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Historic judgement finds Akayesu guilty of genocide

"Despite the indisputable atrociousness of the crimes and the emotions evoked in the international community, the judges have examined the facts adduced in a most dispassionate manner, bearing in mind that the accused is presumed innocent".

With these words among others, the International Criminal Tribunal for Rwanda, in the first-ever judgement by an international court for the crime of genocide, today found Jean-Paul Akayesu guilty of Genocide and Crimes Against Humanity.

Akayesu, former Bourgmestre (Mayor) of Taba, was indicted on 15 counts of Genocide, Crimes Against Humanity, and Violations of Article 3 Common to the Geneva Conventions and Additional Protocol II Thereto. In its judgement, Trial Chamber I Judges Laïty Kama (Senegal), presiding, Lennart Aspegren (Sweden) and Navanethem Pillay (South Africa) unanimously found Akayesu guilty of nine out of the 15 counts on which he was charged, and not guilty of six counts in his indictment. The former Rwandan official had pleaded not guilty, to all 15 counts.

Specifically, he was found guilty of Genocide, Direct and Public Incitement to Commit Genocide, and Crimes against Humanity (Extermination, Murder, Torture, Rape, and Other Inhumane Acts). But the Tribunal also held that he was not guilty of the crimes of Complicity in Genocide and Violations of Article 3 common to the Geneva Conventions (Murder and Cruel Treatment) and of Article 4(2)(e) of Additional Protocol II (Outrage upon personal dignity, in particular Rape, Degrading and Humiliating Treatment and Indecent Assault).

Genocide Interpreted

In this precedent-setting case in which Genocide, as defined in the Convention for the Prevention and Punishment of the Crime of Genocide (1948) was interpreted for the first time by an international tribunal, the Rwanda Tribunal recalled that Genocide means, as described in the Convention, "the act of committing certain crimes, including.the killing of members of the group or causing serious physical or mental harm to members of the group with the intent to destroy, in whole or in part, a national, racial or religious group, as such", The Chamber stated: “there was an intention to wipe out the Tutsi group in its entirety, since even newborn babies were not spared".

Examining the fact that a civil war raged in Rwanda between the RAF (Rwandan Armed Forces) and the RPF (Rwanda Patriotic Front) at the time the genocide occurred, the Trial Chamber concluded that this fact cannot serve as mitigating circumstances for the genocide. Furthermore, the court found that the genocide was not organized only by members of the RAF, but also by the political leaders of the "Hutu-power" persuasion, and it was executed essentially by civilians including the armed militia and even ordinary citizens. Above all, the court concluded, the majority of the Tutsi victims were non-combatants, including women and children.

Akayesu Was Individually Responsible

In finding Akayesu guilty on nine counts of his indictment, Trial Chamber I firmly established the individual responsibility of the accused for the crimes. While Akayesu conceded during his trial that massacres aimed mainly at Tutsis took place in Taba commune in1994, the Defence argued that he was helpless to prevent the commission of such acts because the effective power in the commune lay with the Interhamwe and, as soon as the massacres began, Akayesu was stripped of all authority and lacked the means to stop the killings. The Chamber found, to the contrary, that Akayesu, in his capacity as bourgmestre, was responsible for maintaining law and public order in the commune of Taba and that he had effective authority over the communal police. Akayesu had admitted during his trial that the inhabitants of Taba respected him and followed his orders.

He initially tried to stop the killings of Tutsis, but later stopped trying to maintain law and order. The accused was subsequently present during the killings and sometimes gave orders himself for bodily or mental harm to be caused to certain Tutsi, and endorsed and even ordered the killing of several Tutsi.

In addition to the criminal responsibility that attaches from committing or participating in the commission of any of the crimes under the Tribunal's jurisdiction, Article 6(3) of the Statute of the Rwanda Tribunal provides that a superior is criminally responsible for the acts of subordinates if the superior knew or had reason to know that the subordinate was about to commit such acts or had actually done so and yet failed to prevent or punish such acts.

The court found that Akayesu also incited genocide by leading and addressing a public gathering in Taba on 19 April 1994, during which he urged the population to unite and in order to eliminate what he referred to as the sole enemy: the accomplices of the "Inkotanyi" - a derogatory reference to Tutsis which was understood to be a call to kill the Tutsis in general. The Chamber defined the crime of direct and public incitement to genocide mainly on the basis of Article 91 of the Rwandan Penal Code, as directly provoking another to commit genocide through speeches at public gatherings, or through the sale or dissemination of written or audiovisual communication, and considered the crime to have been committed whether or not such public incitement was successful.

Rape Defined in International law

Trial Chamber I also defined the crime of rape, for which there is no commonly accepted definition in international law. "The Chamber defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact" the court elaborated. It noted that coercive circumstance did not need to be evidenced by a show of physical force. "Threats, intimidation, extortion and other forms of duress which prey on fear or desperation could be coercion".

Numerous Tutsi women seeking refuge at the Taba communal office from the massacres were systematically raped and regularly subjected to multiple acts of sexual violence by armed local militia. As one female victim put it during her testimony in the Akayesu trial, "each time you met assailants, they raped you". Akayesu encouraged these acts by his attitude and utterances, the Trial Chamber found. One witness testified that Akayesu addressed the Interhamwe militia who were raping female victims thus: "never ask me again what a Tutsi woman tastes like".

In its judgement, the Trial Chamber underscored the fact that rape and sexual violence also constitute genocide in the same way as any other act as long as they were committed with intent to destroy a particular group targeted as such. The court held that sexual violence was an "integral" part of the process of destruction of the Tutsi ethnic group. "The rape of Tutsi women was systematic and was perpetrated against all Tutsi women and solely against them", the Chamber concluded. Furthermore, these rapes were accompanied by a proven intent to kill their victims. At least 2,000 Tutsis were killed in Taba between 7 April and the end of June 1994, while Akayesu held office as bourgmestre.

Violation of Geneva Conventions: Insufficient Proof

With respect to the charges of Violations of Article 3 common to the Geneva Conventions of 1949 and Additional Protocol II thereto, the Chamber concluded that a non-international armed conflict in Rwanda in 1994, and that this conflict was well within the provisions of these laws. However, it found that the Prosecution had failed to show beyond reasonable doubt that Akayesu was a member of the armed forces and that he had the authority to support and carry out the war effort.

Jean-Paul Akayesu

Jean-Paul Akayesu was born in 1953. Prior to becoming the bourgmestre of Taba commune in the Gitarama prefecture of Rwanda, he was a school teacher and school inspector. He entered politics and the Mouvement Democratique Republicain (MDR) in 1991, and became Chairman of the local wing of the MDR in Taba. In April 1993 he was elected bourgmestre of Taba, and held that position until June 1994 when he fled Rwanda.

Akayesu was arrested in Zambia on 10 October 1995, indicted by the Tribunal on 16 February 1996 , and transferred from Zambia to Arusha on 26 May 1996, where he was detained at the Tribunal's detention facility. His trial began on 9 January 1997. On 17 June 1997, Trial Chamber I permitted the Prosecutor to amend his indictment to include charges of sexual crimes. He is married with five children.

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