8.  
   1. In considering the personal situation of the accused (Chapter 3 of the impugned judgment), the Appeals Chamber summed up the circumstances under which the accused decided to return to Rwanda following the outbreak of the conflict and of the massacres. The Chamber also mentioned the activities of the accused during the weeks he spent in his commune (from 18/19 May to 11/12 June 1994) and the manner in which his departure and that of his family for Zaire (now the Democratic Republic of the Congo) was arranged.
      [...] The Chamber also found that on returning to Mushubati the accused enjoyed effective and significant powers. [...]
   3. The factual conclusions regarding the political affiliation and the powers of the bourgmestre of Mushubati in May 1994 could also be relevant to application of Art. 109 MPC as it applies to common Article 3 (see 3. above and 9. below). Action against breaches of the laws of war presupposes that certain objective conditions are met with respect to the perpetrator and the context in which he acts uring the course of a conflict. [...]
      The accused does not dispute the extent of the powers exercised by a bourgmestre in peacetime, but claims that following the outbreak of the conflict, and in particular after the interim government was set up in Gitarama, a few kilometres from Mushubati, he exercised no more than purely administrative power in his commune, owing to the presence of large numbers of soldiers and militia. In support of his arguments, the accused outlined the conditions under which he had acted during the events set out in the impugned judgment. Clearly, it is difficult for a foreign court to determine, several years after the event, the extent of the powers exercised by an agent of the Rwandan civilian administration in dramatic circumstances over a period of a few weeks. However, all the facts established show that the accused retained certain of his powers, that his authority as bourgmestre was not called into question and that there was no direct confrontation with the government, the prefect, the army or the militia regarding the administration of his commune or his political status. In this very special situation, where State bodies at all levels could no longer function as they had hitherto and where institutions were no longer as structured or as effective as before, a bourgmestre clearly did not exercise as much power as he would under normal circumstances. Indeed, the impugned judgment speaks of a “chaotic situation”, and one that left the accused with only limited freedom of decision and action in comparison with a normal situation. This being so, the Chamber’s findings with regard to the extent of the powers enjoyed by the accused under these circumstances appears neither untenable nor manifestly at variance with the actual situation as it emerges from the proceedings and testimony. On this point, therefore, the factual findings of the impugned judgment are not arbitrary.
9. The accused claims that criminal law has not been respected [...], specifically in relation to Arts. 108 (3), and 109 (1) of the MPC, Article 3 common to the Geneva Conventions, Articles 146 and 147 of the Fourth Geneva Convention and Art. 4 of Additional Protocol II. He claims that the actions of which he is accused [...] have no proximate connection with the armed conflict in Rwanda and that he therefore does not fulfil the objective conditions required in order to be considered the perpetrator of breaches of these provisions of international humanitarian law. [...]
   
