5. LEGAL FINDINGS

5.1 Count 1: Genocide

5.2 Legal Findings - Count 2: Crimes against Humanity (extermination)

5.3 Legal Findings - Count 3: Crimes against Humanity (murder)

5.4 Legal Findings - Count 5: Crimes against Humanity (murder)

5.5 Legal Findings - Count 7: Crimes against Humanity (murder)

5.6 Counts 4, 6, and 8 - Violations of Common Article 3 (murder).

5.1 Count 1: Genocide

  1. Count 1 covers all the acts described in the Indictment. It is the Prosecutor's contention that, by his acts as alleged in paragraphs 10 to 19 of the Indictment, the Accused committed the crime of genocide punishable by Article 2(3)(a) of the Statute.
  2. In its findings supra(1) on the law applicable to the crime of genocide, the Chamber held that for the crime of genocide to be established, it was necessary, firstly, that one of the acts enumerated under Article 2(2) of the Statute be perpetrated; secondly, that such act be directed against a group specifically targeted as such on ethnic, racial or religious grounds; and thirdly, that such act be committed with intent to destroy the targeted group in whole or in part.

Regarding the acts alleged in paragraphs 10 to 19 of the Indictment and based on its factual findings supra, the Chamber is satisfied beyond any reasonable doubt of the following:

