Moot Cases

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CASE TITLE PAGE

NO.
Prosecutor v. Sikirica et al., Case No. IT-95-8 (Trial Chamber), November 13, 2001. 2
Prosecutor v. Sikirica et al., Case No. IT-95-8 (Trial Chamber), September 3, 2001.
Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-T (Trial 5

Chamber), December 3, 2003
Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-T (Trial

Chamber), November 28, 2007
PROSECUTOR V. MUSEMA (TRIAL CHAMBER) 20
PROSECUTOR V. MUSEMA (APPEALS CHAMBER) 30
ICTY, The Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, 33

Drago Josipovic, Dragan Papic, Vladimir Santic, IT 95-16, Trial Chamber,
Judgement, 14 January 2000
In the Appeals Chamber of the International Court of Former Yugoslavia 42

Highlighting the Joint Separate Opinion of Judge Mcdonald and Judge Vohrah,
October 7, 1997
THE PROSECUTOR vs OMAR SERUSHAGO 48

Prosecutor v. Kambanda, (TRIAL CHAMBER) Case No. ICTR 97-23-S, 51
September 4, 1998
60
PROSECUTOR V. BLASKIC
Prosecutor v. Akayesu, Case No. ICTR-96-4, Judgment (Sept. 2, 1998) 68

PROSECUTOR v. KRSTIC 80
Prosecutor v. Jelisic (Appeals Chamber) 87
Prosecutor v. Stevan Todorovi 89
THE PROSECUTOR V. MITAR VASILJEVI]” 92

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Prosecutor v. Sikirica et al., Case No. IT-95-8 (Trial Chamber), November 13, 2001.
Prosecutor v. Sikirica et al., Case No. IT-95-8 (Trial Chamber), September 3, 2001.
FACTS:
The case against Duško Sikirica, Damir Došen and Dragan Kolundžija concerned the
crimes committed against the Bosnian Muslim, Bosnian Croat and other non-Serb detainees of
the Keraterm camp in the outskirts of the town of Prijedor (Bosnia and Herzegovina). The
detainees were subjected to inhumane living conditions, beatings, and mistreatments. In the
summer of 1992, Sikirica was the Commander of Security of the camp, Došen, and Kolundžija
were both shift leaders. Sikirica, Došen and Kolundžija pleaded guilty to persecution as a crime
against humanity, and the Trial Chamber found them guilty accordingly.
Background:
The municipality (opstina) of Prijedor is located in northwestern Bosnia and
Herzegovina. In 1991, after Slovenia and Croatia declared independence from Yugoslavia and
war broke out, it appeared increasingly likely that Bosnia and Herzegovina would also declare its
independence. Bosnian Serb leaders, however, wanted Bosnia and Herzegovina to remain a part
of Yugoslavia. As time went by, and it became clear they would not be able to hold Bosnia and
Herzegovina in the Yugoslav federation, the Bosnian Serb authorities, led by the Serbian
Democratic Party (SDS), began in earnest the creation of a separate Serbian territory in Bosnia
and Herzegovina.
During the early morning hours of 30 April 1992, Serbian forces seized physical control
of the town of Prijedor, afterwards restrictions were imposed on all aspects of life for Bosnian
Muslims, Bosnian Croats and some other non-Serbs, including freedom of movement and the
right to employment. Beginning in late May, those areas were then subjected to violent attacks
by the Serb military, paramilitary, and police forces. The Bosnian Muslims and Bosnian Croats
who survived the initial artillery and infantry attacks were seized by the Serb forces and
transferred to camps and detention facilities established and operated under the direction of the
Bosnian Serb authorities. Bosnian Serb authorities in the Prijedor municipality unlawfully
segregated, detained and confined more than 7,000 Bosnian Muslims, Bosnian Croats and other
non-Serbs.
The Keraterm camp was located on the site of a ceramics factory located on the "new"
PrijedorBanja Luka road, just outside the centre of the town of Prijedor. Detainees were confined
in four storage rooms which faced the road. Like the Omarska camp, the Keraterm camp was
operated in a manner that resulted in the physical debilitation or death of the non-Serb detainees.
The general living conditions were brutal and inhumane. Detainees were crowded together so
badly in the various rooms of the camp that often they could not all sit or lie down. There were
little or no toilets or facilities for personal hygiene. The water supply was inadequate. They had
no change of clothing, no bedding, and with very rare exception, no medical care. The detainees
were fed starvation rations once a day.
Interrogations were conducted on a daily basis at the Keraterm camp. The interrogations
were regularly accompanied by beatings and torture. Severe beatings, torture, killings, sexual
assault, and other forms of physical and psychological abuse were commonplace at Keraterm
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camp. The camp guards and others who came to the camps used all types of weapons and
instruments to beat and otherwise physically abuse the detainees. In particular, Bosnian Muslim
and Bosnian Croat political and civic leaders, intellectuals, the wealthy, and non-Serbs who were
considered as extremists or to have resisted the Bosnian Serbs were especially subjected to
beatings, torture, and/or killed. At a minimum, hundreds of detainees, whose identities are
known and unknown, did not survive.
CHARGES:
Count 1: GENOCIDE, punishable under Articles 4(3)(a), 7(1), and 7(3) of the Statute of the
Tribunal; and,
Count 2: COMPLICITY TO COMMIT GENOCIDE, punishable under Articles 4(3)(e), 7(1),
and 7(3) of the Statute of the Tribunal.
Count 3: Persecutions on political, racial or religious grounds, a CRIME AGAINST
HUMANITY, punishable under Articles 5(h) and 7(1) of the Statute of the Tribunal.
Count 4: inhumane acts, a CRIME AGAINST HUMANITY, punishable under Articles 5(i) and
7 (1) of the Statute of the Tribunal;
Count 5: outrages upon personal dignity, a VIOLATION OF THE LAWS OR CUSTOMS OF

WAR, as recognised by Article 3(1)(c) of the Geneva Conventions of 1949, punishable under
Articles 3 and 7(1) of the Statute of the Tribunal
Count 6: Murder, a CRIME AGAINST HUMANITY, punishable under Articles 5(a) and 7(1) of
the Statute of the Tribunal; and,
Count 7: Murder, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by

Article 3(1)(a) of the Geneva Conventions of 1949, punishable under Articles 3 and 7(1) of the
Statute of the Tribunal.
Count 8: Murder, a CRIME AGAINST HUMANITY, punishable under Articles 5(a), 7(1), and 7
(3) of the Statute of the Tribunal; and
Count 9: Murder, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by

Article 3(1)(a) of the Geneva Conventions of 1949, punishable under Articles 3, 7(1), and 7(3) of
the Statute of the Tribunal; or, in the alternative,
Count 10: Inhumane acts, a CRIME AGAINST HUMANITY, punishable under Articles 5(i),
7(1) and 7(3) of the Statute of the Tribun
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SUMMARY JUDGEMENT
Dusko Sikirica was commander of security at the Keraterm camp between June 14 and
July 27, 1992. He pled guilty to persecution as a crime against humanity and was
sentenced to fifteen years imprisonment.
Duško Sikirica, on the basis of individual criminal responsibility (Article 7(1) of the Statute of
the Tribunal) and superior criminal responsibility (Article 7(3)) with:
• Persecutions on political, racial or religious grounds (crimes against humanity, Article 5).
• Sikirica killed one of the detainees in the camp by shooting him in the head.
• He failed in his duty to prevent outsiders from coming into the camp to mistreat detainees.
• As commander of security, Sikirica was aware of the inhumane conditions at the camp,
including insufficient food and water, inadequate medical care and treatment, overcrowding and
lack of opportunities for fresh air and exercise, and lack of proper hygiene arrangements.
• He also knew that detainees were being beaten, raped, sexually assaulted and killed.
Damir Došen sentenced to 5 years' imprisonment.

Damir Došen, on the basis of individual criminal responsibility (Article 7(1) of the Statute of the
Tribunal) and superior criminal responsibility (Article 7(3)) with:
Došen permitted the persecutions of, and condoned violence towards, detainees in the camp,
including beatings, rape, sexual assaults and killings, as well as harassment, humiliation and
psychological abuse.
He abused his position of trust,
Dragan Kolundžija sentenced to 3 years' imprisonment on 13 November 2001.

Dragan Kolundžija, on the basis of individual criminal responsibility (Article 7(1) of the Statute
of the Tribunal) and superior criminal responsibility (Article 7(3)) with:
Sentence: By continuing as a shift leader at the camp, although aware of the conditions,
Kolundžija abused his position of trust.
Indictment against Nedjeljko Timarac, Goran Lajić, Dragan Kondić and Dragomir Šaponja
withdrawn on 5 May 1998. Proceedings against Nikica Janjić terminated. Accused died before
transfer to the Tribunal.
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DOCTRINES
GENOCIDE:
Intent to destroy in whole or in part
 Goal must be destruction of group as a separate and distinct entity:
Sikirica Trial Chamber that: ‘[t]he ultimate victim of genocide is the group,
although its destruction necessarily requires the commission of crimes against its
members, that is, against individuals belonging to that group.’”
 Evidence of destruction of leadership may establish intent to destroy “in part”
Prosecutor v. Sikirica et al., Case No. IT-95-8 (Trial Chamber), September 3,

2001, paras. 76-77: “[T]he intention to destroy in part may yet be established if there is
evidence that the destruction is related to a significant section of the group, such as its
leadership.” “[T]he requisite intent may be inferred from the ‘desired destruction of a
more limited number of persons selected for the impact that their disappearance would
have upon the survival of the group as such.’ The important element here is the targeting
of a selective number of persons who, by reason of their special qualities of leadership
within the group as a whole, are of such importance that their victimization within the
terms of Article 4(2) (a), (b) and (c) would impact upon the survival of the group, as
such.”
 Victims must be targeted by reason of their group membership
Whereas it is the individuals that constitute the victims of most crimes, the
ultimate victim of genocide is the group, although its destruction necessarily requires the
commission of crimes against its members, that is, against individuals belonging to that
group.”
 The group must be targeted, not specific individuals
Sikirica et al., (Trial Chamber), September 3, 2001, para. 89: “The evidence must
establish that it is the group that has been targeted, and not merely specific individuals
within that group. That is the significance of the phrase ‘as such’ in the chapeau. Whereas
it is the individuals that constitute the victims of most crimes, the ultimate victim of
genocide is the group, although its destruction necessarily requires the commission of
crimes against its members, that is, against individuals belonging to that group. This is
what differentiates genocide from the crime against humanity of persecution. Even
though they both have discriminatory elements, some of which are common to both
crimes, in the case of persecution, the perpetrator commits crimes against individuals, on
political, racial or religious grounds.”
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AGGRAVATING
 Position of the accused/ abuse of position of authority
Sikirica et al., (Trial Chamber), November 13, 2001, paras. 138-139: “Dusko
Sikirica hasadmitted to being ‘Commander of Security’ at the Keraterm camp [in
Prijedor] and, assuch, that there was a ‘technical duty upon him to prevent the entry
of persons from outside the camp.’” “Dusko Sikirica’s failure in his duty to prevent
outsiders from coming into the camp to mistreat the detainees is an aggravating
factor.”
Sikirica et al., (Trial Chamber), November 13, 2001, para. 172: “Damir Dosen’s
position as shift leader is an aggravating factor in relation to this crime. He was in a
position of trust which he abused: he permitted the persecution of, and condoned violence
towards, the very people he should have been protecting.”
MITIGATING
 Assistance to the detainees
Sikirica Judgement, the Trial Chamber found that the alleviation of the appalling
conditions of detainees in the Keraterm Camp [in Prijedor] weighed heavily in favour of
a substantial reduction in sentence.
Sikirica et al., (Trial Chamber), November 13, 2001, para. 195: “The Chamber
has also taken into account the evidence that Dosen, as shift leader, often acted to
ameliorate the terrible conditions that prevailed in the Keraterm camp [in Prijedor], in
relation to particular detainees. The Chamber considers that Damir Dosen’s acts in this
regard constitute a mitigating factor for purposes of sentencing.”
Sikirica et al., (Trial Chamber), November 13, 2001, para. 229: “The Chamber
has heard ample evidence of Dragan Kolundzija’s efforts to ease the harsh conditions in
the Keraterm camp for many of the detainees. . . . [O]n the basis of the testimony as to his
benevolent attitude towards the detainees, Dragan Kolundzija should receive a significant
reduction in his sentence.”
 Pleas in other countries
Sikirica et al., (Trial Chamber), November 13, 2001, para. 150: “[W]hile an
accused who pleads guilty to the charges against him prior to the commencement of his
trial will usually receive full credit for that plea, one who enters a plea of guilt any time
thereafter will still stand to receive some credit, though not as much as he would have,
had the plea been made prior to the commencement of the trial.”
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Chamber),
December 3, 2003

Chamber), November 28, 2007
Background of the Case:
The Prosecutor v. Nahimana, Barayagwiza and Ngeze, popularly dubbed the

Media case, involved the prosecution of three individuals alleged to have been the
masterminds behind a media campaign to desensitize the Hutu population and incite them
to murder the Tutsi population in Rwanda in 1994.
Ferdinand Nahimana and Jean-Bosco Barayagwiza were both influential members

of the “Comité d’Initiative” (the Steering Committee) which founded Radio Télévision
Libre des Mille Collines (“RTLM”), a radio station that from July 1993 – July 1994,
broadcast virulent messages branding Tutsis as the enemy and Hutu opposition members
as accomplices. Nahimana, a former university lecturer and Director of the Office of
Information (ORINFOR), was alleged to have been the ideologue behind the creation of
RTLM and was seen as the director of the company. Barayagwiza, a former Director of
Political Affairs at the Foreign Ministry of Rwanda was considered the second in
command of the radio station. Additionally, Barayagwiza was a founding member of the
Coalition pour la Défense de la République (“CDR”) and, in 1994, the chairman of its
regional committee for Gisenyi préfecture.
Hassan Ngeze was the owner, founder and editor of the Kangura newsletter,
which was published from 1990-19951 and was widely read across Rwanda. Like the
emissions of RTLM, Kangura produced hate-filled messages, characterizing Tutsis as
enemies who wanted to subvert the democratic system and seize power for themselves.
Additionally Ngeze was a founding member of the CDR and was alleged to have
participated in distributing firearms, supervising roadblocks and ordering massacres in
the Gisenyi préfecture.
On 3 December 2003, the Trial Chamber found all three defendants guilty of
genocide, conspiracy to commit genocide, direct and public incitement to commit
genocide and persecution and extermination as crimes against humanity. However all
three were acquitted of complicity in genocide and assassination as a crime against
humanity. Barayagwiza was also found to be not guilty of serious breaches of Common
Article 3 of the Geneva Conventions and Additional Protocol II.
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Doctrinal Pronouncements (Trial Chamber)
A. NATURE OF ARMEND CONFLICT

Non-International Armed Conflict
Application of Common Article 3 in relation to Additional Protocol II
In Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 169: “[I]n order for
an act to breach Common Article 3 and Protocol II,” the following elements must be
shown:
(1) “armed conflict . . . of a non-international character,” (2) a “link between the accused
and the armed forces,” (3) “the crimes must be committed ratione loci and ratione
personae,” and (4) “there must be a nexus between the crime and the armed conflict.”
Factual Circumstance showing NIAC:
The revolution of 1959 marked the beginning of a period of ethnic clashes between the Hutu and
the Tutsi in Rwanda, causing hundreds of Tutsis to die and thousands more to flee the country in
the years immediately following.
The Hutus who are members of the Coalition pour la Défense de la République (“CDR”) were
incited to do violence and perceive the Tutis as public enemy by herein accused through media.
(Note: See Kayishema and Ruzindana and Akayesu for more detailed application of NIAC,
Common Article 3 and Additional Protocol II)
B. RESPONSIBILITY
1. Ferdinand Nahimana is charged, pursuant to the Amended Indictment filed on 15

November 1999 (ICTR-96-11-I), with seven counts: conspiracy to commit genocide,
genocide, direct and public incitement to commit genocide, complicity in genocide, and
crimes against humanity (persecution, extermination and murder), pursuant to Articles 2
and 3 of the Statute. He is charged with individual responsibility under Article 6(1) of
the Statute for these crimes, and is additionally charged with superior responsibility
under Article 6(3) in respect of direct and public incitement to commit genocide and
crimes against humanity (persecution). He stands charged mainly in relation to the radio
station called Radio Télévision Libre des Mille Collines (RTLM).
2. Jean-Bosco Barayagwiza is charged, pursuant to the Amended Indictment filed on 14

April 2000 (ICTR-97-19-I), with nine counts: conspiracy to commit genocide, genocide,
direct and public incitement to commit genocide, complicity in genocide, crimes against
humanity (persecution, extermination and murder), and two counts of serious violations
of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant
to Articles 2, 3 and 4 of the Statute. He is charged with individual responsibility under
Article 6(1) of the Statute in respect of these counts, except the two counts relating to
serious violations of Article 3 common to the Geneva Conventions and of Additional
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Protocol II. He is additionally charged with superior responsibility under Article 6(3)
of the Statute in respect of all the counts, except that of conspiracy to commit
genocide. He stands charged mainly in relation to the radio station called RTLM and the
CDR Party.
.
3. Hassan Ngeze is charged, pursuant to the Amended Indictment (ICTR-97-27-I) dated 10
November 1999, with seven counts: conspiracy to commit genocide, genocide, direct and
public incitement to commit genocide, complicity in genocide, and crimes against
humanity (persecution, extermination and murder), pursuant to Articles 2 and 3 of the
Statute.4 He is charged with individual responsibility under Article 6(1) of the Statute
for these crimes, and is additionally charged with superior responsibility under Article
6(3) in respect of all but one of the crimes - conspiracy to commit genocide. He stands
charged mainly in relation to the newspaper Kangura.
C. WAR CRIMES CHARGED
1. Genocide
The crime of genocide has two elements: intent and action. “Intentional” means purposeful.
Intent can be proven directly from statements or orders. But more often, it must be
inferred from a systematic pattern of coordinated acts.
Article III: 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. "
It is a crime to plan or incite genocide, even before killing starts, and to aid or abet genocide:
Criminal acts include conspiracy, direct and public incitement, attempts to commit genocide, and
complicity in genocide.
Punishable Acts The following are genocidal acts when committed as part of a policy to destroy
a group’s existence:
Killing members of the group includes direct killing and actions causing death.
Causing serious bodily or mental harm includes inflicting trauma on members of the group
through widespread torture, rape, sexual violence, forced or coerced use of drugs, and mutilation.
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Deliberately inflicting conditions of life calculated to destroy a group includes the deliberate
deprivation of resources needed for the group’s physical survival, such as clean water, food,
clothing, shelter or medical services. Deprivation of the means to sustain life can be imposed
through confiscation of harvests, blockade of foodstuffs, detention in camps, forcible relocation
or expulsion into deserts.
Prevention of births includes involuntary sterilization, forced abortion, prohibition of marriage,

and long-term separation of men and women intended to prevent procreation.
Forcible transfer of children may be imposed by direct force or by fear of violence, duress,
detention, psychological oppression or other methods of coercion. The Convention on the Rights
of the Child defines children as persons under the age of 18 years.
Genocidal acts need not kill or cause the death of members of a group. Causing serious bodily or
mental harm, prevention of births and transfer of children are acts of genocide when committed
as part of a policy to destroy a group’s existence.
The law protects four groups - national, ethnical, racial or religious groups.
A national group means a set of individuals whose identity is defined by a common country of
nationality or national origin.
An ethnical group is a set of individuals whose identity is defined by common cultural traditions,
language or heritage.
A racial group means a set of individuals whose identity is defined by physical characteristics.
A religious group is a set of individuals whose identity is defined by common religious creeds,
beliefs, doctrines, practices, or rituals.
Elements Nahimana, Barayagwiza and Ngeze, (Appeals Chamber), November 28, 2007,
para. 492: “A person commits the crime of genocide (Article 2(3)(a) of the Statute) if he
or she commits one of the acts enumerated in Article 2(2) of the Statute (actus reus) with
intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such
(‘genocidal intent’).”
Intent Mens rea

Nahimana, Barayagwiza and Ngeze, (Appeals Chamber), November 28, 2007, para. 523:
“Article 2(2) of the Statute defines genocidal intent as the ‘intent to destroy, in whole or
in
part, a national, ethnical, racial or religious group, as such.’
“It is the person who physically commits one of the enumerated acts in Article 2(2) of the
Statute who must have such intent. However, an accused can be held responsible not only
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for committing the offence, but also under other modes of [responsibility], and the mens
rea will vary accordingly.”
“The jurisprudence accepts that in most cases genocidal intent will be proved by
circumstantial evidence. In such cases, it is necessary that the finding that the accused
had genocidal intent be the only reasonable inference from the totality of the evidence.”
Ethnic Group
Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 969:
“[T]he association of the Tutsi ethnic group with a political agenda, effectively merging
ethnic and political identity, does not negate the genocidal animus that motivated the
Accused. To the contrary, the identification of Tutsi individuals as enemies of the state
associated with political opposition, simply by virtue of their Tutsi ethnicity, underscores
the fact that their membership in the ethnic group, as such, was the sole basis on which
they were targeted.”
Conspiracy to Commit genocide

1) defined/actus reus
(a) agreement between two or more persons to commit genocide
“Conspiracy to commit genocide under Article 2(3)(b) of the Statute has been defined as
‘an agreement between two or more persons to commit the crime of genocide.’ The
existence of such an agreement between individuals to commit genocide (or ‘concerted
agreement to act’) is its material element (actus reus)
Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1042:
“The
offence of conspiracy requires the existence of an agreement, which is the defining
element of the crime of conspiracy.”
Agreement may be inferred

“Th[e] actus reus can be proven by establishing the existence of planning meetings for
the genocide, but it can also be inferred, based on other evidence. However, as in any
case where the Prosecution intends to rely on circumstantial evidence to prove a
particular fact upon which the guilt of the accused depends, the finding of the existence
of a conspiracy to commit genocide must be the only reasonable inference based on the
totality of the evidence.”
Formal agreement not required
“[T]he Appeals Chamber considers that the agreement need not be a formal one. It
stresses in this respect that the United States Supreme Court has also recognized that the
agreement required for conspiracy ‘need not be shown to have been explicit.’ The
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Appellant is thus mistaken in his submission that a tacit agreement is not sufficient as
evidence of conspiracy to commit genocide. The Appeals Chamber recalls, however, that
the evidence must establish beyond reasonable doubt a concerted agreement to act, and
not mere similar conduct.” See also Nahimana, Barayagwiza and Ngeze, (Trial
Chamber), December 3, 2003, para. 1045.
Concerted or coordinated action may show agreement

