Table of contents:
P.35. Evidence inferred from an utterance, document or a deed.
P.35.2. Evidence that the perpetrator ordered acts of sexual violence.
P.35.3. Evidence of direct death threats by the perpetrator.
P.35.5. Evidence that the perpetrator participated extensively in the commission of the offence.
P.35.6. Evidence of persecution by the perpetrator.
P.35.7. Evidence of deportation by the perpetrator.
P.35.8. Evidence of acts of inhumane or degrading treatment by the perpetrator.
P.36. Evidence inferred from a circumstance
P.36.1. Evidence of the perpetrators presence during the commission of the offence.
Element:
P.35. Evidence inferred from an utterance, document or a deed.
A. Legal source/authority and evidence:
Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, paras. 890-891:
"890. Secondly, the Chamber is satisfied that it has been established beyond a reasonable doubt that on 26 April 1994, Musema led and participated in an attack on Gitwa Hill. Musema arrived at the site of the attack in a Daihatsu vehicle belonging to the Gisovu Tea Factory. He carried a firearm and was accompanied by employees of the Gisovu Tea Factory wearing blue uniforms. Musema and other persons, some of whom wore banana leaves and Imihurura belts, attacked Tutsi refugees. It has also been established beyond a reasonable doubt that Musema shot into the crowd of refugees. The attackers killed resolutely, and few refugees survived the large-scale attack.
891. The Chamber finds that Musema incurs individual criminal responsibility for the above-mentioned acts, on the basis of the provisions of Article 6 (1) of the Statute, for having ordered and, by his presence and participation, having aided and abetted in the murder of members of the Tutsi ethnic group, and for the causing of serious bodily and mental harm to members of the said group."
Prosecutor v. Georges Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, paras. 385-386:
"385. Regarding the facts alleged in paragraph 10, the Chamber finds that it is established beyond any reasonable doubt that, on the afternoon of 8 April 1994, the Accused arrived at Nyarugenge in a pick-up truck, filled with firearms and machetes. The Accused personally distributed weapons to the Interahamwe and ordered them to go to work stating that there was a lot of dirt that needed to be cleaned up. The Accused was carrying a rifle slung over his shoulder and a machete hanging from his belt. The Chamber also finds that it is established beyond any reasonable doubt that on 15 April 1994 in the afternoon, the Accused arrived at the Cyahafi Sector, Nyarugenge Commune, in a pick-up truck. The pick-up was parked near a public standpipe. The Accused got out of the vehicle, opened the back of the truck where the guns were kept. The men who had come with him distributed the weapons to members of the Interahamwe. Immediately after the distribution of rifles, those who received them started shooting. Three persons were shot dead; all were Tutsis. The Chamber also finds that it is established beyond a reasonable doubt that on or about 24 April 1994, in the Cyahafi Sector, the Accused distributed Uzzi guns to the President of the Interahamwe of Cyahafi during an attack by the Interahamwe on the Abakombozi.
386. In the opinion of the Chamber, the Accused is individually criminally responsible by reason of such acts for having aided and abetted in the preparation for and perpetration of killings of members of the Tutsi group and for having caused serious bodily or mental harm to members of said group."
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 556-558, 568:
"COUNT 7: Charges Kayishema with Genocide in Violation of Article 2(3)(a) of the Statute for the Massacres at the Stadium in Kibuye Town
556. The Trial Chamber finds that by 18 April 1994, thousands of men, women and children, unarmed Tutsis, sought refuge in the Stadium located in Kibuye Town. Once the refugees had gathered, persons under Kayishemas control, including gendarmes, prevented refugees from leaving the Stadium and surrounded the Stadium. The Trial Chamber is satisfied that during the attacks, some of the Tutsi who attempted to flee were killed. Kayishema instigated the attacks by ordering the attackers to "shoot those Tutsi dogs" and by firing the first shot into the Stadium. As a result of the attack, thousands of people were killed and numerous sustained serious physical injuries.
