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The Prosecutor v. Jean Paul Akayesu
Court	International Criminal Tribunal for Rwanda; Trial Chamber I
Decided	September 2, 1998 (1998-09-02)
Citation(s)	The Prosecutor v. Jean Paul Akayesu, Case no. ICTR-96-4-T, Judgment ¶ 3 (September 2, 1998)
Transcript(s)	Judicial Records and Archives Database
Case history
Subsequent action(s)	Prosecutor v Akayesu, Sentencing judgment, Case No ICTR-96-4-T, 2 October 1998 *Prosecutor v Akayesu, Appeal judgment, Case No ICTR-96-4-A; ICL 91 (ICTR 2001), 1 June 2001
Court membership
Judges sitting	Laïty Kama, Lennart Aspegren, Navi Pillay

The Prosecutor v. Jean Paul Akayesu is a case decided by the International Criminal Tribunal for Rwanda (ICTR) on September 2, 1998. The defendant, Jean Paul Akayesu was charged with genocide, crimes against humanity and Common Article 3 of the Geneva Conventions.

Background

Akayesu was the first case decided by the ICTR. The charges prosecuted in Akayesu included rape as a crime against humanity.

The Akayesu case was the first time an international criminal tribunal issued a judgment concerning individual responsibility for genocide and it was the first case to consider the definition of rape within the context of international law. The discussion about legal elements includes the Tribunal's determination that sexual offenses are a component of the requisite actus reus. The ICTY and ICTR have together issued 12 decisions concerning the defintion of rape and from these decisions three differing definitions have emerged: Akayesu (1998), Furundžija (1998), and Kunarac, Kovač and Vuković (2001/2002).

The defendant, Jean Paul Akayesu, was the mayor (bourgmestre) of Taba commune (located in Gitarama Province, Rwanda). Akayesu and two other Rwandans, Clément Kayishema and Georges Rutaganda, were transferred to Arusha. Tanzania to stand trial. Since there was no material evidence, Akayesu's conviction was based solely on evidence provided by witness testimony.

The case is particularly noted in scholarship for its discussion of the definition of rape in international law:

"While rape has been defined in certain national jurisdictions as non-consensual intercourse, variations on the act of rape may include acts which involve the insertion of objects and/or the use of bodily orifices not considered to be intrinsically sexual. The Trial Chamber considers that rape is a form of aggression and that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts. ... The Trial Chamber defined rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive."

Other issues discussed in the case include evidentiary standards for rape and sexual violence, how to define the different "acts of genocide" that are enumerated in Article 2 of the ICTR Statute, and whether Common Article 3 and the Additional Protocol II of the Geneva Conventions are relevant to the particular Indictment.

Charges

• Rape as a crime against humanity; violation of Article 3(g) of the ICTR Statute
• "Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, or any form of indecent assault"; violations of Common Article 3 of the 1949 Geneva Conventions and Article 4(e) of Additional Protocol II

Procedural background

Akayesu was arrested first in Zambia on 10 October 1995, before being transferred to Tanzania. On 13 February 1996, an Indictment prepared by then prosecutor Richard Goldstone charged Akayesu with multiple counts of genocide, crimes against humanity and violations of Common Article 3. (The Common Article 3 charges included several incidents of murder, torture and beatings of prisoners in custody.) The Indictment was amended in June 1997 to include incidents of rape and sexual assault.

On 16 February 1996 Judge William H. Sekule issued an arrest warrant for Akayesu in Tanzania. Akayesu was transferred to Arusha, Tanzania on 26 May 1996, where he was detained until his trial.

The Deputy Prosecutor of the Tribunal was Honoré Rakotomanana. Also on the prosecution team were Yacob Haile-Mariam, Mohamed Chande Othman and Pierre-Richard Prosper. When the trial began on 9 January 1997, the defendant was represented by Nicolas Tiangaye and Patrice Monthé. The case was presided over by judges Laïty Kama, Lennart Aspegren and Navi Pillay.

The second phase of the trial concerning the amended Indictment (which added three counts related to rape and sexual violence) began on 23 October 1997. The case adjourned for deliberation on 26 March 1998.

Facts

Jean Paul Akayesu was the bourgmestre of Taba commune (located in Gitarama Province, Rwanda). He was in charge of both the local police and gendarmes, and was responsible for the maintenance of public order in Taba. Tutsi women were sexually assaulted by the police and militia at the Taba town hall.

The Chamber ruled that Akayesu's presence at the scene of the crimes "sent a clear signal of official tolerance for sexual violence".

During a meeting that took place on April 18, various local leaders, including Akayesu met. The Prosecution argued that this meeting marked a turning point after which the Interhamwe militias were given free rein in Taba; defense, on the other hand, said the Interahamwe and their leader Silas Kubwimana became the de facto leaders in Taba after the meeting. At least 2,000 Tutsis were killed in Taba during the the genocide.

