Norma relacionada
Peru
Practice Relating to Rule 89. Violence to Life
Peru’s Human Rights Charter of the Security Forces (1991) states that one of the 10 basic rules is to respect human life. It adds that “human life is sacred for every person” and that the lives of the wounded or of persons who surrender must be respected. These rules must be respected by the armed and police forces. 
Peru, Derechos Humanos: Decálogo de las Fuerzas del Orden, Comando Conjunto de las Fuerzas Armadas, Ministerio de Defensa, Ejército Peruano, 1991, p. 3, § 2 and p. 7.
Peru’s Human Rights Charter of the Armed Forces (1994) states that respect for a person’s life and mental and physical integrity is one of the three principles common to the 1949 Geneva Conventions, which represent the minimum level of protection to which every human being is entitled. 
Peru, Derechos Humanos: Principios, Normas y Procedimientos, MFA 09-1, Comando Conjunto de las Fuerzas Armadas, Ministerio de Defensa, Ejército Peruano, Lima, Peru, May 1994, § 24.
Peru’s IHL Manual (2004) states:
g. Violence to the life, health or physical or mental well-being of any person is prohibited.
h. Murder … is prohibited. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 32(g) and (h); see also § 84(a)(5).
The manual also states that war crimes include “wilful killing”. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 31(a)(1); see also § 83(f)(1).
The manual further states:
The following acts, among others, are prohibited and are considered war crimes:
a. any act leading to the death of a prisoner of war;
b. any act that endangers the life of a prisoner of war. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 35(a) and (b).
With regard to non-international armed conflicts, the manual restates the provisions of Common Article 3 of the 1949 Geneva Conventions. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 71.
Peru’s IHL and Human Rights Manual (2010) states with respect to the civilian population:
g. Violence to life, health and physical or mental integrity is prohibited.
h. Murder … of all kinds is prohibited. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 33(g)–(h), p. 251.
The manual also states that war crimes include “wilful killing”. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 32(a)(1), p. 248.
The manual further states: “The life of prisoners of war must be respected … The treatment accorded to prisoners of war only applies to combatants who refrain from any hostile acts and do not try to escape.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 100(a), p. 297.
In its Glossary of Terms, the manual states: “Extermination … [i]s prohibited by the law of armed conflict in order to protect the wounded, sick, prisoners of war and any other protected person.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, p. 419.
In a section on occupied territories, the manual states that it is prohibited for “civilian or military officials to … exterminate protected persons through killing, torture, corporal punishment, mutilation or any other brutal means.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 60(b), p. 264.
With regard to non-international armed conflicts, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 72, p. 269.
In a section on the relationship between IHL and human rights law, the manual states:
There are … principles common to the [1949] Geneva Conventions and human rights law which represent a minimum level of protection to which every human person is entitled … [including] [r]espect for life, physical and mental integrity … [and] each individual’s right to security of the person.
Regarding these fundamental guarantees there is no exception whatsoever and they are binding both in times of peace and in times of armed conflict. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 26, pp. 41–42.
In a section on the human rights obligations of the security forces, the manual further states: “The life of persons who are captured or who have surrendered must be respected.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 105(b)(2)(a), p. 141.
Peru’s Regulations to the Law on Internal Displacement (2005) states:
Internally displaced persons who return to their place of habitual residence or who have resettled in another part of the country have a right to:
e) be protected against genocide, homicide, summary or arbitrary executions … ; as well as any threats and incitement to commit any of the foregoing acts. 
Peru, Regulations to the Law on Internal Displacement, 2005, Article 6(e).
Peru’s Code of Military and Police Justice (2006) states:
Any member of the military or police who, in the context of an international or non-international armed conflict:
1. Kills a person protected by international humanitarian law shall be imprisoned for a period of no less than 20 and no more than 30 years. 
Peru, Code of Military and Police Justice, 2006, Article 90(1).
The Code also states:
A member of the military or police shall be imprisoned for a period of no less than eight and no more than 15 years if he or she in the context of an international or non-international armed conflict:
7. Treacherously kills or wounds a member of the enemy armed forces or a member of the hostile party directly participating in hostilities. 
