[See also ICTR, The Prosecutor v. Jean-Paul Akayesu [1], and Switzerland, Military Penal Code [hereafter MPC] [2]]
[N.B.: In accordance with the practice of Swiss tribunals, the name of the accused is not published in the public decisions of this case. However, we have taken the liberty to reveal it as was done by the Federal Council in its message to Parliament on the Rome Statute of the ICC of 15 November 2000, Feuille fédérale (Federal Gazette) 2001, 487, n. 270, and Luc REYDAMS, “International Decisions, Niyonteze v. Public Prosecutor”, AJIL 96 (2002), pp. 231-236.]
[In order to facilitate comprehension of this case, the decision of the Court of Cassation (27 April 2001) is reproduced below before the Appeals Chamber Judgement of 26 May 2000.]
[Source: Switzerland, Tribunal militaire de cassation (Military Court of Cassation), decision of 27 April 2001 in the N. case, available (in French) at https://www.vbs.admin.ch/fr/home.html [3]; unofficial translation.]
THE MILITARY COURT OF CASSATION
[the supreme military tribunal of Switzerland]
rules as follows
at its hearing of 27 April 2001 in Yverdon-les-Bains, [...]
on the application for judicial review
filed by
N., represented by [...],
and by
the Prosecutor of Divisional Chamber 2, Lieutenant-Colonel [...],
against
the decision handed down on 26 May 2000 by Military Appeals Chamber 1A,
in which N. was found guilty of breaches of the laws of war
(Art. 109 of the Swiss military code), sentenced to 14 years’ imprisonment
(less the time already spent in pre-trial detention) and deportation
from Switzerland for a period of fifteen years,
and ordered to pay the costs of the case
Whereas: [...]
“Any person violating the provisions of international conventions concerning the conduct of hostilities or the protection of persons and property,
any person violating other recognized laws and customs of war, shall, unless more stringent provisions apply, be subject to imprisonment.
The penalty for grave breaches shall be imprisonment.” [...]
In principle, the provisions of Articles 108 to 114 MPC apply where war has been declared and to other conflicts between two or more States (Art. 108 (1) MPC ). However, Art. 108 (2) MPC stipulates that breaches of international agreements are punishable if those agreements specify a broader field of application. It therefore follows that the ‘international conventions governing the conduct of hostilities and the protection of persons and property’ that apply to non-international conflicts, and which hence have a wider field of application than those of the conventions applicable exclusively to international conflicts, also fall under the provisions of Art. 109 (1) MPC.
For the foregoing reasons
The Military Chamber of Cassation finds as follow:
[Source: Switzerland, Tribunal militaire d’appel (Military Appeals Chamber) 1A, decision of 26 May 2000 in the N. case, available (in French) at
http://www.vbs.admin.ch/internet/vbs/fr/home/documentation/oa009.parsys.0008.downloadList.00081.DownloadFile.tmp/urteiln2instanz.pdf [6]]
MILITARY APPEALS CHAMBER 1A
Sitting from 15 May to 26 May 2000
Palais de Justice, salle G3, GENEVA [...]
CASE:
N, [...] currently in pre-trial detention [...]
accused of:
IS CALLED
The accused is present, assisted by his appointed counsel. [...]
[...] In establishing the facts, the Chamber will draw on the testimony gathered by the examining magistrate, that presented to the Divisional Chamber and this Chamber, and all documents and statements filed. The Appeals Chamber will also examine the deliberations of the impugned judgment regarding assessment of the evidence in general and of testimony in particular. In assessing the testimony, it is important to bear in mind the system of norms and values obtaining in Rwanda, the time that has elapsed since the alleged offences and the level of education of the witnesses. The Chamber finds it unnecessary to examine minor discrepancies in detail to assess the plausibility or otherwise of testimony; rather, one must take the testimony as a whole. This is all the more so in view of the fact that the defence has questioned the credibility of certain witnesses only at the appeal stage, when they were not in a position to explain discrepancies that might cast doubt upon their statements. [...]
