Table of contents:
M.P.18. Evidence of the suspects acts of requisition by telephone or in writing
M.P.21. Evidence of the suspects strong affiliations with the subordinates
M.P.21.1. Evidence of the suspect transporting or leading the subordinates to the massacre sites
M.P.21.2. Evidence of the suspect instructing, rewarding, directing the subordinates
M.P.23. Evidence of the suspects orders being acted upon by the subordinates
M.P.23.1. Evidence of attacks being executed only upon the suspect direction/order
Element:
A. General evidentiary comment:
Evidence that the subordinates who committed the crime were under the effective authority and control of the suspect may also be useful to show that the crimes concerned activities that were within the effective responsibility and control of the latter. Accordingly, relevant means of proof concerning the effective control of the superior over the subordinates who committed the crimes are indicated again below.
M.P.18. Evidence of the suspect’s acts of requisition by telephone or in writing
A. Legal source/authority and evidence:
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 479-489:
"De Jure Control
479. The Indictment states that the Prefect as trustee of the State Authority in the Prefecture had control over the Prefectoral administration and its agencies. The Chamber has found that, inter alia, Bourgmestre Sikubwabo, a number of communal police, and members of the gendarmerie nationale were responsible for numerous deaths and injuries inflicted upon innocent Tutsis.
480. The Trial Chamber finds that it is beyond question that the Prefect exercised de jure authority over these assailants. The Rwandan law is very clear in this respect.
481. The Prefects’ position vis-à-vis the bourgmestre is evidently one of hierarchical authority and supervisory jurisdiction. Two Rwandan statutes support this finding. The first, Loi sur l’organisation de la commune, 1963, clearly implies in Article 59 that the bourgmestre is under the hierarchical authority of the Prefect.252 The same law provides at Article 85 that where a communal authority fails to execute measures prescribed by law or decree, then the Prefect may, ultimately, supplant this communal authority in order to remedy their inaction.253 Moreover, at Articles 46 and 48, the Loi sur l’organisation de la commune, 1963, establishes the power of the Prefect to take disciplinary sanctions against a bourgmestre and even to propose his dismissal to the Minister of the Interior. Coupled with this is the law as promulgated in the second statute submitted to this Trial Chamber, the Décret-Loi organisation et fonctionnement de la préfecture, 11 March 1975. Article 15 of this statute makes clear that, in addition to the hierarchical authority that the Prefect exercises over the bourgmestres and their services, he also has a general power of supervision over the acts of the communal authorities. Therefore, these provisions, coupled with the Prefect’s overarching duty to maintain public order and security, reflect the ultimate hierarchical authority enjoyed by the Prefect over the bourgmestre.254]
482. The communal police are under the direct control over the bourgmestre. This matter was not disputed, and reflects the findings of the Trial Chamber in the Akayesu Judgement. Even if it is not axiomatic that the Prefect would hold the corresponding hierarchical de jure authority over the communal police, the law provides that in the situation which faced Rwanda and Kibuye Prefecture in 1994, it is the Prefect who retains ultimate control. To this end, the Loi sur l’organisation de la commune, 1963, allows the Prefect to requisition the communal police and place them under his direct authority in cases of grave public disorder or in times when unrest has occurred or is about to occur.[1][255][7]
483. Similarly, the Prefect exercises this ultimate authority of requisition over the gendarmerie nationale. The position set out in the Décret-Loi sur la création de la Gendarmerie Nationale, 1974, states that any competent administrative authority may requisition the gendarmerie nationale, that the advisability of the requisition cannot be questioned as long as it does not contravene any law or regulation, and that the requisition persists until the requisitioning authority informs the gendarmerie otherwise.256 Moreover, the gendarmerie nationale may only execute certain functions, notably, ensuring the maintenance and restoration of public order, when it is legally requisitioned to do so.257 The Trial Chamber recalls that Kayishema requisitioned the gendarmerie both by telephone, and in writing, in the face of the public disorder that prevailed in Rwanda in the pivotal months of April to July 1994.