Nahimana, Barayagwiza and Ngeze, (Appeals Chamber), November 28, 2007, paras.
896-97: “[A] concerted agreement to commit genocide may be inferred from the conduct
of the
60 conspirators.” “The Appeals Chamber takes the view that the concerted or
coordinated
action of a group of individuals can constitute evidence of an agreement. The qualifiers
‘concerted or coordinated’ are important: as the Trial Chamber recognized, these words
are ‘the central element that distinguishes conspiracy from “conscious parallelism,” the
concept put forward by the Defence to explain the evidence in this case.’”
direct and public incitement to commit genocide

Nahimana, Barayagwiza and Ngeze, (Appeals Chamber), November 28, 2007, paras. 692
93, 715: “The Appeals Chamber considers that there is a difference between hate speech
in general (or inciting discrimination or violence) and direct and public incitement to
commit genocide. Direct incitement to commit genocide assumes that the speech is a
direct appeal to commit an act referred to in Article 2(2) of the Statute; it has to be more
than a mere vague or indirect suggestion. In most cases, direct and public incitement to
commit genocide can be preceded or accompanied by hate speech, but only direct and
complicity in genocide
Akayesu, (Trial Chamber), September 2, 1998, paras. 533-37: The Chamber defined
complicity “per the Rwandan Penal Code,” listing the following as elements of
complicity in genocide: “complicity by procuring means, such as weapons, instruments
or any other means, used to commit genocide, with the accomplice knowing that such
means would be used for such a purpose; complicity by knowingly aiding or abetting a
perpetrator of a genocide in the planning or enabling acts thereof; complicity by
instigation, for which a person is liable who, though not directly participating in the crime
of genocide crime [sic], gave instructions to commit genocide, through gifts, promises,
threats, abuse of authority or power, machinations or culpable artifice, or who directly
incited to commit genocide.”
2. crimes against humanity (persecution, extermination and murder)
ICTR Statute, Article 3:

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“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.”
Elements:
Crimes against humanity can be broken down into four essential elements, namely: “(i) the act
must be inhumane in nature and character, causing great suffering, or serious injury to body or to
mental or physical health; (ii) the act must be committed as part of a wide spread [sic] or
systematic attack; (iii) the act must be committed against members of the civilian population; (iv)
the act must be committed on one or more discriminatory grounds, namely, national, political,
ethnic, racial or religious grounds.”
Attack defined
Nahimana, Barayagwiza and Ngeze, (Appeals Chamber), November 28, 2007, para. 918: “[F]or
purposes of Article 3 of the Statute, an attack against a civilian population means the perpetration
against a civilian population of a series of acts of violence, or of the kind of mistreatment
referred to in sub-paragraphs (a) to (i) of the Article.”
“According to the Kayishema and Ruzindana Trial Judgement: The attack is the event of which
the enumerated crimes must form part. Indeed, within a single attack, there may exist a
combination of the enumerated crimes, for example murder, rape and deportation.”
VERDICT OF TRIAL CHAMBER
THE CHAMBER unanimously finds Ferdinand Nahimana:

Count 1: Guilty of Conspiracy to Commit Genocide
Count 2: Guilty of Genocide
Count 3: Guilty of Direct and Public Incitement to Commit Genocide
Count 4: Not Guilty of Complicity in Genocide
Count 5: Guilty of Crimes Against Humanity (Persecution)
Count 6: Guilty of Crimes Against Humanity (Extermination)
Count 7: Not Guilty of Crimes Against Humanity (Murder)
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THE CHAMBER unanimously finds Jean-Bosco Barayagwiza:

Count 8: Not Guilty of Serious Violations of Article 3 Common to the Geneva
Conventions and of Additional Protocol II
Count 9: Not Guilty of Serious Violations of Article 3 Common to the Geneva
Conventions and of Additional Protocol II
THE CHAMBER unanimously finds Hassan Ngeze:

FACTUAL CIRCUMSTANCES AND ISSUES ON APPEAL
D. ISSUES ON APPEAL
The three accused lodged an appeal against the Trial Judgement on various grounds of errors of
fact and law. The appeal was heard in January 2007 and the verdict was rendered on 28
November 2007. In its judgement, the Appeals Chamber reversed several aspects of the Trial
Judgement. It acquitted all three of conspiracy to commit genocide, and all genocide charges
relating to their involvement with RTLM and Kangura respectively, as well as extermination as a
crime against humanity. While Nahimana and Ngeze were still found guilty of direct and public
incitement to commit genocide, Barayagwiza’s guilty verdict in relation to this offence was
reversed. Nahimana and Ngeze’s respective sentences were consequently reduced from life
imprisonment to 30 years while Barayagwiza’s already reduced sentence was changed to 32
years.
The Appeals Judgement contains numerous thorough analyses of legal and factual issues.
However due to space restrictions, this article will discuss only the most salient features of the
Judgement, focusing mainly on the central legal issues of the judgement, namely: right to a fair
trial right (1), temporal jurisdiction (2), elements of genocide (3) including direct and public
incitement to commit genocide (4), and crimes against humanity (5).
1. Right to a fair trial

15
The three appellants raised numerous grounds of appeal relating to the independence and
impartiality of the Trial Chamber. Barayagwiza contended that the Trial Chamber could not be
considered as “independent” as it had been influenced by pressure exerted by the Rwandan
government, which had threatened to suspend co-operation with the Tribunal following the
Decision of 3 November 1999. However, the Appeals Chamber concluded that whiel pressure
may have been exerted, the Appellant did not establish that the judges of the Trial Chamber were
in fact influenced by such pressure. The Appeals Chamber furthermore dismissed Barayagwiza’s
complaints in relation to the partiality of the judges, deciding that a trip to Rwanda by Judges
Pillay and Møse shortly before the commencement of the trial was not improper as it was
undertaken in their respective capacities as President and Vice-President of the Tribunal.
Furthermore, the appellants’ allegations of partiality on the basis of Judge Pillay’s participation
in the Akayesu case5 and Judge Møse and Pillay’s participation in the Ruggiu case6 (which both
concerned similar facts to those of the trial) were also dismissed.
Barayagwiza additionally argued that his right to a fair trial was breached by the Trial Chamber’s
decision to continue the proceedings in his absence, and in the absence of his counsel. The
Appeals Chamber dismissed the argument that the Trial Chamber erred in continuing
proceedings in the absence of the accused, recalling that it was Barayagwiza himself who refused
to attend the hearing and his decision was free, informed and unequivocal. However, the Appeals
Chamber held that the Trial Chamber should not have continued proceedings where the counsel
and the co-counsel of the accused were both absent from the courtroom. The Appeals Chamber
ruled that where no legal representative of the Accused is in the courtroom, the Trial Chamber
must adjourn proceedings until the representative arrives. If necessary, it must furthermore
sanction the counsel’s behaviour accordingly. The Appeals Chamber therefore ruled that certain
testimonies - heard when Counsel Barletta-Carldarera and Pognon were absent - had to be
excluded. Additionally, the Appeals Chamber held that witness testimony heard during the
period between the dismissal of Barayagwiza’s original counsel and the arrival of his new
counsel, was also heard in breach of the accused’s right to examine the witnesses against him
and these testimonies also had to be excluded. However, notwithstanding the exclusion of this
evidence, there was no miscarriage of justice as the findings of the Trial Chamber were not
solely based on the evidence in question.
Ngeze raised another aspect regarding the right to a fair trial right, arguing that the Trial
Chamber had based its judgement on a material fact not pleaded in the indictment. The Appeals
Chamber declared that where there were material facts which could support separate charges,
and which were not pleaded in the indictment, the Prosecutor had a responsibility to seek leave
to amend the indictment. In the present case, a competition organized by Kangura and RTLM in
1994 caused the recirculation of pre-1994 Kangura editions which readers had to look through to
find responses to questions posed by the competition. Because the competition, which was the
only potential legal basis for the Court to base its findings on pre-1994 editions (given the
temporal jurisdiction limitations discussed below), was not mentioned in the indictment, the
Appeals Chamber reversed all findings of guilt based on these 1990-1993 editions.
2. Temporal Jurisdiction
16
All three of the appellants claimed that the Trial Chamber had transgressed the limits of its
temporal jurisdiction by basing findings of guilt on conduct which occurred prior to 1 January
1994, in breach of Article 7 of the ICTR Statute, which specifically confines the Tribunal’s
mandate to events occurring in 1994. The Trial Chamber’s decision to include evidence from
prior to 1994 was based, in part, on the Chamber’s characterization of inchoate crimes (namely
conspiracy to commit genocide and direct and public incitement to commit genocide) as
“continuous crimes” which extended in time until the achievement of the crimes’ intended
purpose (i.e. genocide). Delving into the drafting of the Statute and analyzing the submissions of
the various delegations to the Drafting Committee, the Appeals Chamber concluded that the 1
January 1994 (rather than 6 April, the actual start of the genocide) was specifically chosen as the
starting date of temporal jurisdiction of the Tribunal to incorporate crimes associated with the
planning of the genocide.16 The Appeals Chamber held that therefore responsibility for a crime
could only be established if all of the elements of the crime existed in 1994.
However, the Appeals Chamber noted that the temporal jurisdiction of the Tribunal did not
forbid the admission of all evidence relating to the accused’s conduct prior to 1994. Relevant and
probative evidence of prior events could be admitted provided there was no compelling reason to
exclude it. For example, a Trial Chamber could admit evidence which clarified a particular
context, established the elements of criminal conduct (which occurred in 1994) by inference (in
particular, criminal intent) or which showed a continuing pattern of conduct.
The Appeals Chamber rejected the Trial Chamber’s definition of “continuous crimes”, deciding
that where continuous criminal conduct began prior to 1 January 1994 and continued during
1994, a finding of guilt could only be based on the events that occurred in 1994. It decided to
sidestep the issue of whether conspiracy to commit genocide was a continuous crime as it had
reversed the findings of guilt in relation to all three Appellants and hence did not find it
necessary to decide on this point. However whether direct and public incitement was a
continuous crime was considered in the judgement.
Though the Trial Chamber had claimed that public and direct incitement to commit genocide was
a “continuous crime”, the Appeals Chamber rejected this characterization (with Judges Pocar and
Shahabuddeen dissenting). Speeches, emissions and articles were discrete actions which finished
as soon as they were said, dispersed or published. Hence the majority ruled that the Trial
Chamber erred in concluding that it had competence over incitement to commit genocide which
occurred prior to 1994, such as RTLM broadcasts or Kangura newspaper editions. Nonetheless,
according to the Appeals Chamber, these broadcasts and newspaper editions prior to 1994 could
be used to establish context or to better understand the broadcasts and editions in 1994.
3. Genocide
In the discussions on genocide, the Appeals Chamber addressed the critical issue of the
definition of a “protected group”. Nahimana and Ngeze both argued that the Trial Chamber had
made an error in expanding the notion of a protected group to include moderate Hutus. This
ground of appeal was based on the Trial Chamber’s discussion of Article 2 of the Statute, where
the Chamber stated that “acts committed against Hutu opponents were committed on account of
their support of the Tutsi ethnic group and in furtherance of the intent to destroy the Tutsi ethnic
17
group.” Because the Trial Chamber referred solely to Tutsi murders in deciding on the
responsibility of the appellants for genocide, the Appeals Chamber was not convinced that the
Trial Chamber had in fact intended to extend the offence to include the murders of moderate
Hutus. Nonetheless, the Appeals Chamber reiterated that acts committed against Hutus could not
be incorporated as acts of genocide, for the victim would not have been killed on the basis that
(s)he belonged to a “protected group”. However the Appeals Chamber conceded that the
perception of the offenders could, in certain circumstances, be taken into account when
determining whether an individual belonged to a protected group. Presumably, this might include
the case where offenders considered all Hutus who supported Tutsis as Tutsis and classed them
in the same category. In such limited cases, Hutu victims could be considered as having
belonged to a protected group for the purpose of Article 2. In the present case, the Appeals
Chamber concluded that there was no evidence of such perceptions of the accused,29 or such
linkage with the Tutsi population, hence the murder of moderate Hutus could not be considered
as genocide.
The Appeals Chamber further held that there was insufficient evidence of a causal connection
between RTLM broadcasts prior to 6 April 1994 and acts of genocide which had occurred.
However, broadcasts post- 6 April were substantially more virulent and hence it was not
unreasonable for the Trial Chamber to conclude that they substantially contributed to genocide.
Nonetheless, Nahimana, whom the Trial Chamber had found guilty under Article 6(1) for
instigating genocide, was not found by the Appeals Chamber to have played an active role after 6
April 1994, hence his conviction for genocide was reversed. Although the Appeals Chamber did
not dispute the Trial Chamber’s finding that Nahimana was the founder of the RTLM,32 it did
disagree that Nahimana was the “ideologue” of the media organization and that he used it as a
vehicle for inciting the massacre of Tutsis. Though he may have been in charge of the RTLM
and gave orders to journalists, there was no actual evidence to show that he had in fact ordered
the journalists to incite the murder of Tutsis. Because he was not charged under Article 6(3),
Nahimana’s potential “superior responsibility” was not considered in relation to this crime.
Barayagwiza was convicted by the Trial Chamber under Article 6(3) for superior responsibility
but he too was acquitted because the Appeals Chamber held that there was insufficient evidence
to prove beyond reasonable doubt that Barayagwiza exercised effective control over journalists
after 6 April 1994.
Ngeze was also acquitted of genocide in relation to Kangura newsletters (though not regarding
his CDR activities) because the Appeals Chamber considered that a reasonable trier of fact could
not have found beyond all reasonable doubt that Kangura editions had contributed significantly
to the commission of acts of genocide. The reason is that none of the witnesses explicitly
referred to made explicit reference as to the impact of Kangura editions published after 1 January
1994 and whether or not these editions resulted in the murder of Tutsis.36 Though the Appeals
Chamber found it clear that Kangura did contribute to the genocide by encouraging a climate of
violence and hatred, it determined that this was not sufficient to show that the magazine provoke
or substantially contributed to the genocide.
4. Direct and public incitement to commit genocide

18
Another important aspect of the judgement is the Appeals Chamber’s discussion of direct and
public incitement to commit genocide. Before the Trial Chamber’s judgement in this case, one
had to probe as far back as the International Military Tribunal to find relevant case law on the
criminalization of speech inciting genocide.38 Relying on this limited case law and on
international jurisprudence in relation to freedom of speech and hate speech,39 the Trial
Chamber seemed to suggest a definition that had a wider and somewhat nebulous ambit. For
example, in its analysis of this crime, the Trial Chamber looked at the distinction between ethnic
consciousness and the promotion of ethnic hatred and examined certain RTLM emissions to
determine if they carried harmful ethnic stereotypes.40 By doing this, the Trial Chamber seemed
to stray from the strict question of whether there was a direct call to commit genocide. An
amicus curiae prepared by the Open Society Justice Initiative, which was permitted by the
Appeals Chamber, claimed that the Trial Chamber may have blurred the distinction between hate
speech and public and direct incitement to commit genocide and requested clarification from the
Appeals Chamber.
The Appeals Chamber discussed at length direct and public incitement to commit genocide,
explaining first the difference between “instigation” of a crime such as genocide under Article
6(1) and direct and public incitement to commit genocide under Article 2(3). It noted that while
Article 6(1), a mode of responsibility, required proof that the accused’s acts substantially
contributed to the commission of one of the crimes listed in Articles 2 to 4. Article 2(3), on the
other hand, was a crime in itself and could be established even if no genocide in fact occurred.42
The Appeals Chamber was not of the opinion that the Trial Chamber had confused hate speech
with public and direct incitement to commit genocide.43 It agreed with the Trial Chamber that
that cultural context, including the nuances of the Kinyarwanda language, could be evaluated to
determine if the words used were clearly understood by the intended audience, thereby rejecting
the Appellants’ argument that only an explicit call for genocide is covered by Article 2(3).
The Appeals Chamber held that while RTLM broadcasts between 1 January and 6 April 1994 did
not constitute a direct and public incitement to commit genocide, certain emissions after 6 April
1994 did. Nonetheless, the Appeals Chamber reversed the findings of the Trial Chamber that
Barayagwiza exercised effective control over RTLM journalists after 6 April and hence acquitted
him of this charge (under Article 6(3)) in relation to RTLM broadcasts. Nahimana was found to
have been a superior of RTLM staff with the power to prevent or punish criminal speeches and
his conviction under Article 6(3) was therefore affirmed. However, his conviction under Article
6(1) was reversed as the Appeals Chamber did not believe that he had sufficient personal
involvement after 6 April to have “instigated” the RTLM broadcasts (for the same reasons that
he was acquitted of genocide under Article 6(1)). In relation to Ngeze, the Appeals Chamber
concluded that there were certain articles published in 1994 that did constitute direct and public
incitement to commit genocide, hence the conviction was affirmed.
5. Crimes Against Humanity
The Appeals Chamber held that a reasonable trier of fact could not conclude that there had been
a systematic or widespread attack against Tutsi civilians during the period from 1 January to 6
19
April 1994.45 Furthermore, RTLM broadcasts, Kangura newsletters and CDR activities which
took place before 6 April 1994 could not be considered as being part of the systematic or
widespread attack after 6 April 1994.46 However according to the Appeals Chamber these
activities could support other modes of liability such as planning, incitement and adding and
abetting, provided that they significantly contributed to the attacks after 6 April 1994.47
The Appeals Chamber held that it could not be established beyond reasonable doubt that pre-6
April RTLM emissions significantly contributed to the killing of Tutsis. Although post-6 April
broadcasts were found to have significantly contributed to the killings, both Nahimana and
Barayagwiza (for the reasons discussed in relation to the charge of genocide)48 were found not
to have had sufficient personal involvement in RTLM broadcasts after 6 April 1994 and were
therefore acquitted of this charge in relation to the broadcasts. Barayagwiza was nonetheless
found guilty of extermination as a crime against humanity in relation to his CDR activities, as
was Ngeze.
Concerning persecution as a crime against humanity, the Appeals Chamber held that hate speech
could be considered to be as serious as other crimes against humanity where, as in the present
case, it is accompanied by a massive campaign of persecution characterized by acts of violence
and destruction of property. Although the appellants and the amicus curiae submitted that hate
speech which does not incite violence does not constitute persecution as a crime against
humanity, the Appeals Chamber refused to rule on this issue, leaving the question open.50 It did
however note that the acts of persecution need not be considered individually but should be
looked at cumulatively to determine if they reach the same gravity as other crimes against
humanity.
Assessing the facts, the Appeals Chamber concluded that RTLM broadcasts before 6 April did
not constitute persecution because there was no widespread attack until after 6 April 1994.
However the Chamber did declare that broadcasts after 6 April constituted persecution as a crime
against humanity. As Kangura had not been published between 6 April and 17 July 1994, it could
not be concluded that the newsletter caused persecution as a crime against humanity. Ngeze’s
conviction was therefore reversed.
Conclusion
In the Nahimana et al. case, the Appeals Chamber laid down important principles and an
interpretation of the law that will reverberate in many cases to come. In rejecting the argument
that inchoate crimes (or at least direct and public incitement to commit genocide) are continuous
crimes, the Appeals Chamber has strictly limited the evidence that can be used to establish the
guilt of an accused. Where, as in this case, accused are charged with having sown the seeds of
hatred long before the genocide was unleashed, it will be harder for the prosecution to establish a
case against such individuals. Nonetheless, the Appeals Chamber’s interpretation of temporal
jurisdiction is more consistent with the drafting history of the Statute than the Trial Chamber’s
view. Additionally, the Appeals Chamber has further delineated the difference between hate
speech, direct and public incitement to commit genocide and persecution as a crime against
humanity, though some ambiguities still remain.
20
PROSECUTOR V. MUSEMA (TRIAL CHAMBER)
Case Background
The Accused, Alfred Musema, was director of the Gisovu Tea Factory in Kibuye Prefecture
during the 1994 genocide in Rwanda. The Prosecutor alleged that on various occasions during
April, May and June 1994, Musema transported armed attackers, including employees of the
factory, to different locations in Gisovu and Gishyita communes and ordered them to attack
Tutsis seeking refuge there. He also personally took part in such attacks and killings. The
indictment against Musema was later amended to include charges that he committed various acts
of rape and that he ordered and encouraged others to rape and kill Tutsi women.
With regard to certain allegations concerning specific attacks, Trial Chamber I of the ICTR
found that either the evidence presented was not sufficient or that Musema's alibi cast doubt on
the Prosecution evidence. The Chamber was satisfied nevertheless that Musema had participated
in attacks at Gitwa Hill, Rwirambo Hill, Muyira Hill and at Mumataba during late-April and
mid-May and his alibi for that period was not accepted. The Chamber also found that he had
raped a woman named Nyiramusugi and, by his example, encouraged others to rape her. For
these acts, the Trial Chamber found Musema guilty of genocide and crimes against humanity
(extermination and rape) and sentenced him to life imprisonment.
Procedural history
The initial indictment against Alfred Musema was submitted by the Prosecutor on 11 July 1996,
and was confirmed on 15 July 1996. On 14 December 1998, the Chamber confirmed an amended
indictment, submitted on 20 November 1998 by the Prosecutor. In this indictment, the count of
complicity in genocide was pleaded alternatively to the existing count of genocide.
By decision of the Chamber rendered on 6 May 1999, the Prosecutor was granted leave to amend
the Indictment against Musema, inter alia, by adding one new count and by expanding on the
facts adduced in the then existing Indictment in support of the new count. The Chamber
acknowledged that although the filing of the motion for leave to amend the Indictment came at a
late stage in the presentation of the Prosecutor’s case, this did not cause prejudice to the
Accused. Furthermore, the Chamber held that no undue delay would be caused to the
proceedings by allowing these amendments as all the pertinent witness statements had already
been disclosed to the Defence and as all witnesses the Prosecutor intended to rely upon in
support of the new count had already testified in the case.
21
Related developments
The Accused appealed against his conviction and his sentence. The Appeals Chamber delivered
its judgment on 16 November 2001.
Legally relevant facts
Under Count 1, the Prosecutor charged Musema with genocide under Articles 6(1) and 6(3) of
the Statute and, alternatively, under Count for complicity in genocide. These Counts relate to the
Accused's role in the rape and death of Annunciata (a Tutsi woman), and the death of her son, as
well as in the attack against Tutsi refugees at Gitwa Hill, at Rwiarambo Hill, at Muyira Hill and
the rape of Nyiramusugi, a young Tutsi woman, during this attack, at Mumataba Hill and at
Nyakavumu cave (paras. 884-935).
Under Count 3, the Accused was charged with conspiracy to commit genocide for the same acts
alleged under Counts 1 and 2 (paras. 937-938).
Under Count 5, the Accused was charged with extermination as a crime against humanity for his
participation in the attacks against Tutsis at Muyira Hill, at Mumataba Hill, in the Nyakavumu
cave, at Gitwa Hill and in Rwirambo (paras. 942-950).
Count 4 of the Indictment charged the Accused with murder as a crime against humanity for the
acts that also formed the basis for Count 5 (extermination) (paras. 952-953).
The Prosecution further charged him with other inhumane acts (Count 6) and rape (Count 7) as
crimes against humanity, as well as serious violations of Common Article 3 of the Geneva
Conventions and Additional Protocol II (Counts 8, 9) (paras. 959, 962, 969).
Core legal questions
Whether the Accused was guilty of genocide, or in the alternative complicity in genocide, under
Article 6(1) and (3) of the Statute, for his role in the attacks against Tutsis during April and May
1994.
Whether the Accused had conspired to commit genocide against Tutsis as an ethnic group.
Whether the killings at Gitwa hill, Muyira hill, Rwirambo hill, Mumataba hill and at the
Nyakavumu cave constituted murder as a crime against humanity.
Whether the Accused was guilty of extermination as a crime against humanity under Article 6(1)
and (3) of the Statute for his participation in the attacks against Tutsis during April and May
1994.
22
Whether the Accused was guilty of rape as a crime against humanity pursuant to Article 6(1) and
(3) of the Statute for the rape of Nyiramusugi on 13 May 1994.
Whether the Accused bore individual criminal responsibility for inhumane acts as a crime
against humanity and for war crimes against Tutsis.
What the appropriate sentence would be, in case the Accused was found guilty.
Specific legal rules and provisions
Articles 2, 3, 4, 6(1),(3), 7, 8, 17, 18, 19(2), 20(4)(a), 22, 23 and 26 of the ICTR Statute.
Rules 28, 39(i),(ii) 42, 43, 45(F), 46(A),(C), 47, 67(A),(B), 69, 89, 90bis, 91(B), 94, 95, 96(i),
101, 102, 103 and 104 of the ICTR Rules of Procedure and Evidence.
Article 3 common to the Geneva Conventions.
Articles 1(1), 3, 4, 13(2), 43, 50, 86, 86 of Additional Protocol II to the Geneva Conventions.
Court's holding and analysis
The Trial Chamber was satisfied beyond a reasonable doubt that the Accused was guilty of
genocide pursuant to Article 6(1) and (3) of the Statute for his role in the events described under
count 1 of the indictment (para. 936).
The Chamber dismissed count 3 on the grounds that the Prosecution had not clearly alleged or
adduced evidence that the Accused had conspired to commit genocide (paras. 940-941).
The Chamber found the Accused guilty of extermination as a crime against humanity, pursuant
to Articles 6(1) and 6(3) of the Statute (para. 951). Therefore, the Chamber dismissed count 4,
since the killings at Gitwa Hill, Muyira Hill, Rwirambo Hill, Mumataba Hill and at the
Nyakavumu cave were killings of collective groups of individuals, thus constituting
extermination and not murder (paras. 957-958).
The Chamber also dismissed Counts 6, 8, 9 of the indictment (paras. 961, 975).
The Trial Chamber found the Accused guilty of rape as a crime against humanity under Article
6(1) but not Article 6(3) of the Statute (paras. 967-968).
After taking into account the aggravating and mitigating circumstances, the Trial Chamber
sentenced the Accused to a single sentence of life imprisonment (para. 1008).
23
In their separate opinions, Judges Aspegren and Pillay expressed doubts regarding certain factual
findings of the majority (paras. 1 and 1-12 of the respective separate opinions).
Instruments cited
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field (GC I), 12 August 1949, 75 UNTS 35, entered into force 21 October 1950.
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea (GC II), 12 August 1949, 75 UNTS 81, entered into force 21
October 1950.
Geneva Convention relative to the Treatment of Prisoners of War (GC III), 12 August 1949, 75
UNTS 135, entered into force 21 October 1950.
Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC IV), 12
August 1949, 75 UNTS 287, entered into force 21 October 1950.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection
of Victims of Non-International Armed Conflicts (AP II), 1125 UNTS 609, 8 June 1977, entered
into force 7 December 1979.
Statute of the International Criminal Tribunal for Rwanda (ICTR Statute), UN Doc S/RES/955,
UN Security Council, 1994.
Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda (ICTR
RPE), UN Doc ITR/3/Rev. 6, adopted on 29 June 1995, as amended on 8 June 1998.
PRONOUNCEMENTS
1. Nature of Armed Conflict

