6. LEGAL FINDINGS

6.1 Count 1 - Genocide & Count 2 - Complicity in Genocide

6.2 Count 3 - Conspiracy to Commit Genocide

6.3 Count 5 - Crime against Humanity (extermination)

6.4 Count 4 - Crime against Humanity (murder)

6.5 Count 6 - Crime against Humanity (other inhumane acts)

6.6 Count 7 - Crime against Humanity (rape)

6.7 Counts 8 and 9 -Violation of Common Article 3 and Additional         Protocol II 274

6.1 Count 1 - Genocide & Count 2 - Complicity in Genocide

  1. In Count 1, relating to all the facts alleged in the Indictment, the Prosecutor charges Musema with criminal responsibility, under Article 6 (1) and (3) of the Statute, for the crime of genocide, a crime punishable under Article 2 (3) (a) of the Statute.
  2. As an alternative, the Prosecutor also charges Musema with Count 2, in which Musema is held criminally responsible, under Article 6 (1) and (3) of the Statute, for having committed the crime of complicity in genocide, a crime punishable under Article 2 (3) (e) of the Statute. Count 2 also relates to all the acts alleged in the Indictment.
  3. The Chamber recalls, as it indicated supra in its findings on the applicable law, that it holds that an accused is guilty of the crime of genocide if he committed one of the acts enumerated under Article 2 (2) of the Statute against a national, ethnical, racial or religious group, specifically targeted as such, with the intent to destroy, in whole or in part, said group.
  4. Furthermore, the Chamber holds that an accused is liable for complicity in genocide if he knowingly and voluntarily aided or abetted or instigated a person or persons to commit genocide, while knowing that such a person or persons were committing genocide, even though the accused himself did not have the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group, specifically targeted as such.
  5. As Count 2 stands in the alternative to Count 1, the Chamber will now present its findings with respect to both counts by examining, firstly, on the basis of the factual findings set forth above in Chapter 5, which of the acts alleged in the Indictment to have been committed by Musema it considers to have been established beyond a reasonable doubt and for which he incurs responsibility. The Chamber will then determine whether those acts are constituent elements of the crime of genocide and, if not, whether they constitute elements of the crime of complicity in genocide.

With respect, firstly, to the facts alleged in the Indictment, the Chamber is satisfied beyond any reasonable doubt, on the basis of the factual findings, of the following:

  1. Firstly, regarding the allegations presented under paragraph 4.8 of the Indictment, according to which Musema, in concert with others, ordered and abetted in the rape of Annunciata, a Tutsi, and thereafter ordered that she and her son be killed, the Chamber holds that even if it is proven that Musema ordered that Annunciata be raped, such order, by and of itself, does not suffice for him to incur individual criminal responsibility, given that no evidence has been adduced to show that the order was executed to produce such result, namely the rape of Annunciata. Nor has it been proven that Musema ordered that she and her son be killed.
  2. Secondly, the Chamber is satisfied that it has been established beyond a reasonable doubt that on 26 April 1994, Musema led and participated in an attack on Gitwa Hill. Musema arrived at the site of the attack in a Daihatsu vehicle belonging to the Gisovu Tea Factory. He carried a firearm and was accompanied by employees of the Gisovu Tea Factory wearing blue uniforms. Musema and other persons, some of whom wore banana leaves and Imihurura belts, attacked Tutsi refugees. It has also been established beyond a reasonable doubt that Musema shot into the crowd of refugees. The attackers killed resolutely, and few refugees survived the large-scale attack.
  3. The Chamber finds that Musema incurs individual criminal responsibility for the above-mentioned acts, on the basis of the provisions of Article 6 (1) of the Statute, for having ordered and, by his presence and participation, having aided and abetted in the murder of members of the Tutsi ethnic group, and for the causing of serious bodily and mental harm to members of the said group.
  4. With respect to the Prosecutor's contention that Musema could additionally be held criminally responsible, under Article 6 (3) of the Statute, the Chamber finds that for an accused to be held criminally responsible under these statutory provisions, the Prosecutor must establish: (1) that one of the acts referred to under Articles 2 to 4 of the Statute was, indeed, committed by a subordinate of the Accused; (2) that the accused knew or had reason to know that the subordinate was about to commit such act or had done so; and (3) that the accused failed to take the necessary and reasonable measures to prevent the commission of said act by the subordinate or to punish him for the criminal conduct.
  5. The Chamber notes that, in the instant case, it has been established that employees of the Gisovu Tea Factory were among the attackers. The Chamber is of the view that their participation resulted, inevitably, in the commission of acts referred to under Articles 2 to 4 of the Statute, including, in particular, causing serious bodily and mental harm to members of the Tutsi group.
  6. The Chamber finds that it has also been established that Musema was the superior of said employees and that he held not only de jure power over them, but also de facto power.(1) Considering that Musema was personally present at the attack sites, the Chamber is of the opinion that he knew or, at least, had reason to know that his subordinates were about to commit such acts or had done so. The Chamber notes that the Accused nevertheless failed to take the necessary and reasonable measures to prevent the commission of said acts by his subordinates, but rather abetted in the commission of those acts, by his presence and personal participation.
  7. Consequently, the Chamber finds that, for the acts committed by the employees of the Gisovu Tea Factory during the attack of 26 April 1994 on Gitwa Hill, Musema incurs individual criminal responsibility, as their superior, on the basis of the provisions of Article 6 (3) of the Statute.
  8. Thirdly, the Chamber is satisfied beyond a reasonable doubt that between 27 April and 3 May 1994, Musema participated in the attack on Rwirambo Hill. Musema arrived in a red Pajero, followed by four Daihatsu pick-ups from the Gisovu Tea Factory which were carrying persons that Witness R described as Interahamwe. The witness recognized those persons from their blue uniforms which had the name "Usine à thé Gisovu" printed on the back. Musema was armed with a rifle. While trying to flee, Witness R's arm was injured from a bullet which came from Musema's direction.
  9. The Chamber finds that, for the above-mentioned acts, Musema incurs individual criminal responsibility, on the basis of the provisions of Article 6 (1) of the Statute, for having committed and, by his presence and participation, having aided and abetted in the causing of, serious bodily and mental harm to members of the Tutsi group.
  10. With respect to the Prosecutor's argument that Musema could also be held responsible under Article 6 (3) of the Statute, the Chamber finds, firstly, that among the attackers at Rwirambo were persons identified as employees of the Gisovu Tea Factory. The Chamber is of the view that their participation resulted, inevitably, in the commission of acts referred to under Articles 2 to 4 of the Statute, including, in particular, causing serious bodily and mental harm to members of the Tutsi group.
  11. The Chamber finds that it has also been established, as held supra, that Musema was the superior of said employees and that he held not only de jure power over them, but also de facto power. Noting that Musema was personally present at the attack sites, the Chamber is of the opinion that he knew or, at least, had reason to know that his subordinates were about to commit such acts or had done so. The Chamber notes that Musema, nevertheless, failed to take the necessary and reasonable measures to prevent the commission of said acts by his subordinates, but rather abetted in their commission, by his presence and by his personal participation.
  12. Consequently, the Chamber finds that, for the acts committed by the employees of the Gisovu Tea Factory during the attack on Rwirambo Hill, Musema incurs individual criminal responsibility, as their superior, on the basis of the basis of Article 6 (3) of the Statute.