484. This de jure power of the Prefect was confirmed by the expert Defence witness, Professor Guibal. In his testimony to the Trial Chamber he opined that, even after the 1991 Constitution, in the advent of multiple party politics,
485. Further, when Counsel for Kayishema asked whether, in light of the multi-party politics, it was, "a co-ordination role that the Prefect plays rather than the exercise of hierarchical power", Professor Guibal replied, "normally the relationships fall under the hierarchy rather than under co-ordination".259
486. Professor Guibal then proceeded to describe how the situation would have been very different in the tumultuous realities of Rwanda in 1994. The situation in the country and the peculiar nature of the party-orientated constitution would have led to what he described as "crisis multi-partyism". Although he did not examine the specific context of the Rwandan crisis, he explained that such a status quo would have arisen because each respective party would have felt that the situation should be resolved through them, not the constitution. A dichotomy between political and administrative hierarchy would have emerged. This led Professor Guibal to the conclusion that although the power of the Prefect over the forces of law and order existed formally in 1994, these powers were emptied of any real meaning when the ministers, the ultimate hierarchical superiors to the police, gendarmes and army, were of a different political persuasion.
487. The Trial Chamber is of the opinion that such assertions clearly highlight the need to consider the de facto powers of the Prefect between April and July 1994. Such an examination will be conducted below. However, the delineation of power on party political grounds, whilst perhaps theoretically sound, should only be considered in light of the Trial Chambers findings that the administrative bodies, law enforcement agencies, and even armed civilians were engaged together in a common genocidal plan. The focus in these months was upon a unified, common intention to destroy the ethnic Tutsi population. Therefore, the question of political rivalries must have been, if it was at all salient, a secondary consideration.
488. The actions of Kayishema himself also appear to evidence a continued subordination of the bourgmestres to his de jure authority during the events of 1994 or, at least, an expectation of such subordination. Prosecution exhibit 51, for example, is a letter from Kayishema to the bourgmestres requesting that they recruit people to be "trained" for the civil defence programme. Prosecution exhibit 53 is another letter from Kayishema to the bourgmestres, dated 5 May 1994, which requests an urgent report on the security situation in their communes and to inform him of where "the works" had started. In addition, Kayishema testified to this Trial Chamber that in late May 1994, he went to the Bourgmestres in his prefecture and instructed them to disregard a letter that they had received directly from the Minister of Interior relating to the civil defence programme. His clear objective in doing so was to prevent the Bourgmestres from implementing the explicit instructions of the Minister.260
489. Even in the climate that prevailed, therefore, Kayishema clearly considered that this hierarchical relationship persisted and expected his ‘requests’ to be executed. Accordingly, the Trial Chamber finds that it is beyond any doubt that Kayishema exercised de jure power over the Bourgmestres, communal police, gendarmes and other law enforcing agencies identified at the massacre sites."
252..Article 59: En tant que représentant du pouvoir exécutif, le Bourgmestre est soumis à l’autorité hiérarchique du préfet.
253. Article 85: Lorsque les autorités communales font preuve de carence et n’exécutent pas des mesures prescrites par les lois ou règlements, le préfet peut après deux avertissements écrits restés sans effet se substituer à elles. Il peut prendre toutes les mesures appropriées pour parer à leur défaillance.
254. Article 15: Le préfet, en plus du pouvoir hiérarchique qu’il a sur les Bourgmestres et leurs services administratifs, dispose sur les actes des autorités communales, du pouvoir général de tutelle, determiné par les dispositions de la loi communale.
255. Article 104 (para. 2): Toutefois, en cas de calamité publique ou lorsque des troubles menacent d’éclater ou ont éclaté, le préfet peut réquisitionner les agents de la Police communale et les placer sous son autorité directe.
256. Article 29: L’action des autorités administratives compétentes s’exerce à l’égard de la Gendarmerie Nationale par voie de réquisition; Article 33: L’autorité requise de la Gendarmerie Nationale ne peut discuter l’opportunité de la réquisition pour autant qu’elle n’aille pas à l’encontre d’une loi ou d’un règlement; Article 36: Les effets de la réquisition cessent lorsque l’autorité requérante signifie, par écrit ou verbalement, la levée de la réquisition à l’autorité de Gendarmerie qui était chargée de son exécution.