Non-International Armed Conflict
Application of Common Article 3 in relation to Additional Protocol II
The Chamber notes that the Defence admitted that, at the time of the events alleged in the
Indictment, there existed an internal armed conflict meeting the temporal and territorial
requirements of both Common Article 3 and Additional Protocol II. Further, evidence presented
during the trial, in particular the testimony of Musema, demonstrated the full extent of the
conflict between the dissident armed forces, the FPR, and the Government forces, the FAR,
in Rwanda throughout the period the offences were said to have been perpetrated.
24
On the basis of the above, the Chamber finds that it has been established beyond reasonable
doubt that at the time of the events alleged in the Indictment there existed a non-international
armed conflict meeting the requirements of Common Article 3 and Additional Protocol II.
2. Criminal responsibility
The Prosecutor alleged that for each count in the indictment Alfred Musema was
individually criminally responsible not only under article 6(1), but also responsible
as a ‘superior’ under article 6(3) of the ICTR Statute. Article 6(1) lists five forms of
participation — planning, instigating, ordering, committing or aiding and abetting — by
which an accused can be held individually criminally responsible for a crime falling
under the jurisdiction of the ICTR.
The Chamber concluded that the fundamental issue to be determined is the extent to
which the superior, in the present case Alfred Musema, exercised de jure or de facto
power over the actions of his subordinates. In so doing, the interpretation of the Chamber
is akin to the conclusion of the International Law Commission, according to which ‘the
reference to “superiors” is sufficiently broad to cover military commanders or other
civilian authorities who are in a similar position of command and exercise a similar
degree of control with respect to their subordinates.
On the basis of witnesses’ testimonies and the documents presented during

trial, the Chamber found that Alfred Musema had ‘legal and financial control over [his]
employees, particularly through his power to appoint and remove these employees
from their positions at the Tea Factory.’
The Chamber also found that he was in a position, by virtue of these powers, to take
reasonable measures, such as removing, or threatening to remove, an individual from his
or her position at the Tea Factory if he or she was identified as a perpetrator of crimes
punishable under the Statute.
The Chamber also found that Alfred Musema was ‘in a position to take reasonable
measures to attempt to prevent or to punish the use of Tea Factory vehicles, uniforms or
other Tea Factory property in the commission of such crimes’, and concluded that Alfred
Musema exercised de jure power and de facto control over the employees and the
resources of the Gisovu Tea Factory. It therefore found that there existed a de jure
superior-subordinate relationship.
3. Crimes Charged
25
 Rape Constitutive of Genocide
Alfred Musema was charged with personally raping two identified Tutsi women and also
with having encouraged others to capture, rape and kill Tutsi women.
In Musema, the Chamber reiterated the definition of rape set forth in Akayesu, namely, ‘a
physical invasion of a sexual nature, committed on a person under circumstances
which are coercive.’
The rapes and sexual violence alleged against Alfred Musema were notably identified in
the indictment as acts of genocide.
At this juncture, it is important to recall that a crime of genocide is established if:
first, one of the acts listed under article 2(2) of the ICTR Statute has been
committed;
second, that the said act was directed against a specifically targeted group, being a
national, ethnical, racial or religious group; and
third, that the perpetrator had the special intent to destroy, in whole or in part, the
specifically targeted group.
In determining whether the acts of serious bodily and mental harm, including rape and
other forms of sexual violence for which Alfred Musema was held criminally
responsible, could constitute genocide, the Chamber found that these acts ‘were often
accompanied by humiliating utterances, which clearly indicated that the intention
underlying each specific act was to destroy the Tutsi group as a whole.’ In support of
this finding, the Chamber noted, for example, that during the rape of Nyiramusugi, Alfred
Musema declared that, ‘[t]he pride of the Tutsis will end today’. The Chamber found that
such acts targeted Tutsi women in particular, and specifically contributed to their
destruction and to that of the Tutsi group. In this context, for the Chamber, the acts of
rape and sexual violence were an integral part of the plan to destroy the Tutsi group.
 The Crime of Conspiracy to Commit Genocide
Alfred Musema was charged with conspiracy to commit genocide under count three of
the indictment.
26
After retracing the history of the crime of genocide, from its emergence as a crime during
the adoption of the Convention on the Prevention and Punishment of the Crime of
Genocide, the Chamber reviewed the definitions of conspiracy and its constitutive
elements in both the civil and common law systems. It found that the constitutive
elements of conspiracy are very similar in both systems. Hence, it held that ‘conspiracy
to commit genocide is to be defined as an agreement between two or more persons to
commit the crime of genocide.’ The Chamber also considered that the mens rea of the
crime of conspiracy to commit genocide ‘rests on the concerted intent to commit
genocide, that is to destroy, in whole or in part, a national, ethnic, racial or religious
group’. Thus, ‘the requisite intent for the crime of conspiracy to commit genocide is,
ipso facto, the intent required for the crime of genocide, that is the dolus specialis of
genocide.’ The Chamber also established that the crime of conspiracy to commit
genocide is an inchoate offence, punishable even if it fails to produce a result; that is,
even if the substantive offence of genocide has not actually been perpetrated.
Addressing the question of whether a double conviction for genocide and conspiracy to
commit genocide is permissible, the Chamber noted that although, under common law, an
accused can in principle be convicted for both conspiracy and the substantive offence,
this position has nevertheless been criticised. In civil law systems, accused persons can
only be convicted of conspiracy if either: the substantive offence has not been realised; or
if they were part of a conspiracy but did not directly participate in the realisation by their
co-conspirator(s) of the substantive offence.
In Musema, the Chamber decided to adopt the position most favourable to the accused,
namely that an accused convicted of genocide could not, on the basis of the same acts,
also be convicted of conspiracy to commit genocide. The Chamber found that Alfred
Musema was not criminally responsible for conspiracy to commit genocide as the
Prosecutor had not adduced sufficient evidence to establish that he conspired with other
persons to commit genocide.
 Crime against Humanity (extermination)
Count 5 of the Indictment charges Musema with crime against humanity (extermination),
pursuant to Articles 3(b), 6(1) and 6(3) of the Statute, for the acts alleged in paragraphs
4.1 to 4.11 of the Indictment.
The Chamber finds that, Musema's criminal conduct was consistent with the pattern of
the then ongoing widespread or systematic attack on the civilian population and his
conduct formed a part of this attack.
27
The Chamber finds, that Musema's conduct: in ordering and participating in the attacks
on Tutsi civilians who had sought refuge on Muyira hill and on Mumataba hill; in aiding
and abetting in the aforementioned attacks by providing motor vehicles belonging to
Gisovu Tea Factory, for the transport of attackers to Muyira hill and Mumataba hill; and
in his participation in attacks on Tutsi civilians who had sought refuge in Nyakavumu
cave, Gitwa hill and Rwirambo, renders the Accused individually criminally responsible,
pursuant to Article 6(1) of the Statute.
 Crime against Humanity (murder)
Count 4 of the Indictment charges Musema with crime against humanity (murder),
pursuant to Articles 3(a), 6(1) and 6(3) of the Statute, for the acts alleged in paragraphs
4.1 to 4.11 of the Indictment.
The Chamber notes that the Accused is also charged, under count 5 of the Indictment, for
crime against humanity (extermination), pursuant to Articles 3(b), 6(1) and 6(3) of the
Statute, for the acts alleged in paragraphs 4.1 to 4.11 of the Indictment, which acts
include the attacks on civilians at various locations in Bisesero. The allegations in the
aforementioned paragraphs of the Indictment also form the basis for Count 4, crimes
against humanity (murder).
The Chamber concurs with the reasoning in Akayesu that:

"it is acceptable to convict the accused of two offences in relation to the same set of facts
in the following circumstances:
(1) where the offences have different elements; or
(2) where the provisions creating the offences protect different interests; or
(3) where it is necessary to record a conviction for both offences in order fully to describe
what the accused did.
However, the Chamber finds that it is not justifiable to convict an accused of two
offences in relation to the same set of facts where (a) one offence is a lesser included
offence of the other, for example, murder and grievous bodily harm, robbery and theft, or
rape and indecent assault; or (b) where one offence charges accomplice liability and the
other offence charges liability as a principal, e.g. genocide and complicity in genocide."
In this case, the killings at Gitwa hill, Muyira hill, Rwirambo hill, Mumataba hill and at
the Nyakavumu cave are killings of collective groups of individuals, hence constituting
extermination and not murder. Therefore, the Accused cannot be held culpable for crime
against humanity (murder), in respect of these killings.
28
 Crime against Humanity (other inhumane acts)
Count 6 of the Indictment charges Musema with crime against humanity (other inhumane
acts), pursuant to Articles 3(i), 6(1) and 6(3) of the Statute, for the acts alleged in
paragraphs 4.1 to 4.11 of the Indictment.
The Chamber has already defined "Other inhumane Acts", as envisaged in Article 3 of
the Statute.
The Chamber finds that the Prosecutor has failed to prove beyond a reasonable doubt that
Musema is individually criminally responsible for any act, falling within the ambit of
crime against humanity (other inhumane acts), pursuant to Articles 3(i), 6(1) and 6(3) of
the Statute, as charged in Count 6 of the Indictment.
 Violation of Common Article 3 and Additional Protocol II

Counts 8 and 9 of the Indictment charge Musema with serious violations of Common
Article 3 of the 1949 Geneva Conventions and the 1977 Additional Protocol II thereto, as
incorporated in Article 4 of the Statute of the Tribunal.
The Chamber notes that the Defence admitted that, at the time of the events alleged in the
Indictment, there existed an internal armed conflict meeting the temporal and territorial
requirements of both Common Article 3 and Additional Protocol II. Further, evidence
presented during the trial, in particular the testimony of Musema, demonstrated the full
extent of the conflict between the dissident armed forces, the FPR, and the Government
forces, the FAR, in Rwanda throughout the period the offences were said to have been
perpetrated.
The burden rests on the Prosecutor to establish, on the basis of the evidence adduced
during trial, that there exists a nexus, on the one hand, between the acts for which
Musema is individually criminally responsible, including those for which he is
individually criminally responsible as a superior, and, on the other, the armed conflict. In
the opinion of the Chamber, the Prosecutor has failed to establish that there was such a
nexus.
Consequently, the Chamber finds Musema not guilty of serious violations of Common
Article 3 and Additional Protocol II as charged in Counts 8 and 9 of the Indictment.
29
VERDICT
Count 3: Not Guilty of Conspiracy to commit Genocide
Count 4: Not Guilty of Crime against Humanity (murder)
Count 5: Guilty of Crime against Humanity (extermination)
Count 6: Not Guilty of Crime against Humanity (other inhumane acts)
Count 7: Guilty of Crime against Humanity (rape)
Count 8: Not Guilty of Violation of Common Article 3 to the Geneva Conventions and
Additional Protocol II thereto (Article 4 (a) of the Statute)
Count 9: Not Guilty of Violation of Common Article 3 to the Geneva Conventions and
Additional Protocol II thereto (4 (e) of the Statute)
30
PROSECUTOR V. MUSEMA (APPEALS CHAMBER)
FIRST GROUND OF APPEAL
Musema appealed against the conviction and sentence handed down by the Trial Chamber on
27 January 2000. The Appeals Chamber heard all the parties at a public hearing held at the Seat
of the Tribunal on 28 and 29 May 2001.
Under the grounds of appeal against conviction, Musema alleges that the Trial Chamber erred in
law and in fact pursuant to Article 24(1) (a), and (b) of the Statute and requests, as remedy that
the Appeals Chamber:
(i) Set aside the verdict of the Trial Chamber with respect to Counts 1, 5, 6 and 7);
(ii) Substitute each of the verdicts of guilty for a verdict of not guilty;
(iii) Order his immediate release.
Musema accepts that it is for the appealing party to establish the existence of an error of law or
of fact. He contends that the correct test to be applied in both cases is whether the Appeals
Chamber was satisfied "that no reasonable Trial Chamber could have come to a different
conclusion from that which had been reached by the Trial Chamber if they had directed
themselves properly." He submits that it is the duty of the Trial Chamber, as trier of fact and law,
to exercise its functions properly and fairly, notwithstanding that objections may or may not have
been raised by the parties. He does not accept the proposition that a party must be taken to have
acquiesced in the manner in which the Trial Chamber exercised its discretion on the ground that
the party did not raise an objection at the time such discretion was exercisedand contends that the
role of the Appeals Chamber is not to apportion blame to this or that party or to judge the
performance of the parties, but to determine whether there has been an error of law or of fact
which invalidates the decision rendered or occasioned a miscarriage of justice.
The Prosecution maintains that an error on a question of law encompasses two types of error:
(i) error in the application of the substantive law; and