  13. Fourthly, on the basis of numerous corroborating testimonies, the Chamber is satisfied that it has been established beyond any reasonable doubt that on 13 May 1994 a large-scale attack was launched at Muyira Hill against 40,000 Tutsi refugees. The attack began in the morning. Some of the attackers arrived on Muyira Hill on foot while others came in vehicles, including Daihatsus belonging to the Gisovu Tea Factory. Employees of the Gisovu Tea Factory dressed in their uniforms, gendarmes, soldiers, civilians and members of the Interahamwe were among the attackers. The attackers were armed with firearms, grenades, rocket launchers and traditional weapons. They chanted anti-Tutsi slogans.
  14. The Chamber is satisfied beyond a reasonable doubt that Musema was among the leaders of the attack. He arrived at the location in his red Pajero. He was armed with a rifle which he used during the attack. Thousands of unarmed Tutsi men, women and children were killed during the attack, while others were forced to flee for their lives.
  15. The Chamber finds that, for the acts mentioned supra, Musema incurs individual criminal responsibility, on the basis of the provisions of Article 6 (1) of the Statute, for having ordered and, by his presence and participation, aided and abetted in the murder of members of the Tutsi group and the causing of serious bodily and mental harm to members of said group.
  16. The Chamber notes, on the basis of the factual findings set forth supra, that it has been established beyond a reasonable doubt, that employees of the Gisovu Tea Factory were among the attackers. The Chamber is of the view that their participation resulted, inevitably, in the commission of acts referred to under Articles 2 to 4 of the Statute, including, in particular, the killing of members of the Tutsi group and causing serious bodily and mental harm to members of the said group.
  17. The Chamber also finds that it has been established that Musema was the superior of the said employees and that he had not only de jure power over them, but also de facto power. Noting that Musema was himself present at the attack sites, the Chamber is of the opinion that he knew or, at least, had reason to know that his subordinates were about to commit such acts or had done so. The Chamber notes that the Accused, nevertheless, failed to take necessary and reasonable measures to prevent the commission of said acts by his subordinates, but rather abetted in the commission of those acts, by his presence and personal participation.
  18. Consequently, the Chamber finds that, for the acts committed by the employees of the Gisovu Tea Factory during the attack of 13 May 1994, Musema incurs individual criminal responsibility, as their superior, on the basis of the provisions of Article 6 (3) of the Statute.
  19. Fifthly, the Chamber finds that it has been established beyond a reasonable doubt that on 13 May 1994, during the above-mentioned attack on Muyira Hill, Musema, having been told by a policeman called Ruhindara that a young Tutsi woman, a teacher by the name Nyiramusugi, was still alive, asked Ruhindara to catch her and to bring her to him. With the help of four young men, Ruhindara dragged the woman on the ground and brought her to Musema who had his rifle in his hand. The four young men, who were restraining Nyiramusugi, dropped her on the ground and pinned her down. Two of them held her arms, while the other two clamped her legs. The latter two opened the legs of the young woman and Musema tore her garments and undergarments, before undressing himself. In a loud voice, Musema said: "The pride of the Tutsi is going to end today". Musema raped Nyiramusugi. During the rape, as Nyiramusugi struggled, Musema immobilized her by taking her arm which he forcibly held to her neck. Standing nearby, the four men who initially held Nyiramusugi to the ground watched the scene. After Musema's departure, they came back to the woman and also raped her in turns. Thereafter, they left Nyiramusugi for dead.
  20. The Chamber finds that Musema incurs individual criminal responsibility under Article 6 (1) of the Statute, for having raped, in concert with others, a young Tutsi woman and for thus having caused serious bodily and mental harm to a member of the Tutsi group. The Chamber also finds that Musema incurs individual criminal responsibility under Article 6(1) of the Statute, for having abetted others to rape the girl, by the said act of rape and the example he thus set.
  21. With respect to the Prosecutor's argument that Musema could also be liable under Article 6(3) of the Statute, the Chamber notes that the Prosecutor has not established, nor even alleged, that among the assailants who attacked Nyiramusugi there were employees of the Gisovu Tea Factory or other persons who were Musema's subordinates. Therefore, the Chamber holds that Musema does not incur individual criminal responsibility under Article 6(3) of the Statute for Nyiramusugi's rape.
  22. Sixthly, the Chamber is satisfied beyond a reasonable doubt that another large-scale attack took place on Muyira Hill on 14 May 1994 against Tutsi civilians. The attackers, who numbered about 15 000, were armed with traditional weapons, firearms and grenades. They chanted slogans. Musema, who was armed with a rifle, was one of the leaders of that attack.
  23. Furthermore, the Chamber is satisfied beyond a reasonable doubt that Musema participated in an attack which took place in mid-May 1994 on Muyira Hill against Tutsi civilians and that Musema led the attackers, who included the Interahamwe and employees of the Gisovu Tea Factory. Musema's red Pajero and vehicles belonging to the Gisovu Tea Factory were seen at the site of the attack. Musema launched the attack by shooting his rifle, and he personally shot at the refugees, although it has not been established beyond a reasonable doubt that he killed anyone.
  24. The Chamber finds that, for the above-mentioned acts, Musema incurs individual criminal responsibility, under Article 6(1) of the Statute, for having ordered, committed and, by his presence and participation, aided and abetted in the causing of serious bodily and mental harm to members of the Tutsi group.
  25. The Chamber notes that, on the basis of the factual findings set forth supra, it has been established beyond a reasonable doubt that employees of the Gisovu Tea Factory were among the attackers. The Chamber holds that the participation of said employees resulted, inevitably, in the commission of acts referred to under Articles 2 to 4 of the Statute, including, in particular, the causing of serious bodily and mental harm to members of the Tutsi group.
