Akeyesu Trial, Judgement 1998

Background:

Jean Paul Akayesu, born in 1953 in Murehe sector, Taba commune, Rwanda, served as the bourgmestre (mayor) of Taba commune from April 1993 until June 1994, a period critical during the Rwandan genocide. Before his appointment as bourgmestre, Akayesu worked as a teacher and school inspector in Taba.

During his tenure as bourgmestre, Akayesu held significant authority and responsibility for maintaining law and public order within the commune. Tragically, between April 7 and the end of June 1994, an estimated 2000 Tutsi individuals were brutally killed in Taba, demonstrating a systematic campaign of violence and genocide against the Tutsi population.

Akayesu was directly involved in the facilitation of genocidal atrocities committed against Tutsi civilians. Hundreds of displaced civilians, predominantly Tutsi, sought refuge at the commune’s administrative office (bureau communal). Instead of providing protection, Akayesu allowed armed local militia and communal police to subject these civilians, especially women, to sexual violence, beatings, and murder on or near the bureau communal premises.

Akayesu not only knew about these horrific acts but was also present during some of the incidents, demonstrating his complicity in the crimes. He failed to take any action to prevent or stop the atrocities, thereby encouraging their continuation. Additionally, Akayesu directly ordered the execution of detained individuals and influential members of the community, including teachers, as part of the genocide.

The case against Akayesu remains a landmark because it marked the first time that an international tribunal recognized sexual assault as a form of genocide and a crime against humanity.

 Issues:

• Whether the issues raised by the Prosecution in its appeal were of interest to legal practice of the Tribunal and had a nexus with the present case
• Whether the right to free legal assistance of counsel confers the right to counsel of one’s own choosing
• Whether the Accused demonstrated gross incompetence of his counsel resulting in a miscarriage of justice
• Whether the test before ruling hearsay evidence admissible was met by the Trial Chamber
• Whether the Trial Chamber had erred on a point of law in restricting the application of common Article 3 of the Geneva Conventions to a certain category of persons
• Whether the discriminatory intent is an essential element for one of the crimes enumerated under Article 3 of the Statute to constitute a crime against humanity
• Whether the “incitement”, as set out in Article 6(1) of the Statute, needs be “direct and public”
• What the effect on the sentence would be, in case any of the grounds of appeal was accepted

 Procedural history:

The International Criminal Tribunal for Rwanda (ICTR) had clear jurisdiction to convict Jean Paul Akayesu based on the legal principles outlined in its Statute and international humanitarian law. The Chamber determined that customary international law imposes individual criminal responsibility for serious violations of Common Article 3 and Additional Protocol II, as affirmed by precedents from the International Criminal Tribunal for the former Yugoslavia (ICTY). This interpretation was supported by Rwanda’s ratification of the Geneva Conventions in 1964 and Additional Protocol II in 1984, which incorporated these treaties into Rwandan law and established their applicability on Rwandan territory during the events in 1994.

The offenses enumerated under Article 4 of the ICTR Statute, including grave breaches of humanitarian guarantees, constituted crimes under Rwandan law at the time. Therefore, Rwandan nationals, including Akayesu, were subject to prosecution by the ICTR for violations of these fundamental norms of international humanitarian law, demonstrating the Tribunal’s jurisdiction to hold him individually accountable for the atrocities committed during the Rwandan genocide.

Charges against the accused:

The Accused was initially charged under Article 6(1) of the Statute of the International Criminal Tribunal for Rwanda (ICTR) with multiple serious offenses related to the Rwanda genocide. These charges included:

• Genocide (Count 1)
• Complicity in genocide (Count 2)
• Crimes against humanity (Counts 3, 5, 7, 9, and 11)
• Direct and public incitement to commit genocide (Count 4)
• Violations of Article 3 common to the Geneva Conventions (Counts 6, 8, 10, and 12)

On 17 June 1997, the original indictment was amended to include additional counts related to sexual violence, violence, and murder committed at a communal bureau during the genocide period. The Accused was charged under Article 6(1) and/or Article 6(3) of the Statute with:

• Rape (Count 13) as a crime against humanity
• Other inhumane acts (Count 14) as a crime against humanity
• Violations of Article 3 common to the Geneva Conventions and Article 4(2)(e) of Additional Protocol II, including outrages upon personal dignity such as rape, humiliating and degrading treatment, and indecent assault (Count 15)

Prosecution:

The Prosecution’s appeal in this case focuses on two main points regarding Article 4 of the ICTR Statute.

