List of Contents

List of Contents 21. INTRODUCTION 51.1. The International Tribunal 51.2. The Indictment 81.3. Jurisdiction of the Tribunal 18 Article 2: Genocide

Article 3: Crimes against Humanity

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

Article 6: Individual Criminal Responsibility

1.4. The Trial 22 1.4.1. Procedural Background 22 1.4.2. The Accused's line of defence 301.5. The Accused and his functions in Taba (paragraphs 3-4 of the Indictment) 372. HISTORICAL CONTEXT OF THE EVENTS IN RWANDA IN 1994 473. GENOCIDE IN RWANDA IN 1994? 594. EVIDENTIARY MATTERS 675. FACTUAL FINDINGS 785.1. General allegations (Paragraphs 5-11 of the Indictment) 785.2 Killings (Paragraphs 12, 13, 18, 19 & 20 of the Indictment) 88 5.2.1. Paragraph 12 of the Indictment 88 5.2.2. Paragraph 13 of the Indictment 94 5.2.3. Paragraph 18 of the Indictment 100 5.2.4. Paragraph 19 and 20 of the Indictment 1165.3 Meeting 134 5.3.1. Paragraphs 14 and 15 of the Indictment 1345.4 Beatings (Torture/Cruel Treatment) (Paragraphs 16, 17, 21, 22 & 23 of the Indictment) 1555.5 Sexual Violence (Paragraphs 12A & 12B of the Indictment) 1696. THE LAW 1926.1 Cumulative Charges 1926.2. Individual criminal responsibility (Article 6 of the Statute) 1966.3. Genocide (Article 2 of the Statute) 204 6.3.1. Genocide 204 6.3.2. Complicity in Genocide 213 6.3.3. Direct and Public Incitement to commit Genocide 2226.4. Crimes against Humanity (Article 3 of the Statute) 2296.5. Violations of Common Article 3 and Additional Protocol II (Article 4 of the Statute) 242 7. LEGAL FINDINGS 2597.1. Counts 6, 8, 10 and 12 - Violations of Common Article 3 (murder and cruel treatment) and Count 15 - Violations of Common Article 3 and Additional Protocol II (outrages upon personal dignity, in particular rape...) 2597.2. Count 5 - Crimes against humanity (murder) 2627.3. Count 7 - Crimes against Humanity (murder) 2647.4. Count 9 - Crimes against Humanity (murder) 2667.5. Count 4 - Direct and Public Incitement to commit Genocide 2687.6. Count 11 - Crimes against Humanity (torture) 2707.7. Count 13 (rape) and Count 14 (other inhumane acts) - Crimes against Humanity 2747.8. Count 1 - Genocide, Count 2 - Complicity in Genocide 2807.9. Count 3 - Crimes against Humanity (extermination) 2918. VERDICT 293

1. INTRODUCTION

1.1. The International Tribunal

This judgment is rendered by Trial Chamber I of the International Tribunal for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January and 31 December 1994 (the "Tribunal"). The judgment follows the indictment and trial of Jean Paul Akayesu, a Rwandan citizen who was bourgmestre of Taba commune, Prefecture of Gitarama, in Rwanda, at the time the crimes alleged in the indictment were perpetrated.The Tribunal was established by the United Nations Security Council by its resolution 955 of 8 November 1994. UN Document S/RES/955 of 8 November 1994 After having reviewed various official United Nations reports Preliminary Report of the Commission of Experts established pursuant to Security Council resolution 935 (1994) (UN Document S/1994/1125), 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 of Human Rights ( Document S/1994/1157, annexes I and II). which indicated that acts of genocide and other systematic, widespread and flagrant violations of international humanitarian law had been committed in Rwanda, the Security Council concluded that the situation in Rwanda in 1994 constituted a threat to international peace and security within the meaning of Chapter VII of the United Nations Charter. Determined to put an end to such crimes and " convinced that...the prosecution of persons responsible for such acts and violations ... would contribute to the process of national reconciliation and to the restoration and maintenance of peace", the Security Council, acting under the said Chapter VII established the Tribunal. The establishment of a special international tribunal was also requested by the Government of Rwanda (UN Document S/1994/1115). However, its representative at the Security Council later voted against resolution 955. Resolution 955 charges all States with a duty to cooperate fully with the Tribunal and its organs in accordance with the Statute of the Tribunal ( the "Statute"), and to take any measures necessary under their domestic law to implement the provisions of the Statute, including compliance with requests for assistance or orders issued by the Tribunal . Subsequently, by its resolution 978 of 27 February 1995, the Security Council "urge[d] the States to arrest and detain, in accordance with their national law and relevant standards of international law, pending prosecution by the International Tribunal for Rwanda or by the appropriate national authorities, persons found within their territory against whom there is sufficient evidence that they were responsible for acts within the jurisdiction of the International Tribunal for Rwanda". S/RES/978 of 27 February 1995, operative paragraph 1The Tribunal is governed by its Statute, annexed to the Security Council Resolution 955, and by its Rules of Procedure and Evidence (the "Rules"), adopted by the Judges on 5 July 1995 and amended subsequently. The Rules were successively amended on 12 January 1996, 15 May 1996, 4 July 1996, 5 June 1997 and 8 June 1998. The two Trial Chambers and the Appeals Chamber of the Tribunal are composed of eleven Judges in all, three sitting in each Trial Chamber and five in the Appeals Chamber. They are elected by the United Nations General Assembly and represent, in accordance with Article 12(3) (c) of the Statute, the principal legal systems of the world. The Statute stipulates that the members of the Appeals Chamber of the other special internatinal criminal tribunal, namely the Tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 ("the Tribunal for the former Yugoslavia"), shall also serve as members of the Appeals Chamber of the Tribunal for Rwanda.Under the Statute, the Tribunal has the power to prosecute persons responsible for serious violations of international human law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January and 31 December 1994. According to Articles 2 to 4 of the Statute relating to its ratione materiae jurisdiction, the Tribunal has the power to prosecute persons who committed genocide as defined in Article 2 of the Statute, persons responsible for crimes against humanity as defined in Article 3 of the Statute and persons responsible for serious violations of Article 3 Common to the Geneva Conventions of 12 August 1949 on the protection of victims of war Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, United Nations Treaty Series, vol. 75, No.970 ("Geneva Convention I"); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, ibid No.971 ("Geneva Convention II"); Geneva Convention relative to the Treatment of Prisoners of War , 12 August 1949, ibid, No.972 ("Geneva Convention III"); Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, ibid No.973 (" Geneva Convention IV").

, and of Additional Protocol II thereto of 8 June 1977, a crime defined in Article 4 of the Statute Protocol Additional...relating to the Protection of Victims of Non-International Armed Conflicts ( Protocol II), 8 June 1977, United Nations Treaty Series, vol. 1125, No. 17513. Article 8 of the Statute provides that the Tribunal has concurrent jurisdiction with national courts over which it, however, has primacy.The Statute stipulates that the Prosecutor, who acts as a separate organ of the Tribunal, is responsible for the investigation and prosecution of the perpetrators of such violations. Upon determination that a prima facie case exists to proceed against a suspect, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged. Thereafter, he or she shall transmit the indictment to a Trial Judge for review and, if need be, confirmation. Under the Statute, the Prosecutor of the Tribunal for the former Yugoslavia shall also serve as the Prosecutor of the Tribunal for Rwanda. However, the two Tribunals maintain separate Offices of the Prosecutor and Deputy Prosecutors. The Prosecutor of the Tribunal for Rwanda is assisted by a team of investigators, trial attorneys and senior trial attorneys, who are based in Kigali, Rwanda. These officials travel to Arusha whenever they are expected to plead a case before the Tribunal.

1.2. The Indictment

The Indictment against Jean-Paul Akayesu was submitted by the Prosecutor on 13 February 1996 and was confirmed on 16 February 1996. It was amended during the trial, in June 1997, with the addition of three counts ( 13 to 15) and three paragraphs (10A, 12A and 12B). The Amended Indictment is here set out in full:

"The Prosecutor of the International Criminal Tribunal for Rwanda, pursuant to his authority under Article 17 of the Statute of the Tribunal, charges:

with GENOCIDE, CRIMES AGAINST HUMANITY and VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS, as set forth below:

Background

1. On April 6, 1994, a plane carrying President Juvénal Habyarimana of Rwanda and President Cyprien Ntaryamira of Burundi crashed at Kigali airport, killing all on board. Following the deaths of the two Presidents, widespread killings, having both political and ethnic dimensions, began in Kigali and spread to other parts of Rwanda.

2. Rwanda is divided into 11 prefectures, each of which is governed by a prefect. The prefectures are further subdivided into communes which are placed under the authority of bourgmestres. The bourgmestre of each commune is appointed by the President of the Republic, upon the recommendation of the Minister of the Interior. In Rwanda, the bourgmestre is the most powerful figure in the commune. His de facto authority in the area is significantly greater than that which is conferred upon him de jure.

The Accused

3. Jean Paul AKAYESU, born in 1953 in Murehe sector, Taba commune, served as bourgmestre of that commune from April 1993 until June 1994. Prior to his appointment as bourgmestre, he was a teacher and school inspector in Taba.

4. As bourgmestre, Jean Paul AKAYESU was charged with the performance of executive functions and the maintenance of public order within his commune, subject to the authority of the prefect. He had exclusive control over the communal police, as well as any gendarmes put at the disposition of the commune. He was responsible for the execution of laws and regulations and the administration of justice, also subject only to the prefect's authority.

General Allegations

5. Unless otherwise specified, all acts and omissions set forth in this indictment took place between 1 January 1994 and 31 December 1994, in the commune of Taba, prefecture of Gitarama, territory of Rwanda.

6. In each paragraph charging genocide, a crime recognized by Article 2 of the Statute of the Tribunal, the alleged acts or omissions were committed with intent to destroy, in whole or in part, a national, ethnic or racial group.

7. The victims in each paragraph charging genocide were members of a national, ethnic, racial or religious group.

8. In each paragraph charging crimes against humanity, crimes recognized by Article 3 of the Tribunal Statute, the alleged acts or omissions were committed as part of a widespread or systematic attack against a civilian population on national, political, ethnic or racial grounds.

9. At all times relevant to this indictment, a state of internal armed conflict existed in Rwanda.

10. The victims referred to in this indictment were, at all relevant times, persons not taking an active part in the hostilities.

10A. In this indictment, acts of sexual violence include forcible sexual penetration of the vagina, anus or oral cavity by a penis and/or of the vagina or anus by some other object, and sexual abuse, such as forced nudity.

11. The accused is individually responsible for the crimes alleged in this indictment. Under Article 6(1) of the Statute of the Tribunal, individual criminal responsibility is attributable to one who plans, instigates, orders, commits or otherwise aids and abets in the planning, preparation or execution of any of the crimes referred to in Articles 2 to 4 of the Statute of the Tribunal.

Charges

12. As bourgmestre, Jean Paul AKAYESU was responsible for maintaining law and public order in his commune. At least 2000 Tutsis were killed in Taba between April 7 and the end of June, 1994, while he was still in power. The killings in Taba were openly committed and so widespread that, as bourgmestre, Jean Paul AKAYESU must have known about them. Although he had the authority and responsibility to do so, Jean Paul AKAYESU never attempted to prevent the killing of Tutsis in the commune in any way or called for assistance from regional or national authorities to quell the violence.

12A. Between April 7 and the end of June, 1994, hundreds of civilians (hereinafter "displaced civilians") sought refuge at the bureau communal. The majority of these displaced civilians were Tutsi. While seeking refuge at the bureau communal, female displaced civilians were regularly taken by armed local militia and/or communal police and subjected to sexual violence, and/or beaten on or near the bureau communal premises. Displaced civilians were also murdered frequently on or near the bureau communal premises. Many women were forced to endure multiple acts of sexual violence which were at times committed by more than one assailant. These acts of sexual violence were generally accompanied by explicit threats of death or bodily harm. The female displaced civilians lived in constant fear and their physical and psychological health deteriorated as a result of the sexual violence and beatings and killings.

12B. Jean Paul AKAYESU knew that the acts of sexual violence, beatings and murders were being committed and was at times present during their commission. Jean Paul AKAYESU facilitated the commission of the sexual violence, beatings and murders by allowing the sexual violence and beatings and murders to occur on or near the bureau communal premises. By virtue of his presence during the commission of the sexual violence, beatings and murders and by failing to prevent the sexual violence, beatings and murders, Jean Paul AKAYESU encouraged these activities.

