The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana

Court	International Criminal Tribunal for Rwanda (Appeals Chamber), Tanzania
Case number	ICTR-96-10-A and ICTR-96-17-A
Decision title	Judgement
Decision date	13 December 2004
Parties	The Prosecutor Elizaphan Ntakirutimana Gérard Ntakirutimana
Categories	Crimes against humanity, Genocide
Keywords	crimes against humanity, extermination, genocide, Murder
Links	Judgement

Summary

On 19 February 2003, Trial Chamber I of the ICTR had convicted a senior Pastor of the Seventh Day Adventist Church in Mugonero, Elizaphan Ntakirutimana, and his son Dr. Gérard Ntakirutimana, a medical practitioner. On 13 December 2004, the Appeals Chamber confirmed the sentences of 10 years and 25 years in prison, respectively, imposed by the Trial Chamber.

Specifically, the Appeals Chamber affirmed the conviction of Elizaphan Ntakirutimana for aiding and abetting genocide and convicted him for aiding and abetting extermination as a crime against humanity after reversing his acquittal for the events which occurred in Bisesero. However, the Appeals Chamber quashed his conviction for aiding and abetting genocide for his participation in events which occurred at Mugonero.

Regarding Gérard Ntakirutimana, the Appeals Chamber affirmed his conviction for genocide and convicted him for murder as a crime against humanity in relation to the killing of Charles Ukobizaba. The Appeals Chamber also convicted him for aiding and abetting extermination as a crime against humanity for the procurement of police officers and ammunition for the attack on the Mugonero complex. In addition, the Appeals Chamber affirmed his conviction for genocide in relation to events which occurred at Bisesero, but found that his responsibility was that of an aider and abettor. However, the Chamber set aside his conviction for murder as a crime against humanity under the Bisesero indictment.

The Defence and Prosecution appeals were dismissed in all other respects.

Procedural history

Elizaphan Ntakirutimana and Gérard Ntakirutimana were jointly tried on the basis of two indictments. On 21 February 2003, Trial Chamber I found Elizaphan Ntakirutimana guilty of genocide and sentenced him to ten years’ imprisonment with credit for time spent in custody awaiting trial. Gérard Ntakirutimana was found guilty of genocide and murder as a crime against humanity. He was sentenced to 25 years’ imprisonment with credit for time spent in custody awaiting trial.

The two Accused appealed all the factual findings against them and alleged several legal errors. They indicated that they relied on each other’s appeals. Gérard Ntakirutimana divided legal errors into six general categories, while Elizamphan Ntakirutimana regrouped the errors into seven broad categories. The Prosecution advanced six grounds of appeal.

Related developments

Elizaphan Ntakirutimana is the first person convicted by the ICTR to be released after having served his sentence.

He died on 23 January 2007.

Legally relevant facts

Gérard Ntakirutimana presented the following grounds of appeal: (a) errors relating to the Indictments; (b) errors relating to the burden of proof; (c) errors relating to the treatment of prior inconsistent statements; (d) indicia of witness coaching; (e) errors relating to the alibi; and (f) evidence relating to motive. In addition, he contended that none of the factual findings on which his convictions rest could have been made by a reasonable tribunal (para. 7).

Elizaphan Ntakirutimana alleged errors relevant to (i) the burden of proof, (ii) the treatment of prior inconsistent statements, (iii) credibility evaluation, (iv) the indictments, (v) procedure, (vi) the treatment of the alibi, and (vii) character evaluation. He further argued: (i) that the Prosecution had failed to provide notice, (ii) that Defence testimony had raised a reasonable doubt, (iii) that the Trial Chamber had erred by failing to consider the Defence’s motion to dismiss, (iv) that there had been insufficient evidence to establish that Tutsi refugees at the Mugonero Complex had been targeted solely on the basis of their ethnicity, and (v) that punishment cannot be imposed for aiding and abetting in genocide. Finally, the two Accused presented a joint ground of appeal on the existence of a political campaign against them (para. 8).