Peru, Code of Military and Police Justice, 2006, Article 95(7).
These articles are no longer in force. Along with certain other articles in this legislation, they were declared unconstitutional by the Constitutional Court (en banc decision for case file No. 0012-2006-PI-TC, 8 January 2007) because they do not stipulate crimes committed in the line of duty that would fall under the jurisdiction of a military court pursuant to Article 173 of Peru’s Constitution.
Peru’s Decree on the Use of Force by the Armed Forces (2010) states:
With respect to the persons mentioned above [i.e. persons not directly participating in hostilities or who have laid down their arms as well as persons placed hors de combat by illness, wounds, detention or any other reason], the following actions are prohibited anytime and anywhere:
a. Violence to life and physical integrity, in particular murder of all kinds … and [summary] executions.
e. … [T]he carrying out of executions without previous judgment by a regularly constituted court, affording all the judicial guarantees.
f. Threats to carry out any of the aforementioned acts. 
Peru, Decree on the Use of Force by the Armed Forces, 2010, Article 8.1.a and 8.1.e–f.
In 2006, in the Lucanmarca case, the Second Provisional Criminal Chamber of Peru’s Supreme Court of Justice stated:
International human rights law, international humanitarian law and Peru’s Political Constitution recognise the right to life …
In international humanitarian law, Article 3 common to the [1949] Geneva Conventions prohibits in non-international armed conflicts attempts on the life and physical integrity of civilians, in particular murder in all its forms. 
Peru, Supreme Court of Justice, Second Provisional Criminal Chamber, Lucanmarca case, Case No. 560-03, Judgment of 13 October 2006, p. 209.
In 2009, in the Fujimori case, the Special Criminal Chamber of Peru’s Supreme Court of Justice was called upon to decide whether the former Peruvian president … was criminally responsible for acts committed in 1991 and 1992 in the context of anti-terror operations. [He] was charged with various offences under domestic criminal law, including murder in relation to events that took place in Barrios Altos and at the so-called La Cantuta university in Lima. The court summarized the facts as follows:
[The murders] that occurred in the Barrios Altos neighbourhood and on Ramiro Prialé Avenue, that the crime [of murder] … were prepared in advance. This presupposes the existence of a preconceived plan, at least in terms of an outline for implementation. A special intelligence detachment was created for this purpose with the specific mission, inter alia, of killing those deemed to have links to the political or military apparatus of the “Shining Path” terrorist organization.
The direct perpetrators acted with absolute cold-bloodedness and determination in what they understood to be a military operation to eliminate members of Shining Path. To this end, they deliberately and stealthily entered the Jiron Huanta-Barrios Altos neighbourhood and the National University of Education “Enrique Guzman y Valle”, [also known as] La Cantuta, where they pretended to be conducting a search operation for terrorists in student and faculty buildings. They surprised the victims, who were not expecting such an operation, and proceeded to subdue and kill them using their weapons of war.
In the first case [in Barrios Altos], they entered the building at 840 Jiron Huanta, taking advantage of the fact that the victims were busy with a fundraising event. They singled out some of those present and shot them without any consideration whatsoever, even murdering a little boy. In the second case, under the guise of an operation to identify potential subversives, they entered the La Cantuta university – which was under military control at the time – and selected individuals whom they deemed to be members of Shining Path based on a previous identification process. They took these individuals to an open area on Ramiro Prialé Avenue, and executed them without further authority using the weapons of war they carried. They subsequently buried and burned the bodies to cover up the crime they had committed. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 700.
The court held:
[These] murders were carried out pursuant to a previously conceived plan, and, at least outwardly, the manner in which the crime was committed exhibited patterns inherent to military operations, albeit in deviation from and in breach of military regulations. The plan was clearly based on disregard for human life and on overt defiance of the basic rules of civilized society, of the very essence of military honour, and of the guidelines governing engagements and the treatment of a defeated or unarmed enemy. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 701.
