The Prosecutor v. Jean-Paul Akayesu
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||International Criminal Tribunal for Rwanda (Appeals Chamber), Tanzania
||1 June 2001
- The Prosecutor
- Jean-Paul Akayesu
||Crimes against humanity, Genocide, War crimes
||cause serious bodily or mental harm, crimes against humanity, cruel treatment, ethnic group, extermination, genocide, intent to destroy, kill, Murder, other inhumane acts, outrages upon personal dignity, rape, Serious violations of the Geneva Conventions and Additional Protocol II, torture, widespread or systematic attack
The Accused, Jean-Paul Akayesu, was the mayor of Taba, Rwanda. On 2 September 1998, Trial Chamber I of the Tribunal found him guilty of nine out of fifteen Counts charging him with genocide, crimes against humanity and violations of the Geneva Conventions in the first ever trial before the Tribunal. His was the first conviction ever for genocide and it was the first time that an international tribunal ruled that rape and other forms of sexual violence could constitute genocide. It was also the first conviction of an individual for rape as a crime against humanity.
Akayesu appealed against his convictions and the sentence imposed on him. His principal ground of appeal was that he had not been represented by counsel of his choice. The Prosecution also presented four grounds of appeal.
The Appeals Chamber held that the right of appeal for an indigent person to be represented by a lawyer free of charge did not imply the right to select the advocate to be assigned to defend him. The Chamber underscored that in this case there had been an abuse of the right of an indigent accused to legal aid at the expense of the international community.
The other grounds of appeal, as well as Akayesu’s appeal against the life sentence imposed upon him were also rejected.
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The original indictment charged Akayesu, as bourgmestre (mayor) of Taba commune, with involvement in criminal acts committed between 7 April and the end of June 1994 in this commune. The Accused was charged under Article 6(1) of the Statute with genocide (count 1); complicity in genocide (count 2); crimes against humanity (Counts 3, 5, 7, 9, and 11); direct and public incitement to commit genocide (count 4); violations of Article 3 common to the Geneva Conventions (Counts 6, 8, 10 and 12).
On 17 June 1997, the original indictment was amended with three additional Counts of sexual violence, violence and murder perpetrated at the bureau communal between 7 April and the end of June 1994. The Accused was thus charged under Article 6(1) and /or Article 6(3) of the Statute with rape (count 13) and other inhumane acts (count 14) as crimes against humanity, and violations of Article 3 common to the Geneva Conventions and of Article 4(2)(e) of Additional Protocol II (outrages upon personal dignity, in particular rape, humiliating and degrading treatment and indecent assault, count 15).
On 2 September 1998, Trial Chamber I found the Accused guilty of genocide (count 1), direct and public incitement to commit genocide (count 4) and crimes against humanity (Counts 3, 5, 7, 9, 11, 13 and 14). He was acquitted on the remaining Counts. The Chamber imposed several terms of imprisonment on the Accused, ranging from 10 years to life and it decided that each sentence should be served concurrently. Therefore, it directed that the Accused should serve a single sentence of life imprisonment (see Judgment and Verdict).
Both the Accused and the Prosecution appealed against the Trial judgment. The Accused lodged an appeal against the sentence as well.
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Legally relevant facts
The Accused raised eleven grounds of appeal in total.
Under ground 1, the Accused submitted that he had been denied the right to be defended by counsel of his own choice and to defend himself in person (para. 44).
Under ground 2, the Accused argues that he had been denied the right to a competent attorney (para. 67).
Under ground 3, the Accused contended that the tribunal was biased and lacked independence (para. 85).
Under ground 4, Mr. Akayesu alleged a total absence of the rule of law in view of a series of errors invalidating the finding of guilty (paras. 102-273).
Under ground 5, the Accused maintained that there was a total absence of the rule of law; however, he did not discuss this ground in his Brief nor at he hearing on appeal. Therefore, the Appeals Chamber rejected it (paras. 274-276).
Under ground 6, the Accused submitted that the Trial Chamber had erred in the way it had treated hearsay evidence (para. 277).
Under ground 7, the Accused alleged irregularities during direct examination and cross-examination (paras. 310-311).