557.The Chamber finds beyond a reasonable doubt, that at the time when the Tutsi were prevented from leaving the Stadium, Kayishema knew or had reason to know that an attack was about to occur.
Kayishemas Criminal Responsibility
558. For the reasons stated above, Kayishema is individually criminally responsible under Article 6(1) of the Statute for instigating, ordering, committing or otherwise aiding and abetting in the planning, preparation and execution of genocide by killing and injuring Tutsis in the Stadium."
"568. Under Article 6(1) of the Statute, Kayishema is individually responsible for genocide for killing and injuring the Tutsi at the attacks in the Bisesero area during April, May and June 1994 with the intent to destroy the Tutsi ethnic group. Kayishemas involvement varied from crime site to crime site within Bisesero. At the crime sites where he was found to have participated, Kayishema committed one or more of the following acts: headed the convoy of assailants; transported attackers in his vehicle; directed the initial positioning of the attackers; verbally encouraged them; initiated the attacks by orders or gunshots; lead the groups of attackers; shot at fleeing Tutsis; and, finally, thanked the Hutu attackers for their "work." These facts prove, beyond a reasonable doubt, that Kayishema, instigated, ordered, committed and otherwise aided and abetted in the preparation and execution of the massacre that resulted in thousands of deaths and serious bodily injuries with intent to destroy the Tutsi ethnic group."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 504, 711-712, 720:
"504. For purposes of interpreting Article 2 (2)(b) of the Statute, the Chamber takes serious bodily or mental harm, without limiting itself thereto, to mean acts of torture, be they bodily or mental, inhumane or degrading treatment, persecution."
"711. With respect to the Prosecutor's allegations in paragraph 16 of the Indictment, the Chamber is satisfied beyond a reasonable doubt that on 19 April 1994, Akayesu on two occasions threatened to kill victim U, a Tutsi woman, while she was being interrogated. He detained her for several hours at the Bureau communal, before allowing her to leave. In the evening of 20 April 1994, during a search conducted in the home of victim V, a Hutu man, Akayesu directly threatened to kill the latter. Victim V was thereafter beaten with a stick and the butt of a rifle by a communal policeman called Mugenzi and one Francois, a member of the Interahamwe militia, in the presence of the accused. One of victim V's ribs was broken as a result of the beating.
712. In the opinion of the Chamber, the acts attributed to the accused in connection with victims U and V constitute serious bodily and mental harm inflicted on the two victims.[ ]."
"720. The Chamber finds that the acts alleged in paragraph 21 have been proven. It has been established that on the evening of 20 April 1994, Akayesu, and two Interahamwe militiamen and a communal policeman, one Mugenzi, who was armed at the time of the events in question, went to the house of Victim Y, a 69 year old Hutu woman, to interrogate her on the whereabouts of Alexia , the wife of Professor Ntereye. During the questioning which took place in the presence of Akayesu, the victim was hit and beaten several times. In particular, she was hit with the barrel of a rifle on the head by the communal policeman. She was forcibly taken away and ordered by Akayesu to lie on the ground. Akayesu himself beat her on her back with a stick. Later on, he had her lie down in front of a vehicle and threatened to drive over her if she failed to give the information he sought."
[B. Evidentiary comment:]
P.35.2. Evidence that the perpetrator ordered acts of sexual violence.
A. Legal source/authority and evidence:
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 692, 704-705:
"692. The Tribunal finds, under Article 6(1) of its Statute, that the Accused, by his own words, specifically ordered, instigated, aided and abetted the following acts of sexual violence:
(i) the multiple acts of rape of ten girls and women, including Witness JJ, by numerous Interahamwe in the cultural center of the bureau communal;
(ii) the rape of Witness OO by an Interahamwe named Antoine in a field near the bureau communal;
(iii) the forced undressing and public marching of Chantal naked at the bureau communal."