   1. As mentioned above, [...] a conviction can be secured only on the basis of Art. 109 MPC, and the “provisions of international conventions” to which that article refers are those of common Article 3 and of Art. 4 of Protocol II. Article 108 (2) MPC does not apply in this context. Articles 146 and 147 of the Fourth Geneva Convention (relative to the protection of civilian persons in time of war) set out the obligations on the Contracting Parties: to enact legislation to provide penal sanctions for persons committing grave breaches of the Convention, to search for persons alleged to have committed breaches of the Convention and to try such persons or surrender them to another State for trial. They do not contain any rules directly applicable to the conduct of hostilities. Moreover, by enacting Art. 109 MPC, Switzerland has discharged the obligation to enact legislation contained in Art. 146 (1) of the Fourth Convention [...].
      The category into which the Rwandan conflict of 1994 falls is not in dispute [...]: this was an armed conflict not of an international character within the meaning of common Article 3. The conflict also falls within the scope of Protocol II, which is somewhat narrower than that of common Article 3: it corresponds to the definition of Protocol II, Art. 1 (1): a conflict taking place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations (common Article 3 applies only to conflicts of lesser intensity [...]).
      The accused does not dispute the fact that the acts of which he is accused, and the reality of which is not contested (see 6. and 7. above) could be classified as intentional homicides, with him the indirect perpetrator, co-perpetrator or instigator. The victims of these acts, of whom an unknown number were killed, in particular Tutsis hiding in Mushubati or refugees in Kabgayi, were “persons taking no active part in the hostilities” protected by common Article 3 and Protocol II. The violence to life perpetrated upon these persons is explicitly prohibited by these instruments of international humanitarian law (common Article 3 (1), (2) (a) and Protocol II, Art. 4 (2) (a)) which prohibit various forms of participation in homicide [...]. This is in accordance with the point generally accepted under international criteria, that the notion of intentional homicide or murder covers all situations in which the perpetrator, by his behaviour, causes the death of a person and acts with intent as regards his behaviour and the expected result (see the message from the Swiss federal council regarding the Rome Statute of the International Criminal Court, the Swiss federal law on cooperation with the ICC and the revision of criminal law, Feuille fédérale 2001 I, p. 474, n. 5.3.2.1).
      Nonetheless, for common Article 3 and Art. 4 of Protocol II to be applicable under Art. 109 MPC, there must be a certain nexus between the acts (and their perpetrator) and the armed conflict, as not every act of violence to life that occurs in the territory of a country involved in such a conflict is covered by international humanitarian law. The Appeals Chamber found that this condition was satisfied. The accused disputed this. [...]
   2. According to the impugned judgment, there is no justification for applying the criteria of the ICTR, which would require a proximate connection between the offence and the armed conflict and would restrict the scope of the Geneva Conventions to persons holding functions in either the armed forces or the civilian government. In the view of the Appeals Chamber, the concept of perpetrator should be seen in the broad sense; any person, military or civilian, who attacks a person protected by the Geneva Conventions breaches these provisions and falls under Art. 109 MPC. Moreover, a link must still exist between the offences and the armed conflict. Having established these principles, the Appeals Chamber ruled on the relationship between the functions of the accused, which conferred upon him a certain degree of power over the population of his commune, the armed forces and the militia, and the acts committed with regard to the meeting on Mont Mushubati and the visits to Kabgayi. The Chamber found that the accused met the objective criteria for being the perpetrator of the offences of which he was accused, and that a connection existed between his actions and the armed conflict.
   3. Certain first-instance judgments of the ICTR have described in some detail the twofold condition of a nexus between the accused and the armed forces and between the armed conflict and the crime. In its judgment of 21 May 1999 in the Kayishema and Ruzindana case, Trial Chamber II of the ICTR found that persons who were not members of the armed forces could only be held criminally responsible if a link existed between them and the armed forces. As the armed forces were at all times under the authority of officials representing the government, such officials were expected to support the war effort and to play a certain role (see Kayishema and Ruzindana judgment, para. 175). In its judgment of 2 September 1998 in the Akayesu case (Akayesu having been bourgmestre of Taba commune), Trial Chamber II of the ICTR found that the list of persons subject to the provisions of common Article 3 and Protocol II included individuals of all ranks belonging to the armed forces under the military command of either of the belligerent parties, or to individuals who were legitimately mandated and expected, as public officials or agents or persons otherwise holding public authority or de facto representing the Government, to support or fulfil the war effort. In spring 1994, it was not to be excluded that a bourgmestre – who was not simply a civilian – might belong to this category (see Akayesu judgment, paragraphs 631 and 634).
      As regards the link between the armed conflict and the crime, Chamber II of the ICTR had mentioned a “direct connection” and not some vague and indefinite link. However, the Chamber did not attempt to define a test in abstracto (Kayishema and Ruzindana judgment, para. 188). In the Akayesu judgment (para. 641), Chamber I of the ICTR also mentioned the need for a “nexus,” without describing it in more detail.
      It should be pointed out that in the above two cases tried in first instance by the ICTR, both of which involved civilians (a bourgmestre, a prefect and a businessman), the Chamber found that the prosecution had not proved the existence of a nexus between the alleged crimes and the armed conflict (see Akayesu, para. 643 and Kayishema and Ruzindana, paragraphs 615 and 623).
      The Appeals Chamber also cited the judgment handed down by ICTR Chamber I on 27 January 2000 in the Musema case. That judgment made reference to the two judgments cited above regarding the nexus between the crime and the armed conflict, i.e. the condition that the crimes be closely linked with the hostilities or committed in connection with the armed conflict (paragraphs 259 and 260). That judgment also refers to the principle set out in the other judgments regarding the criminal responsibility of civilians with respect to breaches of the laws of war (para. 264 et seq.). The Chamber found that Musema, the director of a tea factory appointed by the State, could fall into the category of individuals liable to be held responsible for grave breaches of international humanitarian law (para. 275). However, this question was left undecided, as the prosecution failed to prove the nexus required beyond all reasonable doubt (para. 974).
   4. In its role as supreme court, the Military Chamber of Cassation interprets Art. 109 MPC independently. It has not previously had the opportunity to rule on the conditions under which, in the context of a non-international armed conflict, civilians can be held responsible for breaches of the laws of war or the provisions of international humanitarian law set out in common Article 3 and Protocol II. [...]
      The criteria applied by the Trial Chambers of the ICTR to decide whether a breach of common Article 3 or of Protocol II has occurred need not necessarily be applied by the Swiss courts. However, it is difficult to find grounds for not doing so, particularly in view of the fact that these criteria are relatively broad. The criterion of a “direct” connection, i.e. not vague or indeterminate, between the offences and the armed conflict is not very precise, and rests on an assessment of the specific case. Regarding the categories of civilians who may be the perpetrators of such crimes, the ICTR has adopted a concept that does not appear particularly restrictive: all individuals who were legitimately mandated and expected, as public officials or agents or persons otherwise holding public authority or de facto representing the Government, to support or fulfil the war effort. The ICTR does not exclude the possibility that a Rwandan bourgmestre could be subject to the corresponding provisions. In the instant case, one must therefore take these criteria and interpret them in the light of the concrete situation of the accused.
      It is unfortunate that the Appeals Chamber stated that it was departing from current jurisprudence of the ICTR whereas, notwithstanding that statement, it applied that jurisprudence to the specific case of the criteria outlined above. There is hence no need to analyse further this alleged divergence in the interpretation of international humanitarian law. However, it is necessary to verify whether, in applying these criteria on the basis of facts established in a non-arbitrary manner, the Appeals Chamber was correct in finding that the elements constituting the crime described under Art. 109 MPC were present.
   5. Under the Rwandan administrative system, the bourgmestre is considered an agent of the State. The position is a prominent one, as the number of communes is limited (145 in 1991, with a typical population of between 40,000 and 50,000. See Des Forges, op. cit., p. 55 in the French version). While the bourgmestre has no official military function, the case has shown that the accused was regularly accompanied by soldiers, over whom he exercised a certain degree of authority. Both during the Mont Mushubati meeting and during his visits to Kabgayi, he acted using his functions as bourgmestre or taking advantage of the authority that the position of bourgmestre conferred upon him, giving orders to inhabitants of his commune. His aim was to “support or fulfil the war efforts,” to use the terminology of the ICTR, in other words to promote the achievement by the government of the day of its aim of massacring Tutsis and moderate Hutus. [...]
      It is clear both that there is a sufficient nexus between the crimes committed at Mont Mushubati and Kabgayi and the armed conflict, and that his position and the manner in which he discharged his function of bourgmestre mean that he fulfilled the conditions for being subject to common Article 3 and the provisions of Protocol II as a perpetrator of crimes. The complaint of a violation of Art. 109 MPC is therefore groundless.
10. The accused claims that criminal law has not been respected (Art. 185 (1) (d) MPP), criticizing the penalty of deportation from Switzerland for fifteen years. He criticizes the Chamber for not having taken into account his status of refugee in Switzerland, where he is well-integrated and where his wife and two children are also living, likewise as refugees. [...]
    