Under ground 8, Mr. Akayesu raised an issue of unlawful disclosure of defence witness statements (para. 327).
Under ground 9, the Accused argued that Witness DAAX had sent a letter to the judges of Trial Chamber I following his testimony and that this constituted an abuse of process (para. 328).
Under ground 10, the Accused challenged the legality of his detention (para. 351).
Under ground 11, Mr. Akayesu appealed against the sentence imposed on him (para. 378).
The Prosecution advanced four grounds of appeal. Grounds 1 and 2 challenged the Trial Chamber's analysis of Article 4 of the Statute; ground 3 concerned the Trial Chamber's interpretation of Article 3 of the Statute, while ground 4 related to the analysis of Article 6(1) of the Statute (paras. 425-426, 447, 470).
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Core legal questions
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- Whether the issues raised by the Prosecution in its appeal were of interest to legal practice of the Tribunal and had a nexus with the present case;
- Whether the right to free legal assistance of counsel confers the right to counsel of one’s own choosing;
- Whether the Accused demonstrated gross incompetence of his counsel resulting in a miscarriage of justice;
- Whether the test before ruling hearsay evidence admissible was met by the Trial Chamber;
- Whether the Trial Chamber had erred on a point of law in restricting the application of common Article 3 of the Geneva Conventions to a certain category of persons;
- Whether the discriminatory intent is an essential element for one of the crimes enumerated under Article 3 of the Statute to constitute a crime against humanity;
- Whether the “incitement”, as set out in Article 6(1) of the Statute, needs be “direct and public”;
- What the effect on the sentence would be, in case any of the grounds of appeal was accepted.
Specific legal rules and provisions
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- Article 3 common to the Geneva Conventions.
- Article 3, 4(2)(e) of Additional Protocol II.
- Articles 1, 2, 3, 4, 5, 6(1),(3), 12(1), 15, 17(1), 19(1), 20, 23, 24, 26, 27, 91(1) of the ICTR Statute.
- Rules 3(A), 14(A), 15(A), 40, 45(A), 46(A), 50, 66, 71, 72, 73, 74, 77, 78, 80, 85(B), 87(A), 89(A),(C), 90(A),(B),(F),(G), 94bis, 101, 105, 111, 112, 115, 116, 118, 119, 123 of the ICTR RPE.
Court's holding and analysis
After considering all the arguments advanced by the Accused, the Appeals Chamber held that the Accused had failed to demonstrate that the Trial Chamber had committed any of the errors of fact and law alleged by him. Hence, the Chamber dismissed the grounds of appeal presented by the Accused (para. 423).
With regard to the Prosecution's first two grounds of appeal, the Appeals Chamber found that the Trial Chamber had erred in restricting the application of common Article 3 of the Geneva Conventions to a certain category of persons. Since it entertained the first ground of appeal, the Appeals Chamber deemed it unnecessary to consider the Prosecution's alternative ground of appeal (paras. 445-446).
Concerning the Prosecution's third ground of appeal, the Appeals Chamber clarified that Article 3 of the Statute does not require that all crimes against humanity enumerated therein be committed with a discriminatory intent and that said Article restricts the Tribunal's jurisdiction to crimes committed "as part of a widespread or systematic attack against any civilian population" on discriminatory grounds (para. 469).
Regarding the Prosecution's fourth ground of appeal, the Chamber found that "incitement" under Article 6(1) of the Statute need not be "direct and public" (para. 483).
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- 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 RPRE), UN Doc ITR/3/Rev. 6, adopted on 29 June 1995, as amended on 8 June 1998.
- ICTR, 'Appeals Chamber Upholds Sentences in the Akayesu, Kayishema and Ruzindana Trials', ICTR News, 1 June 2001;
- TRIAL, Fact sheet on Akayesu, TRIAL website;
- Hirondelle News, 'Appeals Court Confirms Judgement on Former Mayor', Hirondelle News Agency, 1 June 2001;
- All Africa, 'Rwanda: Akayesu's Appeal Rejected', All Africa - Humanitarian News and Analysis, 6 June 2001.