13. On or about 19 April 1994, before dawn, in Gishyeshye sector, Taba commune, a group of men, one of whom was named Francois Ndimubanzi, killed a local teacher, Sylvere Karera, because he was accused of associating with the Rwandan Patriotic Front ("RPF") and plotting to kill Hutus. Even though at least one of the perpetrators was turned over to Jean Paul AKAYESU, he failed to take measures to have him arrested.

14. The morning of April 19, 1994, following the murder of Sylvere Karera, Jean Paul AKAYESU led a meeting in Gishyeshye sector at which he sanctioned the death of Sylvere Karera and urged the population to eliminate accomplices of the RPF, which was understood by those present to mean Tutsis. Over 100 people were present at the meeting. The killing of Tutsis in Taba began shortly after the meeting.

15. At the same meeting in Gishyeshye sector on April 19, 1994, Jean Paul AKAYESU named at least three prominent Tutsis -- Ephrem Karangwa, Juvénal Rukundakuvuga and Emmanuel Sempabwa -- who had to be killed because of their alleged relationships with the RPF. Later that day, Juvénal Rukundakuvuga was killed in Kanyinya. Within the next few days, Emmanuel Sempabwa was clubbed to death in front of the Taba bureau communal.

16. Jean Paul AKAYESU, on or about April 19, 1994, conducted house-to-house searches in Taba. During these searches, residents, including Victim V, were interrogated and beaten with rifles and sticks in the presence of Jean Paul AKAYESU. Jean Paul AKAYESU personally threatened to kill the husband and child of Victim U if she did not provide him with information about the activities of the Tutsis he was seeking.

17. On or about April 19, 1994, Jean Paul AKAYESU ordered the interrogation and beating of Victim X in an effort to learn the whereabouts of Ephrem Karangwa. During the beating, Victim X's fingers were broken as he tried to shield himself from blows with a metal stick.

18. On or about April 19, 1994, the men who, on Jean Paul AKAYESU's instructions, were searching for Ephrem Karangwa destroyed Ephrem Karangwa's house and burned down his mother's house. They then went to search the house of Ephrem Karangwa's brother-in-law in Musambira commune and found Ephrem Karangwa's three brothers there. The three brothers -- Simon Mutijima, Thaddée Uwanyiligira and Jean Chrysostome Gakuba -- tried to escape, but Jean Paul AKAYESU blew his whistle to alert local residents to the attempted escape and ordered the people to capture the brothers. After the brothers were captured, Jean Paul AKAYESU ordered and participated in the killings of the three brothers.

19. On or about April 19, 1994, Jean Paul AKAYESU took 8 detained men from the Taba bureau communal and ordered militia members to kill them. The militia killed them with clubs, machetes, small axes and sticks. The victims had fled from Runda commune and had been held by Jean Paul AKAYESU.

20. On or about April 19, 1994, Jean Paul AKAYESU ordered the local people and militia to kill intellectual and influential people. Five teachers from the secondary school of Taba were killed on his instructions. The victims were Theogene, Phoebe Uwineze and her fiance (whose name is unknown), Tharcisse Twizeyumuremye and Samuel. The local people and militia killed them with machetes and agricultural tools in front of the Taba bureau communal.

21. On or about April 20, 1994, Jean Paul AKAYESU and some communal police went to the house of Victim Y, a 68 year old woman. Jean Paul AKAYESU interrogated her about the whereabouts of the wife of a university teacher. During the questioning, under Jean Paul AKAYESU's supervision, the communal police hit Victim Y with a gun and sticks. They bound her arms and legs and repeatedly kicked her in the chest. Jean Paul AKAYESU threatened to kill her if she failed to provide the information he sought.

22. Later that night, on or about April 20, 1994, Jean Paul AKAYESU picked up Victim W in Taba and interrogated her also about the whereabouts of the wife of the university teacher. When she stated she did not know, he forced her to lay on the road in front of his car and threatened to drive over her.

23. Thereafter, on or about April 20, 1994, Jean Paul AKAYESU picked up Victim Z in Taba and interrogated him. During the interrogation, men under Jean Paul AKAYESU's authority forced Victims Z and Y to beat each other and used a piece of Victim Y's dress to strangle Victim Z.

By his acts in relation to the events described in paragraphs 12-23, Jean Paul AKAYESU is criminally responsible for:

COUNT 1: GENOCIDE, punishable by Article 2(3)(a) of the Statute of the Tribunal;

COUNT 2: Complicity in GENOCIDE, punishable by Article 2(3)(e) of the Statute of the Tribunal; and

COUNT 3: CRIMES AGAINST HUMANITY (extermination), punishable by Article 3(b) of the Statute of the Tribunal.

By his acts in relation to the events described in paragraphs 14 and 15, Jean Paul AKAYESU is criminally responsible for:

COUNT 4: Direct and Public Incitement to Commit GENOCIDE, punishable by Article 2(3)(c) of the Statute of the Tribunal.

By his acts in relation the murders of Juvénal Rukundakuvuga, Emmanuel Sempabwa, Simon Mutijima, Thaddée Uwanyiligira and Jean Chrysostome Gakuba, as described in paragraphs 15 and 18, Jean Paul AKAYESU committed:

COUNT 5: CRIMES AGAINST HUMANITY (murder) punishable by Article 3(a) of the Statute of the Tribunal; and

COUNT 6: VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS, as incorporated by Article 4(a)(murder) of the Statute of the Tribunal.

By his acts in relation the murders of 8 detained men in front of the bureau communal as described in paragraph 19, Jean Paul AKAYESU committed:

COUNT 7: CRIMES AGAINST HUMANITY (murder) punishable by Article 3(a) of the Statute of the Tribunal; and

COUNT 8: VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS, as incorporated by Article 4(a)(murder) of the Statute of the Tribunal.

By his acts in relation to the murders of 5 teachers in front of the bureau communal as described in paragraph 20, Jean Paul AKAYESU committed:

COUNT 9: CRIMES AGAINST HUMANITY (murder) punishable by Article 3(a) of the Statute of the Tribunal; and

COUNT 10 VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS, as incorporated by Article 4(a)(murder) of the Statute of the Tribunal.

By his acts in relation to the beatings of U, V, W, X, Y and Z as described in paragraphs 16, 17, 21, 22 and 23, Jean Paul AKAYESU committed:

COUNT 11:CRIMES AGAINST HUMANITY (torture), punishable by Article 3(f) of the Statute of the Tribunal; and

COUNT 12:VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS, as incorporated by Article 4(a)(cruel treatment) of the Statute of the Tribunal.

In addition and/or in the alternative to his individual responsibility under Article 6(1) of the Statute of the Tribunal, the accused, is individually responsible under Article 6(3) of the Statute of the Tribunal for the crimes alleged in Counts 13 through 15. Under Article 6(3), an individual is criminally responsible as a superior for acts of a subordinate 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.

By his acts in relation to the events at the bureau communal, as described in paragraphs 12(A) and 12(B), Jean Paul AKAYESU committed:

COUNT 13:CRIMES AGAINST HUMANITY (rape), punishable by Article 3(g) of the Statute of the Tribunal; and

COUNT 14: CRIMES AGAINST HUMANITY, ( other inhumane acts), punishable by Article 3(i) of the Statute of the Tribunal; and

COUNT 15:VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ARTICLE 4(2)(e) OF ADDITIONAL PROTOCOL 2, as incorporated by Article 4(e)(outrages upon personal dignity, in particular rape, degrading and humiliating treatment and indecent assault) of the Statute of the Tribunal.

___(Signed)______

Louise Arbour

Prosecutor

1.3. Jurisdiction of the Tribunal

The subject-matter jurisdiction of the ICTR is set out in Articles 2,3 and 4 of the Statute:

Article 2: Genocide

1. The International 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 this 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 judgment 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.

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.

1.4. The Trial

1.4.1. Procedural Background

Jean-Paul Akayesu was arrested in Zambia on 10 October 1995. On 22 November 1995, the Prosecutor of the Tribunal, pursuant to Rule 40 of the Rules, requested the Zambian authorities to keep Akayesu in detention for a period of 90 days, while awaiting the completion of the investigation.On 13 February 1996, the then Prosecutor, Richard Goldstone On 1 October 1996, Louise Arbour succeeded Richard Goldstone as Prosecutor of the Tribunal., submitted an Indictment against Akayesu, which was subsequently amended on 17 June 1997. It contains a total of 15 counts covering genocide, crimes against humanity and violations of Article 3 Common to the 1949 Geneva Conventions and Additional Protocol II of 1977 thereto. More specifically, Akayesu was individually charged with genocide, complicity in genocide, direct and public incitement to commit genocide, extermination, murder, torture, cruel treatment, rape, other inhumane acts and outrages upon personal dignity, which he allegedly committed in Taba commune of which he was the bourgmestre at the time of the alleged acts.The Indictment was confirmed and an arrest warrant, accompanied by an order for continued detention, was issued by Judge William H. Sekule on 16 February 1996. The following week, the Indictment was submitted by the Registrar to the Zambian authorities, to be served upon the Accused. Akayesu was transferred to the Detention Facilities of the Tribunal in Arusha on 26 May 1996, where he is still detained awaiting judgment. The initial appearance of the Accused, pursuant to Rule 62 of the Rules, took place on 30 May 1996 in the presence of his counsel before Trial Chamber I, composed of Judge Laïty Kama, presiding, Judge Lennart Aspegren and Judge Navanethem Pillay. The prosecution team, led by Honoré Rakotomanana

On 26 April 1997, Bernard Acho Muna succeeded Honoré Rakotomanana as Deputy Prosecutor of the Tribunal., Deputy Prosecutor of the Tribunal, was composed of Yacob Haile-Mariam, Mohamed Chande Othman and Pierre-Richard Prosper

Besides the people already mentioned, the Prosecutor was represented during the trial by Patricia Viseur Sellers, James K. Stewart, Luc Côté, Sara Dareshori and Rosette Muzigo-Morrison.. The Accused pleaded not guilty to all the counts against him. On the same date, the Chamber ordered the continued detention of the Accused while awaiting his trial

Decision: Order for Continued Detention Awaiting Trial, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, 30 May 1996.. Simultaneous interpretation in French and English, and where necessary Kinyarwanda, was provided at the hearings.The Accused having been found indigent by the Tribunal, in accordance with the provisions of the Directive on Assignment of Defence Counsel

ICTR/2/L.2, the Registrar of the Tribunal assigned Johan Scheers as defence counsel for the Accused and counsel's fees were paid by the Tribunal. By a decision of 31 October 1996, the Chamber directed the Registrar of the Tribunal to withdraw the assignment of Johan Scheers as defence counsel for Akayesu, pursuant to Article 19 of the Directive on Assignment of Defence Counsel, and to immediately assign Michael Karnavas as the new defence counsel for the Accused. In the same decision, the Chamber postponed the trial until 9 January 1997, at the request of the Accused

Decision Concerning a Replacement of an Assigned Counsel and Postponement of the Trial, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, 31 October 1996. On 20 November 1996, the Chamber granted a request for a further change of defence counsel filed by the Accused on 11 November 1996, pursuant to Article 19 of the Directive. On 9 January 1997, the Registrar assigned Nicolas Tiangaye and Patrice Monthé, who served as defence counsel for the Accused until the end of the trial. On 16 January 1997, the Chamber rejected a third motion for change of defence counsel filed by the Accused on 9 January 1997