A) N. was born in the commune of M. [...] He is a Roman Catholic. He has three brothers and ten half-brothers and sisters. His parents are farmers. [...] In 1980, he underwent senior secondary education, specializing in sciences (mathematics, physics and chemistry) in Nyanza, Butare Prefecture. In 1983, he obtained the certificate of secondary education, which qualified him for university entry or for a career. Between 1983 and 1984, the accused attended an advanced course at the national postal and telecommunications college in Kigali, qualifying as a telecommunications technician. He then studied at the Institut africain de statistique et d’économie in Kigali, leaving in 1986 with a teaching diploma in economics and statistics. He pursued his career [...] until April 1993, when he took up his post as bourgmestre in the commune of Mushubati, with a monthly salary of 30,000 Rwandan francs (approximately $ 300). He had been elected bourgmestre in autumn 1992 in the first round of elections, with 83% of the votes cast by an electoral college consisting of representatives of the various political parties, denominations and administrative bodies of the commune.
The accused married Ms M. in 1989. He has two children [...]. He first joined the opposition MDR (Mouvement démocratique républicain) in 1991, as an activist. He lived in Kigali from 1983 to 1993. Starting in April 1986, he served a number of internships abroad (in Canada, Italy and the United States). He went to France on 12 March 1994, to attend a course on local government. [...] He remained in Paris until 13 May 1994, while seeking the best way to return to his country. On 14 May 1994 he flew to Kinshasa via Libreville and then continued to Goma where he stayed for two days. From there he rented a vehicle and arrived in Mushubati on the night of 18/19 May 1994. By that time, the large-scale massacres had already ended and there were very few Tutsis in his commune, whereas they had previously accounted for 15% of the population. They were now dead, in hiding or had taken refuge in the parishes of Kabgayi and Nyarusange. [...]
The Divisional Chamber did not find it proven beyond reasonable doubt that the accused personally distributed rifles or grenades to certain persons, nor that he trained them in their use. The trial judges did find that the accused had acted in his capacity of bourgmestre to help certain persons in difficulty to flee the country, most of them Tutsis, in particular by providing them with false papers, and that he had in all probability saved a certain number of lives in so doing. They also found that the accused had not done all that one could expect him to do in his capacity of bourgmestre to prevent or limit the massacres, but that these omissions had to be compared with the accused’s acts of commission and his general behaviour, and did not constitute crimes additional to those of which he was found guilty. As the Prosecutor did not appeal from the first instance judgment, these aspects of the verdict will not be called into question (see Chapter 2, “Legal questions”).
[N.B.: In its (unpublished) decision, the Divisional Chamber acquitted N. of breach of the duties of a bourgmestre. It found that those omissions were absorbed by the acts of commission of which the accused was convicted and that they were not punishable under any applicable instrument.]
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. [...]
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. [...]
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 [...].
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.
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.
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 [...].
Links
[1] https://casebook.icrc.org/case-study/ictr-prosecutor-v-jean-paul-akayesu
[2] https://casebook.icrc.org/case-study/switzerland-criminal-code
[3] https://www.vbs.admin.ch/fr/home.html
[4] http://www.admin.ch/ch/f/rs/c142_31.html]
[5] http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm]
[6] http://www.vbs.admin.ch/internet/vbs/fr/home/documentation/oa009.parsys.0008.downloadList.00081.DownloadFile.tmp/urteiln2instanz.pdf
[7] http://www.icrc.org/ihl
[8] https://casebook.icrc.org/case-study/ictr-prosecutor-v-jean-paul-akayesu#para-629
[9] https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=4825657B0C7E6BF0C12563CD002D6B0B&action=openDocument
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[11] https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=AA0C5BCBAB5C4A85C12563CD002D6D09&action=openDocument
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[13] https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=BCB53BC974303D8EC12563CD0051E751
[14] https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=F9CBD575D47CA6C8C12563CD0051E783
[15] https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=3F6C2B8B20272F58C12563CD0051A2BB
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[17] https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=C083F579BD003884C12563CD0051B5D3
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[19] https://casebook.icrc.org/case-study/icty-prosecutor-v-tadic
[20] https://casebook.icrc.org/case-study/ictr-prosecutor-v-jean-paul-akayesu#partb
[21] https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=D9E6B6264D7723C3C12563CD002D6CE4&action=openDocument
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[24] https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=F4D5A167D2E676DBC12563FB00487274
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[27] https://casebook.icrc.org/case-study/un-statute-ictr