(ii) error in the manner the Trial Chamber exercised its discretion.
It submits that the nature of the burden with regard to the first error is one of persuasion
rather than proof, since the Appeals Chamber has the latitude and discretion to decide
questions of law. However, as regards alleged errors in the exercise of judicial
discretion, the Prosecution argues that it falls to the appealing party to show that the Trial
Chamber abused its discretion. Absent such showing, the Prosecution submits that the Trial
Chamber’s decision should stand. In respect of alleged errors of fact, the "reasonableness"
standard applies. The Prosecution submits that this standard of review is "deferential in
31
nature and in application", and requires the Appeals Chamber "to give a margin of
deference" to the findings of fact reached by a Trial Chamber, as evidenced by several
Appeals Chamber decisions.
SECOND, FOURTH, AND FIFTH GROUND OF APPEAL
In the Appellant’s view, the 2nd, 4th and 5th grounds of Appeal form part of the general argument
that the Trial Chamber failed to ensure that the right of the accused to a fair trial was
respected. Musema submits that the grounds of appeal set out below relate to the fundamental
rights of the accused, namely, the right to be informed promptly and in detail of the nature of the
charges against him, the right to have adequate time for the preparation of his defence and lastly
the right to be tried without undue delay.
SIXTH GROUND OF APPEAL
Musema submits that the Trial Chamber erred in finding him guilty of genocide under Article
2(3)(a) of the Statute (Count 1) and of extermination under Article 3(b) of the Statute (Count 5),
on the basis of the same set of facts. He requests the Appeals Chamber to quash the conviction
for extermination.
APPEAL AGAINST SENTENCE
The Trial Chamber, having found the Appellant guilty of genocide, of a crime against humanity
(extermination) and of a crime against humanity (rape), imposed a single sentence of life
imprisonment for all counts. The Appeals Chamber upholds those convictions, with the
exception of the conviction entered in respect of Count 7 of the Indictment (crime against
humanity: rape). Indeed, the Appeals Chamber found that in light of the new evidence, no
reasonable tribunal of fact could have reached a conclusion different from that of the Trial
Chamber and, accordingly, the conviction in respect of Count 7 is quashed. In addition to
appealing against conviction, the Appellant also appealed against sentence on the grounds that
the sentence imposed by the Trial Chamber is excessive, and based on errors of law and fact.
As a remedy, he requests that the sentence be set aside and replaced with a sentence of fixed
duration
32
DISPOSITION
For these reasons, the Appeals Chamber,
Considering Article 24 of the Statute and Rule 118 of the Rules,
Noting the respective written submissions of the parties and their oral arguments at the hearings
of 28 and 29 May 2001 and of 17 October 2001,
Sitting in open court,
Unanimously dismisses the First, Second and Sixth Grounds of Appeal raised by Alfred
Musema, subject to the following paragraph,
Finds the Appellant Alfred Musema, in the light of the additional evidence presented, not guilty
on Count 7 (rape as crime against humanity); and holds that it is not necessary to rule on the
Fourth and Fifth Grounds of Appeal for the reasons set out in paragraphs 343 and 345 of this
Appeal Judgement,
Recalls that the Appellant withdrew his Third Ground of Appeal,
Affirms the verdict of guilty entered against Alfred Musema on Count 1 (genocide) and Count 5
(extermination as crime against humanity),
Dismisses Alfred Musema’s Appeal against Sentence and affirms the sentence of life
imprisonment handed down,
Rules that this Judgement shall be enforced immediately pursuant to Rule 119 of the Rules.
33
ICTY, The Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago
Josipovic, Dragan Papic, Vladimir Santic, IT 95-16, Trial Chamber, Judgement, 14
January 2000
I. Background of the Case
Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić,
and Vladimir Šantić were brought before the ICTY for their roles in the commission of
crimes against the Bosnian Muslim population of the village of Ahmići in Bosnia and
Herzegovina. In April 1993, the Bosnian Croat forces attacked the village, aiming to
remove the Muslim inhabitants through the commission of crimes against them. The six
accused were charged in connection with their alleged role in the attack on the village of
Ahmici in central Bosnia on 16 April 1993, and the massacre of 116 inhabitants of the
village, including women and children. Twenty-four other villagers were wounded. The
attack also resulted in the destruction of 169 houses and two mosques.
This tragedy carried out in a small village reflects in a microcosm the much wider
tensions, conflicts and hatreds which have, since 1991, plagued the former Yugoslavia
and caused so much suffering and bloodshed. In a matter of a few months, persons
belonging to different ethnic groups, who used to enjoy good neighbourly relations, and
who previously lived side by side in a peaceful manner and who once respected one
another’s different religious habits, customs and traditions, were transformed into
enemies. Nationalist propaganda gradually fuelled a change in the perception and self-
identification of members of the various ethnic groups. Gradually the "others", i.e. the
members of other ethnic groups, originally perceived merely as "diverse", came instead
to be perceived as "alien" and then as "enemy"; as potential threats to the identity and
prosperity of one’s group. What was earlier friendly neighbourly coexistence turned into
persecution of those "others".
II. Nature of Armed Conflict:
Trial Chamber II was “satisfied … that [the attack on Ahmići, Bosnia and Herzegovina]
was not a combat operation. Rather, it was a well-planned and well organised killing of
civilian members of an ethnic group, the Muslims, by the military of another ethnic
group, the Croats … [with] [t]he ultimate goal … to spread terror among the population
so as to deter the members of that particular ethnic group from ever returning to their
homes” (para. 749).
No finding on the international/internal nature of the conflict (as no grave breach charges
are involved).
III. Responsibility/Liability
On 16 April 1993, Bosnian Croat forces attacked the village of Ahmići in Bosnia and
Herzegovina. The operation was a deliberate attack on the Muslim civilians of Ahmići,
aiming to cleanse the area of its Bosnian Muslim inhabitants. The attack resulted in the
34
deaths of over a hundred Bosnian Muslims, injuring numerous others and destroying
Muslim houses and mosques. The attack was planned and carried out by the forces of the
Croatian Defence Council (HVO) and the special unit of the Croatian military police
called the “Jokers”. There were no Muslim military forces or any military establishment
belonging to the Army of Bosnia and Herzegovina present during the time of the attack
in Ahmići (Bosnia and Herzegovina). (paras. 38 et seq.)
Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Dragan Papić, and Drago
Josipović were members of the Bosnian Croat forces (HVO). Vladimir Šantić was the
local commander of the military police and of the “Jokers”. (paras. 339 et seq.)
IV. War Crimes Charged
Charges
The Prosecutor alleged the following facts and charged the following counts:
The accused helped prepare the April 1993 attack on the Ahmici-Santici civilians [...].
Under COUNT 1 all six accused are charged with a CRIME AGAINST HUMANITY,
[...] on the grounds that from October 1992 until April 1993 they persecuted the Bosnian
Muslim inhabitants of Ahmici-Santici and its environs on political, racial or religious
grounds by planning, organising and implementing an attack which was designed to
remove all Bosnian Muslims from the village and surrounding areas. As part of this
persecution, the accused participated in or aided and abetted the deliberate and
systematic killing of Bosnian Muslim civilians, the comprehensive destruction of their
homes and property, and their organised detention and expulsion from Ahmici-Santici
and its environs.
Under COUNTS 2-9 the accused Mirjan and Zoran Kupreskic are charged with murder
as a CRIME AGAINST HUMANITY, [...] and a VIOLATION OF THE LAWS OR
CUSTOMS OF WAR, [...] (murder) [...]. When the attack on Ahmici-Santici
commenced in the early morning of 16 April 1993, Witness KL was living with his son,
Naser, Naser’s wife, Zehrudina, and their two children, Elvis (aged 4) and Sejad (aged 3
months). Armed with an automatic weapon, Zoran and Mirjan Kupreskic entered
Witness KL’s house. Zoran Kupreskic shot and killed Naser. He then shot and wounded
Zehrudina. Mirjan Kupreskic poured flammable liquid onto the furniture to set the house
on fire. The accused then shot the two children, Elvis and Sejad. When Witness KL fled
the burning house, Zehrudina, who was wounded, was still alive, but ultimately perished
in the fire. Naser, Zehrudina, Elvis and Sejad all died and Witness KL received burns to
his head, face and hands.
Under COUNTS 10 and 11 Zoran and Mirjan Kupreskic are charged with a CRIME
AGAINST HUMANITY, [...] (inhumane acts) [...] and a VIOLATION OF THE LAWS
OR CUSTOMS OF WAR, [...] (cruel treatment) [...], on the grounds of killing Witness
KL’s family before his eyes and causing him severe burns by burning down his home
while he was still in it.
35
Under COUNTS 12-15 the accused Vlatko Kupreskic is charged with murder and
inhumane and cruel treatment as CRIMES AGAINST HUMANITY, [...], as well as
VIOLATIONS OF THE LAWS OR CUSTOMS OF WAR, [...] Before the 16 April
1993 attack, HVO soldiers armed with automatic rifles congregated at the residence of
the accused in Ahmici [...] HVO [Croat Defence Council] soldiers shot at Bosnian
Muslim civilians from the accused’s house throughout the attack. Members of the Pezer
family, who were Bosnian Muslims, decided to escape through the forest. As they ran by
the accused’s house toward the forest, the accused and other HVO soldiers in front of his
house, aiding and abetting each other, shot at the group, wounding Dzenana Pezer, [...]
and another woman. Dzenana Pezer fell to the ground and Fata Pezer returned to assist
her daughter. The accused and the HVO soldiers shot Fata Pezer and killed her.
Under COUNTS 16-19, Drago Josipovic and Vladimir Santic are charged with CRIMES
AGAINST HUMANITY, [...] (murder) and [...] (inhumane acts) [...] as well as with
VIOLATIONS OF THE LAWS OR CUSTOMS OF WAR, [...] (murder and cruel
treatment). On 16 April 1993, numerous HVO soldiers, including the accused, attacked
the home of Musafer and Suhreta Pucul, while the family, which included two young
daughters, was sleeping. During the attack, the accused and other HVO soldiers, aiding
and abetting one another, forcibly removed the family from their home and then killed
Musafer Pucul whilst holding members of his family nearby. As part of the attack, the
HVO soldiers , including the accused, vandalised the home and then burned it to the
ground.
Judgment
The accused are charged with violations of the laws or customs of war and persecution;
in particular, murder and cruel treatment under Article 3 of the Tribunal Statute and
murder, inhumane acts and persecution under Article 5 of the Statute.
Persecution is one of the most vicious of all crimes against humanity. It nourishes its
roots in the negation of the principle of the equality of human beings. Persecution is
grounded in discrimination. It is based upon the notion that people who share ethnic,
racial, or religious bonds different to those of a dominant group are to be treated as
inferior to the latter. In the crime of persecution, this discriminatory intent is
aggressively achieved by grossly and systematically trampling upon the fundamental
human rights of the victim group. Persecution is only one step away from genocide – the
most abhorrent crime against humanity – for in genocide the persecutory intent is pushed
to its uttermost limits through the pursuit of the physical annihilation of the group or of
members of the group. In the crime of genocide the criminal intent is to destroy the
group or its members; in the crime of persecution the criminal intent is instead to
forcibly discriminate against a group or members thereof by grossly and systematically
violating their fundamental human rights. In the present case, according to the
Prosecution – and this is a point on which the Trial Chamber agrees – the killing of
Muslim civilians was primarily aimed at expelling the group from the village, not at
36
destroying the Muslim group as such. This is therefore a case of persecution, not of
genocide.
The fact that in this area of Bosnia and Herzegovina, the armed conflict frequently took
the form of persecution is vividly depicted in the words of one Muslim woman
mentioned by one of the witnesses in this trial. "I do not fear the shells and bombs that
may fall on my house," she said. "They do not ask for my name. I fear the foot soldiers
who break into my house and kill and wound in a very personal way and commit
atrocities in front of the children". The main target of these attacks was the very identity
– the very humanity – of the victim.
The "personal violence" most feared by this Muslim woman is that which is carried out
against other human beings solely upon the basis of their ethnic, religious or political
affiliation. It is persecutory violence.
The massacre carried out in the village of Ahmici on 16 April 1993 comprises an
individual yet appalling episode of that widespread pattern of persecutory violence. The
tragedy which unfolded that day carried all the hallmarks of an ancient tragedy. For one
thing, it possessed unity of time, space and action. The killing, wounding and burning
took place in the same area, within a few hours and was carried out by a relatively small
group of members of the Bosnian Croatian military forces: the HVO and the special
units of the Croatian Military Police, the so-called Jokers. Over the course of the several
months taken up by these trial proceedings, we have seen before our very eyes, through
the narration of the victims and the survivors, the unfolding of a great tragedy. And just
as in the ancient tragedies where the misdeeds are never shown but are only recounted
by the actors, numerous witnesses have told the Trial Chamber of the human tragedies
which befell so many of the ordinary inhabitants of that small village.
Indisputably, what happened on 16 April 1993 in Ahmici has gone down in history as
comprising one of the most vicious illustrations of man’s inhumanity to man. Today, the
name of that small village must be added to the long list of previously unknown hamlets
and towns that recall abhorrent misdeeds and make us all shudder with horror and
shame: Dachau, Oradour sur Glâne, Katijn, Marzabotto, Soweto, My Lai, Sabra and
Shatila, and so many others.
To be sure, the primary task of this Trial Chamber was not to construct a historical
record of modern human horrors in Bosnia and Herzegovina. The principal duty of the
Trial Chamber was simply to decide whether the six defendants standing trial were
guilty of partaking in this persecutory violence or whether they were instead extraneous
to it and hence, not guilty.
At the end of the trial, we have come to the conclusion that, with the possible exception
of one of the accused, this Trial Chamber has not tried the major culprits, those who are
most responsible for the massacre of 16 April 1993, those who ordered and planned, and
those who carried out the very worst of the atrocities – against innocent civilians.
37
We thus had to confine ourselves to the six persons accused by the Prosecutor before our
Trial Chamber, to determine whether and to what extent they participated in the crimes
perpetrated in Ahmici. Our task has not been easy. More than six years after those events
– events that occurred far away from The Hague – we have had to shoulder the heavy
burden of establishing incredible facts by means of credible evidence.
We have now accomplished our arduous task. The Judgement of the Trial Chamber in
this case is some 340 pages in length. Accordingly, instead of presenting the Judgement
in its entirety, we will provide a brief summary of the Trial Chamber’s findings as to the
charges against the accused and deliver the disposition.
Having considered all the evidence and the arguments, the Judgement of the Trial
Chamber is as follows:
Zoran Kupreskic, the Trial Chamber finds that you participated in the attack on Ahmici
on 16 April 1993 as a soldier in the HVO. We find that you, together with your brother
Mirjan, were present as an attacker on that day and that you were actively involved in
these events. The Trial Chamber finds also that you attacked your Muslim neighbours
solely because of their ethnicity and with the aim of cleansing the village of any Muslim
inhabitants. We find that you acted as a co-perpetrator, together with your brother
Mirjan, within the meaning of Article 7(1) of the Statute, because you adhered to a
common plan for the execution of the cleansing campaign in the village. This by
necessity was a highly coordinated effort and required full prior knowledge on your part
of the intended activities. We find, in addition, that you played a leading role as a local
commander.
Accordingly, the Trial Chamber finds you, Zoran Kupreskic, GUILTY of persecution as
a crime against humanity under Article 5(h) of the Statute under count 1 of the
indictment.
With regard to the attack on the family of Witness KL, you are charged, Zoran
Kupreskic, with murder and inhumane acts as a crime against humanity under Article
5(a) and (i) and cruel treatment under Article 3 of the Statute in connection with
Common Article 3(1)(a) of the Geneva Conventions. We are not satisfied beyond
reasonable doubt that you were present at the scene of the crime and thus we cannot
draw any inference as to your possible participation in the events in question.
Accordingly, the Trial Chamber finds you, Zoran Kupreskic, NOT GUILTY with regard
to murder and inhumane acts as a crime against humanity (Article 5(a) and (i) of the
Statute) under counts 2-11 of the indictment.
In the light of these findings, we sentence you, Zoran Kupreskic, to 10 years
imprisonment.
In the light of these findings, we sentence you, Zoran Kupreskic, to 10 years

imprisonment.
38
Mirjan Kupreskic, the Trial Chamber refers to the facts just mentioned with regard to the
attack on Ahmici on 16 April 1993. The Trial Chamber finds that these acts were all
committed by you, together with your brother Zoran, and thus our findings also apply
mutatis mutandis to you, although you played a lesser role than your brother.
Accordingly, the Trial Chamber finds you, Mirjan Kupreskic, GUILTY of persecution as
a crime against humanity under Article 5(h) of the Statute under count 1 of the
indictment.
With regard to the attack on the family of Witness KL, the Trial Chamber finds, as in the
case of your brother Zoran, that it is not satisfied beyond reasonable doubt that you were
present at the scene of the crime and thus we cannot draw any inference as to your
possible participation in the events in question.
Accordingly, the Trial Chamber finds you, Mirjan Kupreskic, NOT GUILTY with
regard to murder and inhumane acts as a crime against humanity (Article 5(a) and (i) of
the Statute) under counts 2-11 of the indictment.
In the light of these findings, the Trial Chamber sentences you, Mirjan Kupreskic, to 8
years imprisonment.
Vlatko Kupreskic, the Trial Chamber finds that you were involved in the preparations for
the attack on Ahmici in your role as police operations officer and as a resident of the
village. The Trial Chamber finds that you were present during the attack and ready to
lend assistance to the attacking forces. In particular, we find that you helped prepare for
the attack and that you supported the attack carried out by the other accused, the HVO
and Military Police. You did so principally by unloading weapons in your store and
agreeing to the use of your house as a strategic point and staging area for the attacking
troops.
Your role is thus not quite as prominent as that of the other accused. The Trial Chamber
finds that you merely supported the actions of the others; conduct which amounts to
aiding and abetting and not to co-perpetration. The Trial Chamber finds that you were
nevertheless aware that your actions would substantially and effectively assist the
attackers in their activities. You also knew that the attack would not be a battle between
soldiers, but that the Muslim civilians of your own village would be targetted.
Accordingly, the Trial Chamber finds you, Vlatko Kupreskic, GUILTY of aiding and
abetting persecution as a crime against humanity pursuant to Article 5(h) of the Statute
under count 1 of the indictment.
With regard to the shooting of the Pezer family, you were charged with murder and
inhumane acts as crimes against humanity pursuant to Article 5(a) and (i) of the Statute,
and with murder and cruel treatment as a violation of the laws or customs of war
pursuant to Article 3 of the Statute in connection with common article 3(1)(a) of the
Geneva Conventions.
39
The Trial Chamber is not satisfied beyond reasonable doubt that you, Vlatko Kupreskic,
were among the soldiers standing in front of your house who were responsible for the
shooting. Thus we cannot draw any inference as to your involvement in these crimes.
Accordingly, the Trial Chamber finds you, Vlatko Kupreskic, NOT GUILTY with
regard to murder and inhumane acts as a crime against humanity (Article 5(a) and (i) of
the Statute) and murder and cruel treatment as a violation of the laws or customs of war
(Article 3 of the Statute in connection with common article 3(1)(a) of the Geneva
Conventions) under counts 12-15 of the indictment.
In the light of these findings, the Trial Chamber sentences you, Vlatko Kupreskic, to 6
years imprisonment.
Drago Josipovic, together with Vladimir Santic, you are charged under Count 1 of the
indictment with persecution as a crime against humanity pursuant to Article 5(h) of the
Statute. The Trial Chamber finds that you, Drago Josipovic, participated in the murder of
Musafer Puscul, that you took part in the attack on the house of Nazif Ahmic and that
you were actively involved in the burning of private property.
The Trial Chamber finds that you, together with Vladimir Santic, were part of a group
that went to the Ahmic house with the common intent to kill and/or expel its inhabitants
and set it on fire and that you were present at the scene of the crime. We find that you
did so purely because the victims were Muslims, for the same reason set out above with
respect to Zoran and Mirjan Kupreskic. We find, further, that you were aware that you
would be attacking unarmed and helpless civilians and that this attack was part of the
beginning of a large-scale campaign of ethnic cleansing of Muslims from the Lasva
River Valley.
Accordingly, the Trial Chamber finds you, Drago Josipovic, GUILTY of persecution as
a crime against humanity pursuant to Article 5(h) of the Statute under count 1 of the
indictment.
In relation to the murder of Musafer Puscul, you are charged under counts 16-19 with
murder and inhumane acts as crimes against humanity pursuant to Article 5(a) and (i) of
the Statute as well as murder and cruel treatment as violations of the laws or customs of
war pursuant to Article 3 of the Statute in connection with Common Article 3(1)(a) of
the Geneva Conventions. The Trial Chamber finds that even though you may not
yourself have killed Musafer Puscul, by your active presence in the group, together with
Vladimir Santic, you were a co-perpetrator. The same applies for the suffering caused to
the Puscul family by being forced to witness the murder of Musafer Puscul, by being
expelled from their family home and by having their home destroyed. These acts clearly
constituted inhumane acts.
40
The Trial Chamber accordingly finds you, Drago Josipovic, GUILTY of murder and
inhumane acts as crimes against humanity pursuant to Article 5(a) and (i) of the Statute
under counts 16 and 18 of the indictment.
By contrast, the Trial Chamber finds that you were charged cumulatively with counts 17
and 19 in an improper manner. For reasons of law, the Trial Chamber therefore finds
you, Drago Josipovic, NOT GUILTY with regard to violations of the laws and customs
of war (murder and cruel treatment under Article 3 of the Statute) under counts 17 and
19 of the indictment.
In the light of these findings, the Trial Chamber sentences you, Drago Josipovic, to 10
years imprisonment for persecution as a crime against humanity; to 15 years
imprisonment for murder as a crime against humanity and to 10 years imprisonment for
inhumane acts as a crime against humanity. The Trial Chamber has determined that these
sentences are to be served concurrently. That means, Drago Josipovic, that you are
sentenced to a total of 15 years of imprisonment.
Vladimir Santic, together with Drago Josipovic, you are charged with persecution as a
crime against humanity pursuant to Article 5(h) of the Statute under count 1 of the
indictment.
The Trial Chamber finds that you, Vladimir Santic, were in April 1993 the commander
of the 1st company of the 4th battalion of the Military Police. You were also commander
of the Jokers. As I have said with respect to the accused Drago Josipovic, you
participated in the murder of Musafer Puscul and the burning of his house. In addition,
from your position as a company commander of the military police and commander of
the Jokers, it can be safely inferred that you passed on the orders of your superiors to
your men. Your presence on the scene of the attack also served as an encouragement for
your subordinates to abide by the orders they had received. The Trial Chamber finds that
the fact that you, Vladimir Santic, were in a position of command during the events in
question lends an even greater magnitude to your responsibility.
Accordingly, the Trial Chamber finds you, Vladimir Santic, GUILTY of persecution as a
crime against humanity pursuant to Article 5(h) of the Statute under count 1 of the
indictment.
Under counts 16-19, you were charged, together with Drago Josipovic, with murder and
inhumane acts. As I have explained before with respect to the accused Drago Josipovic,
these considerations also apply mutatis mutandis to you.
Accordingly, the Trial Chamber finds you, Vladimir Santic, GUILTY of murder and
inhumane acts as crimes against humanity pursuant to Article 5(a) and (i) of the Statute
For the same reasons mentioned before concerning cumulative charging, the Trial
Chamber, for reasons of law, finds you, Vladimir Santic, NOT GUILTY of violations of
41
the laws or customs of war (murder and cruel treatment under Article 3 of the Statute)
In the light of these findings, the Trial Chamber sentences you, Vladimir Santic, to 25
years imprisonment for persecution as a crime against humanity; to 15 years
imprisonment for murder as a crime against humanity and to 10 years imprisonment for
inhumane acts as a crime against humanity. The Trial Chamber has determined that these
sentences are to be served concurrently. That means, Vladimir Santic, that you are
sentenced to a total of 25 years of imprisonment.
Dragan Papic, you were charged under count 1 with persecution as a crime against
humanity under Article 5(h) of the Statute. The Trial Chamber finds that you were
mobilised in the HVO during some part of the period relevant to this indictment,
although your precise role is not clear. The Trial Chamber finds that none of the
Prosecution evidence is sufficient to establish that you were an active participant in the
attack on Ahmici on 16 April 1993 or in any of the events preceding this attack.
Thus, the Trial Chamber finds that there is reasonable doubt as to whether you
participated in the attack on Ahmici. Accordingly, the Trial Chamber finds you, Dragan
Papic, NOT GUILTY under count 1 of the indictment.
In the light of these findings, the Trial Chamber acquits you, Dragan Papic. You are
therefore to be released. This is, of course, unless the Prosecution is to advise us of its
intention to file a notice of appeal under Rules 99(B) and 108 and intends to make an
application for an order for the continued detention of Mr Papic.
42
In the Appeals Chamber of the International Court of Former Yugoslavia
Highlighting the Joint Separate Opinion of Judge Mcdonald and Judge Vohrah, October 7,
1997
Background of the Case:
Dražen Erdemović (born 25 November 1971) is an ethnic Bosnian Croat who fought
during the Bosnian War for the Army of Republika Srpska (VRS). According to him, Drazen
Erdemovic was a sergeant and as such was in command of a small unit. He was allegedly
demoted before committing the crimes with which he is charged. But no document clearly
establishes his military rank. The indictment, in which the accused pleaded guilty, describes him
as a soldier in the 10th Sabotage Unit. The Trial Chamber considers that Drazen Erdemovic,
described by the Prosecutor as a low-ranking member of the Bosnian Serb Army, did not hold a
position of authority at the time of the said crimes.
According to the public testimony of the investigator of the Prosecutor's office, the sites
of the massacres with which the accused is charged have been identified, thus corroborating the
accused's own statements. First, there is the Branjevo farm at Pilica where approximately 1,200
Muslims were executed by soldiers of the unit of which Drazen Erdemovic was a member, an
involvement to which he admitted. Then there is the public building in Pilica where, according to
the public testimony of the accused, approximately 500 Muslims were executed by members of
the 10th Sabotage Unit. As regards the acts with which Drazen Erdemovic is charged, the Trial
Chamber has reviewed them as they were set forth in the indictment and formally recognised by
the accused when he entered his plea of guilty and subsequently elaborated on at the hearing.
They will not be addressed in this summary. The Trial Chamber has endeavoured in particular to
address these acts from the angle of the gravity of the crime committed and the mitigating
circumstances invoked by the accused. In the sentencing procedure, that discussion will be the
prime support of the line of reasoning behind the sentence.
The Trial Chamber considers that the crime's extreme gravity has been demonstrated:
participation in the murder of 1,200 unarmed civilians over a five-hour period on 16 July 1995.
According to his many affirmations, Drazen Erdemovic is responsible for the murder of from ten
to 100 people. As regards mitigating circumstances, the Trial Chamber has distinguished two
categories: one, those which were contemporary with the perpetration of the criminal act, that is,
the mental incapacity of the accused, the urgent necessity he was allegedly in at the time he
committed those acts, as well as his low military rank; and two, those relating to the accused's
attitude after the commission of the acts, that is, the contrition he showed, his willingness to
surrender to the International Tribunal, and his co-operation with the Office of the Prosecutor.
43
Charged: crimes against humanity
Article 7: Crimes against humanity
1. For the purpose of this Statute, "crime against humanity" means any of the following acts
when committed as part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of

fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced

sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial,

national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are
universally recognized as impermissible under international law, in connection with any act
referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or
serious injury to body or to mental or physical health.
Trial
This Erdemović case was significant in the Tribunal as it was the first application of the defence
of duress, claiming that his life had been threatened and that he had no choice. It was found that
it did not absolve him of guilt, but could be a mitigating factor in sentencing. On 29 November
1996, Erdemović was sentenced to ten years in prison, convicted of murder as a crime against
humanity. This term of imprisonment was imposed by the Trial Chamber having regard to the
44
extreme gravity of the offence and to a number of mitigating circumstances.He was the first
person to enter a guilty plea at the Tribunal, He was the only member of the 10th Sabotage
Detachment to actually be tried for the war crimes, while the rest remained on the Tribunal's
most wanted list.
Erdemović appealed and his sentence.
The Trial Chamber took the view that the objective gravity of the crime was such that “there
exists in international law a standard according to which a crime against humanity is one of
extreme gravity demanding the most severe penalties when no mitigating circumstances are
present”. It also took into account the subjective gravity of the crime, which was underscored by
the Appellant’s significant role in the mass execution of 1,200 unarmed civilians during a five-
hour period, in particular, his responsibility for killing between 10 and 100 people . It is to be
noted that the Trial Chamber also took the view that no consideration could be given to any
aggravating circumstances when determining the sentence to be imposed for these crimes
because of the extreme gravity per se of crimes against humanity.
As regards the mitigating circumstances contemporaneous with the crime, that is the “state of
mental incompetence claimed by the Defence [and] the extreme necessity in which [the
Appellant] allegedly found himself when placed under duress by the order and threat from his
hierarchical superiors as well as his subordinate level within the military hierarchy”, the Trial
Chamber considered that these were insufficiently proven since the Appellant’s testimony in this
regard had not been corroborated by independent evidence . With regard to the mitigating
circumstances which followed the commission of the crime, the Trial Chamber took into account
the Appellant’s feelings of remorse, his desire to surrender to the International Tribunal, his
guilty plea, his cooperation with the Office of the Prosecutor, and “the fact that he now does not
constitute a danger and the corrigible character of his personality”. The Trial Chamber also
accepted, as mitigating factors, the Appellant’s young age, 23 years at the time of the crime, and
his low rank in the military hierarchy of the Bosnian Serb army2
Preliminary questions
The Appeals Chamber has raised preliminary issues proprio motu pursuant to its inherent powers
as an appellate body once seised of an appeal lodged by either party pursuant to Article 25 of the
Statute. The Appeals Chamber finds nothing in the Statute or the Rules, nor in practices of
international institutions or national judicial systems, which would confine its consideration of
the appeal to the issues raised formally by the parties. The preliminary issues revolve around the
question of the validity of the plea of guilty entered by the Appellant. This is a question to be
decided in limine. In pursuance of its proprio motu examination of the validity of the Appellant’s
45
guilty plea, the Appeals Chamber addressed three preliminary questions to the parties in a
Scheduling Order dated 5 May 1997:
(1) In law, may duress afford a complete defence to a charge of crimes against humanity and/or
war crimes such that, if the defence is proved at trial, the accused is entitled to an acquittal?
(2) If the answer to (1) is in the affirmative, was the guilty plea entered by the accused at his
initial appearance equivocal in that the accused, while pleading guilty, invoked duress?
(3) Was the acceptance of a guilty plea valid in view of the mental condition of the accused at
the time the plea was entered? If not, was this defect cured by statements made by the accused in
subsequent proceedings?
Reasons
The Appeals Chamber, for the reasons set out in the Joint Separate Opinion of Judge
McDonald and Judge Vohrah, unanimously finds that the Appellant’s plea was voluntary. For
the reasons set out in the Joint Separate Opinion of Judge McDonald and Judge Vohrah and in
the Separate and Dissenting Opinion of Judge Li, the majority of the Appeals Chamber finds that
duress does not afford a complete defence to a soldier charged with a crime against humanity
and/or a war crime involving the killing of innocent human beings. Consequently, the majority of
the Appeals Chamber finds that the guilty plea of the Appellant was not equivocal. Judge
Cassese and Judge Stephen dissent from this view for the reasons set out in their Separate and
Dissenting Opinions. However, the Appeals Chamber, for the reasons set out in the Joint
Separate Opinion of Judge McDonald and Judge Vohrah, finds that the guilty plea of the
Appellant was not informed and accordingly remits the case to a Trial Chamber other than the
one which sentenced the Appellant in order that he be given an opportunity to replead. Judge Li
dissents from this view for the reasons set out in his Separate and Dissenting Opinion.
Consequently, the Appellant’s application for the Appeals Chamber to revise his sentence is
rejected by the majority. The Appeals Chamber also unanimously rejects the Appellant’s
application for acquittal.
DISPOSITION THE APPEALS CHAMBER
(1) Unanimously REJECTS the Appellant’s application that the Appeals Chamber should acquit
him;
(2) By four votes (Judges Cassese, McDonald, Stephen and Vohrah) to one (Judge Li) REJECTS
the Appellant’s application that the Appeals Chamber should revise his sentence;
46
(3) By four votes (Judges Cassese, McDonald, Stephen and Vohrah) to one (Judge Li) FINDS
that the guilty plea entered by the Appellant before Trial Chamber I was not informed;
(4) By three votes (Judges McDonald, Li and Vohrah) to two (Judges Cassese and Stephen)
FINDS that duress does not afford a complete defence to a soldier charged with a crime against
humanity and/or a war crime involving the killing of innocent human beings and that,
consequently, the guilty plea entered by the Appellant before Trial Chamber I was not equivocal;
(5) By four votes (Judges Cassese, McDonald, Stephen and Vohrah) to one (Judge Li) HOLDS
that the case must be remitted to a Trial Chamber, other than the one which sentenced the
Appellant, so that the Appellant may have the opportunity to replead in full knowledge of the
nature of the charges and the consequences of his plea;
Discussion
Under the Statute and the Rules, the International Tribunal may sentence an accused who has
pleaded guilty or is found guilty, to imprisonment only, which may be up to for the remainder of
his life. In addition to the reference to the general practice regarding prison sentences in the
courts of the former Yugoslavia, which will be addressed below, the texts provide no indication
as to the term of imprisonment incurred for a crime against humanity. The Trial Chamber has
therefore identified the characteristics specific to such crimes and to the penalties attached
thereto under international as well as national law. As stated at Nuremberg and recalled by the
Security Council in its resolution establishing the International Tribunal, "crimes against
humanity" refer to inhumane acts of "extreme gravity". These crimes violate human beings in
what is most essential to them. They transcend the individual, since, through the assault on the
latter, humanity is negated. And, whether at Nuremberg, where the most severe sentences (going
as far as the death penalty) were pronounced and executed, or within the domestic legislation of
States that have introduced crimes against humanity therein, or within the relevant legislation of
the former Yugoslavia, the harshest penalties have been laid down for crimes against humanity.
It is the expression of a general principle of law recognised by all nations. As to recourse to the
general practice regarding prison sentences in the courts of the former Yugoslavia, as referred to
in the Statute, the Trial Chamber notes that crimes against humanity are not strictly speaking
found in the provisions of the Yugoslavian code, which provides for "genocide and war crimes
against the civilian population". The case-law of the courts of the former Yugoslavia is hardly
significant, in particular on account of the small number of judgements. Accordingly the Trial
Chamber considers that the general practice regarding prison sentences in the courts of the
former Yugoslavia is not binding on it. The Judges consider even that making recourse to that
practice the sole standard for determining the scale of penalties would, owing to the principle
nullum crimen nulla poena sine lege sometimes invoked, be tantamount to disregarding the
criminal character that is universally attached to crimes against humanity, as such crimes have
47
for a long time been part of the international legal order, and the harshest penalties attached to
them. Consequently, the Judges merely "consulted" that practice.
Joint Separate Opinion of Judge Mcdonald and Judge Vohrah, October 7, 1997
May duress afford a complete defence to a soldier charged with crimes against humanity or
war crimes, who is under the orders of his superior, where the soldier has killed innocent
persons?
Superior orders and duress are conceptually distinct and separate issues and often the
same factual circumstances engage both notions, particularly in armed conflict situations. We
subscribe to the view that obedience to superior orders does not amount to a defence per se but is
a factual element which may be taken into consideration in conjunction with other circumstances
of the case in assessing whether the defences of duress or mistake of fact are made out.
It is clear from the differing positions of the principal legal systems of the world that
there is no consistent concrete rule which answers the question whether or not duress is a defence
to the killing of innocent persons. It is not possible to reconcile the opposing positions and,
indeed, we do not believe that the issue should be reduced to a contest between common law and
civil law.
We would therefore approach this problem bearing in mind the specific context in which the
International Tribunal was established, the types of crimes over which it has jurisdiction, and the
fact that the International Tribunals mandate is expressed in the Statute as being in relation to
"serious violations of international humanitarian law".
We take the view that duress cannot afford a complete defence to a soldier charged with
crimes against humanity or war crimes in international law involving the taking of innocent
lives. We do so having regard to our mandated obligation under the Statute to ensure that
international humanitarian law, which is concerned with the protection of humankind, is not in
any way undermined.
48
PROSECUTOR VS. SERUSHAGO
BRIEF OVERVIEW
When Rwandan President Habyariamana was killed on 6 April 1994, it reignited ethnic tensions
in Rwanda between the Hutu and Tutsi populations, which had earlier in the same decade
culminated in a bloody civil war.
Omar Serushago was the de facto leader of the civilian Interahamwe militia, one of the primary
perpetrators of the crimes committed against Tutsis and moderate Hutus in the genocide of 1994.
In his official capacity, Serushago led a group of militiamen in raids against Tutsis seeking
refuge in parish churches, on commercial property, in bishop’s houses, and even those who were
detained in the Gendarmerie station jail. Tutsis would then be summarily executed, some
personally at the hands of Serushago. Having pleaded guilty to one count of genocide and three
counts of crimes against humanity (assassination, extermination and torture), Serushago was
sentenced to 15 years’ imprisonment by the Trial Chamber. By a decision of 14 February 2000,
the Appeals Chamber dismissed Serushago’s arguments that the sentence against him was
excessively long. The present decision contains the reasons of the Appeals Chamber for having
reached this conclusion.
FACTS:
THE TRIAL
The Accused, Omar Serushago, voluntarily surrendered himself to the Ivorian authorities in
Abidjan, Côte d’Ivoire on 9 June 1998. On 30 June 1998, he was transferred to the detention
facility of the International Criminal Tribunal for Rwanda in Arusha, Tanzania.
On 14 October 1998, the Prosecutor of the ICTR charged the Accused for one count of genocide
and four counts of crimes against humanity: assassination, extermination, torture and rape. On 14
December 1998, the Accused pleaded guilty to the first four charges and not guilty to the charge
of rape as a crime against humanity. The Prosecutor subsequently withdrew this charge.
On 5 February 1999, Trial Chamber of the four charges and sentenced him to 15 years’
imprisonment.
THE APPEAL
On 7 August 1999, Serushago appealed the sentence on the grounds that the Trial Chamber had
not taken sufficiently into account the mitigating circumstances of his case. On 14 February
2000, the Appeals Chamber dismissed the appeal and confirmed the sentence. The present
decision are the reasons for that judgment.
On 4 December 2000, Serushago filed a request for early release before the ICTR on the
grounds, inter alia, of his substantial and continuing cooperation with the Prosecutor, family
circumstances, voluntary surrender and guilty plea.
This decision by the President of the Tribunal on 12 May 2005 in light of the gravity of the crime
for which Serushago had been convicted and that the factors indicated by Serushago in his
49
application had already been taken into consideration by the Tribunal during sentencing as
mitigating circumstances.
LEGALLY RELEVANT FACTS
Following the death of Rwandan President Jabyarimana on 6 April 1994, violence broke out
between the Hutu and Tutsi ethnic populations in Rwanda. President Habyarimana having been a
Hutu, it was alleged that his plane was deliberately shot down, which triggered Hutu led
violence against Tutsis and moderate Hutus. A militia organization known as
the Interahamwe has been recognized as one of the primary perpetrators of these crimes (paras.
4-5).
The Appellant was a de facto leader of the Interahamwe and a prominent member of his local
prefecture in Gisenyi (paras. 16-17). In these capacities, the Appellant attended a number of
secret Hutu meetings (para. 18).
From April to July 1994, large numbers of Tutsis were killed in the Appellant’s home prefecture
of Ginsenyi and throughout Rwanda. The Appellant, as the leader of one of the groups
of Interahamwe, led militiamen who perpetrated repeated attacks against Tutsis, including those
refugees in hiding at a parish church at Nyundo, those having sought refuge at a bishop’s home
in Gisenyi, those in detention in the Gendarmerie station jail, and those seekin refuge on the
premises of a commercial enterprise called Rwandex. At these locations Tutsis were abducted
and summarily executed, including in four cases by the Appellant personally (para. 19).
ISSUES
 Did the Trial Chamber err in its appreciation of the weight of some mitigating circumstances,
namely, the Appellant’s co-operation with the Prosecutor, his voluntary surrender, his guilty
plea and public expression of remorse?
 Is the International Criminal Tribunal for Rwanda obligated to take into consideration the
sentencing practices of domestic Rwandan courts?
SPECIFIC LEGAL RULES AND PROVISIONS

 Articles 23(1) and 24 of the ICTR Statute.
 Rule 101(B)(iii) of the ICTR Rules of Procedure and Evidence.
RULING:
Under the Statute and the Rules of the Tribunal, a Trial Chamber is required as a matter of law to
take into account mitigating circumstances. However, the weight to be attributed to any
mitigating circumstance is a question of fact (para. 22). The Sentence pronounced by the Trial
Chamber demonstrates that the mitigating circumstances referred to by the Appellant were taken
into account in order to afford the Appellant some clemency (para. 24). The Trial Chamber’s
finding in this respect can only be overturned if the Appellant can demonstrate either that the
Chamber took into account what it ought not to have or failed to take into account what it should
have, and that this led to a miscarriage of justice (para. 23). This not being the case, the Appeals
Chamber dismissed this ground of appeal.
50
Pursuant to Article 23(1) of the Statute, the Trial Chamber shall have recourse to the general
sentencing practices of the Rwandan courts. This would include, arguendo, the Rwandan law of
30 August 1996, which provides for sentences between 7 and 11 years’ imprisonment in case of
certain crimes. However, the obligation to take this law into account does not oblige the Trial
Chamber to conform to its practice, merely to take account of it. This having been done by the
Trial Chamber, the second ground for appeal is dismissed (paras. 29-30).
The appeal was dismissed and the sentence of 15 years’ imprisonment affirmed (para. 34).
51
Prosecutor v. Kambanda, (TRIAL CHAMBER) Case No. ICTR 97-23-S, September 4,

1998
BACKGROUND of the CASE
Jean Kambanda was arrested by the Kenyan authorities, on the basis of a formal request
submitted to them by the Prosecutor on 9 July 1997, in accordance with the provisions of Rule
40 of the RuIes of Procedure and Evidence .On 16 July 1997, Judge Laily Kama, mailing on the
Prosecutor’s motion of 9 July 1997, ordered the transfer and provisional detention of the suspect
Jean Kambanda at the Detention Facility of the Tribunal for a period of thirty days, pursuant to
Rule 40 bis of the Rules. 2 On 16 October 1997, an indictment against the suspect Jean
Kambanda, prepared by the Office ofthe Prosecutor, was submitted to Judge Yakov Ostrovsky,
who confirmed it, issued a warrant of arrest against the accused and ordered bis continued
detention.
On 1 May 1998, during his initial appearance before this Trial Chamber, the accused pleaded
guilty to the six counts contained in the indictment, namely genocide, conspiracy to commit
genocide, direct and public incitement to commit genocide, complicity in genocide, crimes
against humanity (murder), punishable under Article 3 (a) of the Statute and crimes against
humanity (extermination), punishable under Article 3 (b) of the Statute.
After verifying the validity of his guilty plea, particularly in light of an agreement concluded
between the Prosecutor, on the one hand, and the accused and his lawyer, on the other, an
agreement which was signed by all the parties. The Chamber entered a plea of guilty against the
accused on ail the counts in the indictment. During a status conference held immediately after the
initial appearance, the date for the pre-sentencing hearing, provided for under Rule 100 of the
Rules, was set for 31 August 1998
Together with his ’guiIty’ plea, Jean Kambanda submitted to the Chamber a document entitled
"Plea Agreement between Jean Kambandand the OTP", signed by Jean Kambandand his defence
counsel, Oliver Michael Inglis, on 28 April 1998, in which Jean Kambanda makes full
admissions of all the relevant facts alleged in the indictment Jean Kambanda admits that there
was in Rwanda in 1994 a widespread and systematic attack against the civilian population of
Tutsi, the purpose of which was to exterminate them. Mass killings of hundreds of thousands of
Tutsi occurred in Rwanda, including women and children, old and young who were pursued and
killed at places where they had sought refuge i.e. prefectures, commune offices, schools,
churches and stadiums.
52
NATURE OF THE ARMED CONFLICTS

NON-INTERNATIONAL ARMED CONFLICT
RESPOSIBILITY
JEAN KAMBANDA as the Prime Minister was charged of the crimes of genocide, conspiracy to
commit genocide, direct and public incitement to commit genocide, crimes against humanity
(murder), punishable under Article 3 (a) of the Statute and crimes against humanity
(extermination), punishable under Article 3 (b) of the Statute.
CHARGES
 genocide,
 conspiracy to commit genocide,
 direct and public incitement to commit genocide,
 complicity in genocide,
 crimes against humanity (murder), punishable under Article 3 (a) of the Statute and
 crimes against humanity (extermination), punishable under Article 3 (b) of the Statute.
PLEA OF GUILT
Jean Kambanda pleaded guilty, pursuant to Rule 62 of the Rules, to all the six counts set
forth in the indictment against him. As stated earlier, the accused confirmed that he had
concluded an agreement with the Prosecutor, an agreement signed by his counsel and
himself and placed under seal, in which he admitted having committed all the acts
charged by the Prosecution. 6. The Chamber, nevertheless, sought to verify the validity of
the guilty plea. To this end, the Chamber asked the accused: (i) if his guilty plea was
entered voluntarily, in other words, if he did so freely and knowingly, without pressure,
threats, or promises; (ii) if he clearly understood the charges against him as well as the
consequences his guilty plea; and (iii) if his guilty plea was unequivocal, in other words,
if he was aware that the said plea could not be refuted by any line of defence. The
accused replied in the affirmative to all these questions.
1. Jean Kambanda acknowledges that he participated in meetings of the Council Ministers,

cabinet meetings and meetings of prefects where the course of massacres were actively
followed, but no action was taken to stop them. He was involved in the decision of the
government for visits by designated ministers to prefectures as part of the government’s
53
security efforts and in order to call on the civilian population to be vigilant in detecting
the enemy and its accomplices.
2. Jean Kambanda also acknowledges participation in the dismissal of the perfect of Butare
because the latter had opposed the massacres and the appointment of a new prefect to
ensure the spread of massacre of Tutsi in Butare. Jean Kambanda acknowledges his
participation in a high level security meeting at Gitarama in April 1994 between the
President, T. Sindikubwabo, himself and the Chief of Staff of the Rwandan Armed
Forces (FAR) and others, which discussed FAR’s support in the fight against the
Rwandan Patriotic Front (RPF) and its "accomplices’, understood to be the Tutsi and
Moderate Hutu Jean Kambanda acknowledges that he issued the Directive on Civil
Defeuce addressed to the prefets on 25 May 1994.
3. Jean Kambanda further admits that this directive encouraged and reinforced the
Interaharnwe who were committing mass killings of the Tutsi civilian population in the
prefectures.
4. Jean Kambanda further acknowledges that by this directive the Government assumed the
responsibility for the actions of the Interahamwel Jean Kambanda acknowledges that
before 6 April 1994, political parties concert with the Rwanda Armed Forces organized
and began the military training of the youth wings of the MRND and CDR political
parties with the intent to use them in the massacres that ensued.
5. Furthermore, Jean Kambanda acknowledges that the Govemment headed by him
distributed arms and ammunition to these groups. Additionally, Jean Kambanda confirms
that roadblocks manned by mixed patrols of the Rwandan Armed Forces and the
Interahamwe were set up in Kigali and elsewhere as soon as the death of President J.B.
Habyarimana was announced on the Radio.
6. Furthermore Jean Kambanda acknowledges the use ofthe media as part of the plan to
mobilize and incite the population to commit massacres of the civilian Tutsi population.
That apart, Jean Kambanda acknowledges the existence of groups within military, militia,
and political structures which had planned the elimination of the Tutsi and Hutu political
opponents.
7. Jean Kambanda acknowledges that, on or about 21 June 1994, in his capacity Prime
Minister, he gave clear support to Radio Television Libre des Mille Collines (RTLM),
with the knowledge that it was a radio station whose broadcasts incited killing, the
commission of serious bodily or mental harm to, and persecution of Tutsi and moderate
Hutu. On this occasion, speaking on this radio station, Jean Kambanda, as Prime
Minister, encouraged the RTLM to continue to incite the massacres of the Tutsi civilian
population, specifically stating that this radio station was "an indispensable weapon in the
fight against the enemy
8. Jean Kambanda acknowledges that following numerous meetings of the Council of
Ministers between 8 April 1994 and 17 July 1994, he as Prime Minister, instigated, aided
and abetted the Prefets, Bourgmestres, and members of the population to commit
54
massacres and killings of civilians, in particular Tutsi and moderate Hutu. Furthermore,
between 24 April 1994 and 17 July 1994, Jean Kambanda and Ministers of his
Government visited several prefectures, such as Butare, Gitarama (Nyabikenke),
Gikongoro, Gisenyi and Kibuye to incite and encourage the population to commit these
massacres including by congratulating the people who had committed these killings.
9. Jean Kambanda acknowledges that on 3 May 1994, he was personally asked take steps to
protect children who had survived the massacre at a hospital and he did hOt respond. On
the same day, after the meeting, the children were killed. He acknowledges that he failed
in his duty to ensure the safety of the children and the population of Rwanda.
10. Jean Kambanda admits that in his particular role of making public engagements in the
name of the government, he addressed public meetings, and the media, at various places
in Rwanda directly and publicly inciting the population to commit acts of violence
against Tutsi and moderate Hutu. He acknowledges uttering the incendiary phrase which
was subsequently repeatedly broadcast, "you refuse to give your blood to your country
and the dogs drink it for nothing
11. Jean Kambanda acknowledges that he ordered the setting up of roadblocks with the
knowledge that these roadblocks were used to identify Tutsi for elimination; and that as
Prime Minister he participated in the distribution of arms and ammunition to members of
political parties, militias and the population knowing that these weapons would be used in
the perpetration of massacres of civilian Tutsi.
12. Jean Kambanda acknowledges that he knew or should have known that persons for whom
he was responsible were committing crimes of massacre upon Tutsi and that he failed to
prevent them or punish the perpetrators. Jean Kambanda admits that he was an eye
witness to the massacres of Tutsi and also had knowledge of them from regular reports of
prefets, and cabinet discussions.
13. Jean Kambanda acknowledges that as Prime Minister of the Intefim Government of
Rwanda from 8 April 1994 to 17 July 1994, he was head of the 20 member Council of
Ministers and exercised de jure authority and control over the members of his
govemment. The govemment detained and controlled national policy and had the
administration and armed forces at its disposal. As Prime Minister, he also exercised de
jure and de facto authority over senior civil servants and senior officers in the military
LAWS and RELATED DOCTRINES
1. Article 22 of the Statute:

The Trial Chamber shall pronounce judgments and impose sentences and penalties on
persons convicted of serious violations of international humanitarian law
2. Rule 100 of the Rules:
55
Pre-sentencing procedure "If the accused pleads guilty or if a Trial Chamber finds the
accused guilty of a crime, the Prosecutor and the defence may submit any relevant
information that may assist the Trial Chamber in determining an appropriate sentence,
Penalties: The penalty imposed by the Trial Chamber shall be limited to imprisonment. In
determining the terms of imprisonment, the Trial Chamber shall gaie recourse to the
general practice regarding prison sentences in the courts of Rwanda.
In imposing the sentences, the Trial Chamber should take into account such factors as the
gravity of the offence and the individual circumstances of the convicted person.
In addition to imprisonment, the Trial Chamber may order the return of any property and
proceeds acquired by criminal conduct, including by means of duress, to their rightful
owners."
Penalties
(A) A person convicted by the Tribunal may be sentenced to imprisonment for term up to
and including the remainder of his life.
(B) In determining the sentence, the Trial Chamber shall take into account the factors
mentioned in Article 23 (2) ofthe Statute, as well as such factors
(i) any aggravating circumstances;
(ii) any mitigating circumstances including the substantial co-operation with the
Prosecutor by the convicted person before or after conviction;
(iii) the general practice regarding prison sentences in the courts of Rwanda;
(v) the extent to which any penalty imposed by a court of any State on the
convicted person for the same act has already been served, as referred to in
Article 9 (3) of the Statute.
(C) The Trial Chamber shall indicate whether multiple sentences shall be served
consecutively or concurrently.
(D) The sentence shall be pronounced in public and in the presence of the convicted
person, subject to Rule 102.
(E) Credit shall be given to the convicted person for the period, if any, during which the
convicted person was detained in custody pending his surrender to the Tribunal or
pending trial or appeal."

Enforcement of sentences imprisonment shall be served in Rwanda or any of the States
on a list of States which have indicated to the Security Council their willingness to accept
convicted person. Such imprisonment shall be in accordance with the applicable law of
the State concerned, subject to the supervision of the Tribunal."
56
Status of the convicted person

(A) The sentence shall begin to and from the day it is pronounced under Rule 101
(B)However, as soon as notice of appeal is given, the enforcement of the judgment shall
thereupon be stayed until the decision on the appeal has been delivered, the convicted
person meanwhile remaining in detention, as provided for in Rule 64.
(C) If, by a previous decision of the Trial Chamber, the convicted person has been
provisionally released, or is for any reason at liberty, and he is not present when the
judgment is pronounced, the Trial Chamber shall issue a warrant for his arrest. On arrest,
he shall be notified of the conviction and sentence, and the procedure provided in Rule
103 shalt be followed.
Place of imprisonment
(A) Imprisonment shall be served in Rwanda or any State designated by the Tribunal
from a list of States which have indicated their willingness to accept convicted persons
for the serving of sentences. Prior to a decision on the place of imprisonment, the
Chamber shall notify the Government of Rwanda.
(B) Transfer of the convicted person to that State shall be effected as soon as possible
after the time-limit for appeal has elapsed."
Pardon or commutation of sentences
"If, pursuant to the applicable law of the State in which the convicted person is
imprisoned, he or she is eligible for pardon or commutation of sentence, the State
concerned shall notify the International Tribunal for Rwanda accordingly. There shall
only be pardon or commutation of sentence if the President of the International Tribunal
for Rwanda, in consultation with the judges, so decides on the basis of the interests of
justice and the general principles of law."

Supervision of imprisonment
The sentences of imprisonment shall be served under the supervision of the Tribunal or a
body designated by it ."
DOCTRINES
IMPOSITION OF PENALTY
It is clear that the penalties imposed on accused persons found guilty by the Tribunal must be
directed, on the one hand, at retribution of the said accused, who must see their crimes punished,
and over and above that, on other hand, at deterrence, namely dissuading for good those who will
57
attempt in future to perpetrate such atrocities by showing them that the international community
was hot ready to tolerate the serious violations of international humanitarian law and human
rights.
GRAVITY
The Chamber recalls, however, that in the determination of sentences, it is required by Article 23
(2) of the Statute and Rule 101 (B) of the Rules to take into account a number factors including
the gravity of the offence, the individual circumstances of the accused, the existence of any
aggravating or mitigating circumstances, including the substantial co-operation by the accused
with the Prosecutor before or after his conviction. It is a matter, as it were, of individualizing the
penalty, for it is true that "among the joint perpetrators of an offence or among the persons guilty
of the same type of offence, there is only one common element: the target offence which they
committed with its inherent gravity. Apart from this common trait, there are, of necessity,
fundamental differences in their respective personalities and responsibilities : their age, their
background, their education, their intelligence, their mental structure"
AGGRAVATING
Regarding the aggravating circumstances, it will be noted that the gravity of crimes such as
genocide and crimes against humanity which are particularly revolting to the collective
conscience alone, is enough to merit lengthy elaboration. The Chamber will, however, come
back to it when weighing the aggravating factors against the mitigating factor or factors in favor
of the accused for the determination of the sentence.
INDIVIDUAL CIRCUMSTANCE
As far as the "individual circumstances of Jean Kambanda" are concerned, the individualization
of the sentence, as the expression itself seems to suggest, is not possible unless facts about his
"personality" are known, including his background, his behaviour before, during and after the
offence, his motives for the offence and demonstration of remorse thereafter.
MITIGATING
With regard to the mitigating circumstances, Article 6 (4) of the Statute states that 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
Tribunal determines that justice so requires. The problem should not arise in the instant case,
since the accused was the Prime Minister. For its part, Rule 101 (B) (ii) of the Rules, mentioned
earlier stipulates as mitigating circumstances " the substantial co-operation by the convicted
person with Prosecutor before or after the conviction." In this regard, when determining the
58
sentence for Jean Kambanda, the Chamber will have to assess the extent of the co-operation by
the accused referred to by the Prosecutor in the documents under seal entitled "Agreement on a
guilty plea.", signed by herself, the accused and his counsel.
Having said that; the Chamber should, nevertheless, stress that the principle must always remain
that the reduction of the penalty stemming from the application of mitigating circumstances must
not in any way diminish the gravity of the offence.
JUDGMENT/VERDICT
In light of the admissions made by Jean Kambanda in amplification of his plea of guilty, the
Trial Chamber, on 1st May 1998, accepted his plea and found him guilty on the following
counts:
(1) By his acts or omissions described in paragraphs 3.12 to 3.15, and 3.17 to 3.19 of the
indictment, Jean Kambanda is responsible for the killing of and the causing of serious bodily or
mental harm to members of the Tutsi population with intent to destroy, in whole or in part, an
ethnic or racial group, as such, and has thereby committed GENOCIDE, stipulated in Article
2(3)(a) of the Stature as a crime, and attributed to by virtue of Article 6(1 ) and 6(3), and
punishable in reference to Articles 22 and 23 of Statute of the Tribunal.
(2) By his acts or omissions described in paragraphs 3.8, 3.9, 3.13 to 3.15 and 3.19 of the
indictment, Jean Kambanda did conspire with others, including Ministers of his Govemment,
such as Pauline Nyiramasuhuko, Andre Ntagerura, Eliezer Niyitegeka and Edouard Karemera, to
kill and to cause serious bodily or mental harm to members of the Tutsi population, with intent
to destroy in whole or in part, an ethnic or racial group as such, and has thereby committed
CONSPIRACY TO COMMIT GENOCIDE, stipulated in Articles 2(3)(b) of the Statute as a
crime, and attributed to him by virtue Article 6(1) and punishable in reference to Articles 22 and
23 of the Stature of the Tribunal.
(3) By his acts or omissions described in paragraphs 3.12 to 3.14 and 3.19 of the indictment, Jean
Kambanda did directly and publicly incite to kill and to cause serious bodily or mental harm to
members of the Tutsi population, with intent to destroy, in whole or in part, an ethnic group as
such, and has thereby committed DIRECT AND PUBLIC INCITEMENT TO COMMIT
GENOCIDE, stipulated in Article 2(3)(c) of the Statute as a crime, and attributed to him by
virtue of Article 6(1) and 6(3),which is punishable reference to Articles 22 and 23 of the Stature
of the Tribunal.
(4) By his acts or omissions described in paragraphs 3.10, 3.12 to 3.15 and 3.17 to3.19 of the
indictment, which do not constitute the same acts relied on for counts 1,2 and 3 Jean Kambanda
was complicity in the killing and the causing of serious bodily or mental harm to members of the
Tutsi population, and thereby committed COMPLICITY IN GENOCIDE stipulated in Article
59
2(3)(e) of the Statute as a crime, and attributed to by virtue of Article 6(1) and 6(3), which is
punishable in reference to Articles 22 and of the Statute of the Tribunal.
(5) By his acts or omissions described in paragraphs 3.12 to 3.15 and 3.17 to 3.19 of the
indictment, Jean Kambanda is responsible for the murder of civilians, as part of a widespread or
systematic attack against a civilian population on ethnic or racial grounds, and has thereby
committed a CRIME AGAINST HUMANITY, stipulated in Article 3(a) of the Statute as a
crime, and attributed to him by virtue of Article 6(1) and 6(3), which is punishable in reference
to Articles 22 and 23 of the Statute of the Tribunal.
(6) By his acts or omissions described in paragraphs 3.12 to 3.15, and 3.17 to 3.19 of the
indictment, Jean Kambanda is responsible for the extermination of civilians, as part of a
widespread or systematic attack against a civilian population on ethnic or racial grounds, and bas
thereby committed a CRIME AGAINST HUMANITY, stipulated in Article 3(b) of the Statute
as a crime, and attributed to him by virtue of Article 6(1) 6(3), which is punishable in reference
to Articles 22 and 23 of the Stature of the Tribunal
60
PROSECUTOR V. BLASKIC
I. FACTS OF THE CASE
After the declaration of Bosnia-Herzegovina's independence on April 6, 1992, Croatia

recognized the Republic as an independent state. A common Croatian state was desired by the
Croatian people of Bosnia-Herzegovina, however, tensions continue to rise between Croatian
nationalists who disagreed on the issue of cohabitation with Muslims and the Muslims of Central
Bosnia.
The desire of the Muslims to have a defence led to the formation of the Bosnian
Territorial Defence (the TO) on April 9, 1992. This was later outlawed in HZHB territory by the
then president, Mate Boban. Following this, the Croatian general, Anto Roso, confirmed this as
an order on May 8 and 11, 1992. Tihomir Blaskic, a colonel at that time, implemented that order
and pronounced the TO unlawful in the territory of the Kiseljack municipality. He was later
appointed commander of the Central Bosnian Operative Zone (the CBOZ) in the midst of the
Lasva Valley Conflict.
The situation deteriorated in the days of the Lasva Valley Conflict, which became the
theatre of many crimes – civilians were killed or wounded, houses set alight, minarets brought
down, mosques destroyed, women and children separated from the men and left with no choice
but to flee, women raped and men imprisoned, beaten and led off to the front to dig trenches.
Everywhere, the same or virtually the same scenario was played out – an artillery attack
sometimes with home-made weapons ("babies") was launched with complete disregard for the
consequences and followed up by an infantry attack. It mattered little whether the objective had,
at least in part, some military interest. It was sufficient to do such as to make it impossible for the
Muslims to live there once the Croats had conquered the ground. This was true to such an extent
that undefended villages which were not military targets were destroyed.
II. NATURE OF THE ARMED CONFLICT
International Armed Conflict

61
An armed conflict which erupts in the territory of a single State and which is thus at
first sight internal may be deemed international where the troops of another State intervene in the
conflict or even where some participants in the internal armed conflict act on behalf of
this other State. The intervention of a foreign State may be proved factually. Analysing this
second hypothesis is more complex. In this instance, the legal criteria allowing armed forces
to be linked to a foreign power must be determined. This link confers an international nature
upon an armed conflict which initially appears internal.
A. Factual Circumstances showing IAC:
The Republic of Croatia did not content itself merely with remaining a spectator on the
sidelines or even seek simply to protect its borders. It intervened in the conflict pitting the
Muslims and Croats of central Bosnia against each other. It likewise exercised total control
over the Croatian Community of Herceg-Bosna and the HVO and exercised general control
over the Croatian political and military authorities in central Bosnia.
III. RESPONSIBILITY OF THE ACCUSED
The indictment brought by the Prosecutor groups the facts imputed to General Tihomir
Blaskic into six distinct categories. The accused was charged with the following crimes pursuant
to Second amended indictment in Case no. ITR-95-14-PT:
a) Persecution
Under count 1, Tihomir Blaskic is accused of a crime against humanity for
persecution of the Muslim civilian population of Bosnia throughout the municipalities of

62
Vitez, Busova~a, Kiseljak and Zenica on political, racial or religious grounds from
May 1992 to January 1994. The persecution was allegedly implemented through a
widespread, large-scale and systematic attack upon towns, villages and hamlets inhabited by
Bosnian Muslims. During and after the attack, Bosnian Muslim civilians were allegedly
murdered and subjected to serious bodily harm whilst dwellings, buildings, private
property, livestock and businesses belonging to Bosnian Muslims as well as their institutions
dedicated to religion or education were all allegedly plundered and wilfully destroyed.
Furthermore, the Prosecutor alleged that hundreds of Bosnian Muslim civilians were
systematically arrested, interned, treated inhumanly, intimidated and coerced to leave their
homes or forcibly transferred by the HVO to zones outside the municipalities of Vitez,
Busova~a and Kiseljak. The forcible transfer of civilians was allegedly described “by HVO
representatives as a voluntary or humanitarian transfer of civilians […]”. The persecutions
allegedly resulted in a considerable reduction of the Bosnian Muslim civilian population
within the three municipalities.
b) Unlawful attacks upon civilians and civilian objects
Under counts 2 to 4, Tihomir Blaskic was accused of three violations of the laws or
customs of war for the unlawful attacks upon civilians and civilian objects and for the
destruction, not justified by military necessity, which were allegedly perpetrated in the towns and
villages of Ahmi}i, Nadioci, Piri}i, [anti}i, O~ehni}i, Vitez, Stari Vitez, Rotilj
and Zenica.
c) Willful killing and serious bodily injury

63
Under counts 5 to 10, Tihomir Blaskic was prosecuted for wilful killing and serious
physical and mental injury to civilians, allegedly committed from January 1993 to
January 1994 in the municipalities of Vitez, Busova~a, Kiseljak and Zenica. The crimes
thus alleged were prosecuted as two serious breaches of the Geneva Conventions, two
violations of the laws or customs of war and two crimes against humanity.
d) Destruction and plunder of property
Under counts 11 to 13, Tihomir Blaskic was accused of a serious breach of the
Geneva Conventions32 and two violations of the laws or customs of war for the large-scale
plunder and destruction of Bosnian Muslim dwellings, buildings, businesses, private
property and livestock between January 1993 and September 1993, and more specifically in
Ahmi}i, Nadioci, Piri}i, [anti}i, O~ehni}i, Vitez, Stari Vitez, Donja Ve~eriska, Ga~ice,
Lon~ari, Behri}i, Svinjarevo, Gomionica, Gromiljak, Polje Vi{njica, Vi{njica and Rotilj in
April 1993, in Tulica and Han Plo~a/Grahovci in June 1993, again in Stari Vitez in
August 1993 and in Grbavica in September 1993.
e) Destruction of institutions dedicated to religion or education
Under count 14, Tihomir Blaskic was accused of a violation of the laws or customs
of war for the destruction or wilful damage done to Bosnian Muslim institutions dedicated
to religion or education between August 1992 and June 1993 – in Duhri in August 1992,
Busova~a, Stari Vitez and Svinjarevo in 1993, Ahmi}i, Kiseljak, Gromiljak and Kazagi}i in
April 1993, Hercezi, Han Plo~a and Tulica in June 1993 and Vi{njica in September 1993.
64
f) Inhumane treatment, taking of hostages and use of human shields
Counts 15 to 20 concern the cruel and inhumane treatment inflicted from
January 1993 to January 1994 on Bosnian Muslims detained at facilities controlled by the
HVO37, the taking of Bosnian Muslim civilians as hostages between January 1993 and
January 1994 to obtain prisoner exchanges and the cessation of Bosnian military operations
against the HVO and, lastly, the use of Bosnian Muslim civilians between January 1993
and April 1993 as human shields to protect the HVO positions. In this respect, the
Prosecutor charged the accused with three grave breaches of the Geneva Conventions and
three violations of the laws or customs of war.
Blaskic is also charged with individual responsibility under Article 7(1) and 7(3) of the Statute of
the Tribunal.
IV. VERDICT
The Trial Chamber, in a unanimous ruling of its members, FINDS Tihomir Blaskic GUILTY:
Of having ordered a crime against humanity, namely persecutions against the Muslim
civilians of Bosnia, in the municipalities of Vitez, Busova~a and Kiseljak and, in particular, in
the towns and villages of Ahmi}i, Nadioci, Piri}i, [anti}i, O~ehni}i, Vitez, Stari Vitez, Donja
Ve~eriska, Ga~ice, Lon~ari, Grbavica, Behri}i, Kazagi}i, Svinjarevo, Gomionica, Gromiljak,
Polje Vi{njica, Vi{njica, Rotilj, Hercezi, Tulica and Han Plo~a/Grahovci between 1 May 1992
and 31 January 1994 (count 1) for the following acts:
-attacks on towns and villages;

65
- murder and serious bodily injury;
- the destruction and plunder of property and, in particular, of institutions dedicated to
religion or education;
- inhuman or cruel treatment of civilians and, in particular, their being taken hostage
and used as human shields;
- the forcible transfer of civilians;
and by these same acts, in particular, as regards an international armed conflict, General
Blaskic committed:
- a violation of the laws or customs of war under Article 3 of the Statute and
recognised by Article 51(2) of Additional Protocol I: unlawful attacks on civilians
(count 3);
- a violation of the laws or customs of war under Article 3 of the Statute and recognised
by Article 52(1) of Additional Protocol I: unlawful attacks on civilian objects (count 4);
 a grave breach, under Article 2(a) of the Statute: wilful killing (count 5);
 a violation of the laws or customs of war under Article 3 and recognised by Article
3(1) (a) of the Geneva Conventions: murder (count 6);
 a crime against humanity, under Article 5(a) of the Statute: murder (count 7);
 a grave breach under Article 2(c) of the Statute: wilfully causing great suffering or
serious injury to body or health (count 8);
- a violation of the laws or customs of war under Article 3 and recognised by Article
3(1)(a) of the Geneva Conventions: violence to life and person (count 9);
66
- a crime against humanity under Article 5(i) of the Statute: inhumane acts (count 10);
- a grave breach under Article 2(d) of the Statute: extensive destruction of property
(count 11);
 a violation of the laws or customs of war under Article 3(b) of the Statute:
 devastation not justified by military necessity (count 12);
- a violation of the laws or customs of war under Article 3(e) of the Statute: plunder of
public or private property (count 13);
- a violation of the laws or customs of war under Article 3(d) of the Statute: destruction
or willful damage done to institutions dedicated to religion or education (count 14);
 a grave breach under Article 2(b) of the Statute: inhuman treatment (count 15);
- a violation of the laws or customs of war under Article 3 of the Statute and
recognised by Article 3(1)(a) of the Geneva Conventions: cruel treatment (count 16);
a grave breach under Article 2(h) of the Statute: taking civilians as hostages (count17);
 a violation of the laws or customs of war under Article 3 of the Statute and recognised
by Article 3(1)(b) of the Geneva Conventions: taking of hostages (count18);
 a grave breach, under Article 2(b) of the Statute: inhuman treatment (count 19);
67
 a violation of the laws or customs of war under Article 3 of the Statute and recognised
by Article 3(1)(a) of the Geneva Conventions: cruel treatment (count 20),
In any event, as a commander, he failed to take the necessary and reasonable measures which
would have allowed these crimes to be prevented or the perpetrators thereof to be punished, and
NOT GUILTY of counts 3 and 4 in relation to the shelling of the town of Zenica.
68
Prosecutor v. Akayesu, Case No. ICTR-96-4, Judgment (Sept. 2, 1998)
INTRODUCTION
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.
NATURE OF ARMED CONFLICT
CRIMES AGAINST HUMANITY

(GENOCIDE)
VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS
BACKGROUND
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.
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
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.
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
69
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.
FACTS OF THE CASE
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 toJean 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
70
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.
71
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.
CHARGES
Jean Paul AKAYESU is criminally responsible for:
COUNT 1: GENOCIDE, punishable by Article 2(3)(a) of the Statute of the Tribunal;
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.
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.
JUDGMENT
The Chamber finds firstly that the acts described supra are indeed acts as enumerated in Article 2
(2) of the Statute, which constitute the factual elements of the crime of genocide, namely the
killings of Tutsi or the serious bodily and mental harm inflicted on the Tutsi. The Chamber is
further satisfied beyond reasonable doubt that these various acts were committed by Akayesu
with the specific intent to destroy the Tutsi group, as such. Consequently, the Chamber is of the
72
opinion that the acts alleged in paragraphs 12, 12A, 12B, 16, 18, 19, 20, 22 and 23 of the
Indictment and proven above, constitute the crime of genocide, but not the crime of complicity;
hence, the Chamber finds Akayesu individually criminally responsible for genocide.
COUNT 2: Complicity in GENOCIDE, punishable by Article 2(3)(e) of the Statute of the

Tribunal; and
JUDGMENT
In its findings on the applicable law, the Chamber indicated that, in its opinion, the crime of
genocide and that of complicity in genocide were two distinct crimes, and that the same person
could certainly not be both the principal perpetrator of, and accomplice to, the same offence.
Given that genocide and complicity in genocide are mutually exclusive by definition, the accused
cannot obviously be found guilty of both these crimes for the same act. However, since the
Prosecutor has charged the accused with both genocide and complicity in genocide for each of
the alleged acts, the Chamber deems it necessary, in the instant case, to rule on counts 1 and 2
simultaneously, so as to determine, as far as each proven fact is concerned, whether it constituted
genocide or complicity in genocide.
COUNT 3: CRIMES AGAINST HUMANITY (extermination), punishable by Article 3(b) of

the Statute of the Tribunal.
Article 3 provides, 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.

