The Prosecutor v. Joseph Nzabirinda

Court	International Criminal Tribunal for Rwanda (Trial Chamber II), Tanzania
Case number	ICTR-2001-77-T
Decision title	Sentencing Judgement
Decision date	23 February 2007
Parties	The Prosecutor Joseph Nzabirinda
Categories	Crimes against humanity
Keywords	crimes against humanity, Murder, widespread and systematic attack
Links	Sentencing Judgement

Summary

On 14 December 2006, following a plea agreement with the Prosecutor, Joseph Nzabirinda pleaded guilty to one count of murder as crime against humanity, for aiding and abetting the killing of Pierre Murara and Joseph Mazimpaka. The Trial Chamber accepted his guilty plea.

On 23 February 2007, Trial Chamber II of the ICTR sentenced the Accused to seven years' imprisonment. Nzabirinda was given credit for the time spent in detention since his arrest on 21 December 2001.

For the purpose of sentencing the Accused, the Chamber considered the fact that Nzabirinda was an educated person and the fact that he abused his moral authority over the youth and population of his commune as he was held in high esteem due to his positions as Youth Organiser and successful businessman as aggravating factors.

His guilty plea together with his public expression of remorse; his family situation as a married man with children; his good character prior to the events of 1994, the lack of criminal records; and his assistance either moral, financial or material, to certain Tutsi victims were considered mitigating factors.

Procedural history

The initial indictment of 6 December 2001 charged the Accused with four counts: genocide, conspiracy to commit genocide, extermination and rape as crimes against humanity.

On 20 November 2006, the Prosecutor filed a motion to amend the indictment. On 8 December 2006, the Chamber granted the motion and accepted the withdrawal of the previous indictment and the filing of a new indictment with one count of murder as a crime against humanity.

Under the amended indictment, dated 9 December 2006 Joseph Nzabirinda was charged with aiding and abetting murder, a crime against humanity, under Article 6 (1) of the Statute, as an accomplice by omission in the preparation of the commission of the crime.

On 14 December 2006, on his further appearance, Nzabirinda pleaded guilty to aiding and abetting murder, a crime against humanity, as accomplice by omission in the preparation of the commission of the crime.

In its oral ruling of 14 December 2006, the Chamber was satisfied that there was no material disagreement between the Accused and the Prosecution on the acknowledged facts forming the basis of the plea agreement, which facts were sufficient to establish the crimes and the Accused’s participation in the crimes.

Related developments

On 19 December 2008, the Accused was released after completing his sentence.

Legally relevant facts

The indictment alleged that after 19 April 1994 the Accused attended several “pacification meetings” in Sahera sector where only the Hutu and killers of his sector were present. Following the meetings, systematic attacks were launched against Tutsi families living on the Accused’s hill. During one of these attacks, the Interahamwe killed Pierre Murara near the location of the “pacification meetings” where Nzabitinda was present as an “approving spectator” (para. 5).

Nzabirinda was also charged with the murder of Joseph Mazimpaka, killed near the Kabuga roadblock which he manned on two occasions after 19 April 1994, at the request of the authorities. According to the indictment, in appearing beside the killers at the roadblock as an “approving spectator,” the Accused encouraged the murder (para. 6).

In his guilty plea, the Accused admitted that as a political personality and a relatively wealthy businessman, he exerted evident moral authority over the population of his sector. He also recognised that his presence at the meetings taking place in his sector had a decisive influence on the preparation of the attacks against Tutsis. The Accused further acknowledged that the murders of Joseph Mazimpaka and Pierre Murara were committed in his sector and that he was present as an “approving spectator" (paras. 33-35).

Core legal questions

Whether the Accused’s decision to plead guilty was voluntary, informed and unequivocal.
Whether the principle of non bis in idem applies in cases where counts have been withdrawn without a final judgment.
Which factors should be taken into account as aggravating and mitigating circumstances.
Whether an element of the offence itself can constitute an aggravating factor.
After taking into account all the aggravating and mitigating circumstances of the Accused, what the appropriate sentence would be.

Specific legal rules and provisions

Articles 3, 6(1), 9, 22, 23 and 26 of the Statute of the International Criminal Tribunal for Rwanda.
Rules 50, 51, 62(B), 62bis, 72, 73, 92bis, 100, 101, 102(A) and 103(A) of the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda.

Court's holding and analysis

In its oral ruling of 14 December 2006, the Trial Chamber was satisfied that there was no material disagreement between the Accused and the Prosecution on the acknowledged facts forming the basis of the plea agreement, which were sufficient to establish the crimes and the Accused’s participation in the crimes (para. 14).

Relying on the facts acknowledged by the Accused regarding the murders of Pierre Murara and Joseph Mazimpaka, the Trial Chamber found him criminally responsible for the attendance and encouragement that he provided at the preparatory meetings but also for his presence as an “approving spectator” close to the locations where the two victims were murdered. For this reason, the Chamber convicted the Accused for aiding and abetting the murders of Mr. Murara and Mr Mazimpaka in Sahera sector in April 1994 (paras. 38-39).

With regard to the application of the principle of non bis in idem, the Chamber clarified that said principle did not apply in the particular circumstances of this case where counts had been withdrawn without a final judgment and it could not be invoked to bar potential subsequent trials of the Accused before any jurisdiction (para. 46).

After taking into account the gravity of the offence, the aggravating and mitigating circumstances, the Trial Chamber sentenced the Accused to seven years’ imprisonment. The Chamber recognised that he was entitled to credit for the time already served in detention (paras. 113-116).

Further analysis

F. Gaynor & B. Goy, ‘Current Developments at the Ad Hoc International Criminal Tribunals’, Journal of International Criminal Justice, 2007, Vol. 5, pp. 1175-1214.