"704. The Chamber finds that, as pertains to the acts alleged in paragraph 12, it has been established that, throughout the period covered in the Indictment, Akayesu, in his capacity as bourgmestre, was responsible for maintaining law and public order in the commune of Taba and that he had effective authority over the communal police. Moreover, as "leader" of Taba commune, of which he was one of the most prominent figures, the inhabitants respected him and followed his orders. Akayesu himself admitted before the Chamber that he had the power to assemble the population and that they obeyed his instructions. It has also been proven that a very large number of Tutsi were killed in Taba between 7 April and the end of June 1994, while Akayesu was bourgmestre of the Commune. Knowing of such killings, he opposed them and attempted to prevent them only until 18 April 1994, date after which he not only stopped trying to maintain law and order in his commune, but was also present during the acts of violence and killings, and sometimes even gave orders himself for bodily or mental harm to be caused to certain Tutsi, and endorsed and even ordered the killing of several Tutsi.
705. In the opinion of the Chamber, the said acts indeed incur the individual criminal responsibility of Akayesu for having ordered, committed, or otherwise aided and abetted in the preparation or execution of the killing of and causing serious bodily or mental harm to members of the Tutsi group. Indeed, the Chamber holds that the fact that Akayesu, as a local authority, failed to oppose such killings and serious bodily or mental harm constituted a form of tacit encouragement, which was compounded by being present to such criminal acts."
[B. Evidentiary comment:]
P.35.3. Evidence of direct death threats by the perpetrator.
A. Legal source/authority and evidence:
Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D, Judgement (TC), 31 May 2012, para. 938:
938. Having examined and analysed the Prosecution and Defence evidence, the Chamber finds beyond a reasonable doubt that on 13 April 1994, an attempted attack was made upon the Tutsis seeking refuge at the Nyabikenke commune office. Witness T24 and commune policemen repelled the attack at the Nyagahondo forest, before it reached the commune office. As a result of the counter-attack one of the assailants was killed and others were injured, but the refugees were unharmed. On the afternoon of 14 April 1994, Nzabonimana held a meeting in Nyabikenke commune at Cyayi centre, located only 250 to 300 metres from the commune office. The evidence established beyond a reasonable doubt that approximately 30 people were present at the centre, including Prosecution Witnesses CNAI and CNAX, a Tutsi named Evariste Munyagatare, Isaac Kamali and Defence Witness T193. At this meeting, Nzabonimana asked those gathered to prioritise the massacre of Tutsis before taking their property. Nzabonimana stated: "I know that Hutus do not heed instructions. Do not continue to eat the cows of Tutsi who have sought refuge at the communal office. What really matters is not the cows; it is rather, the owners of the cows that matter." He also issued a threat to a Tutsi named Evariste Munyagatare, who was among those seeking refuge at the Nyabikenke commune office.
Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D, Judgement (TC), 31 May 2012, para. 1717:
1717. The Chamber also finds that by threatening a Tutsi and saying that Tutsis should be massacred at Cyayi centre on 14 April 1994, Nzabonimana prompted others to act and to continue the genocidal attack upon the commune office, and that Nzabonimana intended to do so. There is no doubt that, at the time of Nzabonimanas prompting, he knew of the genocidal intent of his audience, particularly given the meetings temporal and physical proximity to the recent attack on the commune office. Nzabonimanas knowledge of this specific intent is further demonstrated through his reminder to the attendees that their killing of Tutsis should take place before, rather than after, the taking of Tutsi property. The Chamber also notes the extensive circumstantial evidence of Nzabonimanas genocidal intent, set out below.
