The Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) today confirmed the conviction of Alfred Musema for genocide and for extermination as a crime against humanity. The Chamber also upheld the sentence of imprisonment for life for those crimes. Musema’s conviction for rape as a crime against humanity was quashed by the Appeals Chamber on the basis of new evidence which it had heard.
In its judgment the Appeals Chamber composed of Judges Claude Jorda, presiding, Lal Chand Vohrah, Mohamed Shahbuddeen, Rafael Nieto-Navia and Fausto Pocar considered six grounds of appeal submitted by Musema against his conviction as well as arguments that the sentence imposed by the Trial Chamber was too severe.
With regard to arguments relating to the credibility of certain prosecution witnesses to massacres or sexual crimes the Appeals Chamber considered that the Appellant had failed to prove that the Trial Chamber had erred in its evaluation of the evidence of the disputed witnesses. However, with regard to the alleged rape by Musema of a young woman known as Nyramusugi, the Appeals Chamber had heard additional evidence from two new witnesses.
It considered that, although the Trial Chamber could not be found to have erred in its assessment of the evidence before it at the time, it would have reached a different conclusion if the evidence of the two new witnesses had been submitted together with the evidence available at the trial. It therefore found that there had been a miscarriage of justice and that Musema’s conviction for rape as a crime against humanity must be quashed.
In the light of that decision the Appeals Chamber did not have to rule on Musema’s objection as to the validity of the amendment to the indictment by which the rape charge was added. However it pointed out that, before authorising such an amendment, a Trial Chamber should be particularly careful that the fundamental rights of an accused, as laid down in the Statute of the Tribunal were respected. In particular a Trial Chamber should ask itself whether the amendment would unduly prejudice the accused and should bear in mind that the later such an amendment was requested the more likely it was to prejudice the accused.
Musema had claimed that the Trial Chamber had, in certain respects, reversed the burden of proof by requiring him to prove his innocence. The Appeals Chamber, after a detailed examination of the approach adopted by the Trial Chamber concluded that this was not the case and that Musema had failed to show that the Trial chamber had committed any mistake in its assessment of Musema’s alibi defence.
Musema had argued that the Trial Chamber had erred in law by convicting him of both genocide and extermination on the basis of the same facts. For the Appeals Chamber the test was whether the relevant provisions of the Statute for one of the crimes included a significantly distinct constituent element which was absent in the other provision. A constitutive element was to be considered significantly distinct from another if it required the proof of a fact which was not required in the case of the other crime.
Genocide required evidence of “the intent to destroy, in whole or in part, a national, ethnic, racial or religious group”. By contrast extermination as a crime against humanity required proof that the crime “had been committed as part of a widespread or systematic attack against any civilian population”. Consequently the criterion for a double conviction for the crimes of genocide and extermination as a crime against humanity was satisfied in this case and both convictions were confirmed.
So far as the appeal against sentence was concerned the Appeals Chamber pointed out that Musema’s counsel had themselves recognised that, having been found guilty of genocide, it would be difficult to argue for a different sentence. The Appeals Chamber also observed that the quashing of his conviction for rape could not affect the exceptional gravity of the crimes for which he had been convicted. The appellant had failed to show that the Trial Chamber had committed any error such as to invalidate the sentence of imprisonment for life.
Musema will serve his sentence in a State to be designated by the President of the Tribunal among those States which have agreed to receive persons convicted by the Tribunal. So far the Tribunal has concluded such agreements with Benin, Mali and Swaziland.
Alfred Musema, now aged 52, was formerly director of the Gisovu Tea Factory in Kibuye Prefecture during the 1994 genocide on Rwanda. On January 27 2000, he was convicted of genocide and crimes against humanity and sentenced to life imprisonment.
By Order of the President of ICTR, Judge Navanethem Pillay, the Appeals Chamber, delivered its judgment at The Hague. The full text of the judgment is available on the Tribunal’s Website www.ictr.org. Further details of the case are contained in the Background Note attached to the version of this Press Release posted on the Website.