Akayesu's testiomy

Akayesu testified that he wrote to commune counselors asking that roadblocks not be set up: "We knew what was happening at the roadblocks. We had to avoid them at all cost." He said he was unable to secure reinforcements from the préfet) as refugees fled to Taba to escape the killing the Kigali province. He said he attended the April 18 meeting and requested reinforcements but was told that the gendarmes had already been sent to the front, where the government was fighting RPF forces. He denied any discussion of killing Tutsis took place at the April 18 meeting. After the meeting, Interahamwe began to make public accusations that the Tutsi Inkotanyi (pejorative word used for Tutsis) had infiltrated. Akayesu testified that the killing had started by the time he returned to his office: "It was awful. The Interahamwe had come and had already started killing refugees, many of whom were women, children, and feeble men. They were killing just about everywhere. Who were they killing? Tutsis...The situation was becoming extremely dangerous, and I had been putting up a resistance for a long time. There was also my family [to think of]. I thought about giving it all up and running away." Judge Kama interrupted the testimony asking "One witness was surprised you were not killed by the Interahamwe. What do you think of that?" Akayesu answered that "everyone was wondering the same thing. One can see that I almost was. It was clear that the colonel and the gendarmes helped me enormously and saved me."

Genocide

The Tribual found that there had been widespread killings in Rwanda in 1994. Instrumental to this finding was the testimony of Ronnie Zachariah, a doctor with Médecins Sans Frontières. Zachariah described the many dead bodies he saw traveling around the country and testified that he had seen wounded persons at the Butare church whose injuries had been inflicted with machetes. Zachariah's testimony was further corroborated by the testimony of Roméo Dallaire, the former Commander of the United Nations Assistance Mission for Rwanda (UNAMIR). Dallaire testified that Rwandan Armed Forces (RAF) and Presidential Guard entered preselected homes in Kigali with orders to kill. He testified that killings occurred in Kabgayi (near Gitarma), Gisenyi, Cyangugu and Kibongo. A British cameraman had taken photographs of bodies in the churches of Remera, Biambi, Shangi, Bisesero, and the region between Cyangugu and Kibuye; he told the Tribunal that he had seen many identity cards littering the ground belonging only to Tutsis.

The specific intent of targeting a particular group is the required mens rea for genocide. Regarding genocidal intent, the Chamber in Akayesu simply stated "there is no doubt that considering their undeniable scale, their systematic nature and their atrociousness, the massacres were aimed at exterminating the group that was targeted." Expert witness Alison Desforges testified that she believed the intention was "completely wiping out the Tutsi from Rwanda"; she explained that her opinion was based on utterances by political leaders, popular Interahamwe songs, and slogans.

Other factors that supported a finding of genocidal intent included Dr. Zacariah's testimony that many of the wounded had cut Achilles tendons and Dallaire's testimony that newborn babies were killed. Even Hutu women were targeted, if they were believed to be carrying babies believed to be fathered by Tutsi men.

Indirect intent

In Akayesu the Chamber wrote that "The offender is culpable because he knew or should have known that the act committed would destroy, in whole or in part, a group." This is a type of recklessness, or indirect intent, where the perpetrator is aware or has knowledge of the possible consequences of an act.

Tutsis as a protected group

Though the Tutsis did not have a separate language or culture, the Chamber decided they met the requirements of a protected group for the purposes of the Convention. Their determination was based on factors such as identity cards that identified them as Tutsi, legislative provisions and the fact that Hutus perceived them as a distinct ethnic group.

Causing serious bodily or mental harm

The Trial Chamber held that rape and other acts of sexual violence could be the actus reus for genocide under Article 2(b) "as long as they were committed with specific intent to destroy, in whole or in part, a particular group, targeted as such." The Chamber notes that rape and sexual violence "constitute infliction of serious bodily and mental harm on the victim" and that "sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women...the rape of Tutsi women was systematic and was perpetrated against all Tutsi women and solely against them." Based on witness testimony the Chamber found that "in most cases, the rapes of Tutsi women in Taba, were accompanied with the intent to kill those women." They also noted that "Many rapes were perpetrated near mass graves where the women were taken to be killed." Based on these facts the Chamber concluded that these acts were committed with an intent to destroy members of the target group.

Incitement to Commit Genocide

Akayesu was charged with "Direct and Public Incitement to Commit Genocide" under Article(2)(c)(3). The Chamber took a broad approach holding that incitement to commit genocide could be implicit and that the incitement need not be successful to obtain a conviction.

This would include conduct that "plays on mob psychology by casting suspicion on certain groups, by insinuating that they were responsible for economic or other difficulties in order to create an atmosphere favorable to the perpetration of the crime".