Decision on the Request of the Accused for Replacement of Assigned Counsel, The Prosecutor Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, 16 January 1997.. The decision of 16 January 1997 also put an end to the interim measures adopted by the Chamber on 13 January 1997, temporarily authorizing the Accused to cross-examine the witnesses himself, along with his two counsel.On 27 May 1996, the then counsel for the Accused, Johan Scheers, filed a preliminary motion under Rule 73 of the Rules As adopted on 5 July 1995, requesting the Chamber to (i) rule that the criminal proceedings were inadmissible for reasons of flagrant violations of the rights of Defence; (ii) order the hearing of witnesses and that Defence investigations be conducted; (iii) exclude from the proceedings, all indirect witnesses to the acts for which the Accused is charged; and (iv) order the release of the Accused pending the trial on the merits. During the oral presentation of the motion at the hearing of 26 September 1996, however, the Defence raised issues beyond the framework of the said motion by advancing complaints regarding, on the one hand, the detention conditions of the Accused during his imprisonment in Zambia and, on the other hand, the delay by the Prosecutor in disclosing the Indictment and supporting material. In its decision of 27 September 1996 Decision on the Preliminary Motion Submitted by the Defence on the Form of the Indictment and Exclusion of Evidence. The Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, 27 September 1996., the Chamber rejected the entire motion on the grounds that the objections raised by the Defence and the manner in which they were presented, did not provide sufficient basis for the Chamber to rule on the merits under Rule 73 of the Rules. That same day, the Chamber adjourned the trial at the request of the Defence and set 31 October 1996 Decision on Postponement of the Trial, The Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, 27 September 1996. However, at the hearing of 31 October, the beginning of the trial was postponed to 9 January 1997 at the request of the Defence. as the official opening date of the trial on the merits.On 29 October 1996, the Chamber granted the Prosecutor's motion of 23 October 1996 for the transfer of a witness detained in Rwanda in order for him to testify before the Tribunal. A similar motion by the Defence, filed on 30 October 1997, was granted by the Chamber, it being ordered that three witnesses then detained in Rwanda be transferred to the Tribunal's Detention Facilities for a period of not more than two months so as to testify in the trial

Order for Temporary Transfer of Three Detained Witnesses Pursuant to Rule 90bis of the Rules of Procedure and Evidence, The Prosecutor v. Jean-Paul Akayesu, Case NO. ICTR-96-4-T, Trial Chamber I, 31 October 1997. However, two subsequent requests by the Defence for the transfer and appearance in court of five and thirteen witnesses detained in Rwanda respectively were rejected, on the basis, inter alia, that the Defence was unable to demonstrate how the appearance of each witness was undoubtedly material in the discovery of the truth or that the conditions stipulated in Rule 90bis (b) of the Rules had been met

Decison on a Motion for the Appearance and Protection of Witnesses Called by the Defence, The Prosecutor v. Jean-Paul Akayesu, Case NO. ICTR-96-4-T, Trial Chamber I, 9 February 1998, & Decision on the Motion for the Transfer and Protection of Defence Witnesses, The Prosecutor v. Jean-Paul Akayesu, Case NO. ICTR-96-4-T, Trial Chamber I, 26 February 1998.Besides the above-mentioned motions, several pre-trial motions were filed by the Defence, including a motion for the defendant to sit at counsel table during trial, a motion for an expedited in camera hearing regarding Prosecutorial misconduct and a motion to compel the Prosecutor to conduct a fair and just investigation. These motions were not granted.The trial of the Accused on the merits opened on 9 January 1997 before Trial Chamber I, composed of Judge Laïty Kama, presiding, Judge Lennart Aspegren and Judge Navanethem Pillay. Pursuant to Rule 84 of the Rules, Honoré Rakotomanana and Yacob Haile-Mariam made the opening statement for the Prosecutor, which was followed by the opening statement for the Defence, made by Nicolas Tiangaye and Patrice Monthé. During the initial phase of the trial which took place over 26 trial days until 24 May 1997, 22 witnesses, including five expert witnesses, testified for the Prosecutor. Subsequent to the presentation of the Prosecutor's evidence, an in camera status conference was held after which the Chamber, at the request of the Defence, adjourned the trial until 29 September 1997.All Prosecutor and Defence eye-witnesses requiring protection benefited from measures guaranteeing the confidentiality of their testimony

Decision on the preliminary motion submitted by the Prosecutor for protective measures for witnesses, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, 27 September 1996. . No information which could in any way identify the witnesses was given. During the hearings, letters of the alphabet were used as pseudonyms to refer to protected witnesses and screens isolated the said witnesses from the public, but not from the Accused and his counsel. One Defence witness was heard in camera.On 13 January 1997, as an interim measure pending a Chamber decision on a request by the Accused for the replacement of his counsel, Akayesu was authorized by the Chamber to cross-examine, along with his assigned counsel, prosecution witnesses. The pertinent decision was rendered on 16 January 1997

Ibid 14, whereby the request for replacement of Counsel was dismissed and the interim measure terminated.Most of the Rwandan witnesses spoke in Kinyarwanda and their testimonies were interpreted into the two working languages of the Tribunal (French and English). By Decision of 9 March 1998, the Chamber dismissed a Defence motion, based on Rule 91 of the Rules, to direct the Prosecutor to investigate an alleged false testimony by prosecution witness "R". The Chamber found that for the Defence to raise doubts as to the reliability of statements made by a witness, was not by itself sufficient to establish strong grounds for believing that the witness may have knowingly and wilfully given false testimony

Oral decision. The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, 9 March 1998, written decision issued on 24 March 1998..During the hearing of 23 January 1997, the Chamber requested the Prosecutor, in view of the exceptional nature of the offences, to submit all written witness statements already made available by her to the Defence. The Prosecutor objected to the request; hence the Chamber, by a decision rendered on 28 January 1997, pursuant to Rules 89(A), 89(C) and 98 of the Rules, ordered the Prosecutor to submit all available written witness statements to the Chamber in the case and that all such statements to which reference had been made by either the Prosecutor or the Defence shall be admitted as evidence and form part of the record. However, this was subject to the caveat that disclosure of all the written statements did not necessarily entail their admissibility as evidence

Decision by the Tribunal on its Request to the Prosecutor to Submit the Written Witness Statements, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, 28 January 1997..On 4 February 1997, the Prosecutor, who had not yet complied with the order of 28 January 1997, filed a motion requesting the Chamber to reconsider and rescind the said order. The Prosecutor submitted, inter alia, that the order of 28 January 1997 represented an unjustified change in the established order for production of evidence and thus did not satisfy the provisions of Rule 85, that Rule 98 simply allows the Chamber to order the production of specific additional evidence and not the disclosure of all the evidence, that it involves the Chamber in the process of disclosure and, in actual fact, circumvents Rule 66 (A), and that the order is prejudicial to the parties. On 6 march 1997, the Chamber declared the Prosecutor's motion groundless, and expressed surprise, in the circumstances, at receiving a motion asking it to reconsider and rescind its order, instead of a motion for clarification. The Chamber specified in its decision that the order of 28 January 1997 could only be interpreted with respect to the witness statements already communicated to the Defence

Decision on the Prosecutor's Motion to Reconsider and Rescind the Order of 18 January 1997, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, 6 March 1997.. On 16 April 1997, the Prosecutor filed a notice of intent to comply with the Chamber's order to submit witness statements.As stated above, 24 May 1997 marked the end of the first part of the trial of the Accused with the testimony of the last prosecution witness. However, on 16 June 1997, the Prosecutor submitted a request to bring an expedited oral motion before the Chamber seeking an amendment of the Indictment. During the hearing held to that end on 17 June 1997, the Prosecutor sought leave to add three further Counts, namely, Count 13: rape, a Crime Against Humanity, punishable under Article 3 (g) of the Statute, Count 14: inhumane acts, a Crime Against Humanity, punishable under Article 3 (i) of the Statute, and Count 15: outrages on personal dignity, notably rape, degrading and humiliating treatment and indecent assault, a Violation of Article 3 Common to the Geneva Conventions and of Article 4(2)(e) of Additional Protocol II, as incorporated in Article 4(e) of the Statute. The Chamber granted leave to the Prosecutor to amend the Indictment and postponed the date for resumption of the trial to 23 October 1997

Leave to amend the Indictment, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, 17 June 1997.. The second phase of the trial started on 23 October 1997 with the initial appearance of Akayesu for the new counts in a public session before the Chamber. The Accused pleaded not guilty to each of the new counts. The Prosecutor then proceeded to present six new witnesses, including an investigator with the Office of the Prosecutor. In all, the Prosecutor put 28 witnesses on the stand over 31 trial days. The Defence, for its part, presented its evidence over the course of 12 trial days between 4 November 1997 and 13 March 1998. It called 13 witnesses, including the Accused, to the stand. A total of 155 exhibits were submitted during the trial.During the second phase of the trial, the Defence requested and obtained the issuance of a subpoena for Major-General Roméo Dallaire, former force Commander of UNAMIR (United Nations Assistance Mission in Rwanda), whose immunity had been partially lifted by the UN Secretary-General, to appear as a witness for the Defence

Decision on the Motion to Subpoena a Witness. The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-94-T, Trial Chamber I, 19 November 1997.. The Chamber also granted leave to a representative of the United Nations Secretariat to appear as an Amicus Curiae to make a statement on the lifting of the immunity Major-General Roméo Dallaire enjoys by virtue of his position as former force Commander of UNAMIR

Order Granting Leave for Amicus Curiae to Appear, The Prosecutor v. Jean-Paul Akayesu, Trial Chamber I, Case No. ICTR-96-4-T, 12 February 1998.. However, the Chamber did not grant the Defence motion for the issuance of a subpoena for two persons accused before the Tribunal to appear as Defence witnesses, on the grounds that their fundamental rights, as recognized by Article 20(4)(g) of the Statute, would perhaps be violated, and that there would be a risk that their appearance as witnesses in the case could cause prejudice to them

Oral decision on a Motion for Summonses and Protection of Witnesses Called by the Defence, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, 17 February 1998, written decision 23 February 1998.. A further Defence motion for the appearance of another accused as an expert witness was similarly dismissed

Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, 9 March 1998.. The Chamber held therein that the impartiality of the potential expert witness, who is accused by the Tribunal for crimes related to those with which Akayesu is charged, could not be assured and consequently that he did not fulfil the requisite conditions for appearing as an expert witness. Furthermore, the Chamber found that for this particular Accused to be compelled to appear as an expert witness in the case would be prejudicial to him and could possibly violate his fundamental rights, as recognized by the provisions of Article 20(4)(g) of the Statute and Article 14(3)(g) of the International Covenant of Civil and Political Rights of 1966. The Chamber dismissed a Defence motion for a site visit and the conduct of a forensic analysis of the remains of three alleged victims. The Chamber found that a new forensic analysis would not be appropriate nor, in any case, instrumental in the discovery of the truth, on the basis, inter alia, that a number of the purported mass graves, including, without a doubt, those supposedly in the vicinity of the Taba 'bureau communal' had been subject of previous exhumations. Moreover, the Chamber felt that the arguments of the Defence Counsel in support of the motion were pertinent mainly to evaluating the credibility of certain witness statements and not to showing the necessity for an exhumation and forensic analysis, as requested

Oral decision on the Defence Motion Requesting an Inspection of the Site and the Conduct of a Forensic Analysis, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, 17 February 1998, written decision 3 March 1998.. None of the parties presented witnesses for rebuttal purposes. The Accused testified in his own defence on 12 March 1998 and was cross-examined the next day by the Prosecutor. The latter presented her final arguments on 19 and 23 March, and the Defence presented its closing arguments on 26 March 1998. The trial on the merits was held over a period of 60 days of hearings, since 9 January 1997. The case was adjourned on 26 March 1998 for deliberation on the Judgment by the Chamber.

