermination was defined as “a crime which by its very nature is directed against a group of individuals”. The Trial Chamber in Akayesu noted that extermination “differs from murder in that it requires an element of mass destruction, which is not required for murder”. Two of the essential elements of extermination mentioned were that the Accused participated in the killing of certain named or described persons, and his act of participation was unlawful or intentional. [375] The Trial Chamber in Vasiljevic held that the material element of extermination “consists of any one act or combination of acts which contributes to the killing of a large number of individuals”. [376]

451. The Chamber refers to the findings above in paragraphs 411-415 regarding the Accused’s participation as one of the leaders in large-scale attacks against Tutsi, and his acts of shooting at Tutsi refugees during the attacks. The Chamber recalls the factual findings as to the large numbers of Tutsi killed as a result of these attacks. The Chamber also found that the Accused killed an old man, a young man and a teenage girl (II.5.1.4 and II.6.4). Based on these facts, the Chamber finds that the Accused’s acts contributed to the mass killing of Tutsi civilians.

452. The Chamber finds that the conduct of the Accused formed part of the widespread and systematic attack found in paragraph 440 above.

453. Taking into consideration the Accused’s leadership role in attacks against Tutsi, his acts of shooting at Tutsi refugees, his procurement of weapons and gendarmes for attacks against Tutsi, his characterization of the old man and young boy as “Inyenzi” or “Tutsi”, and the evidence discussed in paragraphs 416-418 above, the Chamber finds that the Accused intended to kill Tutsi civilians and knew that his acts were part of a widespread and systematic attack against the civilian Tutsi population on ethnic grounds.

454. The Chamber finds that by his participation in attacks against Tutsi, and his acts of shooting at Tutsi refugees, which contributed to the killing of a large number of individuals, and his killing of the three persons, the Accused is individually criminally responsible, pursuant to Article 6(1) of the Statute, for extermination committed as part of a widespread and systematic attack on the civilian Tutsi population on ethnic grounds, and that such acts constitute a crime against humanity, as provided in Article 3(b) of the Statute. Accordingly, the Chamber finds that the Accused is guilty of Crime Against Humanity (Extermination) as charged in Count 6 of the Indictment.

455. Count 7 of the Indictment charges the Accused with rape as a crime against humanity pursuant to Article 3(g) of the Statute, in that on or between the dates of 6 April 1994 and 17 July 1994, notably, though not exclusively, in Kibuye Prefecture, Rwanda, the Accused did cause women to be raped as part of a widespread or systematic attack against a civilian population on political, ethnic or racial grounds.

456. Article 3 of the Statute provides that the crime must be committed as part of a widespread or systematic attack against a civilian population on national, political, ethnic, racial or religious grounds. The Accused need not act with discriminatory intent, but he must know that his act is part of this widespread or systematic attack. [377] In respect of this count, the Accused must have raped one or more persons, rape being “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.” [378]

457. In II.6.4 above, the Chamber found that there was insufficient evidence to find that the Accused raped a young girl on 20 May 1994 near the Gisovu-Kibuye road. Apart from this, the Prosecution led no evidence in support of its allegation that the Accused “did cause women to be raped”.

458. Accordingly, the Chamber finds that the Accused is not guilty of Crime Against Humanity (Rape) as charged in Count 7 of the Indictment.

459. Count 8 of the Indictment charges the Accused with inhumane acts as a crime against humanity pursuant to Article 3(i) of the Statute, in that on or between the dates of 6 April 1994 and 17 July 1994, notably, though not exclusively, in Kibuye Prefecture, Rwanda, the Accused did commit inhumane acts upon persons as part of a widespread or systematic attack against a civilian population on political, ethnic or racial grounds.

460. Article 3 of the Statute provides that the crime must be committed as part of a widespread or systematic attack against a civilian population on national, political, ethnic, racial or religious grounds. The Accused need not act with discriminatory intent, but he must know that his act is part of this widespread or systematic attack. [379] In respect of this count, the Accused must be found to have participated in the commission of inhumane acts on individuals, being acts of similar gravity to the other acts enumerated in the Article, such as would cause serious physical or mental suffering or constitute a serious attack on human dignity. [380]

461. In a discussion of aiding and abetting under Article 6(1) in Bagilishema, it was held that presence, when combined with authority, may constitute assistance, in the form of moral support. An approving spectator, who is held in such respect by other perpetrators that his presence encourages them in their conduct, may be guilty in a crime against humanity. [381]

462. In II.7.1.4 above, the Chamber found that on 22 June 1994, at Kazirandimwe Hill, the Accused was participating in an attack when Assiel Kabanda was found. The Accused and the attackers were jubilant at this capture as Kabanda was a prominent Tutsi who was influential and well-liked. The Accused was rejoicing when Kabanda was killed, decapitated, castrated and his skull pierced through the ears with a spike. The skull was carried away by two men each holding one end of the spike with the skull in the middle. Kabanda’s genitals were hung on a spike, and visible to the public. The Chamber finds that the jubilation of the Accused, particularly in light of his leadership role in the attack, at the decapitation and castration of Kabanda, and the piercing of Kabanda’s skull, supported and encouraged the attackers, and thereby aided and abetted the commission of these crimes.