    1. [...]
    2. As concerns deportation of a refugee on penal grounds, Art. 44 MPC should be interpreted and applied in the light of Art. 32(1) of the Convention relating to the Status of Refugees [...] and of Art. 65 of the law on asylum, hereinafter referred to as “Lasi” [available at http://www.admin.ch/ch/f/rs/c142_31.html] [4], that is, in a manner more restrictive than in respect of other foreigners [...]. Those provisions allow deportation on grounds of public order. In view of the acts of which the accused has been convicted, those grounds apply. Consequently, there is no need to first consider whether the accused does indeed enjoy the protection of the above Convention. Article 1 (F) (a) of the Convention stipulates that it does not apply to persons who have committed “a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes,” nor to consider whether there are grounds for revoking asylum or refugee status. Those measures are provided for under Lasi Art. 63 if the refugee has obtained asylum or refugee status by making false declarations or concealing essential facts, or if he has committed particularly reprehensible crimes. It is not for a judge in criminal proceedings to order such revocation. Furthermore, the fact that the family of the accused is living in Switzerland does not exclude deportation, given the seriousness of the crime (see Art. 8 (2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, [available at http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm] [5]).
    3. The Appeals Chamber applied legal criteria to determine whether and for how long the accused should be deported from Switzerland. Given the nature of the crimes committed, it is clearly legitimate to cite the protection of public security and the impugned decision does not appear excessively severe on this point. The Appeals Chamber has not, therefore, abused its powers of discretion in applying Art. 40 (1) MPC. [...]