  26. The Chamber finds that it has also been established that Musema was the superior of said employees and that he not only held de jure power over them, but also de facto power. Considering that Musema was personally present at the attack sites, the Chamber is of the view that he knew or, at least, had reason to know that his subordinates were about to commit such acts or had done so. The Chamber notes that the Accused, nevertheless, failed to take the necessary and reasonable measures to prevent the commission of said acts by his subordinates, but rather abetted in the commission of those acts, by his presence and personal participation.
  27. Consequently, the Chamber finds that for the acts committed by the employees of the Gisovu Tea Factory on Muyira Hill, Musema incurs individual criminal responsibility as their superior, on the basis of the provisions of Article 6(3) of the Statute.
  28. Seventhly, the Chamber is satisfied that it has been established beyond a reasonable doubt that Musema participated in an attack on Mumataba Hill in mid-May 1994. Among the attackers, who numbered between 120 and 150, were employees of the Gisovu Tea Factory armed with traditional weapons, and communal policemen. In the presence of Musema, vehicles of the tea factory transported the attackers to the sites. The attack, which was carried out against some 2000 to 3000 Tutsis who had sought refuge in the house of one Sakufe and in the vicinity of the said house, was sparked off by blowing whistles. The Chamber is satisfied beyond any reasonable doubt that Musema was present, that he stayed with the others near his vehicle during the attack, and that he left the site with the attackers.
  29. The Chamber finds that, for these acts, Musema incurs individual criminal responsibility, on the basis of the provisions of Article 6(1) of the Statute, for having, by his presence and the fact that he witnessed the attack, aided and abetted in the murder of members of the Tutsi group and in the causing of serious bodily and mental harm to members of the said group.
  30. The Chamber notes that it has been established beyond a reasonable doubt that employees of the Gisovu Tea Factory were among the attackers and that they were transported to the attack sites by vehicles of the factory, in the presence of Musema. The Chamber is of the view that their participation resulted, inevitably, in the commission of acts referred to under Articles 2 to 4 of the Statute, including, in particular, the killing of members of the Tutsi group and causing serious bodily and mental harm to members of the said group.
  31. The Chamber finds that it has been established that Musema was the superior of the said employees and that he had not only de jure power over them, but also de facto power. Considering that Musema was himself present at the attack sites, the Chamber is of the opinion that he knew or, at least, had reason to know that his subordinates were about to commit such acts or had done so. The Chamber notes that Musema, nevertheless, failed to take the necessary and reasonable measures to prevent the commission of said act by his subordinates, but rather abetted his subordinates in the commission of those acts, by his presence and by his personal participation.
  32. Consequently, the Chamber finds that, for the acts committed by the employees of the Gisovu Tea Factory during the Mumataba attack, Musema incurs individual criminal responsibility, as their superior, on the basis of the provisions of Article 6(3) of the Statute.
  33. Eighthly, the Chamber is convinced beyond reasonable doubt that Musema participated in the attack on Nyakavumu cave. Musema was aboard his Pajero in a convoy, travelling towards the cave, which included tea factory Daihatsus aboard of which were tea factory workers. It has been proved beyond reasonable doubt that Musema was armed with a rifle, and that he was present at the attack during which assailants closed off the entrance to the cave with wood and leaves, and set fire thereto. The Chamber finds that it has been proven beyond reasonable doubt that over 300 Tutsi civilians who had sought refuge in the cave died as a result of the fire.
  34. The Chamber finds that, for the above-mentioned acts, Musema incurs individual criminal responsibility, under Article 6(1) of the Statute, for having committed and, by his presence, aided and abetted in the commission of serious bodily and mental harm to members of the Tutsi group.
  35. The Chamber notes that, on the basis of the factual findings set forth supra, it has been established beyond reasonable doubt that Gisovu Tea Factory workers were among the attackers. The Chamber holds that the participation of these employees resulted, inevitably, in the commission of acts referred to under Articles 2 to 4 of the Statute, including, in particular, the causing of serious bodily and mental harm to members of the Tutsi group.
  36. The Chamber finds that it has also been established that Musema was the superior of said employees and that he not only held de jure power over them, but also de facto control. Considering that Musema was personally present at the attack sites, the Chamber is of the view that he knew or, at least, had reason to know that his subordinates were about to commit such acts or had done so. The Chamber notes that the Accused, nevertheless, failed to take the necessary and reasonable measures to prevent the commission of said acts by his subordinates, but rather abetted in the commission of those acts, by his presence and personal participation.
  37. Consequently, the Chamber finds that for the acts committed by the employees of the Gisovu Tea Factory on Muyira Hill, Musema incurs individual criminal responsibility as their superior, on the basis of the provisions of Article 6(3) of the Statute.
  38. It emerges from the foregoing findings that the Chamber is satisfied beyond any reasonable doubt that Musema is criminally responsible, under Article 6 (1) of the Statute, for having ordered, committed and, by his presence and his participation aided and abetted in the killing of members of the Tutsi group, to whom he caused serious bodily and mental harm. Moreover, the Chamber is satisfied beyond any reasonable doubt that Musema incurs further criminal responsibility under Article 6(3) of the Statute for the acts committed by the employees of the Gisovu Tea Factory.