463. In II.7.2.4 above, the Chamber found that on 28 June 1994, near the Technical Training College, the Accused ordered Interahamwe to undress the body of a Tutsi woman, whom he called “Inyenzi”, who had just been shot dead, to fetch and sharpen a piece of wood, which he then instructed them to insert into her genitalia. This act was then carried out by the Interahamwe, in accordance with his instructions.

464. The Chamber finds that the conduct of the Accused formed part of the widespread and systematic attack found in paragraph 440 above.

465. The Chamber finds that the acts committed with respect to Kabanda and the sexual violence to the dead woman’s body are acts of seriousness comparable to other acts enumerated in the Article, and would cause mental suffering to civilians, in particular, Tutsi civilians, and constitute a serious attack on the human dignity of the Tutsi community as a whole.

466. Given the Accused’s leadership role in attacks against Tutsi, his acts of shooting at Tutsi refugees, his act of procurement of weapons and gendarmes for attacks against Tutsi, his planning of attacks against Tutsi during meetings, his acts of incitement against Tutsi, and his characterization of the old man and young boy as “Inyenzi” or “Tutsi”, the fact that Kabanda was generally regarded as a prominent Tutsi, and the characterization of the dead woman by the Accused as “Inyenzi” or Tutsi, and the evidence discussed in paragraphs 416-418 above, the Chamber finds that the Accused intended these acts to be perpetrated on the bodies of Kabanda and the dead woman, and knew that these acts were part of a widespread and systematic attack against the civilian Tutsi population on ethnic grounds.

467. The Chamber finds that by his act of encouragement during the killing, decapitation and castration of Kabanda, and the piercing of his skull, and his association with the attackers who carried out these acts, and his ordering of Interahamwe to perpetrate the sexual violence on the body of the dead woman, the Accused is individually criminally responsible, pursuant to Article 6(1) of the Statute, for inhumane acts committed as part of a widespread and systematic attack on the civilian Tutsi population on ethnic grounds and as such constitute a crime against humanity, as provided in Article 3(i) of the Statute. Accordingly, the Chamber finds that the Accused is guilty of Crime against Humanity (Other Inhumane Acts) as charged in Count 8 of the Indictment.

3.10 Count 9 – Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II

468. The Prosecutor withdrew this Count in its Closing Brief. [382] Consequently, the Chamber finds the Accused not guilty of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II as charged in Count 9 of the Indictment.

3.11 Count 10 – Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II

469. The Prosecutor withdrew this Count in its Closing Brief. [383] Consequently, the Chamber finds the Accused not guilty of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II as charged in Count 10 of the Indictment.

470. The Accused is charged pursuant to Article 6(3) of the Statute with individual criminal responsibility as a superior in Counts 1, 2, 4, 5, 6, 7, 8, 9 and 10 of the Indictment, by virtue of his actual and constructive knowledge of the acts and omissions of his subordinates, and his failure to stop or prevent them, or to discipline and punish them, for their acts in the preparation and execution of the crimes charged.

471. Article 6(3) provides that “[t]he fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”

472. In Musema, it was held that “a civilian superior may be charged with superior responsibility only where he has effective control, be it de jure or merely de facto, over the persons committing violations of international humanitarian law.” [384] The Appeals Chamber in Delalic held that “[a]s long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control.” [385]

473. The Prosecution submitted that the Accused’s subordinates were local authorities like bourgmestres and conseillers, Interahamwe, gendarmes, soldiers, communal police and armed civilians in Kibuye Prefecture. [386] It argued that the Accused incurs superior responsibility by virtue of his position as Minister of Information in the Interim Government, his influence in the Kibuye prefecture community, his leadership role in attacks and meetings, his issuing of orders to attackers, and his planning of attacks. The Prosecution further submitted that the Accused’s authority over attackers is borne out by Defence Witness TEN-23’s testimony. Witness TEN-23 testified to an incident when the Accused told Interahamwe, who were searching for Tutsi in a house, to leave the people in the house alone. The Interahamwe subsequently left (see II.2.7.4 above).

474. The Chamber notes that the Prosecution does not contend that the Accused incurs superior responsibility solely by virtue of his position as a Minister. [387] The Chamber further notes that Defence Witness Nkezabera stated that the Minister of Information in the Interim Government, had no de jure or de facto control over prefets or bourgmestres. [388] The Chamber finds that there is no evidence to show that a Minister of Information in Rwanda, by virtue of his position alone, would have effective control over the subordinates named by the Prosecution, like bourgmestres or Interahamwe. The Chamber also notes that influence in the community is not indicative of a superior-subordinate relationship, as discussed above.