73
JUDGMENT
Therefore the Chamber finds, beyond a reasonable doubt that the killing of the eight
refugees as well as Simon Mutijima, Thaddée Uwanyiligra, Jean Chrysostome, Samuel,
Tharcisse, Theogene, Phoebe Uwineze and her fiancé, constitute extermination
committed, as part of a widespread or systematic attack on the civilian population on
ethnic grounds and as such constitutes a crime against humanity. Accordingly, the
Chamber finds beyond a reasonable doubt that the Accused is guilty as charged in count
3 of the indictment.
______________________________________________________________________________
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.
JUDGMENT
The Chamber is satisfied beyond a reasonable doubt that, by the above-mentioned speeches
made in public and in a public place, Akayesu had the intent to directly create a particular state
of mind in his audience necessary to lead to the destruction of the Tutsi group, as such.
Accordingly, the Chamber finds that the said acts constitute the crime of direct and public
incitement to commit genocide, as defined above.
675. In addition, the Chamber finds that the direct and public incitement to commit genocide as
engaged in by Akayesu, was indeed successful and did lead to the destruction of a great number
of Tutsi in the commune of Taba.
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
JUDGMENT
The Chamber finds beyond a reasonable doubt that the killing of Simon Mutijima,
Thaddée Uwanyiligra and Jean Chrysostome constitutes murder committed, as part of a
widespread or systematic attack on the civilian population on ethnic grounds and as such
74
constitutes a crime against humanity. Accordingly, the Chamber finds beyond a

reasonable doubt that the Accused is guilty as charged in count 5 of the indictment.
COUNT 6: VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA

CONVENTIONS, as incorporated by Article 4(a)(murder) of the Statute of the Tribunal.
(Article 4) Violations of Article 3 common to the Geneva Conventions and of Additional

Protocol II
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.
JUDGMENT (***)
The Chamber finds that it has not been proved beyond reasonable doubt that the acts perpetrated
by Akayesu in the commune of Taba at the time of the events alleged in the Indictment were
committed in conjunction with the armed conflict. The Chamber further finds that it has not been
proved beyond reasonable doubt that Akayesu was a member of the armed forces, or that he was
legitimately mandated and expected, as a public official or agent or person otherwise holding
public authority orde facto representing the Government, to support or fulfil the war efforts.
The Tribunal therefore finds that Jean-Paul Akayesu did not incur individual criminal
responsibility under counts 6, 8, 10, 12 & 15 of the Indictment.
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:
75

Statute of the Tribunal
JUDGMENT
The Chamber finds beyond a reasonable doubt that the killing of these eight refugees constitutes
murder committed, as part of a widespread or systematic attack on the civilian population on
ethnic grounds and as such constitutes a crime against humanity. Accordingly, the Chamber
finds beyond a reasonable doubt that the Accused is guilty as charged in count 7 of the
indictment.

JUDGMENT (***)
(See JUDGMENT (***) under Count 6)
_____________________________________________________________________
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:

JUDGMENT
The Chamber finds beyond a reasonable doubt that there was a widespread and systematic attack
against the civilian population in Rwanda on 19 April 1994 and the conduct of the Accused
formed part of this attack.
The Chamber finds, beyond a reasonable doubt that the killing of these five people constitute
murder committed, as part of a widespread or systematic attack on the civilian population on
ethnic grounds and as such constitutes a crime against humanity. Accordingly, the Chamber
finds beyond a reasonable doubt that the Accused is guilty as charged in count 9 of the
indictment.

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.
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JUDGMENT (***)
___________________________________________________________________________
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
JUDGMENT
The Tribunal finds the Accused criminally responsible on Count 11 under Article 6(1) of its
Statute for implicitly ordering, as well as instigating, aiding and abetting, the following acts of
torture, which were committed in his presence by men acting on his behalf, as crimes against
humanity under Article 3(a) of its Statute:
(i) the beating of Victim Y outside of her house by Mugenzi on 20 April 1994;
(ii) the beating of Victim Y, under interrogation, by Mugenzi, at a mine at Buguli on 20 April
1994;
(iii) the beating of Victim Z, under interrogation, by Mugenzi and Francois, in Gishyeshye
Sector on 20 April 1994;
(iv) the forcing of Victim Z to beat Victim Y, under interrogation, by Francois, in Gishyeshye
Sector on 20 April 1994.

CONVENTIONS, as incorporated by Article 4(a)(cruel treatment) of the Statute of the Tribunal.
(Article 6) Individual Criminal Responsibility, provides:
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.
77
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.
JUDGMENT(***)
_____________________________________________________________________
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
JUDGMENT
The Accused is judged criminally responsible under Article 3(g) of the Statute for the following
incidents of rape:
(i) the rape of Witness JJ by an Interahamwe who took her from outside the bureau communal
and raped her in a nearby forest;
(ii) the multiple acts of rape of fifteen girls and women, including Witness JJ, by numerous
Interahamwe in the cultural center of the bureau communal;
(iii) the multiple acts of rape of ten girls and women, including Witness JJ, by numerous
Interahamwe in the cultural center of the bureau communal;
(iv) the rape of Witness OO by an Interahamwe named Antoine in a field near the bureau
communal;
(v) the rape of a woman by Interahamwe in between two buildings of the bureau communal,
witnessed by Witness NN;
(vi) the rape of the younger sister of Witness NN by an Interahamwe at the bureau communal;
(vii) the multiple rapes of Alexia, wife of Ntereye, and her two nieces Louise and Nishimwe by
Interahamwe near the bureau communal.
COUNT 14: CRIMES AGAINST HUMANITY, ( other inhumane acts), punishable by Article
3(i) of the Statute of the Tribunal; and
JUDGMENT
The Accused is judged criminally responsible under Article 3(i) of the Statute for the following
other inhumane acts:
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(i) the forced undressing of the wife of Tharcisse outside the bureau communal, after making her
sit in the mud, as witnessed by Witness KK;
(ii) the forced undressing and public marching of Chantal naked at the bureau communal;
(iii) the forced undressing of Alexia, wife of Ntereye, and her two nieces Louise and Nishimwe,
and the forcing of the women to perform exercises naked in public near the bureau communal.

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.
JUDGMENT (***)
VERDICT
THE CHAMBER unanimously finds as follows:
Count 2: Not guilty of Complicity in Genocide
Count 3: Guilty of Crime against Humanity (Extermination)
Count 5: Guilty of Crime against Humanity (Murder)
Count 6: Not guilty of Violation of Article 3 common to the Geneva Conventions (Murder)
Count 11: Guilty of Crime against Humanity (Torture)
Count 12: Not guilty of Violation of Article 3 common to the Geneva Conventions (Cruel
Treatment)
Count 13: Guilty of Crime against Humanity (Rape)

79
Count 14: Guilty of Crime against Humanity (Other Inhumane Acts)
Count 15: Not guilty of Violation of Article 3 common to the Geneva Conventions and of Article
4(2)(e) of Additional Protocol II (Outrage upon personal dignity, in particular Rape, Degrading
and Humiliating Treatment and Indecent Assault)
80
PROSECUTOR v. KRSTIC
FACTS: From 1945 until 1990, Yugoslavia was composed of six Republics – Bosnia and
Herzegovina (Bosnia), Croatia, Macedonia, Montenegro, Serbia and Slovenia. Certain Republics
were populated predominantly by one ethnic group only. Bosnia was the most multi-ethnic of all
the Republics, with a population of 44% Muslim, 31% Serb, and 17% Croat.
Srebrenica is a town nestled in a valley in eastern Bosnia, about fifteen kilometers from the
Serbian border. The said town is predominated by Bosnian Muslims. For the Bosnian Serbs,
control of this region was necessary in order to achieve their minimum goal of forming a
political entity in Bosnia. This triggered the conflict between Bosnian Serb and Bosnian Muslims
in Srebrenica.
General Krstic was the Corps Commander of the Drina Corps, which was formed specifically for
the purpose of pursuing Bosnian Serb territorial goals. In relation to their goal to gain control
over Srebrenica, thousands of Bosnian Muslim men in the said town were killed by Bosnian Serb
forces during the “1995 Massacre in Srebrenica.” The killings were carried out within the zone
of responsibility of the Drina Corps. Furthermore, Drina Corps resources were utilized to assist
with the executions of the said Bosnian Muslims. By virtue of his position, General Krstic was
allegedly knowledgeable and responsible for the killings.
General Krstic has been charged by the Prosecution with genocide under Article 4, also with
murder under Article 5 (a), extermination under Article 5 (b), murder under Article 3 and
persecutions under Article 5 (h). The Prosecution also charges General Krstic of persecutions
under Article 5 (h) and deportation under Article 5 (d) (or, in the alternative, other inhumane acts
in the form of forcible transfer under Article 5 (i)).
Charges were filed before the International Criminal Tribunal for the former Yugoslavia.
ISSUE: W/N General Krstic was criminally responsible, under the tenets of international law,
for his participation in the massive execution of the Bosnian Muslims as charged.
RULING: Among all the charges, General Krstic was only found guilty of:
 genocide;
 persecutions; and
 murder
Cumulative Convictions
Cumulative convictions are permissible to punish the same criminal conduct if the following two
prong test is met:
81
[… M]ultiple criminal convictions entered under different statutory provisions but based
on the same conduct are permissible only if each statutory provision involved has a
materially distinct element not contained in the other. An element is materially distinct
from another if it requires proof of a fact not required by the other.
It is further stated that:
[…] the Chamber must decide in relation to which offence it will enter a conviction. This
should be done on the basis of the principle that the conviction under the more specific
provision should be upheld. Thus, if a set of facts is regulated by two provisions, one of
which contains an additional materially distinct element, then a conviction should be
entered only under that provision.
Hence, the Trial Chamber finds that, in respect of the conduct attributed to General Krstic, the
permissible convictions are: persecutions (Article 5), murder (Article 3) and genocide.
Murder, Persecutions and Genocide
Murder has consistently been defined by the ICTY and the ICTR as the death of the victim
resulting from an act or omission of the accused committed with the intention to kill or to cause
serious bodily harm which he/she should reasonably have known might lead to death.
In this case, it is undisputed that thousands of Bosnian Muslims, residing or taking refuge in
Srebrenica, were murdered and, in particular, that varying size groups of men were summarily
executed on several sites within the jurisdiction of the Drina Corps.
The crime of persecutions has been defined, in the Kupre{ki} Judgement, as “the gross or
blatant denial, on discriminatory grounds, of a fundamental right, laid down in international
customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article
5”.
The Tribunal’s case-law has specified that persecutory acts are not limited to those acts
enumerated in other sub-clauses of Article 5 or elsewhere in the Statute, but also include the
denial of other fundamental human rights, provided they are of equal gravity or severity.
Furthermore, the Tribunal’s case-law emphasizes that “discriminatory acts charged as
persecution must not be considered in isolation, but in context, by looking at their cumulative
effect. Although individual acts may not be inhumane, their overall consequences must offend
humanity in such a way that they may be termed ‘inhumane’.
82
The Trial Chamber has previously determined that a widespread and systematic attack was
launched against the Bosnian Muslim population of Srebrenica from 11 July onwards, by reason
of their belonging to the Bosnian Muslim group.
The humanitarian crisis in Poto~ari, the burning of homes in Srebrenica and Poto~ari, the
terrorisation of Bosnian Muslim civilians, the murder of thousands of Bosnian Muslim civilians,
in Poto~ari or in carefully orchestrated mass scale executions, and the forcible transfer of the
women, children and elderly out of the territory controlled by the Bosnian Serbs, constitute
persecutory acts.
Article 4(2) of the Statute defines genocide as:
“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.
Article 4 of the Statute characterises genocide by two constitutive elements:
 the actus reus of the offence, which consists of one or several of the acts enumerated
under Article 4(2);
 the mens rea of the offence, which is described as the intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as such.
1. Actus reus
It has been established beyond all reasonable doubt that Bosnian Muslim men residing in
the enclave were murdered, in mass executions or individually. It has also been
established that serious bodily or mental harm was done to the few individuals who
survived the mass executions.
2. Mens rea
83
The critical determination still to be made is whether the offences were committed with
the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as
such.
The Trial Chamber is ultimately satisfied that murders and infliction of serious bodily or
mental harm were committed with the intent to kill all the Bosnian Muslim men of
military age at Srebrenica.
Evidence shows that a decision was taken, at some point, to capture and kill all the
Bosnian Muslim men indiscriminately. No effort thereafter was made to distinguish the
soldiers from the civilians.
The evidence shows that they sought to kill all the Bosnian Muslim military aged men in
Srebrenica, regardless of their civilian or military status.
The Prosecution contends that evidence demonstrates an intent to destroy part of a group as such,
which is consonant with the definition of genocide. Conversely, the Defence maintains that the
intent to kill all the Bosnian Muslim men of military age living in Srebrenica cannot be
interpreted as an intent to destroy in whole or in part a group as such within the meaning of
Article 4 of the Statute.
The Chamber emphasizes the need to distinguish between the individual intent of the accused
and the intent involved in the conception and commission of the crime. Although the motive of
each participant may differ, the objective of the criminal enterprise remains the same. In such
cases of joint participation, the intent to destroy, in whole or in part, a group as such must be
discernible in the criminal act itself, apart from the intent of particular perpetrators. It is then
necessary to establish whether the accused being prosecuted for genocide shared the intention
that a genocide be carried out.
Genocide refers to any criminal enterprise seeking to destroy, in whole or in part, a particular
kind of human group, as such, by certain means. Those are two elements of the special intent
requirement of genocide:
 the act or acts must target a national, ethnical, racial or religious group;
 the act or acts must seek to destroy all or part of that group.
(a) A group, as such
United Nations General Assembly resolution 96 (I) defined genocide as “a denial of the
right of existence of entire human groups”. On the same issue, the Secretariat explained:
84
The victim of the crime of genocide is a human group. It is not a greater or

smaller number of individuals who are affected for a particular reason but a group
as such.
In 1951, following the adoption of the Genocide Convention, the International Court of
Justice observed that the Convention looked “to safeguard the very existence of certain
human groups and… to confirm and endorse the most elementary principles of
morality”.1223 The ILC also insisted on this point in 1996:
The group itself is the ultimate target or intended victim of this type of massive
criminal conduct. [...] the intention must be to destroy the group ‘as such’,
meaning as a separate and distinct entity.
The Convention thus seeks to protect the right to life of human groups, as such. This
characteristic makes genocide an exceptionally grave crime and distinguishes it from
other serious crimes, in particular persecution, where the perpetrator selects his victims
because of their membership in a specific community but does not necessarily seek to
destroy the community as such.
However, the Genocide Convention does not protect all types of human groups. Its
application is confined to national, ethnical, racial or religious groups.
Originally viewed as a religious group, the Bosnian Muslims were recognized as a

“nation” by the Yugoslav Constitution of 1963. The evidence tendered at trial also shows
very clearly that the highest Bosnian Serb political authorities and the Bosnian Serb
forces operating in Srebrenica viewed the Bosnian Muslims as a specific national group.
Conversely, no national, ethnical, racial or religious characteristic makes it possible to
differentiate the Bosnian Muslims residing in Srebrenica, at the time of the 1995
offensive, from the other Bosnian Muslims. The only distinctive criterion would be their
geographical location, not a criterion contemplated by the Convention. In addition, it is
doubtful that the Bosnian Muslims residing in the enclave at the time of the offensive
considered themselves a distinct national, ethnical, racial or religious group among the
Bosnian Muslims. Indeed, most of the Bosnian Muslims residing in Srebrenica at the
time of the attack were not originally from Srebrenica but from all around the central
Podrinje region. Evidence shows that they rather viewed themselves as members of the
Bosnian Muslim group.
The Chamber concludes that the protected group, within the meaning of Article 4 of the
Statute, must be defined, in the present case, as the Bosnian Muslims. The Bosnian
Muslims of Srebrenica or the Bosnian Muslims of Eastern Bosnia constitute a part of the
protected group under Article 4.
85
The humanitarian crisis caused by the flow of refugees arriving at Poto~ari, the intensity
and the scale of the violence, the illegal confinement of the men in one area, while the
women and children were forcibly transferred out of the Bosnian Serb held territory, and
the subsequent death of thousands of Bosnian Muslim civilian and military men, most of
whom clearly did not die in combat, demonstrate that a purposeful decision was taken by
the Bosnian Serb forces to target the Bosnian Muslim population in Srebrenica, by reason
of their membership in the Bosnian Muslim group.
(b) Intent to destroy the group in whole or in part
i. Intent to destroy
Evidence presented in this case has shown that the killings were planned: the
number and nature of the forces involved, the standardized coded language used
by the units in communicating information about the killings, the scale of the
executions, the invariability of the killing methods applied, indicate that a
decision was made to kill all the Bosnian Muslim military aged men.
The manner in which the destruction of a group may be implemented so as to

qualify as a genocide under Article 4 must also be discussed. The physical
destruction of a group is the most obvious method, but one may also conceive of
destroying a group through purposeful eradication of its culture and identity
resulting in the eventual extinction of the group as an entity distinct from the
remainder of the community.
Several recent declarations and decisions, however, have interpreted the intent to
destroy clause in Article 4 so as to encompass evidence relating to acts that
involved cultural and other non physical forms of group destruction. Hence, an
enterprise attacking only the cultural or sociological characteristics of a human
group in order to annihilate these elements which give to that group its own
identity distinct from the rest of the community would not fall under the definition
of genocide. The Trial Chamber however points out that where there is physical
or biological destruction there are often simultaneous attacks on the cultural and
religious property and symbols of the targeted group as well, attacks which may
legitimately be considered as evidence of an intent to physically destroy the
group. In this case, the Trial Chamber will thus take into account as evidence of
intent to destroy the group the deliberate destruction of mosques and houses
belonging to members of the group.
ii. “In part”
Under the Convention, the term ''in whole or in part'' refers to the intent, as
opposed to the actual destruction. The Trial Chamber concludes that any act
86
committed with the intent to destroy a part of a group, as such, constitutes an act
of genocide within the meaning of the Convention.
Individual Criminal Responsibility
The facts pertaining to the commission of a crime may establish that the requirements for
criminal responsibility under both Article 7(1) and Article 7(3) are met. However, the Trial
Chamber adheres to the belief that where a commander participates in the commission of a crime
through his subordinates, by “planning”, “instigating” or “ordering” the commission of the
crime, any responsibility under Article 7(3) is subsumed under Article 7(1). The same applies to
the commander who incurs criminal responsibility under the joint criminal enterprise doctrine
through the physical acts of his subordinates.
87
Prosecutor v. Jelisic (Appeals Chamber)
FACTS: Jelisic was acquitted for the charge of genocide in the Trial Chamber. The prosecution
submits “that the Trial Chamber erred in law to the extent that it defined the requisite mental
state for genocide as limited to the dolus specialis standard”, and not the broader notion of
general intent.
The prosecution’s submission is that an accused has the required mens rea for genocide if:
i) he consciously desired the committed acts to result in the destruction, in whole or in