Next, the Court considered whether the incidents in Barrios Altos and at La Cantuta university were crimes against humanity. The court held:
[T]he acts that occurred in Barrios Altos and at La Cantuta [university] can evidently be subsumed under … [crimes against humanity]. Nonetheless, this finding must be limited [in the present case]. Therefore, (i) … [although the] provisions [on crimes against humanity], whose core is represented by the [1945] Nuremberg Statute, are part of customary international law; (ii) the constitutional requirements of the principle of legality in criminal proceedings must be taken into account … and it must therefore be recognized that from the perspective of substantive law, at the time when the crimes were committed – in 1991 and 1992 – there was no law that would have incorporated into domestic criminal law a crime that included, on the one hand, all elements of the definition of the … [crime against humanity of murder] under customary international law (not even the present legislator has complied with the requirements flowing from the ratification of the Statute of the International Criminal Court by the State of Peru), and, on the other hand, the corresponding sanction. [Nevertheless,] … (iii) the serious violation of individual human rights manifested in the conduct prohibited by crimes against humanity … cannot have been unknown and unforeseeable for the perpetrator. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 711.
The court considered the definition of murder as a crime against humanity and held:
[M]urder has been characterized as a crime against humanity if it results from or is an expression of a systematic attack by a State or by its executive organs supported or fuelled by official or quasi-official policies or directives, and which affects the civilian population in conjunction with a belligerent or social conflict. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 714(2).
[footnotes in original omitted]
The court further held:
The murders and serious injuries that occurred in Barrios Altos and at La Cantuta [university] are also crimes that manifest a State policy of selectively eliminating alleged members of subversive groups. …
It has been demonstrated that it was a State decision, ordered and approved by the Chief of State and carried out by military intelligence bodies – the Colina Special Intelligence Detachment and DINTE [Army Directorate of Intelligence] – ultimately directed by the SIN [National Intelligence Service], with every conceivable form of official support, whose ultimate objective was the forced disappearance and/or arbitrary or extrajudicial murder of alleged subversives. In this context, Barrios Altos and La Cantuta were two, though not the only, significant events. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 717.
[footnote in original omitted]
In 2009, in the Armed Forces case, 31 members of Peru’s Congress requested that Peru’s Constitutional Court declare unconstitutional Article 7(1)–(2) of Law No. 29166 of 20 December 2007 which establishes rules on the use of force by members of the armed forces on Peruvian territory. On 9 September 2009, the Court held:
57. … [T]he second paragraph of Article 7 of Law No. 29166 states the following:
58. If military personnel participates in the control of internal order in accordance with its constitutional function during situations in which a state of emergency has been declared; or in support of the control of internal order in situations in which a state of emergency has not been declared, it may use force under the following conditions:
a. [The use of force must be] [i]n accordance with the assigned mission.
b. Legitimate defence: This is the right of a member of the military to use force against acts which put his or her life or physical integrity at risk, as well as the life or physical integrity of personnel under his or her protection.
c. Hostile act: This is an attack or the unlawful use of weapons which threatens the life or physical integrity of individuals, or which results in injuries or destruction of public property, private property or military installations.
d. Hostile intent: This is the threat or attempt to unlawfully use weapons demonstrated by the carrying out of acts in preparation of a hostile act.
In the aforementioned situations, with the exception of paragraph d), and if necessary, military personnel may use lethal force.
60. The main problem is that this provision conflates concepts of International Humanitarian Law regarding the conduct of hostilities in armed conflict with the use of force in situations of internal disturbances and tensions, in which International Human Rights Law is the applicable legal framework.
63. Since the Armed Forces must have a clear legal framework for their actions and use of force, Congress must adopt a brief law which regulates the use of force in the following situations: (i) the conduct of hostilities under International Humanitarian Law applicable in armed conflict; and (ii) the use of force in situations in which a state of emergency can be declared or in situations of internal tensions in which International Human Rights Law is applicable.
64. In the development of this law, Congress must take the United Nations Principles on the Use of Lethal Force as a basis:
a) The use of lethal force by military personnel is regulated by the Constitution and by treaties of Human Rights and International Humanitarian Law, depending on the circumstances.
b) The use of force and the use of lethal force may only be used in exceptional circumstances and as a last resort with the aim of reducing the risk of unnecessary damage.
c) ... [L]ethal force must only be used if it is strictly inevitable and reasonable in order to protect the right to life or another fundamental legal good.
d) Military personnel must give a warning, if possible, before using force and lethal force.
e) The use of force does not include the use of fire arms and ammunition which may cause unintended injuries or which may constitute an unjustified risk to third parties.
f) The competent authority may open an official investigation if there are reasonable indications that the means of force employed did not comply with the previously established norms.