III.   Application for judicial review by the Prosecutor [...]

13. The Prosecutor maintains that, in determining the duration of imprisonment, the Appeals Chamber did not take sufficient account of the extreme gravity of the crimes committed by the accused, and that the cumulation of offences also constituted aggravating circumstances. According to the Prosecutor, a sentence of 20 years’ imprisonment was the only possibility.
    1. While the Military Chamber of Cassation does enjoy liberty to determine whether there has been a breach of federal law it cannot, in view of the discretionary powers conferred to lower courts in this domain, allow an appeal regarding sentencing unless the sentence: departs from the legal framework, is based on criteria other than those of Art. 44 MPC, fails to take account of the factors set out therein or appears so excessively severe or lenient that the question arises of abuse of such discretionary powers [...].
    2. A sentence of 14 years’ imprisonment is of itself severe. It is true that the Trial Chambers of the ICTR have imposed longer sentences on persons responsible for the genocide or massacres in Rwanda, particularly in the case of the bourgmestre of Taba, Jean-Paul Akayesu, but this is not a decisive factor. It is not certain that the sentencing criteria in the Statute of this international tribunal correspond to those of Art. 44 MPC, nor that one can compare the actions of the accused with those of Akayesu. But be that as it may, the sentence handed down in the instant case, based on an assessment made in accordance with legal criteria, does not appear to be excessively lenient. The Prosecutor’s appeal is therefore also unfounded on this point. [...]
13. The Military Chamber of Cassation confirms the sentence of 14 years’
    imprisonment [...].

For the foregoing reasons

The Military Chamber of Cassation finds as follow:

1. The appeal lodged by N. is allowed in part, the impugned judgment is quashed in part insofar as it orders the deportation of the appellant and the case is returned to Military Appeals Chamber 1A for a new decision as to whether or not to grant a stay of deportation.
   On all other points, the motion for review brought by N. is dismissed.
2. The motion for review brought by the Prosecutor of Divisional Chamber 2 is dismissed.
3. The period that the accused has spent in pre-trial detention between the date on which the appeal decision was handed down and the date of the present decision, being 336 (three hundred and thirty-six) days, shall be deducted from the sentence.
4. The sentence of 14 years’ imprisonment is confirmed [...].