257. Décret-Loi sur la création de la Gendarmerie Nationale, reading Articles 4 and 24 in conjunction: Article 4 (para. 3): Les fonctions extraordinaires sont celles que la Gendarmerie Nationale ne peut remplir que sur réquisition de l’autorité compétente; Article 24 (Under section 23, Extraordinary functions): La Gendarmerie Nationale assure le maintien et le rétablissement de l’ordre public lorsqu’elle en est légalement requise.
258. Trans., 27 May 1998, p.125.
259. Ibid.
260. Trans., 3 Sept. 1998, p. 113. The Trial Chamber was never seized of the details of these instructions. However, the contents of these instructions are only of secondary importance.
A. Legal source/authority and evidence:
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 479-489:
"De Jure Control
479. The Indictment states that the Prefect as trustee of the State Authority in the Prefecture had control over the Prefectoral administration and its agencies. The Chamber has found that, inter alia, Bourgmestre Sikubwabo, a number of communal police, and members of the gendarmerie nationale were responsible for numerous deaths and injuries inflicted upon innocent Tutsis.
480. The Trial Chamber finds that it is beyond question that the Prefect exercised de jure authority over these assailants. The Rwandan law is very clear in this respect.
481. The Prefects’ position vis-à-vis the bourgmestre is evidently one of hierarchical authority and supervisory jurisdiction. Two Rwandan statutes support this finding. The first, Loi sur l’organisation de la commune, 1963, clearly implies in Article 59 that the bourgmestre is under the hierarchical authority of the Prefect.252 The same law provides at Article 85 that where a communal authority fails to execute measures prescribed by law or decree, then the Prefect may, ultimately, supplant this communal authority in order to remedy their inaction.253 Moreover, at Articles 46 and 48, the Loi sur l’organisation de la commune, 1963, establishes the power of the Prefect to take disciplinary sanctions against a bourgmestre and even to propose his dismissal to the Minister of the Interior. Coupled with this is the law as promulgated in the second statute submitted to this Trial Chamber, the Décret-Loi organisation et fonctionnement de la préfecture, 11 March 1975. Article 15 of this statute makes clear that, in addition to the hierarchical authority that the Prefect exercises over the bourgmestres and their services, he also has a general power of supervision over the acts of the communal authorities. Therefore, these provisions, coupled with the Prefect’s overarching duty to maintain public order and security, reflect the ultimate hierarchical authority enjoyed by the Prefect over the bourgmestre.254]
482. The communal police are under the direct control over the bourgmestre. This matter was not disputed, and reflects the findings of the Trial Chamber in the Akayesu Judgement. Even if it is not axiomatic that the Prefect would hold the corresponding hierarchical de jure authority over the communal police, the law provides that in the situation which faced Rwanda and Kibuye Prefecture in 1994, it is the Prefect who retains ultimate control. To this end, the Loi sur l’organisation de la commune, 1963, allows the Prefect to requisition the communal police and place them under his direct authority in cases of grave public disorder or in times when unrest has occurred or is about to occur.[2][255][7]
483. Similarly, the Prefect exercises this ultimate authority of requisition over the gendarmerie nationale. The position set out in the Décret-Loi sur la création de la Gendarmerie Nationale, 1974, states that any competent administrative authority may requisition the gendarmerie nationale, that the advisability of the requisition cannot be questioned as long as it does not contravene any law or regulation, and that the requisition persists until the requisitioning authority informs the gendarmerie otherwise.256 Moreover, the gendarmerie nationale may only execute certain functions, notably, ensuring the maintenance and restoration of public order, when it is legally requisitioned to do so.257 The Trial Chamber recalls that Kayishema requisitioned the gendarmerie both by telephone, and in writing, in the face of the public disorder that prevailed in Rwanda in the pivotal months of April to July 1994.