  1. Regarding the facts alleged in paragraph 10, the Chamber finds that it is established beyond any reasonable doubt that, on the afternoon of 8 April 1994, the Accused arrived at Nyarugenge in a pick-up truck, filled with firearms and machetes. The Accused personally distributed weapons to the Interahamwe and ordered them to go to work stating that there was a lot of dirt that needed to be cleaned up. The Accused was carrying a rifle slung over his shoulder and a machete hanging from his belt. The Chamber also finds that it is established beyond any reasonable doubt that on 15 April 1994 in the afternoon, the Accused arrived at the Cyahafi Sector, Nyarugenge Commune, in a pick-up truck. The pick-up was parked near a public standpipe. The Accused got out of the vehicle, opened the back of the truck where the guns were kept. The men who had come with him distributed the weapons to members of the Interahamwe. Immediately after the distribution of rifles, those who received them started shooting. Three persons were shot dead; all were Tutsis. The Chamber also finds that it is established beyond a reasonable doubt that on or about 24 April 1994, in the Cyahafi Sector, the Accused distributed Uzzi guns to the President of the Interahamwe of Cyahafi during an attack by the Interahamwe on the Abakombozi.
  2. In the opinion of the Chamber, the Accused is individually criminally responsible by reason of such acts for having aided and abetted in the preparation for and perpetration of killings of members of the Tutsi group and for having caused serious bodily or mental harm to members of said group.
  3. With respect to the acts alleged under paragraph 11 of the Indictment, the Prosecutor failed to satisfy the Chamber that such acts are proven beyond any reasonable doubt and that the Accused incurs criminal responsibility as a result.
  4. Regarding the allegations included in paragraph 12 of the Indictment, the Chamber is satisfied beyond any reasonable doubt that in April 1994, Tutsis who had been separated at a roadblock in front of Amgar garage were taken to the office of the Accused inside Amgar garage and that the Accused thereafter directed that these Tutsis be detained within Amgar. The Accused subsequently directed men under his control to take fourteen detainees, at least four of whom were Tutsis, to a deep hole near Amgar garage. On the orders of the Accused and in his presence, his men killed ten of the detainees with machetes. The bodies of the victims were thrown into the hole.
  5. In the opinion of the Chamber, the Accused is individually criminally responsible as charged for having ordered, committed, aided and abetted in the preparation and execution of killings of members of the Tutsi group and caused serious bodily or mental harm to members of said group.
  6. As concerns the acts alleged in paragraphs 13, 14, 15 and 16 of the Indictment, the Chamber finds that these have been established beyond any reasonable doubt. From 7 April to 11 April 1994, several thousand persons, most of them Tutsis, sought refuge at the ETO. Members of the Interahamwe, armed with rifles, grenades, machetes and cudgels gathered outside the ETO. Prior to the attack, the Hutus were separated from the Tutsis who were at the ETO, following which hundreds of Hutus then left the ETO compound. When UNAMIR troops withdrew from the ETO on 11 April 1994, members of the Interahamwe and of the Presidential Guard surrounded the compound and attacked the refugees, throwing grenades, firing shots and killing people with machetes and cudgels. The attack resulted in the deaths of a large number of Tutsis. The Accused was present during the ETO attack, armed with a rifle in the midst of a group of attackers who proceeded to throw grenades and fire shots. He was seen about fifty metres away from the entrance to the ETO. The Chamber finds that it is established beyond any reasonable doubt that the Accused was at the ETO and that he participated in the attack against the Tutsi refugees.
  7. A large number of the refugees who managed to escape or survived the attack on the ETO then headed in groups for the Amahoro Stadium. On their way, they were intercepted by soldiers who assembled them close to the Sonatube factory and diverted them towards Nyanza. They were insulted, threatened and killed by soldiers and members of the Interahamwe who were escorting them and who were armed with machetes, cudgels, axes and other weapons. At Nyanza, the Interahamwe forced the refugees to stop; they were assembled and made to sit at the foot of a hill where armed soldiers stood. The refugees were surrounded by Interahamwe and soldiers. The Hutus were asked to stand up and identify themselves and were subsequently allowed to leave. Some Tutsis who tried to leave pretending to be Hutus were killed on the spot by members of the Interahamwe who knew them. Grenades were then hurled into the crowd by the Interahamwe and the soldiers on the hill started shooting. Those who tried to escape were escorted back by the Interahamwe. Many people were killed. After firing shots and throwing grenades at the refugees, the soldiers ordered the Interahamwe to start killing them. Thereupon the Interahamwe started killing, using cudgels and other weapons. Some young girls were singled out, taken aside and raped before being killed. Many of the women who were killed were stripped of their clothing. The soldiers then ordered the Interahamwe to check for survivors and to finish them off. The Accused directed the Interahamwe who were armed with grenades, machetes and clubs into position to surround the refugees just prior to the massacre. The Chamber finds that it has been established beyond any reasonable doubt that the Accused was present and participated in the Nyanza attack. Furthermore, it holds that by his presence, the Accused abetted in the perpetration of the crimes.
  8. With respect to the acts alleged against the Accused, as described in paragraphs 13 to 16 of the Indictment, the Chamber finds that individual criminal responsibility attached to the Accused for having committed, aided and abetted in the killings of members of the Tutsi group and having caused serious bodily or mental harm to members of the Tutsi group.
  9. With respect to the allegations made in paragraph 17 of the Indictment, the Chamber notes that the Prosecutor has failed to lead evidence in support of the allegations that, in April 1994, the Accused conducted searches in the Masango Commune. Nor has the Prosecutor satisfied the Chamber beyond any reasonable doubt that the Accused instructed that all Tutsis be tracked down and thrown into the river.
  10. The Chamber finds, with regard to the events alleged in paragraph 18, that it is established beyond any reasonable doubt that, on 28 April 1994, Interahamwe conducted house-to-house searches in the Agakingiro neighbourhood demanding identity cards from people. Tutsis and people belonging to certain political parties were taken to the "Hindi Mandal" temple, near Amgar garage. The Accused was present at the location where the detainees had been gathered. He was dressed in military uniform, including a coat and trousers, and was carrying a rifle. Among the detainees was Emmanuel Kayitare, alias Rujindiri, a Tutsi. A man called Cekeri told Emmanuel that he knew him and that he was aware that he was going to the National Development Council (CND). Emmanuel became frightened and took off running. The Accused caught Emmanuel by the collar of his shirt to prevent him from running away. He struck Emmanuel Kayitare on the head with a machete, killing him instantly.
  11. The Chamber finds that the Accused incurs individual criminal responsibility for such acts for having personally killed a Tutsi and for having aided and abetted in the preparation or causing of serious bodily and mental harm on members of the Tutsi group.
  12. Regarding the events alleged in paragraph 19 of the Indictment, the Chamber finds that, while it is established that the Accused ordered that the bodies of the victims be buried, the Prosecutor, however, failed to satisfy the Chamber beyond reasonable doubt that the Accused gave such orders in order to conceal his crimes from the international community.
  13. In light of the foregoing, the Chamber is satisfied beyond reasonable doubt that the Accused incurs criminal responsibility, under Article 6(1) of the Statute, for having ordered, committed or otherwise aided and abetted in the preparation or execution of murders and the causing of serious bodily or mental harm on members of the Tutsi group.