66. Nevertheless, Congress must adopt within six months of the publication of the present decision a law which regulates the use of force by the Armed Forces. This law shall be divided into two parts:
a) a first part concerning the use of force in situations of armed conflict regulated by the 1949 Geneva Conventions and the 1977 Additional Protocols;
b) a second part which regulates the use of force in states of emergency, internal tensions or riots in accordance with International … [Human Rights] Law. At the same time, these rules must comply with the common principles recognized by the United Nations set out in this decision. 
Peru, Constitutional Court, Armed forces case, 9 September 2009, §§ 57–58, 60, 63–64 and 66.
[emphasis in original]
On 9 September, the Court also held:
1. Declares the request for unconstitutionality partially FOUNDED. Consequently:
a. The second part of the second paragraph of Article 7 of Law No. 29166, which provides that “in the aforementioned situations, (...) and if necessary, military personnel may use lethal force”, is UNCONSTITUTIONAL. Until a new law on this matter is adopted, the rules set out in paragraph 64 above apply. 
Peru, Constitutional Court, Armed forces case, 9 September 2009, § 1(a).
On 17 September 2009, the Court clarified:
With respect to the [above quoted] rule contained in paragraph 64(a) and (b) … which distinguishes between “the use of force” and “the use of lethal force”, the decision [of 9 September 2009] is clear in that it is considers it necessary for Parliament to establish the framework for the use of force and lethal force in accordance with the Constitution and the relevant human rights and international humanitarian law treaties. “Use of force”, without the adjacent adjective “lethal”, refers to any use of force that is not intended to cause death. 
Peru, Constitutional Court, Armed Forces case, 17 September 2009, § 2.
In the presence of the defendant, the Public Prosecutor and the plaintiff, and in public:
The acts that Dusingize has been accused of:
The Court
Considering the evidence given by the prosecution witnesses stating that they saw everything that Alexis Dusingize did; including: [witness VNK], who was one of the witnesses who saw [Dusingize] during the attack that Alexis Dusingize was in command of and who saw that, during this attack, … the witness’ younger brother … was discovered while in hiding and killed.
Considering that Alexis Dusingize accepts that he left Nyamata on motorbike and headed towards Kibenga accompanied by his followers;
Considering that Alexis Dusingize accepts that he requested to see identity cards at the roadblocks; …
Considering that those who are seeking compensation have declared that their property was pillaged or that their property was destroyed during the hostilities and that members of their families were victims of the hostilities, and, therefore, they must be compensated for all of this by Alexis Dusingize along with the Rwandan State as he was an authority responsible for assisting the mayor of the Commune of Kanzenze;
Concluding that Alexis Dusingize knew the objective of the murders as he brought his family by motorbike to a place of refuge via the public highway while claiming that he was a wanted man;
Finds that, upon returning to his home in Kibenga, he went to the roadblock; a fact which he himself accepts.
