1. INTRODUCTION

1.1 The International Criminal Tribunal

1.2 Jurisdiction of the Tribunal

1.3 The Indictment

1.4 The Accused

1.1 The International Criminal Tribunal

1. This Judgement is rendered by Trial Chamber I of the International Criminal Tribunal for Rwanda (the "Tribunal"), composed of Judge Lennart Aspegren, presiding, Judge Laïty Kama, and Judge Navanethem Pillay, in the case of The Prosecutor v. Alfred Musema.
   
2. The Tribunal was established by United Nations Security Council Resolution 955 of 8 November 1994⁽¹⁾ after it had studied official United Nations reports⁽²⁾ which revealed that genocide and other widespread, systematic, and flagrant violations of international humanitarian law had been committed in Rwanda. The Security Council determined that this situation constituted a threat to international peace and security, and was convinced that the prosecution of persons responsible for serious violations of international humanitarian law would contribute to the process of national reconciliation and to the restoration and maintenance of peace in Rwanda. Accordingly, the Security Council established the Tribunal, pursuant to Chapter VII of the United Nations Charter.
   
3. The Tribunal is governed by its Statute (the "Statute") annexed to Security Council Resolution 955, and by its Rules of Procedure and Evidence (the "Rules"), which were adopted by the Judges on 5 July 1995 and subsequently amended.⁽³⁾

1.2 Jurisdiction of the Tribunal

1. Pursuant to the provisions of the Statute, the Tribunal has the authority to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda. The Statute has also empowered the Tribunal with the authority to prosecute Rwandan citizens, who are natural persons, responsible for such violations committed in the territory of neighbouring States. Under Article 7 of the Statute, the Tribunal's jurisdiction rationae temporae limits prosecution to acts committed between 1 January 1994 and 31 December 1994. Individual criminal responsibility, pursuant to Article 6, shall be established for acts falling within the Tribunal's jurisdiction rationae materiae, as provided in Articles 2, 3, and 4 as follows:
   

"Article 2: Genocide

1. The International Criminal Tribunal for Rwanda shall have the power to prosecute persons committing genocide, as defined in paragraph 2 of this Article, or of committing any of the other acts enumerated in paragraph 3 of the Article.
   
   
2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such:
   

   a) Killing members of the group;

   b) Causing serious bodily or mental harm to members of the group;

   c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

   d) Imposing measures intended to prevent births within the group;

   e) Forcibly transferring children of the group to another group.

3. The following acts shall be punishable:

   a) Genocide;

   b) Conspiracy to commit genocide;

   c) Direct and public incitement to commit genocide;

   d) Attempt to commit genocide;

   e) Complicity in genocide.

Article 3: Crimes Against Humanity

The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes, when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial, or religious grounds:

a) Murder;

b) Extermination;

c) Enslavement;

d) Deportation;

e) Imprisonment;

f) Torture;

g) Rape;

h) Persecutions on political, racial, and religious grounds;

i) Other inhumane acts.

Article 4: Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II

The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to:

a) Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;

b) Collective punishments;

c) Taking of hostages;

d) Acts of Terrorism;

e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;

f) Pillage;

g) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples;

h) Threats to commit any of the foregoing acts."

5. In addition, Article 6 states the principle of individual criminal responsibility:
   
   

"Article 6: Individual Criminal Responsibility

1. 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.
   
2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.
   
3. The 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.
   
4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal for Rwanda determines that justice so requires."

6. Although the Tribunal and national courts shall have concurrent jurisdiction to prosecute persons suspected of serious violations of international humanitarian law and whose identity and acts fall within the said limits of personal and temporal jurisdiction, the Tribunal shall have primacy over national courts pursuant to Article 8 of the Statute and may formally request that national courts defer to its competence.

1.3 The Indictment

7. The initial Indictment against Alfred Musema was submitted by the Prosecutor on 11 July 1996, and was confirmed by Judge Yakov A. Ostrovsky on 15 July 1996.
8. On 14 December 1998, the Chamber confirmed an amended Indictment, submitted on 20 November 1998 by the Prosecutor. In this Indictment, the count of Complicity in Genocide was added alternatively to the existing count of Genocide. The Prosecutor submitted a second significantly amended Indictment on 29 April 1999, which the Chamber confirmed on 6 May 1999. This Indictment contains the final version of the Prosecutor's charges, and is the basis of the present judgement.
9. The amended Indictment, as confirmed on 6 May 1999, is printed in full in Annex A.
   

1.4 The Accused

10. Alfred Musema-Uwimana, here called Musema, was born on 22 August 1949 in the Byumba Préfecture. He is from Butare Commune. He began his studies in 1968 at the "Université d'État, Faculté des Sciences Agronomiques" in Gembloux, Belgium, and graduated in 1974.
11. Musema and his wife Claire Kayuku were married in 1975. They have three children. Like Musema, his wife is from Butare Commune.
12. Musema began his career in the Rwandan Ministry of Agriculture & Livestock Breeding, working in association with ORSTOM, a French company. In 1984, by presidential decree, Musema, then 35 years of age, was appointed as the director of the public enterprise, the Gisovu Tea Factory (under the parastatal organization OCIR-thé).
13. The Gisovu Tea Factory, constructed during the years 1977 to 1983, was in production for only a short time before Musema assumed responsibility in 1984. Although the tea plantations were young, the factory soon rose to the same standing as other, more established tea factories. By 1993, the Gisovu tea factory was one of the most successful tea factories in Rwanda. Indeed, its excellence was reflected in its volume of trade on the London Tea Market. (See Exhibit D11, a table of figures from Wilson Smith & Co., on the London Tea Exchange.)
14. Though the Head office of the Gisovu tea factory was located in Kibuye, Musema's area of responsibility encompassed the preféctures of Kibuye and Gikongoro.
15. Between 1984 and 1994, Musema participated in two missions abroad. The first mission was to Kenya, where Musema visited the Kenya Tea Development Authority, and the second mission was to Morocco, where he examined alternative types of teas. Musema was chosen to participate in the mission to Morocco on the recommendation of Japanese businessmen, who identified the Gisovu tea factory as the most suitable Rwandan factory to produce several varieties of tea.
16. Musema was a member of the "conseil préfectorial" in Byumba Préfecture and a member of the Technical Committee in the Butare Commune. Both positions of responsibility involved socio-economic and developmental matters and did not focus on préfectorial politics.

1. UN Document S/RES/955 of 8 November 1994.

2. Preliminary Report of the Commission of Experts established pursuant to Security Council Resolution 935(1994), Final Report of the Commission of Experts established pursuant to Security Council Resolution 935(1994)(Document S/1994/1405) and Reports of the Special Rapporteur for Rwanda of the United Nations Commission on Human Rights (Document S/1994/1157, Annexes I and II)

3. The Rules were successively amended on 12 January 1996, 15 May 1996, 4 July 1996, 5 June 1997, 8 June 1998, and 4 June 1999.