As to whether the above-mentioned acts were committed against the Tutsi group, specifically targeted, as such, and whether the Accused had the requisite intent in committing the above -mentioned acts for which he incurs criminal responsibility:

  1. In its findings on the applicable law with respect to the crime of genocide(2), the Chamber held that, in practice, intent may be determined, on a case by case basis, through a logical inference from the material evidence submitted to it, and which establish a consistent pattern of conduct on the part of the Accused. Quoting a text from the findings in the Akayesu Judgement, it holds:

    "On the issue of determining the offender's specific intent, the Chamber considers that the intent is a mental factor which is difficult, even impossible, to determine. This is the reason why, in the absence of a confession from the Accused, his intent can be inferred from a certain number of presumptions of fact. The Chamber considers that it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act".(3)

  2. The Chamber notes that many corroborating testimonies presented at trial show that the Accused actively participated in the widespread attacks and killings committed against the Tutsi group. The Chamber is satisfied that the Accused, who held a position of authority because of his social standing, the reputation of his father and, above all, his position within the Interahamwe, ordered and abetted in the commission of crimes against members of the Tutsi group. He also directly participated in committing crimes against Tutsis. The victims were systematically selected because they belonged to the Tutsi group and for the very fact that they belonged to the said group. As a result, the Chamber is satisfied beyond any reasonable doubt that, at the time of commission of all the above-mentioned acts which in its opinion are proven, the Accused had indeed the intent to destroy the Tutsi group as such.
  3. Moreover, on the basis of evidence proffered at trial and discussed in this Judgement under the section on the general allegations,(4) the Chamber finds that, at the time of the events referred to in the Indictment, numerous atrocities were committed against Tutsis in Rwanda. From the widespread nature of such atrocities, throughout the Rwandan territory, and the fact that the victims were systematically and deliberately selected owing to their being members of the Tutsi group, to the exclusion of individuals who were not members of the said group, the Chamber is able to infer a general context within which acts aimed at destroying the Tutsi group were perpetrated. Consequently, the Chamber notes that such acts as are charged against the Accused were part of an overall context within which other criminal acts systematically directed against members of the Tutsi group, targeted as such, were committed.
  4. The Chamber recalls that, in its findings on the general allegations, it also indicated that, in its opinion, the Tutsi group clearly constitutes a protected group, within the meaning of the Convention on genocide.
  5. In light of the foregoing, the Chamber is satisfied beyond any reasonable doubt; firstly, that the above-mentioned acts for which the Accused incurs individual responsibility on the basis of the allegations under paragraphs 10, 12, 13, 14, 15, 16 and 18 of the Indictment, are constitutive of the material elements of the crime of genocide; secondly, that such acts were committed by the Accused with the specific intent to destroy the Tutsi group as such;, and thirdly, that the Tutsi group is a protected group under the Convention on genocide. Consequently, the Chamber finds that the Accused incurs individual criminal responsibility for the crime of genocide.