Considering that Alexis Dusingize committed the act of identifying Tutsis in order to separate them from the others and that he himself admits to having committed these acts;
Considering the attacks that he has been accused of, and which he was the leader of, led to the extermination of a number of people, which he himself accepts;
Considering that the evidence from the Prosecutor is well founded;
On returning from his place of refuge, Alexis Dusingize did not undertake the work which he was responsible for in the Commune of Kanzenze, but instead left for Kigali where he had found work in the Ministry of Public Works where he was arrested;
For all these well-founded reasons, in the presence of the defendant and the Public Prosecutor … ;
Pursuant to Decree No. 08/75 of 12/02/1975 [approving and ratifying various international conventions on human rights, disarmament, and the prevention and repression of acts that may endanger peace between people and nations], Article 2 of the [2000] ICTR [International Criminal Tribunal for Rwanda] [Statute] established with a view to prosecuting the criminals responsible for the genocide in Rwanda, and Organic Law No. 08/96 of 30/08/1996 on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990;
Pursuant to Articles 91 and 312 of Books I and II of the Rwandan Penal Code;
Having regard to Articles 281, 282 and 283 as amended of Book II of the Rwandan Penal Code (RPC);
Having regard to Articles 91 and 168 as amended of Books I and II of the RPC;
Having regard to Articles 27 [stating that the Public Prosecution Department represents, as of right or upon request, the civil interests of minors and others who do not have legal representation] and 30 [on liability for damages for criminal acts committed and on awarding damages to victims not yet identified] as amended of Organic Law No. 08/96 of 30/08/1996 referred to above, with Article 2 of the Organic Law placing him in Category 1 [subparagraph] “b” [of the offenders listed therein];
Confirms that the offences that Alexis Dusingize is accused of having committed are well-founded;
Confirms that the four offences that Alexis Dusingize has been accused of are well-founded, as detailed in the accusations that were made, and were committed in ideal concurrence of offences, which is why he must receive the death penalty as punishment;
Dismisses Alexis Dusingize, sentences him to death and orders that all [of his] property be seized from wherever it may be located. 
Rwanda, Court of First Instance of Nyamata, Dusingize case, Judgment, 12 March 1997, pp. 1–2.
Charges [brought against Gatanazi]:
Charges:
- Between 07/04/1994 and 17/07/1994, in the Gisenyi sector in the Commune of Rubavu, Gisenyi Prefecture in the Republic of Rwanda, was either the perpetrator, co-perpetrator or an accomplice, as provided for in Articles 89, 90, and 91 of Book I of the Rwandan Penal Code, in the commission of the crime of genocide as provided for in Articles 1, 2, 3, and 4 [on the crime of genocide] of the Convention [on the Prevention and Punishment of the Crime of Genocide] of 09/12/1948, Articles 146 and 147 [on grave breaches and the obligation to prosecute them] of the [Geneva] Convention [IV] of 12/08/1949 and Articles 1 and 2 [on the non-applicability of statutory limitations to war crimes and crimes against humanity and on the applicability of the Convention to representatives of the State authorities and private individuals who participate in or incite others to the commission of any of these crimes] of the Convention [on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity] of 26/11/1968. All three of [these Conventions] have been ratified by Rwanda through Decree No. 08/75, and through Articles 1 [on the general purpose of the law], 2 [classifying persons accused of offences into categories], 3 [on the definition of an accomplice and criminal responsibility of superiors for acts referred to in this organic law committed by a subordinate if the superior knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to punish or prevent such acts], 4, 5, 6 and 7 [on the rules and procedures governing the Confession and Guilty Plea Procedure and the accused's right and interest to participate in this] of Organic Law No. 08/96 of 30/08/1996 [on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990];
Charges brought against Jules Baritima:
- Under the same circumstances of time and place, was either the perpetrator, co-perpetrator or an accomplice, as provided for in Articles 89, 90 and 91 of Book I of the Rwandan Penal Code, in the murder of [victim K and victim R];