part, of the group, as such; or
ii) he knew that his acts were destroying, in whole or in part, the group, as such; or
iii) he, acting as an aider or abettor, commits acts knowing that there is an ongoing
genocide which his acts form part of, and that the likely consequence of his conduct
would be to destroy, in whole or in part, the group as such.
The ruling of the Trial Chamber was:
All things considered, the Prosecutor has not established beyond reasonable doubt that
genocide was committed in Br-ko during the period covered by the indictment.
Furthermore, the behavior of the accused appears to indicate that, although he obviously
singled out Muslims, he killed arbitrarily rather than with the clear intention to destroy a
group. The Trial Chamber therefore concludes that it has not been proved beyond all
reasonable doubt that the accused was motivated by the dolus specialis of the crime of
genocide. The benefit of the doubt must always go to the accused and, consequently,
Goran Jelisic must be found not guilty on this count.
The respondent disagrees with the prosecution. He submits that the Trial Chamber only once
used the phrase dolus specialis in its Judgment and that, contrary to the prosecution’s position, it
was intended as an alternative expression for “specific intent”, that is “the intent to destroy, in
whole or in part, a national, ethnical, racial or religious group, as such” and did not refer to the
degree of the requisite intent as alleged by the prosecution.
RULING: The Appeals Chamber agrees with the respondent and holds that the prosecution’s
challenge to the Trial Chamber’s finding on this issue is not well founded, being based on a
misunderstanding of the Judgement.
Article 4(2) of the Statute defines genocide to mean any of certain “acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. The Statute
itself defines the intent required: the intent to accomplish certain specified types of destruction.
This intent has been referred to as, for example, special intent, specific intent, dolus specialis,
particular intent and genocidal intent. The Appeals Chamber will use the term “specific intent” to
88
describe the intent to destroy in whole or in part, a national, ethnical, racial or religious group, as
such.
The specific intent requires that the perpetrator, by one of the prohibited acts enumerated in
Article 4 of the Statute, seeks to achieve the destruction, in whole or in part, of a national,
ethnical, racial or religious group, as such.
As to proof of specific intent, it may, in the absence of direct explicit evidence, be inferred from
a number of facts and circumstances, such as the general context, the perpetration of other
culpable acts systematically directed against the same group, the scale of atrocities committed,
the systematic targeting of victims on account of their membership of a particular group, or the
repetition of destructive and discriminatory acts.
The Appeals Chamber considers that a question of interpretation of the Trial Chamber’s
Judgement is involved. Read in context, the question with which the Judgement was concerned
in referring to dolus specialis was whether destruction of a group was intended. The Appeals
Chamber finds that the Trial Chamber only used the Latin phrase to express specific intent as
defined above.
89
Prosecutor v. Stevan Todorovi
FACTS:
The accused Stevan Todorovi was initially charged in a joint indictment with five other accused
for crimes alleged to have been committed in the municipality of Bosanski [amac in Bosnia and
Herzegovina between April 1992 and December 1993. Stevan Todorovi} was charged, in his
capacity as Chief of Police in Bosanski [amac, with 10 counts of crimes against humanity,
including persecution, deportation, murder and inhumane acts, nine counts of grave breaches of
the Geneva Conventions, and eight counts of violations of the laws or customs of war.
In November 2000, approximately two years after the initial appearance of the accused, a joint
motion was filed, notifying the Trial Chamber of an agreement between the accused and the
Prosecution, pursuant to which Stevan Todorovi} would plead guilty to Count 1 of the Second
Amended Indictment, and the Prosecution would withdraw all other counts against him.
On 13 December 2001, before Judge Robinson, Stevan Todorovi} entered a plea of guilt on
Count 1 of the indictment. His plea was subsequently confirmed before the full Trial Chamber.
Having satisfied itself that the requirements set forth in Rule 62 bis in relation to guilty pleas had
been met, the Trial Chamber entered a finding of guilt against Stevan Todorovi}. The
proceedings against Todorovi} were formally separated from those against the other accused at
this time.
At the sentencing hearing held on 4 May 2001, the Trial Chamber admitted certain witness
statements submitted by the Defence, as well as two expert reports on the medical and
psychological condition of Stevan Todorovi}. The Defence was given leave to call two
witnesses, in addition to one of the medical experts, Dr. Le~i}-Tosev{ki. Prior to the Defence
presenting its closing arguments, Stevan Todorovi} himself made a statement to the Chamber.
Following the practice of the Tribunal, for the purposes of this hearing, I will briefly summarise
the findings of the Trial Chamber in this case. I emphasise that this is a summary only and that it
forms no part of the Judgement. The only authoritative account of the Trial Chamber’s findings
and of its reasons for those findings, is to be found in the written Judgement, copies of which
will be made available to the parties at the conclusion of this hearing.
This Sentencing Judgement is based upon the Trial Chamber’s acceptance of Stevan Todorovi}’s
guilty plea and the consequent conviction of the accused on Count 1 of the indictment for
persecution as a crime against humanity under Article 5 of the Statute of the Tribunal.
At the outset, the Judgement addresses the gravity of the crime of which Stevan Todorovi}
stands convicted. As the Appeals Chamber stated in the ^elebi}i case, “the gravity of the offence
is the primary consideration in imposing sentence.” This involves an assessment of both the
criminal conduct forming the basis for the conviction and any aggravating circumstances. The
Judgement sets forth, in summary form, details of the criminal conduct underlying Stevan
Todorovi}’s conviction for the crime of persecutions, including his participation in the beating
and murder of Anto Brandi}, the beatings of several other individuals, among them Father Jozo
Pu{kari}, Silvestar Antunovi}, Hasan Bi~i}, Kemal Bobi}, Hasan ^eriba{i}, Abdulah Drlja~i},
90
Zlatko Dubri}, Roko Jelavi} and Hasan Suba{i}, and the sexual assault of six men at the police
station in Bosanski [amac. Stevan Todorovi} has also admitted to participating in the unlawful
detention, the cruel and inhumane treatment, and the deportation and forcible transfer of Bosnian
Muslims, Bosnian Croats and other non-Serb civilians in the municipality of Bosanski [amac.
As a component of the overall gravity of the offence, the Chamber has taken into account as
aggravating factors the accused’s position of superior authority as Chief of Police in Bosanski
[amac, and the cruel manner in which he perpetrated several of the criminal acts underlying his
conviction. In light of the above, the Trial Chamber concludes that Stevan Todorovi}’s crime
was particularly grave.
The Chamber then examined any mitigating factors and found that there are four factors in this
case which may be considered in mitigation of sentence, namely the accused’s guilty plea, his
substantial cooperation with the Prosecution, his expressed remorse for his crimes and the
question of his allegedly diminished mental capacity.
The Chamber observes that Todorovi} is only the third accused before this Tribunal to have been
convicted on the basis of a guilty plea. It recognises the benefits to the Tribunal in terms of time
and resources when an accused enters a plea of guilt, and in particular when such a plea is
entered early on in the proceedings, or in any event before the trial itself has begun. The
Chamber considers that a guilty plea should, in principle, give rise to a reduction in the sentence
that the accused would otherwise have received. The Chamber observes that Stevan Todorovi}’s
trial had not yet commenced when he decided to plead guilty. It recognises the considerable
contribution of Todorovi}’s guilty plea to the efficiency of the work of the International Tribunal
and to its search for the truth, and takes it into account in mitigation of sentence.
The Trial Chamber next takes note of the Plea Agreement, pursuant to which Stevan Todorovi}
has agreed to cooperate with the Prosecution by providing “truthful and complete information”
and by testifying in the case against his former co-accused, and, as requested by the Prosecution,
in any other proceedings. The Chamber has had regard to the Prosecution’s submissions as to the
quantity and quality of the information provided by Stevan Todorovi} thus far. It concludes that
Stevan Todorovi}’s cooperation with the Prosecution to date has been substantial and that such
cooperation ought to be considered as a mitigating circumstance in this case.
It is found that, to accept remorse as a mitigating factor in sentencing, the Trial Chamber must be
satisfied as to the sincerity of the expressed remorse. In this regard, the Chamber recalls the
statement made by Stevan Todorovi} during the Sentencing Hearing, in which he expressed
repentance and remorse for his crimes and a willingness and desire to contribute to the process of
reconciliation in Bosnia and Herzegovina. The Chamber treats his remorse as a mitigating factor
in determining sentence.
ISSUE: Whether the accused’s alleged diminished responsibility may act in mitigation of
sentence.
RULING:
91
The Chamber found that neither of the two expert reports that were filed on Stevan Todorovi}’s
medical and psychological status suggest that his condition at the time the crimes were
committed was one which would give rise to mitigation of sentence.
The Chamber, as it is obliged by the Statute and Rules to do, then turns to consider the
general practice regarding prison sentences in the courts of the former Yugoslavia. It is found
that, for the crime of which Todorovi} stands convicted, the punishment prescribed under the
Criminal Code of the SFRY ranges from 5 to 20 years’ imprisonment. The Chamber holds that,
while it must consider the practice of the courts in the former Yugoslavia, in imposing sentence
it is not bound by such practice.
In the final section of the Judgement, the Chamber considers the relative weight to be accorded
to each of the above-mentioned factors in determining sentence. At the outset, it is noted that the
Defence had urged a comparison between this case and that of Erdemovi}, in which the accused
was sentenced to five years’ imprisonment for his conviction on a count of murder as a violation
of the laws or customs of war. However, the Chamber finds that case readily distinguishable, in
that the Trial Chamber in Erdemovi} considered duress as a mitigating factor, an element that is
absent in this case. For that reason the Chamber considers that the Erdemovi} case is not helpful
in providing a “benchmark” for Todorovi}’s sentence. The Chamber reiterates the very grave
nature of Stevan Todorovi}’s crime. In particular, it is recalled that the crime of persecution is
the only crime against humanity which requires that the perpetrator act with a discriminatory
intent. It is found that the gravity of Stevan Todorovi}’s criminal conduct was aggravated by his
superior position and by the manner in which the crimes were committed. Indeed, the Chamber
holds that, while mitigating factors have been given considerable weight in the determination of
the sentence in this case, this in no way detracts from the gravity of Stevan Todorovi}’s crime. It
is found that Stevan Todorovi}’s plea of guilt, and his substantial cooperation with the
Prosecution are of primary importance as mitigating factors in this case.
TRIAL CHAMBER SENTENCES Stevan Todorovi} to 10 years’ imprisonment and STATES

that he is entitled to credit for two years, 10 months and three days in relation to the sentence
imposed by the Trial Chamber, as of the date of this Sentencing Judgement, together with such
additional time as he may serve pending the determination of any appeal. Pursuant to Rule
103(C), Stevan Todorovi} shall remain in the custody of the International Tribunal pending the
finalisation of arrangements for his transfer to the State where his sentence will be served.
******************************************************
92
THE PROSECUTOR V. MITAR VASILJEVI]”
FACTS:
The trial arose out of events which took place in 1992 in the town of Višegrad, located on
the bank of the Drina River in the Višegrad Municipality in south-eastern Bosnia and
Herzegovina, close to the border with the Republic of Serbia. Prior to the armed conflict,
the majority of the people who lived in the Municipality were of Muslim ethnicity, which
outnumbered the Serb minority by almost two to one. Ethnic tensions flared up after the
multi-party elections in November 1990 returned a municipal council which closely
matched the ethnic composition of the municipality.
Members of the Serb and Muslim ethnicities armed themselves, and early in 1992 violence
between them followed. The attack upon the non-Serb civilian population took many forms,
starting with the Serb take-over of the town and the systematic and large-scale criminal
campaign of murders, rapes and mistreatment of the non-Serb population of the municipality,
particularly the Muslims, which eventually culminated in one of the most comprehensive and
ruthless campaigns of ethnic cleansing in the Bosnian conflict. Hundreds of mostly Muslim men
and women, children and elderly people, were killed. One of the most violent of the paramilitary
groups operating in the area was led by Milan Lukić (a former resident of Višegrad). This
paramilitary group entered the town of Višegrad and committed many very serious crimes there
with the complicity, or at least with the acquiescence, of the Serb authorities who had taken over
control of the area.
The trial was concerned principally with two incidents which took place in Višegrad during
the month of June 1992. The first took place on 7 June. Milan Lukić, and a number of other
men, led seven Bosnian Muslim men to the bank of the Drina River, where they forced the
Muslim men to line up on the bank of the river, and to face the river. Despite pleas by the
Muslims for their lives, they were shot from behind. When it appeared that someone was
still alive, the men lying in the water were shot at again, at close range. Five of the Muslim
men were killed, but the other two men escaped by pretending to be dead as they lay in the
water. This has been referred to as the Drina River incident.
The second incident took place on 14 June 1992. About seventy Bosnian Muslim women,
children and elderly men were directed to enter a house in Pionirska Street, in the Mahala
neighbourhood of the Višegrad municipality. An inflammable substance had been spread in
the area in which the Muslims were locked beforehand. When this large group had been
forced inside that house, it was set on fire with an incendiary device. Most of the group died
in the fire, some escaped before the fire, and others were successful in escaping during the
fire. This has been referred to as the Pionirska Street incident.
The accused, Mitar Vasiljević, was charged separately in relation to each of the two
incidents with a number of crimes, alleging that he acted in concert with Milan Lukić and
others to commit murder (both as a crime against humanity and as a violation of the laws or
customs of war), inhumane acts (as a crime against humanity) and violence to life and
person (as a violation of the laws or customs of war). In relation to the Pionirska Street
93
incident, the accused was also charged with extermination in concert with Milan Lukić and
others (as a crime against humanity).
Finally, the accused has been charged with persecution on political, racial or religious
grounds as a crime against humanity, by participating in the murder of Bosnian Muslim and
other non-Serb civilians, the harassment, terrorisation and psychological abuse of such
civilians, and the theft and destruction of personal property of such civilians.
Mitar Vasiljević was a member of the Serb minority in Višegrad. He had worked as a waiter
in various establishments around town. The prosecution claimed that he was also a member
of, or was associated with, the Serb paramilitary group led by Milan Lukić. Such an
association was put forward by the prosecution as establishing that the accused shared the
homicidal intent of that paramilitary group. There was a close family association between
the two men. Evidence was also led from a number of witnesses that they had seen the
accused with Milan Lukić and others when serious crimes were committed by them. In
almost every case, evidence of the participation of the accused in the activities of the
paramilitary group was given by one witness only, and the evidence of identification by that
witness was poor.
The Trial Chamber has concluded that the only association of the accused with the Milan
Lukić group which was established, other than in relation to the two incidents with which
the trial was concerned, was that he participated in the search of a Muslim family’s home in
the village of Musići, and that he was a ready source of local information for the group
about the location of Muslims in the area. The Trial Chamber is satisfied that he gave that
information to the group with the full realisation that it would be used by the group to
persecute Muslims.
In relation to the first incident, the Trial Chamber is satisfied that the accused did not try to
persuade Milan Lukić to spare their lives, that he willingly accompanied Milan Lukić and his
group with the seven Muslim men to the Drina River, and that he was participating with that
group in a joint criminal enterprise that all seven of the men be killed. As only five died, he has
been found to have incurred individual criminal responsibility for the murder of those five men,
both as a crime against humanity and as a violation of the laws or customs of war. In relation to
the two men who escaped being killed in that shooting, the Trial Chamber is satisfied that the
attempted killing amounted to a serious attack on the human dignity of these two men, and that it
caused them immeasurable mental suffering. The accused has thus been found to have incurred
individual criminal responsibility for inhumane acts as a crime against humanity.
In relation to the second incident, the accused admitted that he had been present in Pionirska
Street during the course of the afternoon of 14 June 1992, but he denied participating in any
way in relation to the Pionirska Street incident. The prosecution alleged that the accused
took part in looting from the Muslim group late in the afternoon, but the Trial Chamber is
not satisfied that the evidence of identification is sufficiently reliable as to warrant the
conclusion that the accused was present at that time.
The Trial Chamber is satisfied that the forcing of the Muslims into the house which was
then burnt down did not take place before 9.30 pm that day. The accused accepts that earlier
94
that day he did speak with a group of people there, but he says that, after he had done so
(and well before the Muslims were forced to enter that house) he was riding a horse
bareback through Višegrad when the horse slipped, he fell to the ground and the horse fell
on top of him, breaking his leg. He was taken first to the Višegrad Health Centre and then to
the Užice Hospital, a trip which would have taken at least an hour. In other words, the
accused relies upon an alibi. There was a considerable amount of evidence led in relation to
this alibi.
Dr Moljević was a doctor at the orthopaedic ward of the Užice Hospital and a member of
the triage team at its admissions centre at the relevant time. The Trial Chamber accepts the
evidence of Dr Moljević that the accused was in the Užice Hospital by 9.35 pm on the day
of the fire, as corroboration of the admission ledgers. The prosecution has thus failed to
establish beyond reasonable doubt that the accused was in Pionirska Street at the time the
Muslims were forced into the house and when it was burnt down.
In those circumstances, the prosecution failed to establish any of the three crimes charged
separately in relation to the Pionirska Street incident – murder (as both a crime against
humanity and as a violation of the laws or customs of war) and inhumane acts (as a crime
against humanity). The Trial Chamber has therefore acquitted the accused of those charges.
The charge of violence to life and person has failed for the same reason as it failed in
relation to the Drina River incident. The additional charge in relation to the Pionirska Street
incident, that of extermination, has also failed because of the failure of the prosecution to
establish beyond reasonable doubt that the accused was in Pionirska Street at the relevant
time or that he was aware that these people were to be killed.
The accused has been found to have incurred individual criminal responsibility for the
crime of persecution as a crime against humanity in relation to the murder of the five men
and the inhumane acts committed against the two survivors.
ISSUE: The principal issue raised in relation to sentencing is the claim by the accused that,
at the time of the Drina River incident, his mental responsibility for his actions was
diminished.
RULING:
Considerable psychiatric evidence was given by both parties on this issue, but the Trial
Chamber is not satisfied that the accused’s claim has been made out. The Trial Chamber
has, however, taken into account in mitigation the general spirit of co-operation very
properly shown by lead counsel for the accused, who trod a careful path in assisting the
Trial Chamber without in any way compromising his obligations to the accused, conduct for
which the accused himself should be given credit. The personal circumstances of the
accused, in particular the fact that he is married and has two children, have also been taken
into account by the Trial Chamber as a mitigating factor.
95
The Trial Chamber accepts that the accused was not a commander, that his crimes were
geographically very limited, and that there is no evidence that his acts encouraged other
offenders (other than as found in relation to the Drina River incident) or affected other victims of
such crimes within the broader context of the conflict. The Trial Chamber has taken into account
the fact that the position of the accused in the hierarchy was a low one. It does not accept that the
accused played any particularly significant role in the broader context of this conflict, but it notes
that an accused’s level in the overall hierarchy in the conflict is not ultimately decisive of the
sentence given. The fact that he was a low-level offender in terms of the overall conflict in the
former Yugoslavia cannot alter the seriousness of the offences for which he has been convicted
or the circumstances in which he committed them. His crimes were particularly serious in terms
of the protected interests which he violated – the life as well as the physical and mental integrity
of the victims, the consequences for the victims (death for five of them and great suffering for
the other two), and the reasons for which these crimes were committed (that is, no reason other
than sheer ethnic hatred).
Relevant to sentencing is the discriminatory intent with which the crimes were carried out.
Such an intent is an ingredient of the crime of persecution, and it is relevant as such to the
seriousness of that crime. It may also be an aggravating feature in relation to the crime of
murder as a violation of the laws or customs of war. It is an aggravating feature of that
crime in this case. During the Bosnian conflict, ethnicity was exploited variously to gain
political prominence or to retain power, to justify criminal deeds, or for the purpose of
obtaining moral absolution for any act coloured by the ethnic cause. No such absolution is
to be expected from this Tribunal. The Trial Chamber considers that crimes based upon
ethnic grounds are particularly reprehensible. The Trial Chamber also considers as
aggravation the fact that the pleas by the men for their lives were completely ignored by the
accused, the cold-blooded nature of the execution and, to perhaps a lesser extent, the fact
that one of the victims was well known to the accused.
The accused has been convicted for the crimes of persecution (as a crime against humanity)
under Count 3 – which conviction incorporates his individual criminal responsibility for the
murder of the five men (as a crime against humanity) and the inhumane acts in relation to
the two survivors – and of murder (as a violation of the laws or customs of war) in relation
to the five men, charged in Count 5. He has been acquitted in relation to Counts 1, 4, 6, 7,
10, 11, 12 and 13.
Mitar Vasiljević, is sentenced to a single sentence of imprisonment for 20 years with

entitlement for credit for the period of two years, ten months and four days he has been in
custody towards service of the sentence imposed, together with the period he will serve in
custody pending a determination by the President of the Tribunal as to the State where the
sentence is to be served.
****************************************

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CASE TITLE PAGE

Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-T (Trial 5

Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-T (Trial

PROSECUTOR V. MUSEMA (TRIAL CHAMBER) 20

PROSECUTOR V. MUSEMA (APPEALS CHAMBER) 30

ICTY, The Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, 33

In the Appeals Chamber of the International Court of Former Yugoslavia 42

THE PROSECUTOR vs OMAR SERUSHAGO 48

Prosecutor v. Akayesu, Case No. ICTR-96-4, Judgment (Sept. 2, 1998) 68

Prosecutor v. Jelisic (Appeals Chamber) 87

Prosecutor v. Stevan Todorovi 89

THE PROSECUTOR V. MITAR VASILJEVI]” 92

Count 5: outrages upon personal dignity, a VIOLATION OF THE LAWS OR CUSTOMS OF

Count 7: Murder, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by

Count 9: Murder, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by

Damir Došen sentenced to 5 years' imprisonment.

Dragan Kolundžija sentenced to 3 years' imprisonment on 13 November 2001.

 Goal must be destruction of group as a separate and distinct entity:

 Evidence of destruction of leadership may establish intent to destroy “in part”

Prosecutor v. Sikirica et al., Case No. IT-95-8 (Trial Chamber), September 3,

 Victims must be targeted by reason of their group membership

 The group must be targeted, not specific individuals

 Position of the accused/ abuse of position of authority

 Assistance to the detainees

 Pleas in other countries

Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-T (Trial

Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-T (Trial

Background of the Case:

The Prosecutor v. Nahimana, Barayagwiza and Ngeze, popularly dubbed the

Ferdinand Nahimana and Jean-Bosco Barayagwiza were both influential members

Doctrinal Pronouncements (Trial Chamber)

A. NATURE OF ARMEND CONFLICT

Factual Circumstance showing NIAC:

1. Ferdinand Nahimana is charged, pursuant to the Amended Indictment filed on 15

2. Jean-Bosco Barayagwiza is charged, pursuant to the Amended Indictment filed on 14

C. WAR CRIMES CHARGED

Article III: The following acts shall be punishable:

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide. "

Prevention of births includes involuntary sterilization, forced abortion, prohibition of marriage,

Intent Mens rea

Conspiracy to Commit genocide

Agreement may be inferred

Concerted or coordinated action may show agreement

direct and public incitement to commit genocide

2. crimes against humanity (persecution, extermination and murder)

ICTR Statute, Article 3:

“The International Tribunal for Rwanda shall have the power to

VERDICT OF TRIAL CHAMBER

THE CHAMBER unanimously finds Ferdinand Nahimana:

THE CHAMBER unanimously finds Jean-Bosco Barayagwiza:

THE CHAMBER unanimously finds Hassan Ngeze:

FACTUAL CIRCUMSTANCES AND ISSUES ON APPEAL

1. Right to a fair trial

4. Direct and public incitement to commit genocide

5. Crimes Against Humanity

PROSECUTOR V. MUSEMA (TRIAL CHAMBER)

Legally relevant facts

Core legal questions

Specific legal rules and provisions

Article 3 common to the Geneva Conventions.