III.   LEGAL QUESTIONS

CHAPTER 1 – THE RATIONE MATERIAE AND RATIONE PERSONAE JURISDICTION OF SWISS COURTS-MARTIAL [...]

B.  Ratione materiae jurisdiction [...]

The Appeals Chamber finds that Art. 109 MPC contains a clause prohibiting not only breaches of the international conventions signed and ratified by Switzerland, but also breaches of the customary laws recognized by the international community (see the message from the Swiss Federal Council regarding partial revision of the Military Penal Code, 6 March 1967, [...]). The Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 (hereinafter referred to as “the Convention on Genocide”), which has not yet been ratified by Switzerland, contains elements of customary law (see the message of the Federal Council concerning the Convention on the Prevention and Punishment of the Crime of Genocide and the corresponding revision of criminal law, [...]) which fall under Art. 109 MPC. This convention could hence be applicable as customary law. However, Art. 109 MPC must be interpreted in relation to Art. 108 MPC which, as its marginal note indicates, specifies the field of application of Chapter 6 of the Military Penal Code. That provision stipulates that in the case of war or international armed conflict, (para. 1), Art. 109 MPC applies without reservation. In the case, for instance, of the war in the former Yugoslavia, which had an international dimension, the Swiss courts-martial have jurisdiction on the basis of customary law to try persons accused of breaches of the Geneva Conventions and of the crime of genocide.

However, non-international armed conflicts are covered in particular by para. 2, which restricts international agreements to the wider field of application. In the case of such conflicts Art. 109 MPC does not apply automatically, but requires the existence of an international convention ratified by Switzerland. In the absence of such a convention, it is not possible to apply the customary law provided for under Art. 109 MPC to an internal armed conflict. In the case of the Rwandan conflict, which was non-international (see Chapter 3C, “Legal questions”), Swiss courts-martial do not have jurisdiction to try the case on the basis of the prohibition of genocide established by customary law, as Switzerland has not ratified the Convention on Genocide. However, they do have jurisdiction in the case from the point of view of Article 3 common to the Geneva Conventions and Protocol II, which apply to non-international armed conflicts, and which fall under the reservation made in Art. 108 (2) MPC [...].

The Appeals Chamber will therefore consider the breach of Art. 109 MPC exclusively as regards the Geneva Conventions and Protocol II.

C.  Ratione personae jurisdiction

Article 218 (1) MPC provides that all persons to whom military law applies are liable to be tried by courts-martial, subject to the reservations of Art. 13 (2), and Art. 14. This rule also applies when the offence has been committed outside Switzerland (para. 2). The criminal law applicable is determined by Articles 1 to 9 MPC, contained in Chapter 1 of the Military Penal Code. Under Art. 2 (9) MPC, civilians who commit breaches of the law of nations during an armed conflict (Articles 108 to 114 MPC) are subject to military law.

Switzerland enacted Art. 2 (9) MPC to meet its international obligations and to allow international law to be applied. In this specific context, even if not at war or threatened by imminent danger of war, Switzerland has undertaken to prosecute anyone, irrespective of nationality, who may have committed grave breaches of the Geneva Conventions outside Switzerland [...].