1. Firstly, the Prosecutor challenges the Trial Chamber’s use of a “public agent or government representative test” to determine responsibility for Serious Violations of Common Article 3 and Additional Protocol II, arguing that this was a legal error.
2. Secondly, the appeal contests the Trial Chamber’s factual finding that Akayesu did not qualify as a ‘public agent’ or government representative under Article 4. The Prosecutor seeks to set aside the Trial Chamber’s findings on these issues and asserts that the Chamber misapplied the public agent test in its factual analysis.
3. The third being that the tribunal demonstrated bias and lacked independence while the fourth appeal alleged a total absence of the rule of law by the court due to a series of errors that he argued invalidated the finding of guilt. In this context, Akayesu claimed that fundamental legal principles were disregarded or violated throughout the proceedings, resulting in an unfair or unjust outcome. .

The Trial Chamber’s interpretation of Article 4 of the ICTR Statute was scrutinized by the Appeals Chamber in the context of Jean Paul Akayesu’s case. The Trial Chamber applied a “public agent or government representative test” to determine individual responsibility for serious violations of Common Article 3 and Additional Protocol II. This test sought to identify individuals directly engaged in or responsible for conduct related to armed conflicts, including members of armed forces or those holding public authority. However, the Appeals Chamber disagreed with this restrictive interpretation, emphasizing the broader protective purpose of international humanitarian law, particularly Common Article 3. Common Article 3 extends minimum humane treatment to all individuals affected by armed conflicts, without specific delineation of responsibility based solely on official roles or affiliations. The Appeals Chamber asserted that effective punishment for violations of Common Article 3 should apply universally, irrespective of specific roles within armed conflicts. Therefore, the Trial Chamber’s limitation of responsibility to certain categories of individuals was deemed erroneous by the Appeals Chamber, highlighting the need for a more inclusive and comprehensive approach to individual criminal responsibility under Article 4 of the Statute.

• After considering all the arguments put forth by the Accused, the Appeals Chamber concluded that the Accused failed to demonstrate any errors of fact or law committed by the Trial Chamber as alleged, further dismissing the grounds of appeal presented by the Accused. In response to the Prosecution’s first two grounds of appeal, the Appeals Chamber determined that the Trial Chamber had erred in limiting the application of common Article 3 of the Geneva Conventions to a specific category of persons.
• Regarding the Prosecution’s third ground of appeal, the Appeals Chamber clarified that Article 3 of the Statute does not require all crimes against humanity listed therein to be committed with discriminatory intent. Instead, the Chamber emphasized that Article 3 restricts the Tribunal’s jurisdiction to crimes committed “as part of a widespread or systematic attack against any civilian population” on discriminatory grounds.
• In relation to the Prosecution’s fourth ground of appeal, the Chamber determined that “incitement” under Article 6(1) of the Statute does not necessarily require the incitement to be “direct and public”.

Judgment:

On 2 September 1998, Trial Chamber I rendered its judgment. The Chamber found the Accused guilty of the following charges:

• Genocide (Count 1)
• Direct and public incitement to commit genocide (Count 4)
• Crimes against humanity (Counts 3, 5, 7, 9, 11, 13, and 14)

Akayesu was charged with Violations of Common Article 3 of the 1949 Geneva Conventions, and the 1977 Additional Protocol II. All these counts, covered by Article 4 of the Statute. The court concluded that, it has already been proved beyond reasonable doubt that there was an armed conflict not of an international character between the Government of Rwanda and the RPF in 1994 at the time of the events alleged in the Indictment. The Chamber found the conflict to meet the requirements of Common Article 3 as well as Additional Protocol II.

Based on the evidence and arguments presented, Jean-Paul Akayesu was found guilty of multiple crimes against humanity, including murder, rape, and other inhumane acts. These convictions rooted in the serious violations of international law outlined in the Geneva Conventions of 1949 and the 1977 Additional Protocol II, highlighted the profound suffering caused by Akayesu’s actions. The Chamber affirmed the guilty verdict on all counts and upheld the life imprisonment sentence, underscoring a commitment to justice and accountability under international humanitarian law, and ensuring that those responsible for such heinous acts are held accountable for their actions.

Rules and treaty provisions applied:

• Article 3 common to the Geneva Conventions.
• Article 3, 4(2)(e) of Additional Protocol II.
• Articles 1, 2, 3, 4, 5, 6(1),(3), 12(1), 15, 17(1), 19(1), 20, 23, 24, 26, 27, 91(1) of the ICTR Statute.
• Rules 3(A), 14(A), 15(A), 40, 45(A), 46(A), 50, 66, 71, 72, 73, 74, 77, 78, 80, 85(B), 87(A), 89(A),(C), 90(A),(B),(F),(G), 94bis, 101, 105, 111, 112, 115, 116, 118, 119, 123 of the ICTR RPE.