484. This de jure power of the Prefect was confirmed by the expert Defence witness, Professor Guibal. In his testimony to the Trial Chamber he opined that, even after the 1991 Constitution, in the advent of multiple party politics,
485. Further, when Counsel for Kayishema asked whether, in light of the multi-party politics, it was, "a co-ordination role that the Prefect plays rather than the exercise of hierarchical power", Professor Guibal replied, "normally the relationships fall under the hierarchy rather than under co-ordination".259
486. Professor Guibal then proceeded to describe how the situation would have been very different in the tumultuous realities of Rwanda in 1994. The situation in the country and the peculiar nature of the party-orientated constitution would have led to what he described as "crisis multi-partyism". Although he did not examine the specific context of the Rwandan crisis, he explained that such a status quo would have arisen because each respective party would have felt that the situation should be resolved through them, not the constitution. A dichotomy between political and administrative hierarchy would have emerged. This led Professor Guibal to the conclusion that although the power of the Prefect over the forces of law and order existed formally in 1994, these powers were emptied of any real meaning when the ministers, the ultimate hierarchical superiors to the police, gendarmes and army, were of a different political persuasion.
487. The Trial Chamber is of the opinion that such assertions clearly highlight the need to consider the de facto powers of the Prefect between April and July 1994. Such an examination will be conducted below. However, the delineation of power on party political grounds, whilst perhaps theoretically sound, should only be considered in light of the Trial Chambers findings that the administrative bodies, law enforcement agencies, and even armed civilians were engaged together in a common genocidal plan. The focus in these months was upon a unified, common intention to destroy the ethnic Tutsi population. Therefore, the question of political rivalries must have been, if it was at all salient, a secondary consideration.
488. The actions of Kayishema himself also appear to evidence a continued subordination of the bourgmestres to his de jure authority during the events of 1994 or, at least, an expectation of such subordination. Prosecution exhibit 51, for example, is a letter from Kayishema to the bourgmestres requesting that they recruit people to be "trained" for the civil defence programme. Prosecution exhibit 53 is another letter from Kayishema to the bourgmestres, dated 5 May 1994, which requests an urgent report on the security situation in their communes and to inform him of where "the works" had started. In addition, Kayishema testified to this Trial Chamber that in late May 1994, he went to the Bourgmestres in his prefecture and instructed them to disregard a letter that they had received directly from the Minister of Interior relating to the civil defence programme. His clear objective in doing so was to prevent the Bourgmestres from implementing the explicit instructions of the Minister.260
489. Even in the climate that prevailed, therefore, Kayishema clearly considered that this hierarchical relationship persisted and expected his ‘requests’ to be executed. Accordingly, the Trial Chamber finds that it is beyond any doubt that Kayishema exercised de jure power over the Bourgmestres, communal police, gendarmes and other law enforcing agencies identified at the massacre sites."
252..Article 59: En tant que représentant du pouvoir exécutif, le Bourgmestre est soumis à l’autorité hiérarchique du préfet.
253. Article 85: Lorsque les autorités communales font preuve de carence et n’exécutent pas des mesures prescrites par les lois ou règlements, le préfet peut après deux avertissements écrits restés sans effet se substituer à elles. Il peut prendre toutes les mesures appropriées pour parer à leur défaillance.
254. Article 15: Le préfet, en plus du pouvoir hiérarchique qu’il a sur les Bourgmestres et leurs services administratifs, dispose sur les actes des autorités communales, du pouvoir général de tutelle, determiné par les dispositions de la loi communale.
255. Article 104 (para. 2): Toutefois, en cas de calamité publique ou lorsque des troubles menacent d’éclater ou ont éclaté, le préfet peut réquisitionner les agents de la Police communale et les placer sous son autorité directe.
256. Article 29: L’action des autorités administratives compétentes s’exerce à l’égard de la Gendarmerie Nationale par voie de réquisition; Article 33: L’autorité requise de la Gendarmerie Nationale ne peut discuter l’opportunité de la réquisition pour autant qu’elle n’aille pas à l’encontre d’une loi ou d’un règlement; Article 36: Les effets de la réquisition cessent lorsque l’autorité requérante signifie, par écrit ou verbalement, la levée de la réquisition à l’autorité de Gendarmerie qui était chargée de son exécution.