- Under the same circumstances of time and place, were the perpetrators of the murder of [victim DK] and his mother …, with this offence being punishable under Article 312 of Book II of the Penal Code;
- Under the same circumstances of time and place, acting as perpetrators, co-perpetrators or as accomplices, as provided for in Articles 89, 90 and 91 of Book I of the Penal Code, committed the offence of devastation, pillage and massacre, with this offence being punishable under Article168 of Book II of the Penal Code;
Charges:
In relation to Faustin Ntaganda and Faustin Bimenyimana, at Rond Point in Kinigi, in the Gihora sector, in the Commune of Kiningi, Ruhengeri Prefecture, … on an undetermined date in January 1991, acting as perpetrators, co-perpetrators or as each other’s accomplices, … [a]s provided for in Article 3 of Organic Law No. 08/96 of 30/08/1996 [on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990] and Article 90 of Book 1 of the Rwandan Penal Code, they committed the premeditated murder of … [11 victims] with the aim of exterminating the Tutsi ethnic group. [This amounts to] the crime of genocide as laid down in the International Conventions of 09/12/1948 [on the Prevention and Punishment of the Crime of Genocide] and of 26/11/1968 [on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity] as ratified by our country in Decree No. 08/75 of 12/02/1975 and punishable under Articles 2 [classifying persons accused of offences into categories] and 14 [specifying the penalties imposed for offences committed under the Organic Law] of Organic Law No. 08/96 of 30/08/1996;
Under the same circumstances of time and place, acting as perpetrators, co-perpetrators or as each other’s accomplices, as provided for in Article 90 of [Book I of the Penal Code] and Article 3 [on the definition of an accomplice and on criminal responsibility of superiors for acts referred to in this organic law committed by a subordinate if the superior knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to punish or prevent such acts] of Organic Law No. 08/96 of 30/08/1996, [Faustin Ntaganda and Faustin Bimenyimana] committed the premeditated murder of … [11 victims], with such a criminal offence provided for and punishable under Article 3/2 of [Book II of the Penal Code];
Under the same circumstances of time and place, as perpetrators, co-perpetrators or as each other’s accomplices, as provided for in Article 90 of [Book I of the Penal Code] and Article 3 of Organic Law No. 08/96 of 30/08/1996, they attempted to kill … [eight victims]. Malicious intent is unequivocally proven by these acts upon commencement of the commission of the offence, that is to say through striking [the victims] with machetes, throwing stones at them, shooting at them and leaving them for dead. The crime was not completed for reasons beyond the control of the perpetrators. This criminal offence is contained in and punishable under Articles 21 and 22 of [Book I of the Penal Code] and 3/2 of [Book II of the Penal Code];
In relation to Faustin Ntaganda, Faustin Bimenyimana and Innocent Nzakira:
At Gikeri, Musange sector, in the Commune of Kinigi, Ruhengeri Prefecture, … on 25/05/1994, as perpetrators, co-perpetrators or as each other’s accomplices, as provided for in Article 90 of [Book I of the Penal Code] and Article 3 of Organic Law No. 08/96 of 30/08/1996, they committed the premeditated murder of [victim K] with the aim of exterminating those who opposed the regime of the day, with such a crime being contained in the International Conventions of 26/11/1968, as ratified by Rwanda in Decree No. 08/75 of 12/02/1975, and punishable under Articles 2 [classifying persons accused of offences into categories] and 14 [specifying the penalties imposed for offences committed under the Organic Law] of Organic Law No. 08/96 of 30/08/1996;
Under the same circumstances of time and place, as perpetrators, co-perpetrators or as each other’s accomplices, as provided for in Article 90 of [Book I of the Penal Code] and Article 3 of Organic Law No. 08/96 of 30/08/1996, they committed the premeditated murder of [victim K], with such a crime contained in and punishable under Article 312 of [Book II of the Penal Code].
The Court of Appeal of Ruhengeri:
Considering that … the judgment [of the Specialized Chamber of the Court of First Instance of Ruhengeri, Case No. RP 001/R1/97] was delivered on 20/03/1997 in following terms:
Considering that … the [Prosecution] … asks that the judgment of the lower court be confirmed with the exception of the damages claimed from Bimenyimana in relation to the death of … [victim K].