Regarding ,secondly, whether the above-mentioned acts were committed against the Tutsi group as such, and whether Musema possessed genocidal intent at the time those acts were committed:

  1. As held in the findings regarding the applicable law on the determination of genocidal intent, the Chamber is of the view that it is necessary to infer such intent by deduction from the material evidence submitted to the Chamber, including the evidence which demonstrates a consistent pattern of conduct by Musema.
  2. The Chamber notes, firstly, that based on numerous submissions of evidence proffered at the trial, and, in particular, on acts referred to in paragraphs 4.4, 4.5, and 4.11 of the Indictment (2), it has been proven that, at the time of the facts alleged in the Indictment, numerous atrocities were committed against the Tutsis in Rwanda. Musema acknowledged that roadblocks manned by individuals, some of whom were armed with machetes and an assortment of weapons, were erected at the time all along the road from Kigali to Gitarama. Musema testified that he personally saw several bodies along the road and also witnessed incidents of looting. Musema conceded that those people had been killed at the roadblocks because they were accused of being Inyenzi, a term which at the time was equivalent to Tutsi.
  3. In particular, Musema acknowledged that from April to June 1994, thousands of men, women and children, predominantly Tutsis, sought refuge in the Bisesero area. Musema admitted that those people were targets of regular attacks from approximately 9 April to 30 June 1994. The assailants used guns, grenades, machetes, spears, pangas, cudgels and other weapons to kill the Tutsis. In the Bisesero area, the attacks resulted in thousands of deaths and injuries among these men, women and children.
  4. Musema also conceded that around 13 May 1994 a large-scale attack was launched against Tutsi civilians who had taken refuge on Muyira Hill in Gisovu Commune and that those Tutsis then became victims of acts of genocide. Musema admitted, in general, that during the months of April, May and June 1994, in the communes of Gisovu and Gishyita, in Kibuye Préfecture, acts of genocide were committed against the Tutsi ethnic group.
  5. Consequently, the Chamber notes that the above acts, with which Musema and his subordinates are charged, were committed as part of a widespread and systematic perpetration of other criminal acts against members of the Tutsi group. Furthermore, the Chamber notes that Musema acknowledged that genocide directed against the Tutsis took place at the time of the events alleged in the Indictment and at the very sites where the acts with which he is charged were committed.
  6. Next, and foremost, the Chamber notes that, on the basis of corroborating testimonies presented, the participation by Musema in the attacks against members of the Tutsi group has been proved beyond a reasonable doubt. The anti-Tutsi slogans chanted during the attacks, including the slogan "Let's exterminate them", directed at the Tutsis, clearly demonstrated that the objective of the attackers, including Musema, was to destroy the Tutsis. The Chamber is satisfied that Musema, who held de facto authority, by virtue inter alia of his position as Director of the Gisovu Tea Factory and as an educated man with political influence, ordered the commission of crimes against members of the Tutsi group and abetted in said crimes by participating personally in them. These attacks were pointedly aimed at causing harm to and destroying the Tutsis. The victims, namely men, women and children, were deliberately and systematically targeted on the basis of their membership in the Tutsi ethnic group. Certain degrading acts were purposely intended to humiliate them for being Tutsis.
  7. Accordingly, the Chamber notes that on the basis of the evidence presented, it emerges that acts of serious bodily and mental harm, including rape and other forms of sexual violence were often accompanied by humiliating utterances, which clearly indicated that the intention underlying each specific act was to destroy the Tutsi group as a whole. The Chamber notes, for example, that during the rape of Nyiramusugi Musema declared: "The pride of the Tutsis will end today". In this context, the acts of rape and sexual violence were an integral part of the plan conceived to destroy the Tutsi group. Such acts targeted Tutsi women, in particular, and specifically contributed to their destruction and therefore that of the Tutsi group as such. Witness N testified before the Chamber that Nyiramusugi, who was left for dead by those who raped her, had indeed been killed in a way. Indeed, the Witness specified that "what they did to her is worse than death".
  8. Therefore, the Chamber is satisfied beyond a reasonable doubt that at the time of commission of the above-mentioned acts, which the Chamber considers to have been established, Musema had the intent to destroy the Tutsi ethnic group as such.
  9. On that basis, the Chamber recalls that, with regard to the issue of whether the Tutsis were, indeed, a protected group within the meaning of the Genocide Convention, at the time of the events alleged in the Indictment, the Defence did admit that acts of genocide were committed against the Tutsi ethnic group. Consequently, after having considered all the evidence submitted, and the political, social and cultural context prevailing in Rwanda, the Chamber holds that, at the time of the alleged events, the Tutsi group did constitute and still constitutes a protected group within the meaning of the Genocide Convention and , thereby, under Article 2 of the Statute.
  10. In conclusion, from all the foregoing, the Chamber is satisfied beyond a reasonable doubt that: firstly, Musema incurs individual criminal responsibility for the above-mentioned acts, which are constituent elements of the crime of genocide; secondly, that said acts were committed by Musema with the specific intent to destroy the Tutsi group, as such; and thirdly, that the Tutsi group is one of the groups legally protected from the crime of genocide. Musema incurs individual criminal responsibility under Article 6(1) and (3) of the Statute for the crime of genocide, a crime punishable under Article 2(3)(a) of the Statute.