257. Décret-Loi sur la création de la Gendarmerie Nationale, reading Articles 4 and 24 in conjunction: Article 4 (para. 3): Les fonctions extraordinaires sont celles que la Gendarmerie Nationale ne peut remplir que sur réquisition de l’autorité compétente; Article 24 (Under section 23, Extraordinary functions): La Gendarmerie Nationale assure le maintien et le rétablissement de l’ordre public lorsqu’elle en est légalement requise.
258. Trans., 27 May 1998, p.125.
259. Ibid.
260. Trans., 3 Sept. 1998, p. 113. The Trial Chamber was never seized of the details of these instructions. However, the contents of these instructions are only of secondary importance.
M.P.21. Evidence of the suspect’s strong affiliations with the subordinates
M.P.21.1. Evidence of the suspect transporting or leading the subordinates to the massacre sites
M.P.21.2. Evidence of the suspect instructing, rewarding, directing the subordinates
Prosecutor v. Grégoire Ndahimana, Case No. ICTR-01-68-A, Judgment (AC), 16 December 2013, paras. 53-57:
"53. As the Appeals Chamber has held, “[i]ndicators of effective control are ‘more a matter of evidence than of substantive law, and those indicators are limited to showing that the accused had the power to prevent ₣orğ punish’.”132 In finding that Ndahimana had effective control over the communal policemen, the Trial Chamber first relied on the fact that Ndahimana possessed de jure authority, as bourgmestre, over the communal policemen under Rwandan law and that this authority encompassed disciplinary powers.133 Ndahimana does not dispute that he possessed such de jure disciplinary powers,134 nor does he demonstrate that it was unreasonable for the Trial Chamber to consider his de jure authority over the communal policemen as an indicator of his effective control over them. The Appeals Chamber recalls in this regard that the possession of de jure authority over subordinates, while not synonymous with effective control, may suggest a material ability to prevent or punish their criminal acts.135
132. Perišić Appeal Judgement, para. 87, referring to, inter alia, Strugar Appeal Judgement, para. 254, referring, in turn, to Blaškić Appeal Judgement, para. 69.
133. See Trial Judgement, para. 740, and authorities cited therein.
134. See Ndahimana Appeal Brief, paras. 108-161.
135. Ntabakuze Appeal Judgement, para. 169, referring to Orić Appeal Judgement, para. 91; Nahimana et al Appeal Judgement, para. 625.
54. The Trial Chamber further cited extensive evidence of Ndahimana’s ability to issue binding orders to the communal policemen and the compliance of the policemen with these orders, namely: (i) Ndahimana’s order to a communal policeman to escort a Tutsi refugee to safety on the night of 15 April 1994; (ii) Ndahimana’s assignment of communal policemen to protect the Les Soeurs de l’Assomption Convent in Kivumu on 16 April 1994; (iii) Ndahimana’s assignment of communal policemen to protect Tutsi refugees at the health center around 17 April 1994; and (iv) Ndahimana’s demotion of Brigadier Mbakilirehe and promotion of Abayisenga and Niyitegeka to brigadier and to deputy brigadier, respectively, on 29 April 1994.136 Contrary to Ndahimana’s contention, the Trial Chamber therefore did not “wrongly define[] the parameters” of effective control by focusing on Ndahimana’s power to issue binding orders or take disciplinary measures.137 The Trial Judgement reflects that the Trial Chamber also relied on the fact that Ndahimana’s orders were obeyed and his disciplinary measures implemented.138 It is well-settled that these factors are indicative of a superior’s effective control over his subordinates.139
136. See Trial Judgement, paras. 743-747.
137. Ndahimana Appeal Brief, para. 154.
138. See Trial Judgement, paras. 743-747.
139. The indicators of effective control generally relied upon in the jurisprudence of the Tribunal include a superior’s material ability to issue binding orders that are complied with by subordinates, and the material ability to take disciplinary measures to punish acts of misconduct by subordinates. See Kajelijeli Appeal Judgement, paras. 90, 91; Kayishema and Ruzindana Appeal Judgement, paras. 298, 299. See also Perišić Appeal Judgement, paras. 97-111; Strugar Appeal Judgement, para. 256; Had`ihasanović and Kubura Appeal Judgement, para. 199; Halilović Appeal Judgement, paras. 69, 154, 207.