1.4.2. The Accused's line of defence

The Accused has pleaded not guilty to all counts of the Indictment, both at his initial appearance, held on 30 May 1996, and at the hearing of 23 October 1997 when he pleaded not guilty to each of the new counts which had been added to the Indictment when it was amended on 17 June 1997.In essence, the Defence case - insofar as the Chamber has been able to establish it - is that the Accused did not commit, order or participate in any of the killings, beatings or acts of sexual violence alleged in the Indictment. The Defence concedes that a genocide occurred in Rwanda and that massacres of Tutsi took place in Taba Commune, but it argues that the Accused was helpless to prevent them, being outnumbered and overpowered by one Silas Kubwimana and the Interahamwe. The Defence pointed out that, according to prosecution witness R, Akayesu had been so harassed by the Interahamwe that at one point he had had to flee Taba commune. Once the massacres had become widespread, the Accused was denuded of all authority and lacked the means to stop the killings.The Defence claims that the Chamber should not require the Accused to be a hero, to have laid down his life - as, for example, did the bourgmestre of Mugina - in a futile attempt to prevent killings and beatings. The Defence alluded to the fact that General Dallaire, in charge of UNAMIR and 2,500 troops, was unable to prevent the genocide. How, then, was Akayesu, with 10 communal policemen at his disposal, to fare any better? Moreover, the Defence argue, no bourgmestre in the whole of Rwanda was able to prevent the massacres in his Commune, no matter how willing he was to do so.As for acts of sexual violence, the Defence case is somewhat different from that for killings and beatings, in that, whereas for the latter the Defence does not contest that there were killings and beatings, it does deny that there were acts of sexual violence committed, at least at the Bureau Communal. During his testimony the Accused emphatically denied that any rapes had taken place at the Bureau Communal, even when he was not there. The Chamber notes the Accused's emphatic denial of facts which are not entirely within his knowledge.As general remarks, the Defence alluded to the fragility of human testimony as opposed to documentary evidence, and specifically referred to the evidence of Dr. Mathias Ruzindana, who had testified about problems in relying on eye-witness accounts of Rwandans See 'Evidentiary Matters'.. The Defence also raised problems associated with alleged "syndicates of informers", in which groups of Rwandans supposedly collaborated to concoct testimony against a person for revenge or other motives. This allegation is specifically dealt with below.As regards the Accused, the Defence pointed out that, though the Prosecutor admitted that the Accused had opposed massacres before 18 April 1994, the Prosecutor could not demonstrate that he was a "genocidal ideologue", since one did not adopt the ideology of genocide overnight. Hence, the Defence argued, he could not be convicted of genocide.In general, the Defence argued that the Accused was a "scapegoat", who found himself Accused before the Chamber only because he was a Hutu and a bourgmestre at the time of the massacres.Turning to the specific allegations contained in the Indictment, the Defence case is that there was no change in Akayesu's attitude or behaviour before and after the Murambi meeting of 18 April 1998. Both before and after, he attempted to save Tutsi lives. Witness DBB testified that the Accused gave a Tutsi woman (witness DEEX) a laissez-passer, although he could not say whether the accused knew at the time that the woman was a Tutsi or not. Witness DEEX confirmed that she was given a laissez-passer by the accused. Witnesses DIX and DJX also heard that Akayesu had saved Tutsi lives. The Defence also challenged the premise that the Murambi meeting of 18 April 1994 was the key event which led to a complete change in the accused's behaviour. Since, the Defence argued, it had not been shown that orders for the extermination of the Tutsi were given at the Murambi meeting by the interim government, it follows that the accused could not have returned to his Commune a changed man because of those non-existent orders. The Defence pointed out that only one prosecution witness and one Defence witness had attended the Murambi meeting, and that neither testified that an explicit message to kill the Tutsi had been given.

Regarding the Gishyeshye meeting of 19 April 1994, the Defence argued that the accused was forced by the Interahamwe to read a document which allegedly mentioned the names of RPF accomplices, but that the accused tried to dissuade the population from being incited by the document, arguing that the mere appearance of names on a list did not mean that the persons named were accomplices of the RPF. The Defence also noted further "contradictions" in the accounts given by witnesses of the Gishyeshye meeting.As regards the killings of the eight Runda refugees and the five teachers, the Defence pointed out that the only witness to these killings was witness K, and that the accused had, at the time of his interview by the OTP in Zambia, cited witness K as a possible Defence witness. It begged credulity that the accused would contemplate calling as a Defence witness a person whom he knew had seen him order such killings.Concerning the killings of the Karangwa brothers, the Defence argued that there was such uncertainty as to how they were killed, and by what instruments, that a conviction could not stand in the absence of these material averments. It was because of these inconsistencies and uncertainties that the Defence had asked for an exhumation of the bodies, which had not been granted.The charges of beatings the Defence contested on the grounds that no medical examination had been conducted on the alleged victims to verify that the injuries which they claimed were sustained as a result of the accused's actions could genuinely be so attributed.The charges of offences of sexual violence, the Defence argued, were added under the pressure of public opinion and were not credibly supported by the evidence. Witness J's account, for example, of living in a tree for one week after her family were killed and her sister raped, while several months pregnant, was simply not credible but rather the product of fantasy the Defence claimed - "of interest to psychiatrists, but not justice". Hearing of 26 March 1998, p.61 (French version)The Chamber has considered the Defence case extremely carefully and it will be treated here in the course of making the various factual and legal findings. There is one aspect which, however, should be dealt with here.

Putting the case to a witness

In the Defence closing argument, Mr. Nicholas Tiangaye, made the suggestion that some, if not all, of the Prosecution witnesses who had testified against Jean-Paul Akayesu did so because they were colluding in a "syndicate of informers" which would denounce a particular individual for political reasons or in order to take over his property. In this connection, Mr. Tiangaye quoted Rene Degni-Segui, the Special Rapporteur of the Commission on Human Rights on Rwanda, who recounted a story of a demonstrably innocent Rwandan who had been denounced by 15 witnesses as a participant in the genocide. Mr. Tiangaye concluded thus:

"... there were cases of calumny which existed and which enabled people to denounce others regarding their participation in genocide in order to be able to take over their property."

Mr. Tiangaye then went on to say:

"So, what do we do, Mr. President, ladies and gentlemen, when witnesses come to tell lies before the Chamber, what do we do?" Transcript of hearing of 26 March 1998, p.17.

To the extent that Defence counsel invites the Chamber to disbelieve the testimony of Prosecution witnesses because they may belong to a syndicate of informers or that they may be denouncing Akayesu in order to take over his property, and that they have therefore lied before the Chamber, it is to be noted this is a very serious allegation of false testimony or perjury, which is a criminal offence. Indeed, Defence counsel during the course of the trial made a motion for a certain prosecution witness to be investigated for false testimony; which motion was rejected in a Decision of this Trial Chamber in which it gave its reasons. See 'Procedural Background' as relates to Decision on False Testimony. That matter does not concern the Chamber here. What is of concern is whether the Chamber should give any weight, in its deliberations, to the possibility raised by Defence counsel that prosecution witnesses may have been lying for one of the above-mentioned motives.The Chamber holds that, as a blanket allegation to undermine the credibility of prosecution witnesses, this allegation can carry no weight, for two reasons. First, an attack on credibility which is not particularised with respect to individual witnesses is no attack at all on those witnesses' credibility; it is merely a generalised and unsubstantiated suspicion. Doubt can only arise where the criteria for doubt are fulfilled. To state that all prosecution witnesses should be disbelieved because some Rwandan witnesses elsewhere have lied is similar to saying, "some money is counterfeit, therefore all money might be counterfeit". If, and this is the second point, the Defence wish to challenge prosecution witnesses as members of an informer's syndicate, or to allege that they are lying in order to be able to confiscate the accused's property, then the Defence must lay the foundations for that challenge and put the challenge to the witness in question during cross-examination. This is both a matter of practicality and of principle. The practical matter is this: if the Defence does put to a witness the allegation that he is lying because he wishes to take the accused's property, then this may elicit a convincing admission or rebuttal. The witness may break down and reveal, by his words or demeanour, that he has indeed been lying for that purpose; alternatively, he may offer a convincing rebuttal, for example, by pointing out that the accused has no property which the witness could wish to misappropriate. Either way, the matter might be resolved. To never put the crucial question to the witness is to deprive the Chamber of such a possible resolution. As a matter of principle, it is only fair to a witness, whom the Defence wishes to accuse of lying, to give him or her an opportunity to hear that allegation and to respond to it. This is a rule in Common law, See Adrian Keane, The Modern Law of Evidence, (Butterworths: 1989), p. 120: "A cross-examiner who wishes to suggest to the jury that the witness is not speaking the truth on a particular matter must lay a proper foundation by putting that matter to the witness so that he has an opportunity of giving any explanation which is open to him", noting, however, that this is not a "hard and fast" rule. but it is also simply a matter of justice and fairness to victims and witnesses, principles recognised in all legal systems throughout the world.It is to be noted that during the trial the Defence did not put, nor even suggest, to a single prosecution witness that he or she was lying because he or she had been drawn into a syndicate of informers and instructed as to how to testify against the accused, or that the witness was lying because he or she wished to take the accused's property. In these circumstances, Defence counsel's attempt in his closing arguments to tar all prosecution witnesses with the same broad brush of suspicion cannot be accepted by the Chamber. Thus the credibility of each witness must be assessed on its merits, taking into account the witness's demeanour and the consistency and credibility or otherwise of the answers given by him or her under oath.

1.5. The Accused and his functions in Taba (paragraphs 3-4 of the Indictment)

Paragraphs 3 and 4 of the Indictment appear under the heading, "the Accused". Taking these paragraphs in turn, paragraph 3 reads as follows:

The Accused

3. Jean Paul AKAYESU, born in 1953 in Murehe sector, Taba commune, served as bourgmestre of that commune from April 1993 until June 1994. Prior to his appointment as bourgmestre, he was a teacher and school inspector in Taba.

The Chamber confirms paragraph 3, which is common cause between the Prosecution and the Defence. On the basis of the evidence presented at trial, the Chamber finds the following facts have been established with regard to the Accused generally.The Accused, Akayesu was born in 1953 in Murehe sector, Taba commune in Rwanda, where he also grew up. He was an active athlete in Taba and a member of the local football team. In 1978 he married a local woman from the same commune, whom he had then known for ten years. They are still married and have five children together. Before being appointed bourgmestre in 1993, the Accused served as a teacher and was later promoted to Primary School Inspector in Taba. In this capacity he was in charge of inspecting the education in the commune and acted as head of the teachers. He would occasionally fill in as a substitute teacher and was popular among pupils and students of different educational levels in the commune. Generally speaking, the Accused was a well known and popular figure in the local community. Akayesu became politically active within the commune in 1991 and on 1 July of the same year, following the transition into multipartyism, he was one of the signatories to the statute and a founding member of the new political party R called,Mouvement Démocratique Républicain MDR Politically the goal of the MDR was not to be an extension of the traditional MDR Parmehutu, but rather an updated version thereof, diametrically opposed to the MRND. The MDR focused on pointing out the errors of the MRND such as delays in the provision of infrastructure, roads, schools, health facilities, lack of electricity, etc.. Eventually, Akayesu was elected local president of the MDR in Taba commune. A sizeable proportion of the population in Taba became members of the MDR, and as the party grew, a certain animosity between members of the MDR and the MRND began to appear, resulting in several acts of violence. The other parties within the Commune, the Parti Social Démocratique, PSD and the Parti Libéral, PL cooperated with the MDR but, like the MDR, both parties experienced similar difficulties in cooperating with the MRND. On a personal level, Akayesu was considered a man of high morals, intelligence and integrity, possessing the qualities of a leader, who appeared to have the trust of the local community. These abilities were in all likelihood the main reasons why different groups in the commune, among others the leaders of the MDR, communal representatives and religious leaders, considered Akayesu a suitable candidate for bourgmestre in Taba for the 1993 elections. The Accused himself admits to having been reluctant to run for the post of bourgmestre, but was pressured into candidacy by the aforementioned groups, according to several witnesses, including Akayesu himself. In April 1993, Akayesu was elected bourgmestre after an election contested by four candidates. He then served as bourgmestre of Taba Commune from April 1993 until June 1994. According to the Accused, the duties of a bourgmestre were diverse. In short, he was in charge of the total life of the commune in terms of the economy, infrastructure, markets, medical care and the overall social life.Traditionally the role of the bourgmestre had always been to act as the representative of the President in the commune. Therefore the arrival of multipartyism did not particularly change the considerable amount of unofficial powers conferred upon the bourgmestre by the people in the commune. The bourgmestre was the leader of the commune and commonly treated with great respect and deference by the population.In Taba Commune, Akayesu played a major role in leading the people. He would give advice on various matters concerning security, economics or on the social well-being of the citizens. His advice would generally be followed and he was considered a father-figure or parent of the commune, to whom people would also come for informal advice. After a period of economic difficulties in Taba Commune due to corruption under the previous administration, a clear difference could be detected when Akayesu took office, as people would now settle their debts trusting the new administration. According to those of his colleagues appearing as witnesses before the Chamber, Akayesu was performing his task as bourgmestre well, prior to the period which is the subject of the Indictment. Paragraph 4 of the Indictment reads as follows:

4. As bourgmestre, Jean Paul AKAYESU was charged with the performance of executive functions and the maintenance of public order within his commune, subject to the authority of the prefect. He had exclusive control over the communal police, as well as any gendarmes put at the disposition of the commune. He was responsible for the execution of laws and regulations and the administration of justice, also subject only to the prefect's authority.