After the proceedings, the Court [of Appeal of Ruhengeri]… issued the following judgment:
[The Court f]inds that while the lower court [the Court of First Instance of Ruhengeri] held that Ntaganda collaborated with Nzakira in order to kill [victim K], the eyewitnesses, in particular [witness S] at whose home the victim was killed, stated that Bimenyimana and Ntaganda had remained passive while Nzakira shot [victim K], meaning it is clear that they were unable to do anything in such a crowd of soldiers when they were civilians;
Finds that Ntaganda and Bimenyimana do not have to pay damages for [victim K] as they were not the ones who killed him and that it is rather Nzakira who is liable for this;
Finds that the other decisions made by the Court [of First Instance] that relate to the grounds of appeal put forward, comply with the relevant legal provisions in force;
Based on all of the above established reasons:
Having regard to Articles 93 [on court hearings being public, with the exception of those held in closed session when public disclosure poses a threat to public order or decency] and 94 [on all judgments being reasoned and pronounced in open court] of the Constitution of the Republic of Rwanda of 10/06/1991;
Having regard to the protocol to the Arusha Peace Agreement on power-sharing of 30/10/1992, particularly Articl[e] 26 [on the recognition of specific ordinary and military jurisdictions of the judiciary while specifying the law may establish any other specialized courts]… ;
Having regard to Articles 109 [stating that the Court of Appeal has jurisdiction to hear appeals against judgment handed down by the Court of First Instance], 135 [on the definition and objective of a civil action] and 136 [on when a civil action may be pursued at the same times as or separately from any criminal proceedings] of Decree No. 09/80 of 7 July 1980 determining the Organization and Jurisdiction of Courts;
Having regard to Articles 90 [on the format that any judgment must take and the information it should contain] and 99 [on the right to lodge an appeal and who has the right to do so] of the Law of 23/02/1963 determining the Code of Criminal Procedure as amended and supplemented by Decree No. 07/82 of 07/01/1982;
Having regard to Articles 21 and 22 of Book I of the Rwandan Penal Code, and Article 312 of Book II of the Rwandan Penal Code;
Having regard to Articles 2(b) [which states that persons who acted in positions of authority at the national, prefectoral, communal, sector or cell level, or in a political party, the army, religious organizations or in a militia and who perpetrated or fostered such crimes fall within Category One of offenders for the purpose of the Organic Law], 3 [on the definition of an accomplice and criminal responsibility of superiors for acts referred to in this organic law committed by a subordinate if the superior knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to punish or prevent such acts], and 14(a) [which states that persons whose acts place them in Category One are liable to the death penalty] and 24 [on when decisions of the Specialized Chambers may be subject to opposition and appeal] of Organic Law No. 08/96 of 30/08/1996 on the organization of prosecutions for offences constituting the crime of genocide [or crimes against humanity committed since 1 October 1990];
Having regard to International Conventions of 09/12/1948 on the Prevention and Punishment of the Crime of Genocide and of 26/11/1968 on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity;
Having regard to Decree No. 08/75 of 12/02/1975 on Rwanda ratifying these Conventions;
Ruling on the documents submitted by the parties:
Declares that the appeal lodged by Bimenyimana is well-founded as the survivors of the massacre state that he was not at Rond Point at the point at which they had gathered them together, which is corroborated by his statement that he was at Musanze in Kigombe;
Declares that Bimenyimana and Ntaganda were not involved in the killing of [victim K] as the eyewitnesses, particularly [witness S] at whose home the victim was killed, have confirmed this, and that it was rather Nzakira who had spent the day searching for him and who shot him;
Declares that it was in fact soldiers who killed the 11 innocent victims and also attempted to kill eight others, but did not manage to do so, as confirmed by the survivors;
Declares that the soldiers who committed [these murders] had Ntaganda as their accomplice who showed them where Tutsis were living. Thus, he must be punished on the basis of Article 312 of Book II of the Penal Code;
Declares that the doctor’s report and the one provided by Bimenyimana are of no use to Ntaganda and Nzakira as they do not exonerate them of the criminal offence of murder that everybody accuses them of;
Declares that Bimenyimana is acquitted[.] 
Rwanda, Court of Appeal of Ruhengeri, Ntaganda and others case, Judgment, 24 June 1998, pp. 2–10 and 13–18.