55. Ndahimana does not contest that, between 15 and 18 April 1994, he ordered the communal policemen to carry out certain tasks and that his orders were obeyed.140 Nor does he dispute that on 29 April 1994, he demoted the then-brigadier of the police and promoted Abayisenga to the post of brigadier and Niyitegeka to the post of deputy brigadier.141 Ndahimana does not challenge the reliability or credibility of the witnesses cited by the Trial Chamber in support of its finding of effective control, either.142 In fact, the Appeals Chamber notes that the Trial Chamber relied mostly on the testimonies of Defence witnesses to establish Ndahimana’s effective control over the communal policemen.143 Ndahimana’s only direct challenge to the Trial Chamber’s assessment of the evidence is that the promotion of Niyitegeka to the post of deputy brigadier was simply an administrative measure taken to fill a position that became vacant due to the demotion of the brigadier.144 However, the very fact that Ndahimana issued an order demoting the brigadier – irrespective of the reasons for that demotion – and filled the resulting vacancies, combined with the fact that his order was complied with, shows that Ndahimana had the material ability to issue binding orders to the communal policemen.
140. See Ndahimana Appeal Brief, paras. 108-161.
141. See Ndahimana Appeal Brief, paras. 169-174.
142. See Ndahimana Appeal Brief, paras. 119-138.
143. The Appeals Chamber notes that the Trial Chamber relied on: Defence Witness ND17’s testimony that on 16 April 1994, two attacks against a convent were repelled by police officers assigned that day by Ndahimana to protect the nuns; Defence Witness ND11’s testimony that Ndahimana assigned a police officer to escort him to the river on 15 April 1994; and Defence Witness ND1’s testimony that Ndahimana had assigned policemen to protect the Tutsis at the health center. See Trial Judgement, paras. 743, 747.
144. See Ndahimana Reply Brief, para. 52.
56. In light of this evidence of Ndahimana’s control over the communal policemen, the Appeals Chamber finds no merit in Ndahimana’s argument that the Trial Chamber erred in not considering that his short time in office, his party affiliation, the lack of official municipal vehicle, the small number of policemen in the commune, or the overall chaotic situation at Nyange Parish during the genocide evidenced his inability to exercise effectively his functions as bourgmestre. Likewise, the Appeals Chamber rejects Ndahimana’s unsubstantiated argument that he lost control over the communal policemen during the attacks of 15 and 16 April 1994.
57. The Appeals Chamber also rejects Ndahimana’s argument that, because he was under threats against his life, he did not have the ability to control the communal policemen. In a separate section of this Judgement, the Appeals Chamber sets aside the Trial Chamber’s finding that Ndahimana was under threat when the events at Nyange Parish were unfolding.145 In light of this conclusion, the Appeals Chamber rejects Ndahimana’s argument that threats impeded his effective control over the communal policemen.