The Chamber finds it necessary to explore in some detail the powers of the bourgmestre and, in particular, to distinguish between the de facto and de jure powers of a bourgmestre. In so doing, the Chamber will also deal with the allegation in paragraph 2 of the Indictment which reads, "In Rwanda, the bourgmestre is the most powerful figure in the commune. His de facto authority in the area is significantly greater than that which is conferred upon him de jure".

Background

A commune is governed by a bourgmestre in conjunction with the communal council which is composed of representatives of the different sectors in the commune. Below the sectors are the cellules and at the lowest level are the units of ten households. The latter two are really party structures, rather than administrative subdivisions.Before the advent of multi-partyism, appointment and removal of a bourgmestre was the prerogative of the State President, political loyalty being the criterion. The bourgmestre was the representative of the central government in the commune but embodied at the same time the commune as a semi-autonomous unit. In that capacity, he would, for example, arrange contracts or represent the commune in court. He also had the authority to allocate the resources of the commune, including the land. He had the sole responsibility and authority over the communal police and could call upon the national gendarmerie to restore order. In addition, he was a judicial officer. Moreover, as the trusted representative of the President, he had a series of unofficial powers and duties, to such an extent that he was the central person in the daily life of the ordinary people. Citizens needed his protection in order to function in society. The bourgmestre held considerable sway over the communal council. Although an elected body, the council was less a representative body of the interest of the population than it was simply a channel for passing orders down to the people.The introduction of multipartyism in 1991 had its effect on the local and national power structures from 1992 onwards. The MRND had to sacrifice the advantages which it enjoyed when it was the Siamese twin of the administration. A number of bourgmestres were removed on the advice of a pluralistic evaluation commission. The subsequent local elections were a clear victory for the opposition. Other bourgmestres were simply ousted by militia of an opposition party. Since then, the bourgmestres were no longer necessarily the representatives of the State President or of the central authority. Instead, they became primarily the representatives of their political party at the local level. But in any case, they would still remain the most important local representatives of power at the centre.

De jure powers

Article 58: Le bourgmestre est, d'une manière générale, chargé d'exécuter les décisions du Conseil communal[...]

However, in case of urgency, the bourgmestre can issue police regulations and impose sanctions for violations (article 61). Furthermore, he always has the power to arrest, for a maximum of 48 hours, any person who breaches the peace (article 62).. He "embodies the communal authority" Article 56: Le bourgmestre est à la foi représentant du pouvoir centrale dans la commune et personnification de l'autorité communale..

The communal administration

The relationship between a bourgmestre and the communal workforce is spelt out in the body of law which is called administrative law in Civil Law countries (as opposed to labour law which regulates employment in the private sector). The bourgmestre has the power to hire (appoint) and fire (remove) communal employees after advice from the communal council Article 93: Le pouvoir d'engagement, de suspension et de révocation appartient au bourgmestre après avis du Conseil communal conformément aux instructions du Ministre de l'intérieur.. The President of the Republic decrees by law the legal status (rights and duties) of the communal personnel. Although the legal situation (administrative law) may be very different from the private sector (labour law), it is very much a relationship of employer and employee and, therefore, strictly limited to the scope of the employment.

The communal police

The bourgmestre, without being a part of the communal police, has ultimate authority over it and is entirely responsible for its organisation, functioning and control. Loi sur la police communale du 4 octobre 1977 (arrêté présidentiel n 285/03) (reprinted in Codes et Lois du Rwanda, Reyntjens, F. et Gorus, J. (eds.), 1995)

Article 1: La Police communale est une force constituée au niveau de la commune. Elle est placée sous l'autorité du bourgmestre qui l'utilise dans sa tâche de maintien et de rétablissement de l'ordre public et d'exécution des lois et des règlements.

Article 4: Le bourgmestre assume l'entière responsabilité de l'organisation, du fonctionnement et du contrôle du corps de la Police communale. Il est aidé dans cette tâche par le brigadier.The communal police is a civilian police whose members do not fall under the military penal code. Sanctions and procedures for sanctions are the subject of administrative law. A bourgmestre has only disciplinary jurisdiction (e.g. blame, suspension) over his communal police. Although the law states that only the bourgmestre has authority over the police Article 104 of the Loi sur l'organisation communale: Le bourgmestre a seul autorité sur les agents de la Police communale [...], he is, however, not its commander. Article 108 of the Loi sur l'organisation communale states, "Le commandement de la Police communale est assuré par un brigadier placé sous l'autorité du bourgmestre". Therefore, the relationship between the bourgmestre and the communal police is comparable to the relationship between a Minister of Defence and the High Command of the armed forces.In case of public disturbances, the prefect can assume direct control over the communal police. Article 104 [...] Toutefois, en cas de calamité publique ou lorsque des troubles menacent d'éclater ou ont éclaté, le préfet peut réquisitionner les agents de la Police communale et les placer sous son autorité directe.

Gendarmerie Nationale

Paragraph 4 of the Indictment states that Akayesu as a bourgmestre had exclusive control over the communal police as well as any gendarmes put at the disposal of the commune.The Gendarmerie Nationale is a military force whose task it is to maintain public order when it is requested to do so Décret loi du 23 janvier 1974 sur la création de la Gendarmerie Nationale

Article 3: La Gendarmerie Nationale est une force armée instituée pour assurer le maintien de l'ordre et de l'exécution des loi.

Article 4: Les fonctions de la Gendarmerie Nationale ont un caractère à la fois préventif et répressif. Elles se divisent en fonctions ordinaires et fonctions extraordinaires. Les fonctions ordinaires sont celles que la Gendarmerie Nationale remplit en vertu de la loi sans réquisition préalable de l'autorité.

Les fonctions extraordinaires sont celles que la Gendarmerie Nationale ne peut remplir que sur réquisition de l'autorité compétente..It is the prefect, not the bourgmestre who can request the intervention of the Gendarmerie Article 103: [...] En outre, le préfet peut mettre à la disposition de la commune des éléments de la Police Nationale. [actuellement, il faut sans doute lire: la Gendarmerie Nationale]. The Gendarmes put at the disposal of the commune at the request of the prefect operate under the bourgmestre's authority Article 104: Le bourgmestre a seul autorité sur les agents de la Police communale et, par délégation de préfet, sur les éléments de la Police Nationale [lire: Gendarmerie Nationale] mis à la disposition de la commune.. It is far from clear, however, that in such circumstances a bourgmestre would have command authority over a military force. Article 39 de la lois sur la Gendarmerie Nationale:

Powers of a bourgmestre in times of war or national emergency

Apart from asking the prefect to request the Gendarmerie to intervene (supra), there are few legal provisions on the powers of a bourgmestre in times of war or national emergency.A decree of 20 October 1959 (by the Belgian authorities) on the state of emergency is apparently still on the books. It gives the bourgmestre the power, once the the state of emergency has been declared, to order the evacuation, removal and internment of persons. ÉTAT D'EXCEPTION - 20 octobre 1959 - Décret:

Article 1: En cas de guerre, de mobilisation en Belgique ou au Congo, de troubles ou de circonstances graves menaçant la sécurité ou l'intérêts publics, le gouverneur général peut déclarer l'état d'exception.

Article 4: Le gouverneur général, les autorités q'il désigne et leurs délégués peuvent:

(1) ordonner:

a) des perquisitions de jour et de nuit dans les domiciles;

b) l'évacution des personnes, leur éloignement, leur mise sous surveillance ou leur internement.

(2) interdire:

[...]

MESURES D'EXÉCUTION - 10 décembre 1959 - ordonnance n 11/630

Article 1: Dans l'ensemble ou la partie du territoire déclarés en état d'exception:

a) le gouverneur de province, le commissaire de district, le premier bourgmestre, ou leurs délégués exercent les pouvoirs prévus à l'article 4 du décret sur l'état d'exception.

b) ...

De facto powers

A number of witnesses testified before the Chamber as to the de facto powers of the bourgmestre and there is indeed evidence to support the Prosecutor's assertion that the bourgmestre enjoyed significant de facto authority. The expert witness, Alison DesForges, testified that the bourgmestre was the most important authority for the ordinary citizens of a Commune, who in some sense exercised the powers of a chief in pre-colonial times.Witness E said that the bourgmestre was considered as the "parent" of all the population whose every order would be respected. Witness S went further and stated that the people would normally follow the orders of the administrative authority, i.e. the bourgmestre, even if those orders were illegal or wrongful. Witness V said that the people could not disobey the orders of the bourgmestre.On the other hand, Witness DAAX, who was the prefect of the Gitarama prefecture in which the accused was bourgmestre - and hence the Accused's hierarchical superior - testified that the bourgmestre had to work within the ambit of the law and could not exceed his de jure powers, and that if he did so, the prefect would intervene.Witness R, himself a former bourgmestre, said that the duties and responsibilities of the bourgmestre were those prescribed and decreed by law, which the bourgmestre had to respect. The witness conceded, however, that the popularity of a bourgmestre might affect the extent to which his orders and advice were obeyed within the Commune. Witness R also admitted that, at least during the transitional period, certain bourgmestres exceeded their de jure powers with impunity, for example imprisoning their political rivals or embezzling from communal resources.In light of the above, the Chamber finds it proved beyond a reasonable doubt that, as paragraph 4 of the Indictment states, "As bourgmestre, Jean Paul AKAYESU was charged with the performance of executive functions and the maintenance of public order within his commune, subject to the authority of the prefect". The Chamber does find it proved that "[the bourgmestre] had exclusive control over the communal police, [...][and authority over] any gendarmes put at the disposal of the commune". The Chamber does find it proved that "[the bourgmestre] was responsible for the execution of laws and regulations and the administration of justice, also subject only to the prefect's authority". The Chamber does find it proved that, "In Rwanda, the bourgmestre is the most powerful figure in the commune. His de facto authority in the area is significantly greater than that which is conferred upon him de jure".