6.2 Count 3 - Conspiracy to commit genocide

  1. Under Count 3, which relates to all acts alleged in the Indictment, the Prosecutor charges Musema with the crime of conspiracy to commit genocide, a crime punishable under Article 2 (3) (b) of the Statute.
  2. The Chamber notes that the acts thus alleged by the Prosecutor under Count 3 are the same as the acts alleged under Count 1( genocide ) and Count 2 (complicity in genocide).
  3. Regarding the law applicable to the crime of conspiracy to commit genocide, the Chamber held supra that:

      "... conspiracy to commit genocide is to be defined as an agreement between two or more persons to commit the crime of genocide".(3)

  1. The Chamber notes that the Prosecutor has neither clearly alleged, nor, above all, adduced evidence that Musema, indeed, conspired with other persons to commit genocide and that he and such persons reached an agreement to act to that end.
  2. Therefore, the Chamber holds that Musema does not incur criminal responsibility for the crime of conspiracy to commit genocide, under Count 3, all the more so as, on the basis of the same acts, the Prosecutor presented evidence of Musema's participation in the commission of genocide, the substantive offence in relation to conspiracy.

 

6.3 Legal Findings - Count 5: Crime against Humanity (extermination)

  1. Count 5 of the Indictment charges Musema with crime against humanity (extermination), pursuant to Articles 3(b), 6(1) and 6(3) of the Statute, for the acts alleged in paragraphs 4.1 to 4.11 of the Indictment.
  2. The Chamber notes that the Defence has made certain admissions inter alia: that the Tutsi were either a racial or ethnic group; that there were widespread or systematic attacks throughout Rwanda, between the period 1 January and 31 December 1994 and these attacks were directed against civilians on the grounds, ethnic affiliation and racial origin. The Chamber finds that the Prosecutor is discharged of the burden of proving these elements in respect of crime against humanity (extermination).
  3. The Chamber notes that Article 6(1) of the Statute, provides that a person who "planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute, shall be individually responsible for the crime." It is also noted that Article 6(3) of the Statute provides that "acts [...] 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".
  4. The Chamber has found, beyond a reasonable doubt that Musema:
  1. The Chamber finds that in 1994, the Accused had knowledge of a widespread or systematic attack that was directed against the civilian population in Rwanda. This finding is supported by the presence of Musema at attacks in different locations in Kibuye Préfecture, as found above, by the testimony of the Accused, and by Defence exhibits. The Chamber recalls, in particular, the following testimony of the Accused:


    "[...] compte tenu d'abord d'une part les massacres qui se faisaient à l'intérieur [...] il y avait ce génocide qui venait de se commettre, qui était encore en train de se commettre [...]"(8);

    "[...] des gens ont été massacrés à Kibuye, dans d'autres préfectures [...]"(9);

    "[...] Ce bébé qui est mort, cette vieille femme, ce petit enfant qui est mort, qui a été massacré, par des bourreaux impitoyables, pour moi ce sont des martyrs."(10)

  2. The Chamber further recalls statements made by Musema in letters written to Nicole Pletscher, which were tendered as Defence exhibits, specifically:

    "Depuis le 06/04 le pays a vécu un bain de sang incroyable: troubles ethniques - massacres - vols - tout ce qu'on puisse ou plutôt qu'on ne peut pas s'imaginer sur le plan de l'horreur humaine ... Ruhengeri est plus ou moins touché. Mais Byumba est occupé à 100% ... Mais on indique que les morts dépassent des centaine de milliers de gens [...] Des milliers et des milliers de déplacés de guerre, quelle horreur qui s'ajoute à des milliers de cadavres!"(11)

    "Au niveaux des droits humanitaires des massacres se sont arrêtés dans la Zône gouvernmentale mais se perpetrent toujours dans la Zône FPR. L'aide humanitaire est attendue mais n'arrive pas."(12)

  3. The Chamber finds that, Musema's criminal conduct was consistent with the pattern of the then ongoing widespread or systematic attack on the civilian population and his conduct formed a part of this attack.
  4. The Chamber finds, that Musema's conduct: in ordering and participating in the attacks on Tutsi civilians who had sought refuge on Muyira hill and on Mumataba hill; in aiding and abetting in the aforementioned attacks by providing motor vehicles belonging to Gisovu Tea Factory, for the transport of attackers to Muyira hill and Mumataba hill; and in his participation in attacks on Tutsi civilians who had sought refuge in Nyakavumu cave, Gitwa hill and Rwirambo, renders the Accused individually criminally responsible, pursuant to Article 6(1) of the Statute.
  5. The Chamber has already found that there existed at the time of the events alleged in the indictment a de jure superior-subordinate relationship between Musema and the employees at the Gisovu Tea Factory.(13) The Chamber also found that the Accused had the authority to take reasonable measures to prevent the use of Tea Factory vehicles, uniforms or other Tea Factory property in the commission of the attacks(14). The Chamber finds that the Accused, despite his knowledge of the participation of Gisovu Tea Factory employees in these attacks and their use of Tea Factory property in the commission of these attacks, failed to take any reasonable measures to prevent or punish such participation or such use of Tea Factory property.
  6. The Chamber therefore finds beyond a reasonable doubt that Musema is individually criminally responsible for crime against humanity (extermination), pursuant to Articles 3(b), 6(1) and 6(3) of the Statute, as charged in Count 5 of the Indictment.