5.2 Count 2: Crime Against Humanity (extermination)

  1. Count 2 of the Indictment charges the Accused with crimes against humanity (extermination), pursuant to Article 3(b) and Article 6(1) of the Statute, for the acts alleged in paragraphs 10 to 19 of the Indictment.
  2. In respect of paragraph 10 of the Indictment, the Chambers finds that on 8 April 1994, the Accused arrived at Nyarugenge Commune in a pick-up truck, carrying firearms and machetes. The Accused distributed weapons to the Interahamwe and ordered them to go to work, stating that there was a lot of dirt that needed to be cleaned up.
  3. The Chamber finds that on the afternoon of 15 April 1994, the Accused went to Cyahafi Sector, Nyarugenge Commune in a pick-up truck. The Accused opened the back of the truck and the men who were with him distributed weapons to the Interahamwe. The Chamber also finds that on or about 24 April 1994 and in the Cyahafi sector, the Accused distributed fire arms to the President of the Interahamwe of Cyahafi, during an attack by the Interahamwe on the Abakombozi.
  4. In respect of the allegations in paragraph 12 of the Indictment, the Chamber finds that in April 1994 Tutsis were singled out at a roadblock near the Amgar garage and taken to the Accused, who ordered the detention of these people. The Accused subsequently ordered that 14 detainees be taken to a hole near the Amgar garage. On the orders of the Accused and in his presence, ten of these detainees were killed and their bodies were thrown into the hole.
  5. In respect of the allegations in paragraphs 13 and 14 of the Indictment, the Chamber finds that several thousand people, mostly Tutsis, sought refuge at the ETO, from 7 to 11 April 1994. Following the departure of UNAMIR from the ETO, on 11 April 1994 , Colonel Leonides Rusatila went into the ETO compound and separated Hutus from Tutsis and several hundred Hutus left the ETO. Thereafter the Interahamwe, together with the Presidential Guard attacked the people in the compound. The Accused was present and participated in this attack. A number of Tutsis, including many family members and others known to the witnesses were killed in the attack.
  6. In respect of the allegations in paragraphs 15 and 16 of the Indictment, the Chamber finds that the Accused was present and participated in the forced diversion of refugees to Nyanza and that he directed and participated in the attack at Nyanza on 11 April 1994.
  7. The Chamber notes that paragraph 16 of the Indictment alleges that certain events, namely the separation of Hutus and Tutsis refugees and the attack on the Tutsis refugees, took place on or about 12 April 1994. As noted by the Prosecutor, these events took place on 11April 1994. The Chamber does not consider this variance to be material, particularly in light of the language "on or about". The sequence of events leading to the massacre is described in paragraphs 14, 15 and 16 of the Indictment as having commenced on 11 April 1994. Moreover, the killing at Nyanza was resumed on the morning of 12 April 1994. The Chamber considers that 11 April 1994 constitutes "on or about April 12, 1994".
  8. The Chamber further notes that paragraphs 15 and 16 of the Indictment allege that refugees were transferred to a gravel pit near the primary school of Nyanza, where they were surrounded and attacked. As the Defence indicated in her closing statement, none of the witnesses described the site of the massacre as a gravel pit. The evidence establishes that the refugees were assembled and surrounded at a site at Nyanza, at the base of a nearby hill. The Chamber does not consider the description of this site as a gravel pit in the allegation, to be of the essence to the charges set forth in the Indictment and finds that the allegations set forth in paragraph 15 and 16 of the Indictment have been proved, beyond a reasonable doubt.
  9. In respect of the allegations in paragraph 18 of the Indictment, the Chamber finds beyond a reasonable doubt that on 28 April 1994, Emmanuel Kayitare, together with other people, were taken to the "Hindi Mandal" temple, near the Amgar Garage, where they were detained. The Accused was present at this location, and when Emmanuel Kayitare tried to escape by running off, the Accused grabbed him by his collar and struck him on his head with a machete, which resulted in his death.
  10. The Chamber relies on this factual finding to hold the Accused criminally responsible for crimes against humanity (murder), as charged in Count 7 of the Indictment. The Chamber finds that the act of killing Emmanuel Kayitare, taken together with other proven acts, such as, the distribution of fire arms and machetes to the Interahamwe and the killings at ETO and Nyanza, cumulatively form the basis for crimes against humanity (extermination). The Chamber will therefore take into consideration the factual findings in paragraph 18, together with other proven acts, when assessing the responsibility of the Accused, in respect of Count 2.
  11. In respect of the allegation in paragraph 19 of the Indictment, the Chamber finds that the accused ordered the burial of bodies, in order to conceal the dead from the "'foreigners". The Chamber finds that there is no evidence to suggest that the Accused ordered the burial of bodies to conceal his crimes from the international community. The allegation in paragraph 19 has therefore only been proved in part.
  12. In respect of the allegations in paragraphs 11 and 17 of the Indictment, the Chamber finds that these allegations have not been proved, beyond a reasonable doubt.
  13. 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."
  14. The Chamber finds beyond a reasonable doubt that the Accused: aided and abetted in the killings by distributing weapons to the Interahamwe on 8, 15 and 24 April 1994; ordered the killing of 10 people in April 1994 who were subsequently killed in his presence; participated in an attack on the people who sought refuge at the ETO; directed and participated in the attack at Nyanza; murdered Emmanuel Kayitare and by his conduct intended to cause the death of a large number of people belonging to the Tutsi ethnic group, because of their ethnicity.
  15. The Chamber finds beyond a reasonable doubt that in the time periods referred to in the indictment there was a widespread and systematic attack on the Tutsi ethnic group, on ethnic grounds. The accused had knowledge of this attack, and he intended his conduct to be consistent with the pattern of this attack and to be a part of this attack.
  16. The Chamber therefore finds beyond a reasonable doubt that the Accused is individually criminally responsible for crimes against humanity (extermination), pursuant to Articles 2(3)(b) and 6(1) of the Statute.