2. HISTORICAL CONTEXT OF THE EVENTS IN RWANDA IN 1994

It is the opinion of the Chamber that , in order to understand the events alleged in the Indictment, it is necessary to say, however briefly, something about the history of Rwanda, beginning from the pre-colonial period up to 1994. Rwanda is a small, very hilly country in the Great Lakes region of Central Africa. Before the events of 1994, it was the most densely populated country of the African continent (7.1 million inhabitants for 26,338 square kilometres). Ninety per cent of the population lives on agriculture. Its per capita income is among the lowest in the world, mainly because of a very high population pressure on land.Prior to and during colonial rule, first, under Germany, from about 1897, and then under Belgium which, after driving out Germany in 1917, was given a mandate by the League of Nations to administer it, Rwanda was a complex and an advanced monarchy. The monarch ruled the country through his official representatives drawn from the Tutsi nobility. Thus, there emerged a highly sophisticated political culture which enabled the king to communicate with the people.Rwanda then, admittedly, had some eighteen clans defined primarily along lines of kinship. The terms Hutu and Tutsi were already in use but referred to individuals rather than to groups. In those days, the distinction between the Hutu and Tutsi was based on lineage rather than ethnicity. Indeed, the demarcation line was blurred: one could move from one status to another, as one became rich or poor, or even through marriage.Both German and Belgian colonial authorities, if only at the outset as far as the latter are concerned, relied on an elite essentially composed of people who referred to themselves as Tutsi, a choice which, according to Dr. Alison Desforges, was born of racial or even racist considerations. In the minds of the colonizers, the Tutsi looked more like them, because of their height and colour, and were, therefore, more intelligent and better equipped to govern. In the early 1930s, Belgian authorities introduced a permanent distinction by dividing the population into three groups which they called ethnic groups, with the Hutu representing about 84% of the population, while the Tutsi (about 15%) and Twa (about 1%) accounted for the rest. In line with this division, it became mandatory for every Rwandan to carry an identity card mentioning his or her ethnicity. The Chamber notes that the reference to ethnic background on identity cards was maintained, even after Rwanda's independence and was, at last, abolished only after the tragic events the country experienced in 1994.According to the testimony of Dr. Alison Desforges, while the Catholic Church which arrived in the wake of European colonizers gave the monarch, his notables and the Tutsi population privileged access to education and training, it tried to convert them. However, in the face of some resistance, the missionaries for a while undertook to convert the Hutu instead. Yet, when the Belgians included being Christian among the criteria for determining the suitability of a candidate for employment in the civil service, the Tutsi, hitherto opposed to their conversion, became more willing to be converted to Christianity. Thus, they carried along most Hutu. Quoting a witness from whom she asked for an explanation for the massive conversion of Hutu to Christianity, Dr. Desforges testified that the reasons for the conversion were to be found in the cult of obedience to the chiefs which is highly developed in the Rwandan society. According to that witness, "you could not remain standing while your superiors were on their knees praying". For these reasons, therefore, it can be understood why at the time, that is, in the late 1920s and early 1930s, the church, like the colonizers, supported the Tutsi monopoly of power.From the late 1940s, at the dawn of the decolonization process, the Tutsi became aware of the benefits they could derive from the privileged status conferred on them by the Belgian colonizers and the Catholic church. They then attempted to free themselves somehow from Belgian political stewardship and to emancipate the Rwandan society from the grip of the Catholic church. The desire for independence shown by the Tutsi elite certainly caused both the Belgians and the church to shift their alliances from the Tutsi to the Hutu, a shift rendered more radical by the change in the church's philosophy after the second world war, with the arrival of young priests from a more democratic and egalitarian trend of Christianity, who sought to develop political awareness among the Tutsi- dominated Hutu majority. Under pressure from the United Nations Trusteeship Council and following the shift in alliances just mentioned, Belgium changed its policy by granting more opportunities to the Hutu to acquire education and to hold senior positions in government services. This turn-about particularly angered the Tutsi, especially because, on the renewal of its mandate over Rwanda by the United Nations, Belgium was requested to establish representative organs in the Trust territory, so as to groom the natives for administration and, ultimately, grant independence to the country. The Tutsi therefore began the move to end Belgian domination, while the Hutu elite, for tactical reasons, favoured the continuation of the domination, hoping to make the Hutu masses aware of their political weight in Rwanda, in a bid to arrive at independence, which was unavoidable, at least on the basis of equality with the Tutsi. Belgium particularly appreciated this attitude as it gave it reason to believe that with the Hutu, independence would not spell a severance of ties.In 1956, in accordance with the directives of the United Nations Trusteeship Council, Belgium organized elections on the basis of universal suffrage in order to choose new members of local organs, such as the grassroots representative Councils. With the electorate voting on strictly ethnic lines, the Hutu of course obtained an overwhelming majority and thereby became aware of their political strength. The Tutsi, who were hoping to achieve independence while still holding the reins of power, came to the realization that universal suffrage meant the end of their supremacy; hence, confrontation with the Hutu became inevitable.Around 1957, the first political parties were formed and, as could be expected, they were ethnically rather than ideologically based. There were four political parties, namely the Mouvement démocratique répubicain, Parmehutu ( "MDR Parmehutu"), which clearly defined itself as the Hutu grassroots movement; the Union Nationale Rwandaise ("UNAR"), the party of Tutsi monarchists; and, between the two extremes, the two others, Aprosoma, predominantly Hutu, and the Rassemblement démocratique rwandais ("RADER"), which brought together moderates from the Tutsi and Hutu elite.The dreaded political unrest broke out in November 1959, with increased bloody incidents, the first victims of which were the Hutu. In reprisal, the Hutu burnt down and looted Tutsi houses. Thus became embedded a cycle of violence which ended with the establishment on 18 October 1960, by the Belgian authorities, of an autonomous provisional Government headed by Grégoire Kayibanda, President of MDR Parmehutu, following the June 1960 communal elections that gave an overwhelming majority to Hutu parties. After the Tutsi monarch fled abroad, the Hutu opposition declared the Republic of Gitarama, on 28 January 1961, and set up a legislative assembly. On 6 February 1961, Belgium granted self-government to Rwanda. Independence was declared on 1 July 1962, with Grégoire Kayibanda at the helm of the new State, and, thus, President of the First Republic.The victory of Hutu parties increased the departure of Tutsi to neighbouring countries from where Tutsi exiles made incursions into Rwanda. The word Inyenzi, meaning cockroach, came to be used to refer to these assailants. Each attack was followed by reprisals against the Tutsi within the country and in 1963, such attacks caused the death of at least ten thousand of them, further increasing the number of those who went into exile. Concurrently, at the domestic level, the Hutu regime seized this opportunity to allocate to the Hutu the lands abandoned by Tutsi in exile and to redistribute posts within the Government and the civil service, in favour of the Hutu, on the basis of a quota system linked to the proportion of each ethnic group in the population.The dissensions that soon surfaced among the ruling Hutu led the regime to strengthen the primacy of the MDR Parmehutu party over all sectors of public life and institutions, thereby making it the de facto sole party. This consolidated the authority of President Grégoire Kayibanda as well as the influence of his entourage, most of who came from the same region as he, that is the Gitarama region in the centre of the country. The drift towards ethnic and regional power became obvious. From then onwards, a rift took root within the Hutu political Establishment, between its key figures from the Centre and those from the North and South who showed great frustration. Increasingly isolated, President Kayibanda could not control the ethnic and regional dissensions. The disagreements within the regime resulted into anarchy, which enabled General Juvénal Habyarimana, Army Chief of Staff, to seize power through a coup on 5 July 1973. General Habyarimana dissolved the First Republic and established the Second Republic. Scores of political leaders were imprisoned and, later, executed or starved to death, as was the case with the former President, Grégoire Kayibanda.Following a trend then common in Africa, President Habyarimana, in 1975, instituted the one-party system with the creation of the Mouvement révolutionnaire national pour le développement (MRND), of which every Rwandan was a member ipso facto, including the newborn. Since the party encompassed everyone, there was no room for political pluralism. A law passed in 1978 made Rwanda officially a one-party State with the consequence that the MRND became a "State-party", as it formed one and the same entity with the Government. According to Dr. Desforges, the local administrative authority was, at the same time, the representative of the party within his administrative unit. There was therefore a single centralized organization , both for the State and the party, which stretched from the Head of State down to basic units known as cellules, with even smaller local organs , each comprising ten households, below the cellules. The cellules and local organs were, indeed, more of party organs, than administrative units. They were the agencies for the implementation of Umuganda, the mobilization programme which required people to allocate half a day's labour per week to some communal project, such as the construction of schools or road repairs.According to testimonies given before the Chamber, particularly that of Dr. Desforges, Habyarimana's accession to power aroused a great deal of enthusiasm and hope, both inside and outside the country, and also among members of the Tutsi ethnic group. Indeed, the regime at the outset did guard against pursuing a clearly anti-Tutsi policy. Many Tutsi were then prepared to reach a compromise. However, as the years went by, power took its toll and Habyarimana's policies became clearly anti-Tutsi. Like his predecessor, Grégoire Kayibanda, Habyarimana strengthened the policy of discrimination against the Tutsi by applying the same quota system in universities and government services. A policy of systematic discrimination was pursued even among the Hutu themselves, in favour of Hutu from Habyarimana's native region, namely Gisenyi and Ruhengeri in the north-west, to the detriment of Hutu from other regions. This last aspect of Habyarimana's policy, considerably weakened his power: henceforth, he faced opposition not only from the Tutsi but also from the Hutu, who felt discriminated against and most of whom came from the central and southern regions. In the face of this situation, Habyarimana chose to relentlessly pursue the same policy like his predecessor who favoured his region, Gitarama. Like Kayibanda, he became increasingly isolated and the base of his regime narrowed down to a small intimate circle dubbed "Akazu", meaning the "President's household". This further radicalized the opposition whose ranks swelled more and more. On 1 October 1990, an attack was launched from Uganda by the Rwandan Patriotic Front (RPF) whose forebear, the Alliance rwandaise pour l'unité nationale ("ARUN"), was formed in 1979 by Tutsi exiles based in Uganda. The attack provided a pretext for the arrest of thousands of opposition members in Rwanda considered as supporters of the RPF.Faced with the worsening internal situation that attracted a growing number of Rwandans to the multi-party system, and pressured by foreign donors demanding not only economic but also political reforms in the form of much greater participation of the people in the country's management, President Habyarimana was compelled to accept the multi-party system in principle. On 28 December 1990, the preliminary draft of a political charter to establish a multi-party system was published. On 10 June 1991, the new constitution introducing the multi-party system was adopted, followed on 18 June by the promulgation of the law on political parties and the formation of the first parties, namely :

- the Mouvement démocratique républicain (MDR), considered to be the biggest party in terms of membership and claiming historical links with the MDR-Parmehutu of Grégoire Kayibanda; its power-base was mainly the centre of the country, around Gitarama;

- the Parti social démocrate (PSD), whose membership included a good number of intellectuals, recruited its members mostly in the South, in Butare;

- the Parti libéral( PL); and

- the Parti démocrate chrétien (PDC).