    7. 6.4 Count 4: Crime against Humanity (murder)

  7. Count 4 of the Indictment charges Musema with crime against humanity (murder), pursuant to Articles 3(a), 6(1) and 6(3) of the Statute, for the acts alleged in paragraphs 4.1 to 4.11 of the Indictment.
  8. The Chamber notes that the Accused is also charged, under count 5 of the Indictment, for crime against humanity (extermination), pursuant to Articles 3(b), 6(1) and 6(3) of the Statute, for the acts alleged in paragraphs 4.1 to 4.11 of the Indictment, which acts include the attacks on civilians at various locations in Bisesero. The allegations in the aforementioned paragraphs of the Indictment also form the basis for Count 4, crimes against humanity (murder).
  9. The Chamber concurs with the reasoning in Akayesu that:

    "[...] it is acceptable to convict the accused of two offences in relation to the same set of facts in the following circumstances: (1) where the offences have different elements; or (2) where the provisions creating the offences protect different interests; or (3) where it is necessary to record a conviction for both offences in order fully to describe what the accused did. However, the Chamber finds that it is not justifiable to convict an accused of two offences in relation to the same set of facts where (a) one offence is a lesser included offence of the other, for example, murder and grievous bodily harm, robbery and theft, or rape and indecent assault; or (b) where one offence charges accomplice liability and the other offence charges liability as a principal, e.g. genocide and complicity in genocide."(15)

  10. The Chamber also concurs with the reasoning in the Rutaganda Judgement which states that:

    "murder and extermination, as crimes against humanity, share the same constituent elements of the offence, that it is committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds. Both murder and extermination are constituted by unlawful, intentional killing. However, murder is the killing of one or more individuals, whereas extermination is a crime which is directed against a group of individuals....."(16) (Emphasis added)

  11. The Chamber notes that in the Akayesu Judgement, a series of acts of murder, as alleged in individual paragraphs of the Indictment were held collectively to constitute an act of extermination. In the Rutaganda Judgement a single act of an attack on the "ETO", although charged inter alia both as murder and as extermination, was held to constitute extermination, and not murder, because it was found to be a killing of a collective group of individuals.
  12. In this case, the killings at Gitwa hill, Muyira hill, Rwirambo hill, Mumataba hill and at the Nyakavumu cave are killings of collective groups of individuals, hence constituting extermination and not murder. Therefore, the Accused cannot be held culpable for crime against humanity (murder), in respect of these killings. The Chamber recalls its findings in Section 6.3 above.
  13. The Chamber therefore finds that Musema is not individually criminally responsible, for crime against humanity (murder), pursuant to Article 3(a), 6(1) and 6(3) of the Statute, and as charged in Count 4 of the Indictment.

    14. 6.5 Count 6: Crime against Humanity (other inhumane acts)

  14. Count 6 of the Indictment charges Musema with crime against humanity (other inhumane acts), pursuant to Articles 3(i), 6(1) and 6(3) of the Statute, for the acts alleged in paragraphs 4.1 to 4.11 of the Indictment.
  15. The Chamber has already defined "Other inhumane Acts", as envisaged in Article 3 of the Statute.(17)
  16. The Chamber finds that the Prosecutor has failed to prove beyond a reasonable doubt that Musema is individually criminally responsible for any act, falling within the ambit of crime against humanity (other inhumane acts), pursuant to Articles 3(i), 6(1) and 6(3) of the Statute, as charged in Count 6 of the Indictment.

6.6 Count 7: Crime Against Humanity (rape)

  1. Count 7 of the Indictment charges Musema with crime against humanity (rape), pursuant to Articles 3(g), 6(1) and 6(3) of the Statute, for the acts alleged in paragraphs 4.1 to 4.11 of the Indictment.
  2. In light of its factual findings with regard to the allegations in paragraph 4.10 of the Indictment(18), the Chamber considers the criminal responsibility of the Accused, pursuant to Articles 6(1) and 6(3) of the Statute.
  3. The Chamber notes that the Defence has made certain admissions inter alia: that the Tutsi were a racial or ethnic group; that there were widespread or systematic attacks through out Rwanda, between the period 1 January and 31 December 1994 and these attacks were directed against civilians on the grounds of ethnic affiliation and racial origin. The Chamber finds that the Prosecutor is discharged of the burden of proving these elements in respect of crime against humanity (rape).
  4. The Chamber has adopted the definition of rape set forth in the Akayesu Judgement, as "a physical invasion of a sexual nature, committed on a person under circumstances which are coercive"(19) and the definition of sexual violence set forth in the Akayesu Judgement as "any act of a sexual nature which is committed on a person under circumstances which are coercive."(20)
  5. The Chamber has made the factual finding that on 13 May 1994 the Accused raped a Tutsi woman called Nyiramusugi. The Chamber recalls its finding in Section 6.3 supra, that the Accused had knowledge of a widespread or systematic attack on the civilian population. The Chamber finds that the rape of Nyiramusugi by the Accused was consistent with the pattern of this attack and formed a part of this attack.
  6. The Chamber therefore finds, that Musema is individually criminally responsible for crime against humanity (rape), pursuant to Articles 3(g) and (6)(1) of the Statute.
  7. However, the Chamber finds, that the Prosecutor has failed to prove beyond a reasonable doubt any act of rape that had been committed by Musema's subordinates and that Musema knew or had reason to know of this act and he failed to take reasonable measures to prevent the said act or to punish the perpetrators thereof, following the commission of such act. The Prosecutor has therefore not proved beyond a reasonable the individual criminal responsibility of Musema, pursuant to Articles 3(g) and 6(3) of the Statute, as charged in Count 7 of the Indictment.