5.3 Count 3: Crime Against Humanity (murder)

  1. Count 3 of the Indictment charges the Accused with crimes against humanity (murder), pursuant to Articles 3(a) and 6(1) of the Statute, for the acts alleged in paragraph 14 of the Indictment.
  2. The Chamber notes that pursuant to Count 2 of the Indictment, the Accused is charged for crimes against humanity (extermination), under Articles 3(b) and 6(1) of the Statute of the Tribunal, for the acts alleged in paragraphs 10-19 of the Indictment, which acts include the attack on the ETO compound, as alleged in paragraph 14. The allegations in paragraph 14 of the indictment also form the basis for Count 3, crimes against humanity (murder)
  3. The Chamber concurs with the reasoning in the Akayesu Judgement(5) 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."

  4. As crimes against humanity, murder and extermination share the same constituent elements of the offence of a crime against humanity, 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. Murder is a the killing of one or more individuals, whereas extermination is a crime which is directed against a group of individuals.
  5. The Chamber notes that in the Akayesu Judgement, a series of murder charges set forth in individual paragraphs of the Indictment were held collectively to constitute extermination. In that case the individual allegations which formed the basis for counts of murder and at the same time formed the basis for a collective count of extermination were incidents in which named persons had been murdered. In this case, the single allegation of the ETO attack, although charged as murder, is in itself an allegation of extermination, that is the killing of a collective group of individuals.
  6. Having held the Accused criminally responsible for his conduct, as alleged in paragraph 14 of the Indictment, in respect of crimes against humanity (extermination), as charged in Count 2, the Chamber finds that he cannot also be held criminally responsible for crimes against humanity (murder), as charged in Count 3 of the Indictment on the basis of the same act.

5.4 Count 5: Crime Against Humanity (murder)

  1. Count 5 of the Indictment charges the Accused with crimes against humanity (murder), pursuant to Articles 3(a) and 6(1) of the Statute, for the acts alleged in paragraph 15 and 16 of the Indictment.
  2. The Chamber notes that the Accused is charged, pursuant to Count 2 of the Indictment for crimes against humanity (extermination), under Articles 3(b) and 6(1) of the Statute, for the acts alleged in paragraphs 10-19 of the Indictment, which acts include the massacre of Tutsi refugees at Nyanza, as alleged in paragraphs 15 and 16. These allegations also support Count 5, crimes against humanity (murder).
  3. For the reasons set forth in the legal findings pertaining to Count 3 above, the Chamber finds that the Accused cannot be held criminally responsible for crimes against humanity (murder), as charged in Count 5 of the Indictment.