145. See infra, Section V.C.1.(b), paras. 185, 186."
M.P.23. Evidence of the suspect’s orders being acted upon by the subordinates
M.P.23.1. Evidence of attacks being executed only upon the suspect direction/order
A. Legal source/authority and evidence:
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 490-507, 516:
"De Facto Control
490. However, the jurisprudence on this issue clearly reflects the need to look beyond simply the de jure authority enjoyed in a given situation and to consider the de facto power exercised. The Trial Chamber in the Celebici case stated that in the fact situation of the Former Yugoslavia, where the command structure was often ambiguous and ill-defined,
. . .persons effectively in command of such more informal structures, with power to prevent and punish the crimes of persons who are in fact under their control, may under certain circumstances be held responsible for their failure to do so. Thus the Trial Chamber accepts the . . . proposition that individuals in positions of authority, whether civilian or military structures, may incur criminal responsibility under the doctrine of command responsibility on the basis of their de facto as well as their de jure positions as superiors. The mere absence of formal legal authority to control the actions of subordinates should therefore not be understood to preclude impositions of such responsibility.261 [emphasis added]
491. Thus, even where a clear hierarchy based upon de jure authority is not present, this does not prevent the finding of command responsibility. Equally, as we shall examine below, the mere existence of de jure power does not always necessitate the imposition of command responsibility. The culpability that this doctrine gives rise to must ultimately be predicated upon the power that the superior exercises over his subordinates in a given situation.
492. The Trial Chamber has found that acts or omissions of a de facto superior can give rise to individual criminal responsibility pursuant to Article 6(3) of the Statute. Thus, no legal or formal position of authority need exist between the accused and the perpetrators of the crimes. Rather, the influence that an individual exercises over the perpetrators of the crime may provide sufficient grounds for the imposition of command responsibility if it can be shown that such influence was used to order the commission of the crime or that, despite such de facto influence, the accused failed to prevent the crime. The Celebici case provides an exposition of the jurisprudence on this point.262 One particularly pertinent example is the Roechling case which the Trial Chamber in the Celebici Judgement summarised as,
493. This passage is instructive not only when considering Kayishema’s control over the less explicitly documented command structures which existed in Rwanda in 1994, such as the members of the Interahamwe and those armed civilians involved in the ‘civil defence programme’; but also when examining the realities of Kayishema’s relationship with bourgmestres, communal police and the gendarmerie nationale.
494. Defence witnesses such as DN and DK testified to the lack of material means available for the Prefect to control the public disorder that ensued after the death of the President. Trial Chamber notes, however, that these witnesses did not actually contest the control that the Prefect exercised over the law enforcing and administrative bodies.
495. It was the Defence’s position that the Prefect had insufficient means to prevent those assailants, including a few defecting members of the army and gendarmerie nationale, from committing the massacres of 1994. Kayishema himself testified that he had sent what gendarmes he had at his disposal to the area of Bisesero, but that there was little that could be done.
496. Professor Guibal, for the Defence, described how the status quo that emerged in 1994 after the death of the President would have been one where the traditional influence and power of the Prefect would have been greatly reduced. He was of the opinion that the authority the Prefect, as a member of a political party and in the climate of the "crisis multi-partyism", would have been diminished, both de jure and de facto.
497. In this respect, Professor Guibal referred to a ‘paralysis of power’ suffered by the Prefect. Accordingly, it was submitted by the Defence, the political and administrative uncertainty that reigned between April and July 1994 was such as to curtail the Prefect’s power of requisition and his influence over administrative bodies. This uncertainty, the Defence submitted, also manifested itself amongst the population as a whole. Professor Guibal opined that the citizens in such a climate of uncertainty would receive instructions and orders with difficulty.
498. In short, the Defence submitted that in the pivotal months of 1994, Kayishema was in not in a de facto position to control the actions of the assailants and that he was neither in a position to prevent nor to punish the commission of the massacres in his Prefecture.
499. Once again, however, the theoretical underpinning proffered by Professor Guibal does not reflect the reality that the Trial Chamber has found existed in Rwanda. The Prefect was a well-known, respected, and esteemed figure within his community.264 The testimony of Kayishema provides an illustrative example of the influence that the Prefect enjoyed. He related to the Trial Chamber an instance in August 1992 when, soon after taking office, he was telephoned by the Bourgmestre of Gishyita Commune. The Bourgmestre reported that houses were being burnt down in his commune, people were fleeing and the situation was chaotic. Kayishema told the Trial Chamber that he was requested to go directly to the scene and intervene, that the Bourgmestre had said "I just want your presence here on the spot."265
500. The Trial Chamber draws three basic conclusions from this. Firstly, it is indicative of the effect that Kayishema’s presence at a scene could have, thus is appurtenant to the responsibility he must bear in aiding and abetting the crimes pursuant to Article 6(1). Secondly, in times of crisis it was ultimately the Prefect that was called upon, with all the powers of influence that such a bearer of that title wielded. Finally, it also reflects the de facto influence he had and the commensurate de facto authority he exercised as Prefect in such times. A clear parallel can be drawn with the climate that prevailed in Rwanda in 1994.