475. With regard to the acts cited by the Prosecution as evidence of superior responsibility, the Chamber recalls that it found in II.2 above that the Accused led attacks in various areas in Bisesero. The evidence is that the Accused was one of the leaders of the attacks, and was usually in the front or middle of the attacking party and carrying a gun. However, there is no evidence to indicate that the Accused, rather than the other leaders present, were in a superior-subordinate relationship with the attackers. The evidence does not show that he had the ability to prevent or punish the crimes committed by the attackers. [389]

476. Turning to the Accused’s participation in meetings, such as was found in II.3.1.3, II.3.2.4 and II.3.3.4 above, the Chamber finds that the evidence adduced may indicate that the Accused had a leadership role, but is insufficient to show that he was in a superior-subordinate relationship with the people in attendance at the meetings, in that he could prevent or punish the people at the meeting for their crimes.

477. In respect of his issuance of orders, the Chamber recalls that the Accused told an attacker to bring him an old man and young boy so that he could kill them and subsequently told them to remove their corpses (see II.2.9.4 and II.5.1.4 above). The Chamber also found that the Accused told attackers to go to work at Rugarama on 13 April (see II.4.2.4 above). In II.7.2.4 above, the Chamber found that the Accused instructed Interahamwe to insert a piece of wood into the genitalia of a dead woman. Defence Witness TEN-23 testified to an incident when the Accused ordered the Interahamwe to leave a house. The Chamber considers that while these acts show that the attackers carried out the Accused’s orders, there is no evidence that they did so in a superior-subordinate hierarchy, or that the Accused had the ability to prevent or punish them for crimes committed. In respect of Witness TEN-23’s evidence, the Chamber notes that the Accused persuaded the Interahamwe to leave after quoting a Rwandan proverb, and talking to them for approximately ten minutes; this exchange between the Accused and the Interahamwe is not that of a superior commanding his subordinate. The Chamber finds that the Prosecution has not adduced evidence of effective control by the Accused of the people he ordered to commit crimes, in that it has not been shown that the Accused could prevent or punish them for the crimes committed.

478. Therefore, the Chamber is not convinced of the existence of a superior-subordinate relationship. As a result, it is unnecessary to examine the other elements of superior responsibility. Accordingly, the Chamber finds that the Accused did not incur individual criminal responsibility as a superior under Article 6(3) as charged in Counts 1, 2, 4, 5, 6, 7, and 8 of the Indictment.

[360] Decision on the Prosecutor’s Motion for Judicial Notice of Facts dated 4 September 2002.

[361] Defence’s Reply to Prosecutor’s Request to Admit Facts dated 21 June 2002; T. 17 Oct. 2002, p. 12.

[362] Defence’s Reply to Prosecutor’s Request to Admit Facts dated 21 June 2002.

[363] T. 20 June 2002, pp. 151-153.

[364] Akayesu (TC) para. 521.

[365] Musema (TC) paras. 191-194.

[366] Kayishema and Ruzindana were convicted of, inter alia, genocide, for crimes committed in the Bisesero region and in Kibuye Prefecture. However, the Indictment against Kayishema and Ruzindana was amended on 6 May 1996 to withdraw the conspiracy charges.

[367] Akayesu (TC) paras. 549-562.

[368] Id. para. 556.

[369] Id. para. 557.

[370] Id. para. 560.

[371] Id. para. 562.

[372] Id., paras. 579-580.

[373] Akayesu (AC) paras. 460-469.

[374] Akayesu (AC) paras. 460-469.

[375] Akayesu (TC) paras. 591-592.

[376] Vasiljevic (TC) para. 229.

[377] Akayesu (AC) paras. 460-469.

[378] Akayesu (TC) para. 688.

[379] Akayesu (AC) paras. 460-469.

[380] See Bagilishema (TC) paras. 91-92.

[381] Id. para. 34, Furundzija (TC) para. 207.

[382] Prosecution Final Trial Brief, para. 230.

[384] Musema (TC) para. 141; see also, Bagilishema (TC) paras. 37-50, Bagilishema (AC) paras. 24-62; Delalic (TC) paras. 330-400, Delalic (AC) paras. 182-314, Kvocka (TC) paras. 2-7.

[385] Delalic (AC) para. 198.

[386] Prosecution Final Trial Brief, para. 265.

[387] T. 27 Feb. 2003 pp. 19-20; Prosecution Final Trial Brief, para. 263.

[388] T. 14 November 2002 pp. 140-142.

[389] Delalic (TC) paras. 251-252.