Contrary to the findings of the trial judges, the clause in Art. 109 (1) (3) MPC (“sauf si des dispositions plus sévères sont applicables” [unless more severe provisions apply]) is not a cross reference but a reservation. Its effect is not to make civilians generally subject to military law. It concerns persons who would normally be subject to military law, and its effect is to prevent such persons from claiming that they may be punished exclusively in accordance with the Geneva Conventions, thereby avoiding the risk of any more severe penalty that military law might apply. It is worth pointing out at this point that the maximum penalty for breaches of the laws of war under Art. 109 MPC is 20 years’ imprisonment (Art. 28 MPC), whereas the Military Penal Code does provide for life imprisonment for certain offences (in particular under Art. 116, Art. 139 (2), Art. 140 (2) and Art. 151c, para. 4). The interpretation of the Appeals Chamber is further supported by Art. 6 MPC, in conjunction with Art. 220 MPC. Under those provisions, a civilian committing an ordinary crime (Articles 115 to 179 MPC) remains subject to civilian criminal law and civilian courts, even if he participates in crimes with military personnel.

The Appeals Chamber finds it contrary to the system of military law to make a person who is not a Swiss national and has committed offences outside Switzerland and against foreigners subject to that law, when Switzerland is neither at war nor facing imminent danger of war. The Appeals Chamber therefore does not have jurisdiction to try N. under Articles 115 to 179 MPC, even if he remains subject to Rwandan civilian or military jurisdiction for ordinary crimes (such as murder) or the crime of genocide. [...] On this point, the impugned judgment is erroneous and the appeal well founded. [...]

CHAPTER 3 – APPLICABILITY OF COMMON ARTICLE 3 AND OF PROTOCOL II [...]

B.  Ratione loci

While common Article 3 and Protocol II, Art. 4(2) of Protocol II do prohibit the acts they describe “in any place,” that prohibition is clearly limited to the territory of a High Contracting Party (common Article 3 and Protocol II, Art. 1(2) of Protocol II). This territory extends beyond the front or the immediate area in which hostilities are occurring, to include the whole territory of the State in which hostilities are taking place [...].

In accordance with these principles, the provisions in question apply to the whole of Rwanda. [...]

C.  Ratione materiae

Common Article 3 applies to any “armed conflict not of an international character.” This notion, which common Article 3 does not define in detail, implies a situation in which hostilities are occurring between armed forces or organized armed groups within a single State [...].

The notion of “armed forces” in Art. 1 (1) of Protocol II, must be seen in its widest sense, to include all armed forces described in domestic legislation (see the Musema judgment, para. 256, and the references cited). “Responsible command” implies some degree of organization within the armed groups or dissident armed forces, but this does not necessarily mean that there is a hierarchical system of military organization similar to that of regular armed forces. It means an organization capable of, on the one hand, planning and carrying out sustained and concerted military operations – operations that are kept up continuously and that are done in agreement according to a plan – and on the other, of imposing discipline [...].

This condition implies the concept of duration: international humanitarian law applies from the start of armed conflict and extends beyond the cessation of hostilities [...], in the case of internal conflicts, until a peaceful solution has been achieved [...].

D.  Ratione personae

1.   The victims

Common Article 3 protects persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat. This provision, which is very broad in scope, covers members of armed forces and persons taking no part in hostilities, but applies above all to civilians, i.e. persons who do not bear arms [...].

Art. 2 (2) of Protocol II applies to all persons affected by armed conflict within the meaning of Art. 1. By this one must understand in particular persons who do not, or no longer take part in hostilities and enjoy the rules of protection laid down by the Protocol for their benefit and all residents of the country engaged in a conflict, irrespective of their nationality, including refugees and stateless persons (see [...] Sandoz[/Swinarski]/Zimmermann. (Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Geneva, 1986, nos 4485 and 4489 [available at http://www.icrc.org/ihl [7]]). Article 4(1) of the Protocol concerns all persons not participating directly in hostilities, or who are no longer participating. In view of their similarity, the formulations of common Article 3 and Art. 4 of Protocol II must be considered synonymous (See Akayesu [8] judgment,  para. 629. [8]).

ICTR jurisprudence uses a negative definition of “civilian,” taking the victim as its basis. A civilian is anyone who falls outside the category of “perpetrators,” namely individuals of all ranks belonging to the armed forces under the military command of either of the belligerent parties, or to individuals who were legitimately mandated and expected, as public officials or agents or persons otherwise holding public authority or de facto representing the Government, to support or fulfil the war efforts (See Musema judgment, para. 280).