5.5 Count 7: Crime Against Humanity (murder)

  1. Count 7 of the Indictment charges the Accused with crimes against humanity (murder), pursuant to Articles 3(a) and 6(1) of the Statute, for the acts alleged in paragraph 18 of the Indictment.
  2. The Chamber finds beyond a reasonable doubt that on 28 April 1994, Emmanuel Kayitare together with other people were taken near the Amgar Garage, where they were detained. The Accused was present at this location and when Emmanual Kayitare tried to escape by running off, the Accused grabbed hold of him by his collar and struck him on his head with a machette, which resulted in his death.
  3. The Chamber notes that Article 6(1) of the Statute of the Tribunal 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." The Chamber finds beyond a reasonable doubt that the Accused detained or alternatively aided and abetted in the detention of Tutsis and other people belonging to certain political parties and that he murdered Emmanual Kayitare when the said Kayitare attempted to escape.
  4. The Chamber finds beyond a reasonable doubt that Emmanual Kayitare was a civilianbelonging to the Tutsi ethnic group.
  5. The Chamber finds beyond a reasonable doubt that in April 1994 there was a widespread and systematic attack on the Tutsi ethnic group, because of their ethnicity. The accused had knowledge of this attack and he intended the murder of Kayitare to be consistent with the pattern of this attack and to be a part of this attack.
  6. The Chamber finds beyond a reasonable doubt that the Accused is individually criminally responsible for crimes against humanity (murder), as charged in Count 7 of the Indictment.