Complicity in genocide

As a substantive crime, complicity in genocide has different mens rea and actus reus requirements from the charge of aiding and abetting genocide. (Both describe different ways of participating in a genocide).

Akayesu was acquitted of this charge.

Crimes against humanity

Of the three counts in the amended Indictment concerning acts of sexual violence, two were classified as "crimes against humanity"; these were Count 13, charging rape and Count 14 charging inhumane acts. The Tribunal likened rape to the definition of torture under the Convention of Torture, which defines torture within a framework of state-sanctioned violence, rather than specific acts: The Tribunal defined rape as "a physical invasion of a sexual nature, committed on a person under circumstances which are coercive."

"Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when it is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

Individual criminal liability

The Tribunal ruled that Akayesu was criminally liable for genocide in an individual capacity because he abetted the infliction of "serious bodily and mental harm", in the form of rape, on the targeted group of Tutsi women and because the purpose of the acts of sexual violence was to destroy Tutsi ethnic group.

War crimes

Concerning the war crimes charged under Common Article III of the Geneva Conventions and Additional Protocol II to the Conventions, the Tribunal determined that reasonable doubt existed as to whether the relevant acts occured in conjunction with an armed conflict. Since a war crimes conviction requires a nexus to armed conflict, and because Akayesu was not a member of the armed forces, the Tribunal acquitted him of these charges.

Evidentiary issues

Corroboration

Some of the facts alleged in the Indictment were supported only by a single witness testimony, prompting the Chamber to comment on the principle of unus testis, nullus testis found in Civil Law systems. Under this principle, meaning "one witness is no witness", evidence is not admissible unless it is corroborated. The Chamber notes that, under Rule 89(A), it is not bound any national rules of evidence. Also, under Rule 96(i) there is a presumption of reliability for testimony by victims of sexual assault. Thus, the Chamber held that testimony from a single witness can be sufficient evidence to prove an alleged fact.

Hearsay

The Chamber held that under under Rule 89, hearsay evidence was not inherently inadmissible and noted that such evidence had been taken into consideration "with caution, in accordance with Rule 89".

Translation

Most of the witness testimony was given in Kinyarwanda and needed to be translated into French and English. This proved to be quite difficult as certain features of the Kinyarwanda language did not easily translate into the official languages used by the ICTR. These included terms that were relevant for findings of material facts and law. For example, the Kinyarwanda language has multiple nuanced ways of referring to "rape". Other legally significant terms that posed problems of translation were Inkotanyi, Inyezi, Icitso/Ibyitso and Interahamwe.

An expert witness for the prosecution, Dr. Mathias Ruzindana, testified concerning some of the problems inherent in translating from Kinyarwanda. Ruzindana testified that his opinion was that the term Inkotanyi referred to the RPD army, but that its usage during the genocide may have included additional meanings such as RPF sympathizer, or even as a reference to the Tutsi people as an ethnic group. Ruzindana's determination on the meaning of the term Inkotanyi, as it was used in context, was based on its usage in Rwandan newspapers and recordings of RTLM radio broadcasts.

Unlike Inkotanyi, a term with positive connotations dating back to the 19th century Rwandan monarchy, Inyenzi was a term of abuse. Inyenzi means cockroach but it has been used historically as a pejorative term for Tutsi, especially during times of ethnic conflict and political upheaval, such as the Rwandan Revolution of 1959 and the Rwandan Civil War. The term Inyenzi was commonly used by extremist media, including RTLM, and by factions who had rejected the 1993 Arusha Peace Accords. For example, a headline in the Rwandan magazine Kangura read "The cockroach begets another cockroach and not a butterfly". The usage of the term in other articles made the context of the term as a slur more explicit: "The war between us and the Inyenzi-Inkotanyi has lasted for too long. It is time we told the truth. The present war is a war between Hutu and Tutsi." The Chamber also quoted an RTLM broadcast from 20 April 1994: "They are a gang of Tutsi extremists who called themselves Inkotanyi while they are no more than Inyenzi". Léon Mugesera gave a speech on 22 November 1992 where he said "Don't call them Inkotanyi, they are true Inyenzi".

During the trial the terms gusambanya, kurungora, kuruyamana and gufata ku ngufu were translalated as "rape". The words have different nuanced meanings in Kinyarwanda. Gusambanya means "to bring (a person) to commit adultery or fornication". Kurungora, meaning "to have sexual intercourse with a woman" is used for both married and unmarried women and can be used for consensual, as well as non-consensual intercourse.Kuruyamana is similar to the colloquialism "to sleep with" and gufuta ku ngufu means "to take by force" or "to rape". The Chamber stated that they had reviewed the trial transcripts and were "satisfied that the Kinyarwanda expressions have been accurately translated."