At the same time, Tutsi exiles, particularly those in Uganda organized themselves not only to launch incursions into Rwandan territory but also to form a political organization, the Rwandese Patriotic Front (RPF), with a military wing called the Rwandan Patriotic Army (RPA). The first objective of the exiles was to return to Rwanda. But they met with objection from the Rwandan authorities and President Habyarimana, who is alleged to have said that land in Rwanda would not be enough to feed all those who wanted to return. On these grounds, the exiles broadened their objectives to include the overthrow of Habyarimana.The above-mentioned RPF attack on 1 October 1991 sent shock waves throughout Rwanda. Members of the opposition parties formed in 1991, saw this as an opportunity to have an informal alliance with the RPF so as to further destabilize an already weakened regime. The regime finally accepted to share power between the MRND and the other political parties and, around March 1992, the Government and the opposition signed an agreement to set up a transitional coalition government headed by a Prime Minister from the MDR. Out of the nineteen ministries, the MRND obtained only nine. Pressured by the opposition, the MRND accepted that negotiations with the RPF be started. The negotiations led to the first cease-fire in July 1992 and the first part of the Arusha AccordsProsecution Exhibit No. 14. The July 1992 cease-fire tacitly recognized RPF control over a portion of Rwandan territory in the north-east. The protocols signed following these accords included the October 1992 protocol establishing a transitional government and a transitional assembly and the participation of the RPF in both institutions. The political scene was now widened to comprise three blocs: the Habyarimana bloc, the internal opposition and the RPF. Experience showed that President Habyarimana accepted these accords only because he was compelled to do so, but had no intention of complying with what he himself referred to as "un chiffon de papier", meaning a scrap of paper. Yet, the RPF did not drop its objective of seizing power. It therefore increased its military attacks. The massive attack of 8 February 1993 seriously undermined the relations between the RPF and the Hutu opposition parties, making it easy for Habyarimana supporters to convene an assembly of all Hutu. Thus, the bond built on Hutu kinship once again began to prevail over political differences. The three blocs mentioned earlier gave way to two ethnic- based opposing camps: on the one hand, the RPF, the supposed canopy of all Tutsi and, on the other hand, the other parties said to be composed essentially of the Hutu. In March 1992, a group of Hutu hard-liners founded a new radical political party, the Coalition pour la défense de la republique (CDR), or Coalition for the Defence of the Republic, which was more extremist than Habyarimana himself and opposed him on several occasions.To make the economic, social and political conflict look more like an ethnic conflict, the President's entourage, in particular, the army, persistently launched propaganda campaigns which often consisted of fabricating events. Dr. Alison Desforges in her testimony referred to this as "mirror politics", whereby a person accuses others of what he or she does or wants to do. In this regard, in the morning hours of 5 October 1990, the Rwandan army simulated an attack on Kigali and, immediately thereafter, the Government claimed that the city had just been infiltrated by the RPF, with the help of local Tutsi accomplices. Some eight thousand Tutsi and members of the Hutu opposition were arrested the next morning. Several dozens of them died in jail. Another example of mirror politics is the March 1992 killings in Bugesera which began a week after a propaganda agent working for the Habyarimana government distributed a tract claiming that the Tutsi of that region were preparing to kill many Hutu. The MRND militia, known as Interahamwe, participated in the Bugesera killings. It was the first time that this party's militia participated in killings of this scale. They were later joined by the militia of other parties or wings of Hutu extremist parties, including, in particular, the CDR militia known as the Impuzamugambi.Mirror politics was also used in Kibulira, in the north-west, and in the Bagoguye region. In both cases, the population was goaded on to defend itself against fabricated attacks supposed to have been perpetrated by RPF infiltrators and to attack and kill their Tutsi neighbours. In passing, mention should be made of the role that Radio Rwanda and, later, the RTLM, founded in 1993 by people close to President Habyarimana, played in this anti-Tutsi propaganda. Besides the radio stations, there were other propaganda agents, the most notorious of whom was a certain Léon Mugesera, vice-president of the MRND in Gisenyi Préfecture and lecturer at the National University of Rwanda, who published two pamphlets accusing the Tutsi of planning a genocide of the Hutu Prosecution Exhibits Nos. 68 and 69. . During an MRND meeting in November 1992, the same Léon Mugesera called for the extermination of the Tutsi and the assassination of Hutu opposed to the President. He made reference to the idea that the Tutsi allegedly came from Ethiopia and, hence, that after they had been killed, they should be thrown into the Rwandan tributaries of the Nile, so that they should return to where they are supposed to have come from Prosecution Exhibit No. 74.. He exhorted his listeners to avoid the error of earlier massacres during which some Tutsi, particularly children, were spared. On the political front, a split was noticed in almost all the opposition parties on the issue of the proposed signing of a final peace agreement. This schismatic trend began with the MDR party, the main rival of the MRND, whose radical faction, later known as MDR Power, affiliated with the CDR and the MRND.On 4 August 1993, the Government of Rwanda and the RPF signed the final Arusha Accords and ended the war which started on 1 October 1990. The Accords provided, inter alia, for the establishment of a transitional government to include the RPF, the partial demobilization and integration of the two opposing armies (13,000 RPF and 35,000 FAR troops), the creation of a demilitarized zone between the RPF-controlled area in the north and the rest of the country, the stationing of an RPF battalion in the city of Kigali, and the deployment, in four phases, of a UN peace-keeping force, the United Nations Assistance Mission for Rwanda (UNAMIR), with a two-year mandate.On 23 October 1993, the President of Burundi, Melchior Ndadaye, a Hutu, was assassinated in the course of an attempted coup by Burundi Tutsi soldiers. Dr. Alison Desforges testified that in Rwanda, Hutu extremists exploited this assassination to prove that it was impossible to agree with the Tutsi, since they would always turn against their Hutu partners to kill them. A meeting held at the Kigali stadium at the end of October 1993 was entirely devoted to the discussion of the assassination of President Ndadaye, and in a very virulent speech, Froduald Karamira, senior national vice-President of the Interahamwe, is alleged to have called for unreserved solidarity among all the Hutu, solidarity transcending the divide of political parties. He reportedly concluded his speech with a call for "Hutu-Power". The assassination of President Ndadaye gave President Habyarimana and the CDR the opportunity to denounce, in a joint MRND - CDR statement issued at the end of 1993, the Arusha Accords, calling them treason. However, a few days later, pursuing his policy of prevarication towards the international community, Habyarimana signed another part of the peace accords. Indeed, the Arusha Accords no longer existed, except on paper. The President certainly did take the oath of office, but the installation of a transitional government was delayed, mainly by divisions within the political parties and the ensuing infightings.The leaders of the CDR and the PSD were assassinated in February 1994. In Kigali, in the days that followed, the Interahamwe and the Impuzamugambi massacred Tutsi as well as Habyarimana's Hutu opponents. The Belgian Foreign Minister informed his representative at the UN of the worsening situation which "could result in an irreversible explosion of violence" Prosecution Exhibit No.18 . At the same time, as he stated in his testimony before the Tribunal, UNAMIR commander, Major-General Dallaire, alerted the United Nations in New York of the discovery of arms caches and requested a change in UNAMIR's engagement rules to enable him to seize the arms; but the request was turned down. Meanwhile, anti-Tutsi propaganda on the media intensified. The RTLM constantly stepped up its attacks which became increasingly targeted and violent.At the end of March 1994, the transitional government was still not set up and Rwanda was on the brink of bankruptcy. International donors and neighbouring countries put pressure on the Habyarimana government to implement the Arusha Accords.On 6 April 1994, President Habyarimana and other heads of State of the region met in Dar-es-Salaam (Tanzania) to discuss the implementation of the peace accords. The aircraft carrying President Habyarimana and the Burundian President, Ntaryamirai, who were returning from the meeting, crashed around 8:30 pm near Kigali airport. All aboard were killed.

The Rwandan army and the militia immediately erected roadblocks around the city of Kigali. Before dawn on April 7 1994, in various parts of the country, the Presidential Guard and the militia started killing the Tutsi as well as Hutu known to be in favour of the Arusha Accords and power-sharing between the Tutsi and the Hutu. Among the first victims, were a number of ministers of the coalition government, including its Prime Minister, Agathe Uwilingiyimana (MDR), the president of the Supreme Court and virtually the entire leadership of the parti social démocrate (PSD). The constitutional vacuum thus created cleared the way for the establishment of the self-proclaimed Hutu-power interim government, mainly under the aegis of retired Colonel Théoneste Bagosora. Soldiers of the Rwandan Armed Forces (FAR) executed ten Belgian blue helmets, thereby provoking the withdrawal of the Belgian contingent which formed the core of UNAMIR. On April 21 1994, the UN Security Council decided to reduce the peace-keeping force to 450 troops.In the afternoon of 7 April 1994, RPF troops left their quarters in Kigali and their zone in the north, to resume open war against the Rwandan Armed Forces. Its troops from the north moved south, crossing the demilitarized zone, and entered the city of Kigali on April 12 1994, thus forcing the interim government to flee to Gitarama.On April 12 1994, after public authorities announced over Radio Rwanda that "we need to unite against the enemy , the only enemy and this is the enemy that we have always known...it's the enemy who wants to reinstate the former feudal monarchy", it became clear that the Tutsi were the primary targets. During the week of 14 to 21 April 1994, the killing campaign reached its peak. The President of the interim government, the Prime Minister and some key ministers travelled to Butare and Gikongoro, and that marked the beginning of killings in these regions which had hitherto been peaceful. Thousands of people, sometimes encouraged or directed by local administrative officials, on the promise of safety, gathered unsuspectingly in churches, schools, hospitals and local government buildings. In reality, this was a trap intended to lead to the rapid extermination of a large number of people.The killing of Tutsi which henceforth spared neither women nor children, continued up to 18 July 1994, when the RPF triumphantly entered Kigali. The estimated total number of victims in the conflict varies from 500,000 to 1,000,000 or more.

3. GENOCIDE IN RWANDA IN 1994?

As regards the massacres which took place in Rwanda between April and July 1994, as detailed above in the chapter on the historical background to the Rwandan tragedy, the question before this Chamber is whether they constitute genocide. Indeed, it was felt in some quarters See the cross examination of Dr. Zachariah (witness) by one of the defence counsel. that the tragic events which took place in Rwanda were only part of the war between the Rwandan Armed Forces (the RAF) and the Rwandan Patriotic Front (RPF). The answer to this question would allow a better understanding of the context within which the crimes with which the accused is charged are alleged to have been committed. According to paragraph 2 of Article 2 of the Statute of the Tribunal, which reflects verbatim the definition of genocide as contained in the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter, "the Convention on Genocide") The Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly on 9 December 1948. , genocide means any of the following acts referred to in said paragraph, committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such, namely, inter alia: killing members of the group; causing serious bodily or mental harm to members of the group.Even though the number of victims is yet to be known with accuracy, no one can reasonably refute the fact that widespread killings were perpetrated throughout Rwanda in 1994.Indeed, this is confirmed by the many testimonies heard by this Chamber. The testimony of Dr. Zachariah who appeared before this Chamber on 16 and 17 January 1997 is enlightening in this regard. Dr. Zachariah was a physician who at the time of the events was working for a non-governmental organisation, "Médecins sans frontières." In 1994 he was based in Butare and travelled over a good part of Rwanda upto its border with Burundi. He described in great detail the heaps of bodies which he saw everywhere, on the roads, on the footpaths and in rivers and, particularly, the manner in which all these people had been killed. At the church in Butare, at the Gahidi mission, he saw many wounded persons in the hospital who, according to him, were all Tutsi and who, apparently, had sustained wounds inflicted with machetes to the face, the neck, and also to the ankle, at the Achilles' tendon, to prevent them from fleeing. The testimony given by Major-General Dallaire, former Commander of the United Nations Assistance Mission for Rwanda (UNAMIR) at the time of the events alleged in the Indictment, who was called by the defence, is of a similar vein. Major-General Dallaire spoke of troops of the Rwandan Armed Forces and of the Presidential Guard going into houses in Kigali that had been previously identified in order to kill. He also talked about the terrible murders in Kabgayi, very near Gitarama, where the interim Government was based and of the reports he received from observers throughout the country which mentioned killings in Gisenyi, Cyangugu and Kibongo.

The British cameraman, Simon Cox, took photographs of bodies in many churches in Remera, Biambi, Shangi, between Cyangugu and Kibuye, and in Bisesero. He mentioned identity cards strewn on the ground, all of which were marked "Tutsi". Consequently, in view of these widespread killings the victims of which were mainly Tutsi, the Chamber is of the opinion that the first requirement for there to be genocide has been met, the killing and causing serious bodily harm to members of a group.The second requirement is that these killings and serious bodily harm, as is the case in this instance, be committed with the intent to destroy, in whole or in part, a particular group targeted as such.In the opinion of the Chamber, there is no doubt that considering their undeniable scale, their systematic nature and their atrociousness, the massacres were aimed at exterminating the group that was targeted. Many facts show that the intention of the perpetrators of these killings was to cause the complete disappearance of the Tutsi. In this connection, Alison Desforges, an expert witness, in her testimony before this Chamber on 25 February 1997, stated as follows:"on the basis of the statements made by certain political leaders, on the basis of songs and slogans popular among the Interahamwe, I believe that these people had the intention of completely wiping out the Tutsi from Rwanda so that-as they said on certain occasions - their children , later on , would not know what a Tutsi looked like, unless they referred to history books". Moreover, this testimony given by Dr. Desforges was confirmed by two prosecution witnesses, witness KK and witness OO, who testified separately before the Tribunal that one Silas Kubwimana had said during a public meeting chaired by the accused himself that all the Tutsi had to be killed so that someday Hutu children would not know what a Tutsi looked like.