5.6 Counts 4, 6, and 8 : Violation of Common Article 3 of the Geneva Conventions (murder)

  1. Counts 4, 6 and 8 of the Indictment charge the Accused with violations of Common Article 3 of the 1949 Geneva Conventions, as incorporated in Article 4 of the Statute. The Prosecutor has chosen to restrict the wording of these counts to violations of Common Article 3 only, even though Article 4 of the Statute covers both Common Article 3 and also Additional Protocol II of 1977 to the Geneva Conventions of 1949. As indicated supra by the Chamber(6), Additional Protocol II merely supplements and reaffirms Common Article 3, without modifying the article's field of applicability. The only true difference between the Article and the Protocol is the higher threshold to be met for internal conflicts to be characterized as meeting the requirements of the Additional Protocol.
  2. The Prosecutor, in her closing brief, outlined the elements of the offences and the burden of proof with which she was laden. In so doing, she developed not only the material requirements to be met for an offence to constitute a serious violation of Common Article 3, but also presented to the Chamber the material requirements to be met for Additional Protocol II to be applicable. It thus transpires from her argumentation that she intended to prove that the material requirements of both Common Article 3 and Additional Protocol II had to be met before any finding of guilt could be made with regard to counts 4, 6 and 8 of the Indictment. Moreover, were any doubt to remain as to whether the Prosecutor needs to demonstrate that Common Article 3 is applicable, or that both Common Article 3 and Additional Protocol II are applicable, the Chamber recalls that in criminal proceedings, matters in doubt should be interpreted in favour of the Accused. Furthermore, the Trial Chamber considers the material requirements of Article 4 of the Statute to be indivisible, in other words, that Common Article 3 and Additional Protocol II must be satisfied conjunctively, before an offence can be deemed to be covered by Article 4 of the Statute. Thus, it is the opinion of the Chamber that for a finding of guilt to be made for any one of counts 4, 6 and 8 of the Indictment, the Chamber must be satisfied that the material requirements of Common Article 3 and Additional Protocol II have to be met. Consequently, the Prosecutor must prove that at the time of the events alleged in the Indictment there existed an internal armed conflict in the territory of Rwanda, which, at the very least, satisfied the material requirements of Additional Protocol II, as these requirements subsume those of Common Article 3.
  3. On the basis of evidence presented in this case by Professor Reyntjens, Mr. Nsanzuwera, Professor Mbonimpa and Captain Lemaire, the Chamber is satisfied that at the time of the events alleged in the Indictment, namely, in April, May and June 1994, there existed an internal armed conflict between, on the one hand, the government forces and, on the other, the dissident armed forces, the RPF. The RPF were under the responsible command of General Kagame and exercised such control over part of their territory as to enable them to carry on sustained and concerted military operations. The RPF also stated to the International Committee of the Red Cross that it considered itself bound by the rules of international humanitarian law(7). Moreover, the theater of combat in April 1994 included the town of Kigali, as the opposing forces fought to gain control of the capital.
  4. Evidence adduced in support of the paragraphs contained in the general allegations, and more specifically paragraphs 7 and 8, and also the allegations set out in paragraphs 14, 15, 16 and 18 of the Indictment, demonstrate that the victims of the offences were unarmed civilians, men, women and children who had been identified as the "targets" on the basis of their ethnicity. Those persons who had carried weapons were disarmed by the UNAMIR troops on entering the ETO compound. The Chamber does not consider that the bearing of these weapons prior to being disarmed deprived the victims of the protection afforded to them by Common Article 3 of the Geneva Conventions and Additional Protocol II. Indeed, the Chamber is not of the opinion that these "armed" civilians were taking a direct part in the hostilities, but rather finds that the bearing of these weapons was a desperate and futile attempt at survival against the thousands of armed assailants.
  5. The Chamber is satisfied that the victims were persons taking no active part in the hostilities and were thus protected persons under Common Article 3 of the Geneva Conventions and Additional Protocol II.
  6. The Accused was in a position of authority vis-à-vis the Interahamwe militia. Testimonies in this case have demonstrated that the Accused exerted control over the Interahamwe, that he distributed weapons to them during the events alleged in this Indictment, aiding and abetting in the commission of the crimes and directly participating in the massacres with the Interahamwe. The expert witness, Mr. Nsanzuwera, testified that the Interahamwe militia served two roles during April, May and June 1994, on the one hand, they supported the RAF war effort against the RPF, and on the other hand, they killed Tutsi and Hutu opponents.
  7. Moreover, as testified by Mr. Nsanzuwera, there is merit in the submission of the Prosecutor that, considering the position of authority of the Accused over the Interahamwe, and the role that the Interahamwe served in supporting the RAF against the RPF, there is a nexus between the crimes committed and the armed conflict. In support thereof, the Prosecutor argues that the Interahamwe were the instrument of the military in extending the scope of the massacres.
  8. Thus, the Chamber is also satisfied that the Accused, as second vice-president of the youth wing of the MRND, being known as the Interahamwe za MRND and being the youth wing of the political majority in the government in April 1994, falls within the category of persons who can be held individually responsible for serious violations of the provisions of Article 4 of the Statute.
  9. The Prosecutor argues that the Interahamwe orchestrated massacres as part of their support to the RAF in the conflict against the RPF, and as the Accused was in a position of authority over the Interahamwe, that, ipso facto, the acts of the Accused also formed part of that support. Such a conclusion, without being supported by the necessary evidence, is, in the opinion of the Chamber, insufficient to prove beyond reasonable doubt that the Accused is individually criminally responsible for serious violations of Common Article 3 and Additional Protocol II. Consequently, the Chamber finds that the Prosecutor has not shown how the individual acts of the Accused, as alleged in the Indictment, during these massacres were committed in conjunction with the armed conflict.
  10. Moreover, in the opinion of the Chamber, although the Genocide against the Tutsis and the conflict between the RAF and the RPF are undeniably linked, the Prosecutor cannot merely rely on a finding of Genocide and consider that, as such, serious violations of Common Article 3 and Additional Protocol II are thereby automatically established. Rather, the Prosecutor must discharge her burden by establishing that each material requirement of offences under Article 4 of the Statute are met.
  11. The Chamber therefore finds that it has not been proved beyond reasonable doubt that there existed a nexus between the culpable acts committed by the Accused and the armed conflict.
  12. Consequently, the Chamber finds the Accused not guilty of Counts 4, 6, and 8 of the Indictment, being serious violations of Common Article 3 of the Geneva Conventions (murder), as incorporated under Article 4 (a) of the Statute.

1. See Chapter 2, Section 2 of this Judgement.

2. See Chapter 2, Section 2 of this Judgement.

3. Akayesu Judgement, para. 523.

4. See Chapter 4, Section 8 of this Judgement.

5. Akayesu Judgement, para. 468.

6. See section 2.4 of Applicable Law

7. See Report of the United Nations High Commissioner for Human Rights on his Mission to Rwanda 11-12 May 1994, paragraph 20.

1. Introduction | 2. The Applicable Law | 3. The Defence Case | 4. Factual Findings | 5. Legal Findings | 6. Verdict | 7. Sentencing