Charges:
Charges [brought against the accused]:
… [T]he Court … delivered its judgment in public in the following terms:
Finds that the Public Prosecutor has lodged an appeal on the grounds that, of the four charges brought, namely: the crime of genocide, murder of [victim M], criminal association, and non-assistance to persons in danger, the Court [of First Instance] considered that only the charge brought against the accused of non-assistance to persons in danger had been established because he did not help [victim U] and that this shows a lack of understanding of the statements made by the 12 witnesses for the prosecution; and that [the Court of First Instance] sentenced him to a minimum sentence (two years imprisonment) whereas the Public Prosecutor was seeking a life sentence[.] … [The Court of Appeal notes that] Muhoza and his lawyer … cite the incompetence of the lower court as their ground of appeal because, from the moment Muhoza was acquitted of the crimes of genocide and murder, as well as the offence of involvement in a criminal association, the Court [of First Instance] did not have the jurisdiction to hear the action with respect to the offence of non-assistance to persons in danger as provided for and punishable under Article 256 of Book II of the Penal Code, and, in any case, he did not commit this offence;
Finds that the lower court based its finding on the testimony of the witnesses called by the Public Prosecutor and found that the charges brought against Muhoza of the crimes of the murder of [victim M] and of involvement in a criminal association with a view to committing genocide had not been established due to contradictions that were apparent in the testimony of the witnesses, especially in relation to the date and location of [victim M’s] death[.] … [Witness MU] states that [victim M] died … on 08/04/1994, [witness KA] claims that [victim M] was killed 05/05/1994 after being forced out of hiding … , [witness NT] says that he saw [victim M] with his own eyes at the moment when he was found at the Beau Séjour bar, while [witnesses ND and UW] claim that their testimony is based on what [another] had reported to them as they were already at the Milles Collines hotel at the time of [victim M’s] death. The acquittal is consistent with the statements of the witnesses who signed document No. 425/09/95 of 20/09/1995 issued by … [a] member of the Nyabitare cell, and … , following on from the hearing of the 15 witnesses who were survivors from the area where Muhoza was residing at the time of the genocide, even the authorities of the Commune of Nyarugenge who issued Muhoza with a certificate of good conduct, character and moral standards dated 26/09/1995, which shows that his behaviour during 1994 is irreproachable.
Finds that the Specialized Chamber of the Court of First Instance of Kigali, having acquitted [Muhoza] of the crime of genocide, was not competent to pursue the offence of non-assistance to persons in danger, a point which the Public Prosecutor, the accused, Muhoza, and his lawyer unanimously agree on, and that the lower court had been called upon to decide on crimes of genocide, but it ruled on a common law offence. This has been confirmed by Daniel de Beer, in collaboration with Cyiza, Gasasira, Kanubana, Mugenzi and Rwagasore, on page 41 of his book [providing a commentary on the Organic Law on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity] published by Alter Ego Editions in 1997, where he states: “It should be noted that non-assistance to persons in danger (Article 256 of the RPC B.II [Book II of the Rwandan Penal Code]) falls within those offences which cannot be pursued under the Organic Law, as this offence cannot be regarded as relating to the crime of genocide or crimes against humanity. The criminal offence must be one of murder, killing, causing serious bodily or mental harm, or other inhumane acts”;
Finds that the crimes of genocide, which Muhoza has been prosecuted for, have not been established as the Public Prosecutor has not provided tangible evidence in support of these charges given that contradictions are apparent amongst the testimonies gathered, as explained in the “second finding” above;
For these reasons:
Having regard to the fundamental law of the Republic of Rwanda, particularly Articles 93 [on court hearings being public, with the exception of those held in closed session when public disclosure poses a threat to public order or decency] and 94 [on all judgments being reasoned and pronounced in open court] of the Constitutions of 10/06/1991;
Having regard to Article 109 [stating that the Court of Appeal has jurisdiction to hear appeals against judgments handed down by the Court of First Instance] of … Decree [No. 09/80 of 7 July 1980] determining the Organization and Jurisdiction of Courts;
Having regard to Article 99, 4° of the Code of Criminal Procedure;
Having regard to Articles 1 [on the general purpose of the law], 2 [classifying persons accused of offences into categories], 14 [specifying the penalties imposed for offences committed under the Organic Law], 19 [on the establishment and jurisdiction of Specialized Chambers within the Tribunals of First Instance and the military courts] and Article 24 [on when decisions of the Specialized Chambers may be subject to opposition and appeal] of Organic Law No. 08/96 of 30/08/1996 on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity [committed since 1 October 1990];
Ruling on the admissibility of the appeal lodged by the Public Prosecutor as it complies with the relevant legal requirements, having duly examined it, [the appeal] is declared unfounded;
Ruling on the admissibility of Muhoza and his lawyer’s … appeal as it complies with the relevant legal requirements, [the appeal] is declared founded;
Decides in favour of the acquittal of Ernest Muhoza and, accordingly, finds him innocent;
Orders the immediate release of Muhoza[.] 
Rwanda, Court of Appeal of Kigali, Muhoza case, Judgment, 17 June 1999, pp. 162 and 175–176.