501. The facts of the case also reflect the de facto control that Kayishema exercised over all of the assailants participating in the massacres. Kayishema was often identified transporting or leading many of the assailants to the massacre sites. He was regularly identified, for example, in the company of members of the Interahamwe – transporting them, instructing them, rewarding them, as well as directing and leading their attacks. The Trial Chamber, therefore, is satisfied that Kayishema had strong affiliations with these assailants, and his command over them at each massacre site, as with the other assailants, was clearly established by witness testimony.
502. In the Bisesero area, for example, witness W testified that Kayishema was directing the massacre of those Tutsi who had sought refuge at the Cave. Witness U, at Karongi Hill, described to the Trial Chamber how Kayishema arrived at this location leading a number of soldiers, gendarmes, and armed civilians, addressed them by megaphone and then instructed them to attack. Upon these orders, the massacres began. These facts have been proven beyond a reasonable doubt.
503. The massacre that occurred at the Stadium provides a further striking example of the control exercised by Kayishema. The Trial Chamber has found that Kayishema transported gendarmes to the Stadium where, for two days, they simply stood guard and controlled the movement of persons in and out of the Stadium. Kayishema returned on 18 April leading more gendarmes, members of the Interahamwe, other armed civilians and prison wardens. Only then, when Kayishema ordered them to commence the attacks, firing into the crowd twice, did the guarding gendarmes begin their massacre. The onslaught by those who had been guarding the Stadium and those assailants who joined them were impromptu and unforeseen, but formed part of an attack that was clearly orchestrated and commanded by, inter alia, Kayishema.
504. All of the factual findings need not be recounted here. These examples are indicative of the pivotal role that Kayishema played in leading the execution of the massacres. It is clear that for all crime sites denoted in the Indictment, Kayishema had de jure authority over most of the assailants, and de facto control of them all. It has also been proved beyond reasonable doubt that the attacks that occurred were commenced upon his orders (Mubuga Church excepted). They were attacks clearly orchestrated by him, and only executed upon his direction.
505. Further, where the perpetrators of the massacres were found to be under the de jure or de facto control of Kayishema, and where the perpetrators committed the crimes pursuant to Kayishema’s orders, the Trial Chamber is of the opinion that it is self-evident that the accused knew or had reason to know that the attacks were imminent and that he failed to take reasonable measures to prevent them. In such a case, the Trial Chamber need not examine further whether the accused failed to punish the perpetrators. Such an extended analysis would be superfluous.
506. The Trial Chamber finds, therefore, that Kayishema is individually criminally responsible, pursuant to Article 6(3) of the Statute, for the crimes committed by his de jure and de facto subordinates at the Home St. Jean and Catholic Church Complex, the Stadium and the Bisesero area.
507. It only remains for the Trial Chamber to consider whether Kayishema knew, or had reason to know, of those attacks at which he was not present. If he was so aware, or ought reasonably to have known of such impending attacks, then the Chamber must consider whether the accused attempted to prevent or punish the commission of those crimes."
261. Celebici Judgement, para. 354.
262. Ibid., paras. 375-376.
263. Ibid., para. 376.
264. See Part II, Historical Context.
265. Trans., 3 Sept. 1998, p. 113.
Conclusion
"516.The inherent purpose of Article 6(3) is to ensure that a morally culpable individual is held responsible for those heinous acts committed under his command. Kayishema not only knew, and failed to prevent, those under his control from slaughtering thousands of innocent civilians; but he orchestrated and invariably led these bloody massacres. This Trial Chamber finds that in order to adequately reflect his culpability for these deaths, Kayishema he must be held responsible for the actions and atrocities committed."
[B. Evidentiary comment:]