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 711:
"711. With respect to the Prosecutor's allegations in paragraph 16 of the Indictment, the Chamber is satisfied beyond a reasonable doubt that on 19 April 1994, Akayesu on two occasions threatened to kill victim U, a Tutsi woman, while she was being interrogated. He detained her for several hours at the Bureau communal, before allowing her to leave. In the evening of 20 April 1994, during a search conducted in the home of victim V, a Hutu man, Akayesu directly threatened to kill the latter. Victim V was thereafter beaten with a stick and the butt of a rifle by a communal policeman called Mugenzi and one Francois, a member of the Interahamwe militia, in the presence of the accused. One of victim V's ribs was broken as a result of the beating."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 693- 694:
"693. The Tribunal finds, under Article 6(1) of its Statute, that the Accused aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal, while he was present on the premises in respect of (i) and in his presence in respect of (ii) and (iii), and by facilitating the commission of these acts through his words of encouragement in other acts of sexual violence, which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place:
(i) the multiple acts of rape of fifteen girls and women, including Witness JJ, by numerous Interahamwe in the cultural center of the bureau communal;
(ii) the rape of a woman by Interahamwe in between two buildings of the bureau communal, witnessed by Witness NN;
(iii) the forced undressing of the wife of Tharcisse after making her sit in the mud outside the bureau communal, as witnessed by Witness KK;
694. The Tribunal finds, under Article 6(1) of its Statute, that the Accused, having had reason to know that sexual violence was occurring, aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal and by facilitating the commission of such sexual violence through his words of encouragement in other acts of sexual violence which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place:
(i) the rape of Witness JJ by an Interahamwe who took her from outside the bureau communal and raped her in a nearby forest;
(ii) the rape of the younger sister of Witness NN by an Interahamwe at the bureau communal;
(iii) the multiple rapes of Alexia, wife of Ntereye, and her two nieces Louise and Nishimwe by Interahamwe near the bureau communal;
(iv) the forced undressing of Alexia, wife of Ntereye, and her two nieces Louise and Nishimwe, and the forcing of the women to perform exercises naked in public near the bureau communal."
[B. Evidentiary comment:]
P.35.5. Evidence that the perpetrator participated extensively in the commission of the offence.
A. Legal source/authority and evidence:
Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, paras. 890-891:
"890. Secondly, the Chamber is satisfied that it has been established beyond a reasonable doubt that on 26 April 1994, Musema led and participated in an attack on Gitwa Hill. Musema arrived at the site of the attack in a Daihatsu vehicle belonging to the Gisovu Tea Factory. He carried a firearm and was accompanied by employees of the Gisovu Tea Factory wearing blue uniforms. Musema and other persons, some of whom wore banana leaves and Imihurura belts, attacked Tutsi refugees. It has also been established beyond a reasonable doubt that Musema shot into the crowd of refugees. The attackers killed resolutely, and few refugees survived the large-scale attack.
891. The Chamber finds that Musema incurs individual criminal responsibility for the above-mentioned acts, on the basis of the provisions of Article 6 (1) of the Statute, for having ordered and, by his presence and participation, having aided and abetted in the murder of members of the Tutsi ethnic group, and for the causing of serious bodily and mental harm to members of the said group."
Prosecutor v. Georges Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, paras. 391- 392:
"391. A large number of the refugees who managed to escape or survived the attack on the ETO then headed in groups for the Amahoro Stadium. On their way, they were intercepted by soldiers who assembled them close to the Sonatube factory and diverted them towards Nyanza. They were insulted, threatened and killed by soldiers and members of the Interahamwe who were escorting them and who were armed with machetes, cudgels, axes and other weapons. At Nyanza, the Interahamwe forced the refugees to stop; they were assembled and made to sit at the foot of a hill where armed soldiers stood. The refugees were surrounded by Interahamwe and soldiers. The Hutus were asked to stand up and identify themselves and were subsequently allowed to leave. Some Tutsis who tried to leave pretending to be Hutus were killed on the spot by members of the Interahamwe who knew them. Grenades were then hurled into the crowd by the Interahamwe and the soldiers on the hill started shooting. Those who tried to escape were escorted back by the Interahamwe. Many people were killed. After firing shots and throwing grenades at the refugees, the soldiers ordered the Interahamwe to start killing them. Thereupon the Interahamwe started killing, using cudgels and other weapons. Some young girls were singled out, taken aside and raped before being killed. Many of the women who were killed were stripped of their clothing. The soldiers then ordered the Interahamwe to check for survivors and to finish them off. The Accused directed the Interahamwe who were armed with grenades, machetes and clubs into position to surround the refugees just prior to the massacre. The Chamber finds that it has been established beyond any reasonable doubt that the Accused was present and participated in the Nyanza attack. Furthermore, it holds that by his presence, the Accused abetted in the perpetration of the crimes.
