Human Rights BriefA Legal Resource for the International Human Rights Community
The Prosecutor v. Juvenal Kajelijeli
Case No. ICTR-98-44A-T
by Daisy Yu*
edited by Anne Heindel**
On December 1, 2003, ICTR Trial Chamber II rendered its judgment and sentence in The Prosecutor v. Juv�nal Kajelijeli. Charges against Kajelijeli were based on his responsibility for attacks against Tutsis of the Mukingo, Nkuli, and Kigombe communes during April 1994. The Trial Chamber found Kajelijeli guilty of genocide, direct and public incitement to commit genocide, and extermination as a crime against humanity. It found him not guilty of conspiracy to commit genocide and crimes against humanity (rape and "other inhumane acts"), and dismissed the charges of complicity in genocide and crimes against humanity (murder and persecution). He was sentenced to two terms of life imprisonment and one term of 15 years to be served concurrently.
As a former bourgmestre of Mukingo commune, Kajelijeli had considerable influence in his community, which he used to act "as a bridge between the military and the civilian spheres in an effort to attack and massacre the civilian Tutsi population. The Trial Chamber found that he had effective control over the Interahamwe paramilitary forces in both Mukingo and Nkuli communes during the period when the attacks that formed the basis of the charges against him took place. Following the death of the President of Rwanda on April 6th, 1994, he had arranged for the Interahamwe to receive weapons and played a significant role in directing, organizing, and facilitating their participation in numerous attacks against Tutsis. For example, he assembled members of the Interahamwe at a market on April 7th and instructed them to "exterminate the Tutsis." Moreover, he commanded and supervised such attacks. The Trial Chamber found that his words and deeds clearly showed that he directed and participated in the killing of Tutsis with the specific intent to destroy them as a group. As a result, it found Kajelijeli responsible under both Article 6(1) of the ICTR Statute for instigating, ordering, and aiding and abetting genocide and under Article 6(3) for the genocidal acts of his subordinates. The Trial Chamber dismissed the charge of complicity in genocide without elaboration after finding that it was an alternative count arising out of the same factual allegations.
Despite Kajelijeli's attendance at numerous meetings prior to 1994 during which the setting up of militia groups to fight the Rwandese Patriotic Front (RPF) and their accomplices was discussed, his influence over the local Interahamwe from January-July 1994, his active participation in training the Interahamwe prior to April 6, 1994, and his leadership of a meeting on April 6th during which the killing of Tutsi was orchestrated, the Trial Chamber determined that there was insufficient evidence that Kajelijeli was involved in a conspiracy "from late 1990 through about July 1994" to exterminate Tutsis. It found the evidence inconclusive as to whether or not the extermination of Tutsis had been discussed at the meetings Kajelijeli attended prior to April 6th and as to whether the list of Tutsi names he had drawn up prior to 1992 was for the purpose of identifying those to be eliminated. Moreover, it found no evidence beyond a reasonable doubt that the training of the Interahamwe had a genocidal purpose prior to April 6, 1994. As a result, the Chamber found him not guilty of conspiracy to commit genocide.
Because Kajelijeli provoked a crowd assembled at a market, including members of the Interahamwe, to kill and exterminate Tutsis, the Trial Chamber found him guilty of direct and public incitement to genocide. It agreed with the Akayesu Trial Judgment that an inciter must have the specific intent to commit genocide, which it had already determined Kajelijeli to possess. Because the Trial Chamber did not find that Kajelijeli's subordinates themselves incited genocide, he was not found guilty of superior responsibility for this crime.
Kajelijeli was also charged with murder, extermination, rape, persecution, and "other inhumane acts" as crimes against humanity based on a widespread attack against the civilian Tutsi ethnic group in Mkingo, Nkuli, and Kigombe communes. As a result of insufficient evidence, the Prosecution withdrew and the Trial Chamber dismissed the charge of persecution as a crime against humanity. The Trial Chamber also dismissed the charge of murder as a crime against humanity after finding that "there was insufficient distinction drawn in the Indictment between the general allegations of murder as a crime against humanity and extermination as a crime against humanity." Because the indictment did not specifically identify the victims whom Kajelijeli had been charged with killing, the Chamber decided it was more appropriate for it to consider evidence of individual killings as "examples of the general targeting of populations or groups of people for purposes of extermination, rather than murder specifically." It then found Kajelijeli guilty of extermination both individually and as a superior for knowingly participating, commanding, and ordering attacks against whole neighborhoods and places of refuge during which nearly the entire Tutsi populations of Mukingo, Nkuli, and Kigombe communes had been eliminated.
On the charge of rape as a crime against humanity, the Trial Chamber held that the Prosecutor had failed to prove beyond a reasonable doubt that Kajelijeli had "planned, instigated, ordered, committed or otherwise aided and abetted the planning, preparation or execution of the rapes which the Chamber found to have occurred." Instead his instructions were, "in general, to kill or to exterminate." Despite the testimony of several victims, the Trial Chamber found reasonable doubt as to his presence at any of the rapes. Furthermore, although the Chamber determined that numerous rapes were committed by Interahamwe under his control, it found it impossible to infer that Kajelijeli either knew or had reason to know that the rapes were being committed. Judge Ramaroson dissented based on what she considered to be credible witness testimony placing him at the scene of a rape, overhearing him order rape, and claiming he asked for a woman to be delivered to him after he finished drinking at a bar. Ramaroson also took into account testimony that placed Kajelijeli's at the scene of an attack when Interahamwe announced to survivors that they would be raped and have bottles placed in their genitals. She argued that whether or not Kajelijeli heard this statement, it demonstrated the atmosphere at the scene and that the Interahamwe ordered to kill by Kajelijeli also intended to rape. Moreover, his knowledge of the rapes was demonstrated by his participation in attacks during which rapes took place and the fact that his subordinates reported back to him each day on their activities. For these reasons, she would have found him personally responsible for rape.
The Trial Chamber likewise held that the Prosecution had failed to prove beyond a reasonable doubt Kajelijeli's individual responsibility for, presence during, or knowledge of "other inhumane acts" as a crime against humanity committed by members of Interahamwe under his control. The Chamber noted that inhumane acts must be similar in gravity to the other enumerated acts of crimes against humanity under the ICTR Statute and must "deliberately cause suffering." Moreover, the Prosecution must prove a nexus between the inhumane act and the suffering or serious injury to the mental or physical health of the victim. The Trial Chamber found that gross acts of sexual mutilation by the Interahamwe of women of Tutsi ethnicity, including the piercing of a dead rape victim's side and sexual organs with a spear, constituted a serious attack on the human dignity of the Tutsi community as a whole. The Chamber, however, found no evidence that Kajelijeli had been present during such acts. Moreover, the Chamber said that it could not infer from either the evidence or the circumstances that Kajelijeli knew or had reason to know that the Interahamwe were committing such crimes.
*Daisy Yu is a J.D. candidate at the Washington College of Law
**Anne Heindel is the assistant director of the War Crimes Research Office at the Washington College of Law