In the instant case, victim D., the wife of the uncle of Witness 3, Witness 32 and his brother F. are all civilians who possess the characteristics of victim within the meaning of common Article 3 and Protocol II, Art. 2(2) and Art. 4.

2.   The perpetrators

A perpetrator must belong to a “Party to the conflict” (common Article 3) or to the “armed forces”, be they governmental or dissident (Protocol II, Art. 1). However, neither text specifies or defines the category of persons capable of committing war crimes. Given the primary purpose of these international instruments, which is to protect civilians against the atrocities of war, and given their humanitarian aim, the Appeals Chamber finds that the term “perpetrator” needs to be defined broadly. What has been said with regard to defining the category of victim applies also to that of potential perpetrator. Any person, military or civilian, who harms a person protected by the Geneva Conventions as defined above, has contravened these conventions and falls under Art. 109 MPC. The Appeals Chamber therefore diverges from the judgments of the ICTR, which require a proximate connection between the offence and the armed conflict, and restrict the application of the Geneva Conventions to persons holding positions in the armed forces or the civilian government (Cf. Musema, para. 259 and the references to the Akayesu judgment, paragraphs 642 and 643, where the ICTR found that this nexus did not exist, despite evidence of very substantial support for the war effort on the part of the accused. On that question in particular the Prosecutor of the ICTR lodged an appeal).

Nevertheless, the Appeals Chamber finds that under all of these circumstances there must be a nexus between the offence and the armed conflict. If, during a civil war in which the civilians on both sides are protected by the Geneva Conventions, one protected person commits an offence against another, it is necessary to establish a link between that act and the armed conflict. If such a link does not exist, the action constitutes not a war crime but an ordinary crime.

In this instance, N. was the bourgmestre of Mushubati, a commune of some 80,000 people. He was part of the Rwandan civilian administration, from which he had not resigned. On the contrary, when he returned to Rwanda on 19 May 1994 he once again took up the post he had delegated to his deputy during his absence in Europe, and the government of the day did not perceive him as a member of the opposition. At the time of the acts of which the appellant is accused, a war was in progress between the FAR and the FPR, a conflict that it would be very hard to dissociate from the massacres of Tutsis and of moderate Hutus. While the war had somewhat reduced the powers of bourgmestre N., there is considerable evidence that he still exercised effective de jure and de facto power over the citizens of his commune and over the military personnel and militias present therein. A number of points emphasize his links with the FAR, which was a party to the armed conflict: he had received a recommendation from a senior officer, Colonel K.; during his two visits to Kabgayi he was accompanied by soldiers, and three soldiers provided an escort when his family and his sisters left the bishop’s residence in Kabgayi. At Mont Mushubati he was also accompanied by soldiers. He was able to move around freely, not only in his own commune but as far as Gitarama. He moved freely through road-blocks and his wife had even been recognized as the wife of the bourgmestre, assuring her of favourable treatment by the militias. He was able to obtain petrol in Gitarama on a number of occasions and had no difficulty obtaining an exit visa for his family and his sisters.

It was in his capacity as a public servant that N. summoned the men of his commune to Mont Mushubati for the purpose of inciting them to hate and eliminate Tutsis, to commit killings and murder and to attack the property of moderate Hutus and the Tutsi minority. [...] N.’s status as perpetrator and the existence of a link between his actions and the armed conflict are therefore proven.

As all the conditions for applying common Art. 3 and Protocol II are satisfied, the facts proven will be assessed in the light of those provisions.

CHAPTER 4 – LEGAL CLASSIFICATION OF THE OFFENCES AND DETERMINATION OF PENALTY

A.  Legal classification of the offences

Article 109 of the MPC is an independent provision [...] to which the general concepts of action, conspiracy, complicity and instigation apply. [...]