392. With respect to the acts alleged against the Accused, as described in paragraphs 13 to 16 of the Indictment, the Chamber finds that individual criminal responsibility attached to the Accused for having committed, aided and abetted in the killings of members of the Tutsi group and having caused serious bodily or mental harm to members of the Tutsi group."
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 552-554, 568:
"552. Kayishema led the attackers from the Prefecture office to the Complex. He then ordered them to begin the attack on the Tutsi by relaying a message from Kigali, through a megaphone, to kill the Tutsis. Thus, Kayishema orchestrated and participated in the attack that lasted hours. As a result of the attack, thousands of Tutsis were killed.
553. The Trial Chamber finds that prior to the attack; Kayishema knew that it was imminent. Indeed, along with initiating the attack, he was seen at the Complex twice before the attacks of 17 April.
Kayishemas Criminal Responsibility
554. For the reasons stated above, pursuant to Article 6(1) of the Statute, Kayishema is individually responsible for instigating, ordering, committing or otherwise aiding and abetting in the planning, preparation and execution of genocide by the killing and causing of serious bodily harm to the Tutsis at the Complex on 17 April 1994."
"568. Under Article 6(1) of the Statute, Kayishema is individually responsible for genocide for killing and injuring the Tutsi at the attacks in the Bisesero area during April, May and June 1994 with the intent to destroy the Tutsi ethnic group. Kayishemas involvement varied from crime site to crime site within Bisesero. At the crime sites where he was found to have participated, Kayishema committed one or more of the following acts: headed the convoy of assailants; transported attackers in his vehicle; directed the initial positioning of the attackers; verbally encouraged them; initiated the attacks by orders or gunshots; lead the groups of attackers; shot at fleeing Tutsis; and, finally, thanked the Hutu attackers for their "work." These facts prove, beyond a reasonable doubt, that Kayishema, instigated, ordered, committed and otherwise aided and abetted in the preparation and execution of the massacre that resulted in thousands of deaths and serious bodily injuries with intent to destroy the Tutsi ethnic group."
[B. Evidentiary comment:]
P.35.6. Evidence of persecution by the perpetrator.
A. Legal source/authority and evidence:
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 504:
"504. For purposes of interpreting Article 2 (2)(b) of the Statute, the Chamber takes serious bodily or mental harm, without limiting itself thereto, to mean acts of torture, be they bodily or mental, inhumane or degrading treatment, persecution."
[B. Evidentiary comment:]
P.35.7. Evidence of deportation by the perpetrator.
A. Legal source/authority and evidence:
P.35.8. Evidence of acts of inhumane or degrading treatment by the perpetrator.
A. Legal source/authority and evidence:
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 504:
"504. For purposes of interpreting Article 2 (2)(b) of the Statute, the Chamber takes serious bodily or mental harm, without limiting itself thereto, to mean acts of torture, be they bodily or mental, inhumane or degrading treatment, persecution."
[B. Evidentiary comment:]
P.36. Evidence inferred from a circumstance
P.36.1. Evidence of the perpetrators presence during the commission of the offence.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 744- 746:
"744. The Trial Chamber will now proceed to detail its findings with respect to those camps and detention facilities in relation to which it is satisfied beyond reasonable doubt that serious bodily and/or mental harm was inflicted upon the Bosnian Muslim and Bosnian Croat detainees, and, further, that it was inflicted intentionally.
Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, paras. 890-891, 916-918:
"890. Secondly, the Chamber is satisfied that it has been established beyond a reasonable doubt that on 26 April 1994, Musema led and participated in an attack on Gitwa Hill. Musema arrived at the site of the attack in a Daihatsu vehicle belonging to the Gisovu Tea Factory. He carried a firearm and was accompanied by employees of the Gisovu Tea Factory wearing blue uniforms. Musema and other persons, some of whom wore banana leaves and Imihurura belts, attacked Tutsi refugees. It has also been established beyond a reasonable doubt that Musema shot into the crowd of refugees. The attackers killed resolutely, and few refugees survived the large-scale attack.
891. The Chamber finds that Musema incurs individual criminal responsibility for the above-mentioned acts, on the basis of the provisions of Article 6 (1) of the Statute, for having ordered and, by his presence and participation, having aided and abetted in the murder of members of the Tutsi ethnic group, and for the causing of serious bodily and mental harm to members of the said group."
"916. Seventhly, the Chamber is satisfied that it has been established beyond a reasonable doubt that Musema participated in an attack on Mumataba Hill in mid-May 1994. Among the attackers, who numbered between 120 and 150, were employees of the Gisovu Tea Factory armed with traditional weapons, and communal policemen. In the presence of Musema, vehicles of the tea factory transported the attackers to the sites. The attack, which was carried out against some 2000 to 3000 Tutsis who had sought refuge in the house of one Sakufe and in the vicinity of the said house, was sparked off by blowing whistles. The Chamber is satisfied beyond any reasonable doubt that Musema was present, that he stayed with the others near his vehicle during the attack, and that he left the site with the attackers.
917. The Chamber finds that, for these acts, Musema incurs individual criminal responsibility, on the basis of the provisions of Article 6(1) of the Statute, for having, by his presence and the fact that he witnessed the attack, aided and abetted in the murder of members of the Tutsi group and in the causing of serious bodily and mental harm to members of the said group.
918. The Chamber notes that it has been established beyond a reasonable doubt that employees of the Gisovu Tea Factory were among the attackers and that they were transported to the attack sites by vehicles of the factory, in the presence of Musema. The Chamber is of the view that their participation resulted, inevitably, in the commission of acts referred to under Articles 2 to 4 of the Statute, including, in particular, the killing of members of the Tutsi group and causing serious bodily and mental harm to members of the said group."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 693- 694, 705, 746:
"693. The Tribunal finds, under Article 6(1) of its Statute, that the Accused aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal, while he was present on the premises in respect of (i) and in his presence in respect of (ii) and (iii), and by facilitating the commission of these acts through his words of encouragement in other acts of sexual violence, which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place:
(i) the multiple acts of rape of fifteen girls and women, including Witness JJ, by numerous Interahamwe in the cultural center of the bureau communal;
(ii) the rape of a woman by Interahamwe in between two buildings of the bureau communal, witnessed by Witness NN;
(iii) the forced undressing of the wife of Tharcisse after making her sit in the mud outside the bureau communal, as witnessed by Witness KK;
694. The Tribunal finds, under Article 6(1) of its Statute, that the Accused, having had reason to know that sexual violence was occurring, aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal and by facilitating the commission of such sexual violence through his words of encouragement in other acts of sexual violence which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place:
(i) the rape of Witness JJ by an Interahamwe who took her from outside the bureau communal and raped her in a nearby forest;
(ii) the rape of the younger sister of Witness NN by an Interahamwe at the bureau communal;
(iii) the multiple rapes of Alexia, wife of Ntereye, and her two nieces Louise and Nishimwe by Interahamwe near the bureau communal;
(iv) the forced undressing of Alexia, wife of Ntereye, and her two nieces Louise and Nishimwe, and the forcing of the women to perform exercises naked in public near the bureau communal."
