The Prosecutor v. Alfred Musema

Court	International Criminal Tribunal for Rwanda (Trial Chamber I), Tanzania
Case number	ICTR-96-13-T
Decision title	Judgement and Sentence
Decision date	27 January 2000
Parties	The Prosecutor Alfred Musema
Categories	Crimes against humanity, Genocide, War crimes
Keywords	cause serious bodily or mental harm, crimes against humanity, ethnic group, extermination, genocide, intent to destroy, Internal armed conflict, kill, Murder, other inhumane acts, rape, serious violations of Common Article 3 of the Geneva Conventions and Additional Protocol II, widespread or systematic attack
Links	Judgement and Sentence

Summary

The Accused, Alfred Musema, was director of the Gisovu Tea Factory in Kibuye Prefecture during the 1994 genocide in Rwanda. The Prosecutor alleged that on various occasions during April, May and June 1994, Musema transported armed attackers, including employees of the factory, to different locations in Gisovu and Gishyita communes and ordered them to attack Tutsis seeking refuge there. He also personally took part in such attacks and killings. The indictment against Musema was later amended to include charges that he committed various acts of rape and that he ordered and encouraged others to rape and kill Tutsi women.

With regard to certain allegations concerning specific attacks, Trial Chamber I of the ICTR found that either the evidence presented was not sufficient or that Musema's alibi cast doubt on the Prosecution evidence. The Chamber was satisfied nevertheless that Musema had participated in attacks at Gitwa Hill, Rwirambo Hill, Muyira Hill and at Mumataba during late-April and mid-May and his alibi for that period was not accepted. The Chamber also found that he had raped a woman named Nyiramusugi and, by his example, encouraged others to rape her. For these acts, the Trial Chamber found Musema guilty of genocide and crimes against humanity (extermination and rape) and sentenced him to life imprisonment.

Procedural history

The initial indictment against Alfred Musema was submitted by the Prosecutor on 11 July 1996, and was confirmed on 15 July 1996. 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 pleaded alternatively to the existing count of genocide.

By decision of the Chamber rendered on 6 May 1999, the Prosecutor was granted leave to amend the Indictment against Musema, inter alia, by adding one new count and by expanding on the facts adduced in the then existing Indictment in support of the new count. The Chamber acknowledged that although the filing of the motion for leave to amend the Indictment came at a late stage in the presentation of the Prosecutor’s case, this did not cause prejudice to the Accused. Furthermore, the Chamber held that no undue delay would be caused to the proceedings by allowing these amendments as all the pertinent witness statements had already been disclosed to the Defence and as all witnesses the Prosecutor intended to rely upon in support of the new count had already testified in the case.

Related developments

The Accused appealed against his conviction and his sentence. The Appeals Chamber delivered its judgment on 16 November 2001.

Legally relevant facts

Under Count 1, the Prosecutor charged Musema with genocide under Articles 6(1) and 6(3) of the Statute and, alternatively, under Count for complicity in genocide. These Counts relate to the Accused's role in the rape and death of Annunciata (a Tutsi woman), and the death of her son, as well as in the attack against Tutsi refugees at Gitwa Hill, at Rwiarambo Hill, at Muyira Hill and the rape of Nyiramusugi, a young Tutsi woman, during this attack, at Mumataba Hill and at Nyakavumu cave (paras. 884-935).

Under Count 3, the Accused was charged with conspiracy to commit genocide for the same acts alleged under Counts 1 and 2 (paras. 937-938).

Under Count 5, the Accused was charged with extermination as a crime against humanity for his participation in the attacks against Tutsis at Muyira Hill, at Mumataba Hill, in the Nyakavumu cave, at Gitwa Hill and in Rwirambo (paras. 942-950).

Count 4 of the Indictment charged the Accused with murder as a crime against humanity for the acts that also formed the basis for Count 5 (extermination) (paras. 952-953).

The Prosecution further charged him with other inhumane acts (Count 6) and rape (Count 7) as crimes against humanity, as well as serious violations of Common Article 3 of the Geneva Conventions and Additional Protocol II (Counts 8, 9) (paras. 959, 962, 969).

Core legal questions

Whether the Accused was guilty of genocide, or in the alternative complicity in genocide, under Article 6(1) and (3) of the Statute, for his role in the attacks against Tutsis during April and May 1994.
Whether the Accused had conspired to commit genocide against Tutsis as an ethnic group.
Whether the killings at Gitwa hill, Muyira hill, Rwirambo hill, Mumataba hill and at the Nyakavumu cave constituted murder as a crime against humanity.
Whether the Accused was guilty of extermination as a crime against humanity under Article 6(1) and (3) of the Statute for his participation in the attacks against Tutsis during April and May 1994.
Whether the Accused was guilty of rape as a crime against humanity pursuant to Article 6(1) and (3) of the Statute for the rape of Nyiramusugi on 13 May 1994.
Whether the Accused bore individual criminal responsibility for inhumane acts as a crime against humanity and for war crimes against Tutsis.
What the appropriate sentence would be, in case the Accused was found guilty.

Specific legal rules and provisions

Articles 2, 3, 4, 6(1),(3), 7, 8, 17, 18, 19(2), 20(4)(a), 22, 23 and 26 of the ICTR Statute.
Rules 28, 39(i),(ii) 42, 43, 45(F), 46(A),(C), 47, 67(A),(B), 69, 89, 90bis, 91(B), 94, 95, 96(i), 101, 102, 103 and 104 of the ICTR Rules of Procedure and Evidence.
Article 3 common to the Geneva Conventions.
Articles 1(1), 3, 4, 13(2), 43, 50, 86, 86 of Additional Protocol II to the Geneva Conventions.

Court's holding and analysis

The Trial Chamber was satisfied beyond a reasonable doubt that the Accused was guilty of genocide pursuant to Article 6(1) and (3) of the Statute for his role in the events described under count 1 of the indictment (para. 936).

The Chamber dismissed count 3 on the grounds that the Prosecution had not clearly alleged or adduced evidence that the Accused had conspired to commit genocide (paras. 940-941).

The Chamber found the Accused guilty of extermination as a crime against humanity, pursuant to Articles 6(1) and 6(3) of the Statute (para. 951). Therefore, the Chamber dismissed count 4, since the killings at Gitwa Hill, Muyira Hill, Rwirambo Hill, Mumataba Hill and at the Nyakavumu cave were killings of collective groups of individuals, thus constituting extermination and not murder (paras. 957-958).

The Chamber also dismissed Counts 6, 8, 9 of the indictment (paras. 961, 975).

The Trial Chamber found the Accused guilty of rape as a crime against humanity under Article 6(1) but not Article 6(3) of the Statute (paras. 967-968).

After taking into account the aggravating and mitigating circumstances, the Trial Chamber sentenced the Accused to a single sentence of life imprisonment (para. 1008).

In their separate opinions, Judges Aspegren and Pillay expressed doubts regarding certain factual findings of the majority (paras. 1 and 1-12 of the respective separate opinions).