Furthermore, as mentioned above, Dr. Zachariah also testified that the Achilles' tendons of many wounded persons were cut to prevent them from fleeing. In the opinion of the Chamber, this demonstrates the resolve of the perpetrators of these massacres not to spare any Tutsi. Their plan called for doing whatever was possible to prevent any Tutsi from escaping and, thus, to destroy the whole group. Witness OO further told the Chamber that during the same meeting, a certain Ruvugama, who was then a Member of Parliament, had stated that he would rest only when no single Tutsi is left in Rwanda".Dr. Alison Desforges testified that many Tutsi bodies were often systematically thrown into the Nyabarongo river, a tributary of the Nile. Indeed, this has been corroborated by several images shown to the Chamber throughout the trial. She explained that the underlying intention of this act was to "send the Tutsi back to their place of origin", to "make them return to Abyssinia", in keeping with the allegation that the Tutsi are foreigners in Rwanda, where they are supposed to have settled following their arrival from the Nilotic regions. See supra, in the chapter on the history of Rwanda, the statements made by Léon Mugesera during the meeting of the MRND held on 22 November 1992, referred to the fact that Tutsi had supposedly come from Ethiopia and that, after they were killed, their bodies should be thrown into the Rwandan tributaries of the Nile, so that they can go back to where they supposedly came. See Prosecution Exhibit tendered and recorded as No. 74.Other testimonies heard, especially that of Major-General Dallaire, also show that there was an intention to wipe out the Tutsi group in its entirety, since even newborn babies were not spared. Even pregnant women, including those of Hutu origin, were killed on the grounds that the foetuses in their wombs were fathered by Tutsi men, for in a patrilineal society like Rwanda, the child belongs to the father's group of origin. In this regard, it is worthwhile noting the testimony of witness PP, heard by the Chamber on 11 April 1997, who mentioned a statement made publicly by the accused to the effect that if a Hutu woman were impregnated by a Tutsi man, the Hutu woman had to be found in order "for the pregnancy to be aborted". According to prosecution witnesses KK, PP and OO, the accused expressed this opinion on other occasions in the form of a Rwandese proverb according to which 'if a snake wraps itself round a calabash, there is nothing that can be done, except to break the calabash' (" Iyo inzoka yiziritse ku gisabo, nta kundi bigenda barakimena) These are the Kinyarwanda words used by witness PP. In the context of the period in question, this proverb meant that if a Hutu woman married to a Tutsi man was impregnated by him, the foetus had to be destroyed so that the Tutsi child which it would become should not survive. It should be noted in this regard that in Rwandese culture, breaking the "gisabo", which is a big calabash used as a churn was considered taboo. Yet, if a snake wraps itself round a gisabo, obviously, one has no choice but to ignore this taboo in order to kill the snake.In light of the foregoing, it is now appropriate for the Chamber to consider the issue of specific intent that is required for genocide (mens rea or dolus specialis). In other words, it should be established that the above-mentioned acts were targeted at a particular group as such. In this respect also, many consistent and reliable testimonies , especially those of Major-General Dallaire, Dr. Zachariah, victim V, prosecution witness PP, defence witness DAAX, and particularly that of the accused himself unanimously agree on the fact that it was the Tutsi as members of an ethnic group which they formed in the context of the period The term ethnic group is, in general, used to refer to a group whose members speak the same language and/or have the same culture. Therefore, one can hardly talk of ethnic groups as regards Hutu and Tutsi, given that they share the same language and culture. However, in the context of the period in question, they were, in consonance with a distinction made by the colonizers, considered both by the authorities and themselves as belonging to two distinct ethnic groups; as such, their identity cards mentioned each holder's ethnic group. In its findings in chapter 7 of the judgment, the Chamber will come back to this issue. in question, who were targeted during the massacres However, the Tutsi were not the sole victims of the massacres. Many Hutu were also killed, though not because they were Hutu, but simply because they were , for one reason or another, viewed as having sided with the Tutsi..Two facts, in particular, which suggest that it was indeed the Tutsi who were targeted should be highlighted: Firstly, at the roadblocks which were erected in Kigali immediately after the crash of the President's plane on 6 April 1994 and, later on, in most of the country's localities, members of the Tutsi population were sorted out. Indeed, at these roadblocks which were manned, depending on the situation, either by soldiers, troops of the Presidential Guard and/or militiamen, the systematic checking of identity cards indicating the ethnic group of their holders, allowed the separation of Hutu from Tutsi, with the latter being immediately apprehended and killed, sometimes on the spot. Secondly, the propaganda campaign conducted before and during the tragedy by the audiovisual media, for example, "Radio Television des Milles Collines"(RTLM), or the print media, like the Kangura It will be noted in this regard that in the travaux preparatoires of the Genocide Convention, the Yugoslav delegate indicated with regard to the genocide of Jews by the Nazis that the crimes began with the preparation and mobilization of the masses by means of the ideas spread by the necessary propaganda and in circles which financed this propaganda. See the Summary Records of the meetings of the Sixth Committee of the General Assembly, 21 September 1948-10 December 1948, Official Records of the General Assembly. newspaper. These various news media overtly called for the killing of Tutsi, who were considered as the accomplices of the RPF and accused of plotting to take over the power lost during the revolution of 1959. Some articles and cartoons carried in the Kangura newspaper, entered in evidence, are unambiguous in this respect. In fact, even exhibit 25A could be added to this lot. Exhibit 25A is a letter from the "GZ" staff headquarters dated 21 September 1992 and signed by Deofratas Nsabimana, Colonel, BEM, to which is annexed a document prepared by a committee of ten officers and which deals with the definition of the term enemy. According to that document, which was intended for the widest possible dissemination, the enemy fell into two categories, namely:" the primary enemy" and the "enemy supporter". The primary enemy was defined as "the extremist Tutsi within the country or abroad who are nostalgic for power and who have NEVER acknowledged and STILL DO NOT acknowledge the realities of the Social Revolution of 1959, and who wish to regain power in RWANDA by all possible means, including the use of weapons". On the other hand, the primary enemy supporter was "anyone who lent support in whatever form to the primary enemy". This document also stated that the primary enemy and their supporters came mostly from social groups comprising, in particular, "Tutsi refugees", "Tutsi within the country", "Hutu dissatisfied with the current regime", "Foreigners married to Tutsi women" and the "Nilotic-hamitic tribes in the region".In the opinion of the Chamber, all this proves that it was indeed a particular group, the Tutsi ethnic group, which was targeted. Clearly, the victims were not chosen as individuals but, indeed, because they belonged to said group; and hence the victims were members of this group selected as such. According to Alison Desforges's testimony, the Tutsi were killed solely on account of having been born Tutsi.Clearly therefore, the massacres which occurred in Rwanda in 1994 had a specific objective, namely the extermination of the Tutsi, who were targeted especially because of their Tutsi origin and not because they were RPF fighters. In any case, the Tutsi children and pregnant women would, naturally, not have been among the fighters.Consequently, the Chamber concludes from all the foregoing that genocide was, indeed, committed in Rwanda in 1994 against the Tutsi as a group. Furthermore, in the opinion of the Chamber, this genocide appears to have been meticulously organized. In fact, Dr. Alison Desforges testifying before the Chamber on 24 May 1997, talked of "centrally organized and supervised massacres". Indeed, some evidence supports this view that the genocide had been planned. First, the existence of lists of Tutsi to be eliminated is corroborated by many testimonies. In this respect, Dr. Zachariah mentioned the case of patients and nurses killed in a hospital because a soldier had a list including their names. There are also the arms caches in Kigali which Major-General Dallaire mentioned and regarding whose destruction he had sought the UN's authorization in vain. Lastly, there is the training of militiamen by the Rwandan Armed Forces and of course, the psychological preparation of the population to attack the Tutsi, which preparation was masterminded by some news media, with the RTLM at the forefront.Finally, in response to the question posed earlier in this chapter as to whether the tragic events that took place in Rwanda in 1994 occurred solely within the context of the conflict between the RAF and the RPF, the Chamber replies in the negative, since it holds that the genocide did indeed take place against the Tutsi group, alongside the conflict. The execution of this genocide was probably facilitated by the conflict, in the sense that the fighting against the RPF forces was used as a pretext for the propaganda inciting genocide against the Tutsi, by branding RPF fighters and Tutsi civilians together, through dissemination via the media of the idea that every Tutsi was allegedly an accomplice of the Inkotanyi. Very clearly, once the genocide got under way, the crime became one of the stakes in the conflict between the RPF and the RAF. In 1994, General Kagame, speaking on behalf of the RPF, declared that a cease fire could possibly not be implemented until the massacre of civilians by the government forcesSee the " Report of the United Nations High Commissioner for Human Rights on his mission to Rwanda, 11-12 May 1994" (E/CN.4?s-3?3, 19 May 1994), reproduced in annex "The United Nations and Rwanda, 1993-1996", Department of Public Information, United Nations, New York, 1996, p. 287. had stopped.In conclusion, it should be stressed that although the genocide against the Tutsi occurred concomitantly with the above-mentioned conflict, it was, evidently, fundamentally different from the conflict. The accused himself stated during his initial appearance before the Chamber, when recounting a conversation he had with one RAF officer and Silas Kubwimana, a leader of the Interahamwe, that the acts perpetrated by the Interahamwe against Tutsi civilians were not considered by the RAF officer to be of a nature to help the government armed forces in the conflict with the RPFSee transcript of the hearing of 12 March 1998, p. 152. Note is also taken of the testimony of witness KK which is in the same vein. This witness told the Chamber that while she and the children were taken away, an RAF soldier allegedly told persons who were persecuting her that "instead of going to confront the Inkotanyi at the war front, you are killing children, although children know nothing; they have never done politics". The Chamber's opinion is that the genocide was organized and planned not only by members of the RAF, but also by the political forces who were behind the "Hutu-power", that it was executed essentially by civilians including the armed militia and even ordinary citizens, and above all, that the majority of the Tutsi victims were non-combatants, including thousands of women and children, even foetuses. The fact that the genocide took place while the RAF was in conflict with the RPF, can in no way be considered as an extenuating circumstance for it.This being the case, the Chamber holds that the fact that genocide was indeed committed in Rwanda in 1994 and more particularly in Taba, cannot influence it in its decisions in the present case. Its sole task is to assess the individual criminal responsibility of the accused for the crimes with which he is charged, the burden of proof being on the ProsecutorIn the opinion of the Chamber, it is not only obvious that an accused person could be declared innocent of the crime of genocide even when it is established that genocide had indeed taken place, but also, in a case other than that of Rwanda, a person could be found guilty of genocide without necessarily having to establish that genocide had taken place throughout the country concerned.. In spite of the irrefutable atrocities of the crimes committed in Rwanda, the judges must examine the facts adduced in a most dispassionate manner, bearing in mind that the accused is presumed innocent Moreover, the seriousness of the charges brought against the accused makes it all the more necessary to examine scrupulously and meticulously all the inculpatory and exonerating evidence, in the context of a fair trial and in full resect of all the rights of the Accused.

4. EVIDENTIARY MATTERS

The Chamber will address certain general evidentiary matters of concern which arose in relation to the evidence produced by the parties during this trial. These matters include the assessment of evidence, the impact of trauma on witnesses, questions of interpretation from Kinyarwanda into French and English, and cultural factors which might affect an understanding of the evidence presented.

Assessment of Evidence

In its assessment of the evidence, as a general principle, the Chamber has attached probative value to each testimony and each exhibit individually according to its credibility and relevance to the allegations at issue. As commonly provided for in most national criminal proceedings, the Chamber has considered the charges against the accused on the basis of the testimony and exhibits offered by the parties to support or challenge the allegations made in the Indictment. In seeking to establish the truth in its judgment, the Chamber has relied as well on indisputable facts and on other elements relevant to the case, such as constitutive documents pertaining to the establishment and jurisdiction of the Tribunal, even if these were not specifically tendered in evidence by the parties during trial. The Chamber notes that it is not restricted under the Statute of the Tribunal to apply any particular legal system and is not bound by any national rules of evidence. In accordance with Rule 89 of its Rules of Procedure and Evidence, the Chamber has applied the rules of evidence which in its view best favour a fair determination of the matter before it and are consonant with the spirit and general principles of law.

Unus Testis, Nullus Testis

The Chamber notes that during trial, only one testimony was presented in support of certain facts alleged in the Indictment; hence the question arises as to the principle found in Civil Law systems: unus testis, nullus testis (one witness is no witness) whereby corroboration of evidence is required if it is to be admitted. Without wishing to delve into a debate on the applicability of the rule of corroboration of evidence in this judgment, the Chamber recalls that the proceedings before it are conducted in accordance solely with the Statute of the Tribunal and its Rules and, as provided for by Rule 89(A), it shall not be bound by national rules of evidence. Furthermore, where evidentiary matters are concerned, the Chamber is bound only to the application of the provisions of its Statute and Rules, in particular Rule 89 of the Rules which sets out the general principle of the admissibility of any relevant evidence which has probative value, provided that it is in accordance with the requisites of a fair trial.Rule 96(i) of the Rules alone specifically deals with the issue of corroboration of testimony required by the Chamber. The provisions of this Rule, which apply only to cases of testimony by victims of sexual assault, stipulate that no corroboration shall be required. In the Tadi judgment rendered by the ICTY, the Trial Chamber ruled that this "Sub-rule accords to the testimony of a victim of sexual assault the same presumption of reliability as the testimony of victims of other crimes, something which had long been denied to victims of sexual assault in common law [which] certainly does not [...] justify any inference that in cases of crimes other than sexual assault, corroboration is required. The proper inference is, in fact, directly to the contrary" See ICTY Tadi Judgment, 7 May 1997, paras. 535 to 539. In view of the above, the Chamber can rule on the basis of a single testimony provided such testimony is, in its opinion, relevant and credible. The Chamber can freely assess the probative value of all relevant evidence. The Chamber had thus determined that in accordance with Rule 89, any relevant evidence having probative value may be admitted into evidence, provided that it is being in accordance with the requisites of a fair trial. The Chamber finds that hearsay evidence is not inadmissible per se and has considered such evidence, with caution, in accordance with Rule 89.

Witness statements

During the trial, the Prosecutor and the Defence relied on pre-trial statements from witnesses for the purpose of cross-examination. The Chamber ordered that any such statements to which reference was made in the proceedings be submitted in evidence for consideration Supra 'Procedural Background',. In many instances, the Defence has alleged inconsistencies and contradictions between the pre