In his capacity as bourgmestre, N. summoned the people of his commune to Mont Mushubati for the purpose of inciting them to hate and eliminate Tutsis, to commit killings and murder, to attack the property of moderate Hutus and the Tutsi minority and to kill Hutu women pregnant by Tutsi men. This behaviour would of itself constitute attempted incitement to murder or homicide, and would be punishable without any need to find or identify victims. The Appeals Chamber notes in this connection that N.’s words led to the deaths of an unknown number of persons, including D. and the wife of the uncle of Witness 3.

The appellant is therefore guilty of incitement to breaches of the laws of war (Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, Articles 3, 146 and 147, and Art. 4 of Protocol II), as provided for under Art. 109 MPC. The offences led to intentional homicides and constitute grave breaches within the meaning of Art. 109 (1) (3) MPC.

Again in his capacity as bourgmestre, the appellant went to Kabgayi on at least two occasions, accompanied by soldiers, to encourage the refugees from his commune to return to Mushubati, with the sole aim of having them massacred. He also ordered the soldiers accompanying him to kill Witness 32 and his brother F., only the former having survived.

The appellant is therefore guilty of grave breaches of the laws of war (Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, Articles 3, 146 and 147, and Art. 4 of Protocol II), as provided for under Art. 109 MPC.

B.  Determination of penalty

In the case of grave breaches, the penalty is between one and twenty years’ imprisonment, as provided for under Art. 109 (1) (3) MPC, in conjunction with Art. 28 MPC. Within that legal framework, the sentence is to be determined in accordance with Art. 44 MPC and the criteria derived from jurisprudence [...].

The acts described above constitute intentional violence to life, life being the supreme right protected by criminal law. These acts constitute war crimes and are intrinsically very serious. They led to the deaths of at least three persons. These persons were not only literally executed, under horrific circumstances (e.g. using a rifle butt and bayonet); they were subsequently denied even a decent grave, being thrown into the gutter (in the case of the brother of Witness 32) or a latrine (in the case of D.). Considerable emotional detachment is required to incite others to murder and to have human beings killed in such a sordid manner. Hatred is also required. The appellant harboured genuine hatred of Tutsis and moderate Hutus, as evinced by his words on Mont Mushubati and in the telephone call of 14 August 1996. Furthermore, the Appeals Chamber has observed no feelings of pity, nor any sign of remorse or repentance with respect to the victims or in connection with the tragic events that ravaged Rwanda.

Because he was outside Rwanda from 12 March 1994 to 19 May 1994, N. did not participate in the meeting of 18 April 1994, and did not play an active role at the height of the massacres, which occurred during the second half of April 1994. Without being one of the originators, he participated in the massacre process following his return from Europe for a period of not more than three weeks. Certainly, his professional position and his capacity of bourgmestre obliged him to ensure the safety of all residents of his commune, whether Tutsi or Hutu moderate or, at least, to abstain from harming them. The Appeals Chamber does find that this constitutes aggravation. Nevertheless, the Chamber is mindful that on his return to Mushubati, the appellant was confronted with a chaotic situation, which left him with only limited freedom of decision and action. These circumstances reduce the criminal intent attributed to N. [...]

Under these circumstances, the Appeals Chamber considers fourteen years’ imprisonment sufficient punishment. In accordance with Art. 50 MPC, the time spent in pre-trial detention (1,367 days) shall be deducted from the sentence. [...]

FOR THESE REASONS [...]

in accordance with Articles 3, 146 and 147 of the Geneva Convention of 12 August 1949 relative to the Protection of Civilian Persons in Time of War and with Article 4 of Protocol II additional to the said Convention, [...]:

VERDICT

I. The appeal is allowed in part.

II. N. is found guilty of breaches of the laws of war (Art. 109 MPC)

He is therefore sentenced to fourteen years’ imprisonment [...].