The Prosecution maintained that the Trial Chamber had erred (i) by failing to apply the “joint criminal enterprise” doctrine to determine the Accused’s responsibility for genocide, (ii) in restricting Gérard Ntakirutimana’s conviction for genocide to the acts of killing or serious bodily harm that he had personally inflicted on Tutsis at the Mugonero Complex and in Bisesero, and (iii) in its definition of the mens rea requirement for aiding and abetting genocide. The Prosecution further addressed issues relating to extermination and murder as crimes against humanity and challenged the sentences imposed by the Trial Chamber (para 10).

Core legal questions

Whether the grounds of appeal submitted by Gérard Ntakirutimana alleging legal errors committed by the Trial Chamber should be granted.
Whether the Trial Chamber had erred in its factual findings in relation to both Mugonero and Bisesero Indictments, as alleged by Gérard Ntakirutimana.
Whether the Trial Chamber had committed a number of recurring legal and factual errors in relation to the Mugonero and Bisesero Indictments, as Elizaphan Ntakirutimana argued in his appeal.
Whether the Accused’s common ground of appeal on the existence of a political campaign against them should be accepted.
Whether the Trial Chamber had erred in not applying the Joint Criminal Enterprise doctrine to determine the responsibility of the two Accused, in confining Gérard Ntakirutimana’s conviction for genocide to the acts of killing or serious bodily harm that he had personally inflicted on Tutsis and in defining the mens rea requirement for aiding and abetting genocide, as the Prosecution contended in its appeal.
Whether the Prosecution’s grounds of appeal regarding the Trial Chamber’s assessment of extermination and murder as crimes against humanity should be granted.
What the effect on the sentence would be, in case any of the grounds of appeal was accepted.

Specific legal rules and provisions

Articles 2, 3, 4, 6(1),(3), 15, 17(4), 20(2),(4)(a),(b), 23 and 24 of the Statute of the International Criminal Tribunal for Rwanda.
Rules 47(C), 89(C), 101(A),(D), 103(B), 107, 115, 118 and 119 of the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda.

Court's holding and analysis

With regard to Elizaphan Ntakirutimana, the Appeals Chamber quashed the conviction for aiding and abetting genocide under Count 1A of the Mugonero indictment, while it affirmed the conviction for aiding and abetting genocide under Count 1 of the Bisesero indictment. In addition, the Chamber reversed the acquittal for extermination as a crime against humanity and entered a conviction for aiding and abetting extermination. The Chamber dismissed the Defence and Prosecution appeals concerning Elizaphan in all other respects and affirmed the sentence of 10 years’ imprisonment, subject to credit being given for the period already spent in detention (para. 191).

As far as Gérard Ntakirutimana is concerned, the Appeals Chamber quashed the conviction for murder as a crime against humanity, while it affirmed the conviction for committing genocide in relation to the killing of Charles Ukobizaba. The Chamber further convicted the Accused for aiding and abetting genocide for the procurement of gendarmes and ammunition for the attack on the Mugonero Complex. In addition, the Chamber affirmed the conviction for genocide under Count 1 of the Bisesero indictment, but held that his responsibility was that of an aider and abettor. It affirmed the conviction for murder as a crime against humanity in relation to the killing of Charles Ukobizaba and entered a conviction for aiding and abetting extermination as a crime against humanity for the procurement of gendarmes and ammunition for the attack on the Mugonero Complex. Finally, the Chamber convicted the Accused for aiding and abetting extermination as a crime against humanity under Count 5 of the Bisesero indictment and dismissed the Defence and Prosecution appeals concerning Gerard in all other respects. It upheld the sentence of 25 years’ imprisonment, subject to credit being given for the period already spent in detention (para. 192).

Further analysis

D. Re, ‘Appeal’, in: L. Reydams et al. (eds), International Prosecutors, Oxford: Oxford University Press, 2012, pp. 849 et seq.;
G. Boas et al., International Criminal Law Practitioner Library, Volume 1, Forms of Responsibility in International Criminal Law, Cambridge: Cambridge University Press, 2007. See esp. p. 28;
M. Lauriston er al., ‘ICTR in 2004: Three Case Notes’, Chinese Journal of International Law, 2005, Vol. 4(1, pp. 203-218.