6.7 Counts 8 and 9 -Violation of Common Article 3 and Additional Protocol II

  1. Counts 8 and 9 of the Indictment charge Musema with serious violations of Common Article 3 of the 1949 Geneva Conventions and the 1977 Additional Protocol II thereto, as incorporated in Article 4 of the Statute of the Tribunal.
  2. The Chamber notes that the Defence admitted that, at the time of the events alleged in the Indictment, there existed an internal armed conflict meeting the temporal and territorial requirements of both Common Article 3 and Additional Protocol II. Further, evidence presented during the trial, in particular the testimony of Musema, demonstrated the full extent of the conflict between the dissident armed forces, the FPR, and the Government forces, the FAR, in Rwanda throughout the period the offences were said to have been perpetrated.
  3. On the basis of the above, the Chamber finds that it has been established beyond reasonable doubt that at the time of the events alleged in the Indictment there existed a non-international armed conflict meeting the requirements of Common Article 3 and Additional Protocol II.
  4. The Chamber is also satisfied beyond reasonable doubt that the victims of the offences alleged, comprised of unarmed civilians, men, women and children, are protected persons under Common Article 3 and Additional Protocol II. Moreover, the Chamber notes that the Defence admitted that the victims of the alleged crimes were individuals protected under Common Article 3 and Additional Protocol II.
  5. The Chamber recalls, as developed in Section 3.4 of the Judgement on the Applicable Law, that offences must be closely related to the hostilities or committed in conjunction with the armed conflict to constitute serious violations of Common Article 3 and Additional Protocol II. In other words, there must be a nexus between the offences and the armed conflict.
  6. The burden rests on the Prosecutor to establish, on the basis of the evidence adduced during trial, that there exists a nexus, on the one hand, between the acts for which Musema is individually criminally responsible, including those for which he is individually criminally responsible as a superior, and, on the other, the armed conflict. In the opinion of the Chamber, the Prosecutor has failed to establish that there was such a nexus.
  7. Consequently, the Chamber finds Musema not guilty of serious violations of Common Article 3 and Additional Protocol II as charged in Counts 8 and 9 of the Indictment.

    1. See section 5.2 of the Judgement.

    2. See Section 4.1.of the Judgement..

    3. See Section 3.2.3 of this Judgement.

    4. See Supra Section 5.2.

    5. See Supra Section 5.2.

    6. See Supra Section 5.2.

    7. See Supra Section 5.2.

    8. See Testimony of the Accused, transcript of 24 May 1999. English translation: "considering the killings that were taking place inside the country there was this genocide which had been committed, and which was being committed".

    9. See Testimony of the Accused, transcript of 24 May 1999. English translation: "people were massacred in Kibuye and other Prefectures ...".

    10. See Testimony of the Accused, transcript of 24 May 1999. English translation: "Babies, elderly women, children who died, who were massacred by butchers. They were butchered."

    11. See Defence exhibit D36. English translation: " Since 06/04, the country has been living through an incredible blood bath: ethnic unrests - massacres - thefts - all that can or rather all that cannot be imagined at the level of human horror ... Runegeri is more or less affected. But Byumba is 100% affected ... It is estimated that about hundred of thousands of people [sic] have been killed ... Thousands and thousands of displaced people, how dreadful in addition to the thousands of corpses!"

    12. See Defence exhibit D76. "At the level of human rights, the massacres have been halted in the Government zone but still to continue in the FPR zone. Humanitarian assistance is expected but has not arrived". [Unofficial translation]

    13. See Supra Section 5.4.

    14. See Supra Section 5.4.

    15. See Akayesu Judgement, para. 468.

    16. See Rutaganda Judgement, para.422.

    17. See Supra Section 3.3.

    18. See Supra Section 5.3.

    19. See Supra, Section 3.3.

    20. See Supra, Section 3.3.