"705. In the opinion of the Chamber, the said acts indeed incur the individual criminal responsibility of Akayesu for having ordered, committed, or otherwise aided and abetted in the preparation or execution of the killing of and causing serious bodily or mental harm to members of the Tutsi group. Indeed, the Chamber holds that the fact that Akayesu, as a local authority, failed to oppose such killings and serious bodily or mental harm constituted a form of tacit encouragement, which was compounded by being present to such criminal acts."
a. Banja Luka municipality
i. CSB building
[ ]
746. [ ]At the CSB building, Bosnian Muslims and Bosnian Croats were hit and kicked by policemen and by members of the Banja Luka Special Unit (aka "Specialists"), as they awaited their turn to be interrogated,1811 as well as during interrogation.1812 A Bosnian Muslim man suffered broken ribs and cuts to his face, whilst another broke a few teeth and still bears the marks of strangulation.1813 Samardzija, a commander of the Banja Luka CSB who was interrogating the latter, was present during the beatings.1814
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 693- 694:
"693. The Tribunal finds, under Article 6(1) of its Statute, that the Accused aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal, while he was present on the premises in respect of (i) and in his presence in respect of (ii) and (iii), and by facilitating the commission of these acts through his words of encouragement in other acts of sexual violence, which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place:
(i) the multiple acts of rape of fifteen girls and women, including Witness JJ, by numerous Interahamwe in the cultural center of the bureau communal;
(ii) the rape of a woman by Interahamwe in between two buildings of the bureau communal, witnessed by Witness NN;
(iii) the forced undressing of the wife of Tharcisse after making her sit in the mud outside the bureau communal, as witnessed by Witness KK;
694. The Tribunal finds, under Article 6(1) of its Statute, that the Accused, having had reason to know that sexual violence was occurring, aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal and by facilitating the commission of such sexual violence through his words of encouragement in other acts of sexual violence which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place:
(i) the rape of Witness JJ by an Interahamwe who took her from outside the bureau communal and raped her in a nearby forest;
(ii) the rape of the younger sister of Witness NN by an Interahamwe at the bureau communal;
(iii) the multiple rapes of Alexia, wife of Ntereye, and her two nieces Louise and Nishimwe by Interahamwe near the bureau communal;
(iv) the forced undressing of Alexia, wife of Ntereye, and her two nieces Louise and Nishimwe, and the forcing of the women to perform exercises naked in public near the bureau communal."
[B. Evidentiary comment:]
P.36.3. Evidence that the perpetrator supported ideology which would necessarily entail causing serious bodily and mental harm.
A. Legal source/authority and evidence:
Attorney-General of Israel v. Adolf Eichmann, Judgement (District Court of Jerusalem) (1968) 36 ILR 5, paras. 199, 228, 244:
"199. In the terms of the third Count, item (c) it has been proved that
- and all this with the intention of exterminating the Jewish people."
"228. The accused admits that he was a zealous National-Socialist, devoted to his Fuehrer (T/37, p.235); but contends that he was no anti-Semite. The answer to this question is found in the words of Dr. Greuber (Session 42, pp. 22-25):
Q. "Did you find personal hatred for the Jews on the part of the accused, sharp personal anti-Semitism, or was it National-Socialist fanaticism that you saw in him?"
A. "It is difficult to distinguish between the two. National-Socialist zeal was always bound up with strong anti-Semitism. These two elements were always bound up together and went hand in hand."
"244. [ ]
(3) We convict the accused pursuant to the third Count of the indictment of a crime against the Jewish people, an offence under Section I (a) (I) of the abovementioned law, in that during the period from August 1941 to May 1945 in the territories and areas mentioned in clause (I) of the conviction above he, together with others, caused serious physical and mental harm to millions of Jews with the intent to exterminate the Jewish people."
