Aloys Simba v. the Prosecutor

Court	International Criminal Tribunal for Rwanda (Appeals Chamber), Tanzania
Case number	ICTR-01-76-A
Decision title	Judgement
Decision date	27 November 2007
Parties	Aloys Simba The Prosecutor
Categories	Crimes against humanity, Genocide
Keywords	crimes against humanity, extermination, genocide
Links	Judgement

Summary

The Accused, Aloys Simba, is a retired lieutenant colonel, a member of the “Comrades of the Fifth of July”, who participated in the coup d’ état that brought former President Habyarimana to power in 1973, and was a member of parliament from 1989 to 1993.

The Trial Chamber had found Simba guilty of genocide for his role in the killing of Tutsi civilians at Murambi Technical School and Kaduha Parish. Furthermore, he had been convicted of extermination as a crime against humanity based on the same facts. The Trial Chamber sentenced him to 25 years’ imprisonment, with credit being given for time already served.

Simba appealed his convictions and his sentence, while the Prosecution submitted two grounds of appeal. The Appeals Chamber dismissed the grounds of appeal raised by both Simba and the Prosecutor and affirmed the sentence of twenty-five years of imprisonment.

Procedural history

The Accused was originially charged with individual criminal responsibility for his alleged participation in five massacres against Tutsis in the Gikongoro Prefecture and in the Butare Prefecture between 14-29 April 1994. At the close of trial, the Prosecution had withdrawn the charges of complicity in genocide (Count 2) and of murder as a crime against humanity (Count 4) and declined to pursue a conviction for superior responsibility under Article 6(3) of the Statute.

The Trial Chamber found the Accused guilty of genocide (Count 1) based on his participation in a joint criminal enterprise (JCE) to kill Tutsi civilians at Murambi Technical School and Kaduha Parish. It had also convicted him of extermination as a crime against humanity (Count 3) based on the same facts and it had sentenced him to 25 years of imprisonment, with credit being given for time already served.

The Accused appealed his convictions and his sentence, while the Prosecution advanced two grounds of appeal.

Legally relevant facts

Simba challenged a series of interlocutory decisions made by the Trial Chamber on various grounds (para. 12). He further submitted that his right to fair trial had been violated because he had been prevented from calling two individuals to testify in his defence (para. 40).

Simba contended that the indictment had failed to clearly plead the JCE theory as well as the material facts supporting that theory (para. 62), and that the Trial Chamber had erred in the assessment of the Prosecution evidence (para. 98). He further maintained that the Trial Chamber had erred in its assessment of the Defence evidence (para. 163), and that it had erred in fact by distorting the facts before it (para. 234). Simba also contended that the Trial Chamber had erred in convicting him for genocide and extermination under the mode of liability of JCE (para. 243).

Simba further challenged his conviction for genocide with respect to the events at Murambi Technical School and Kaduha Parish (para. 256), and his convictions for the cumulative charges for extermination and genocide based on the same underlying conduct (para. 274).

Both Simba and the Prosecutor challenged his sentence. The Prosecutor also submitted that the Trial Chamber should have found Simba responsible for his participation in the Cyanika Parish Massacre on 21 April 1994 (paras. 279, 289,305).

Core legal questions

Whether the Trial Chamber had erred in certain of its interlocutory decisions.
Whether Simba’s right to a fair trial had been violated.
Whether the indictment against Simba had been defective.
Whether the Trial Chamber’s assessment of Prosecution evidence had been incorrect.
Whether the Trial Chamber had showed bias in its treatment of Prosecution and Defence evidence.
Whether the Trial Chamber had erred in convicting Simba of genocide and extermination as a crime against humanity.
Whether convictions for genocide and extermination as a crime against humanity, based on the same facts, are permissible.
Whether the Trial Chamber had erred in finding that Simba was not criminally responsible for his participation in the Cyanika Parish massacre.
Whether Simba's and the Prosecution’s grounds of appeal regarding the sentence 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(2)(a),(b),(3)(a), 3(b), 6(1),(3), 15(2), 17, 19, 20, 23(1), 22(2) and 24 of the ICTR Statute.
Rules 33(B), 71, 89(A),(B),(C), 90(A), 91, 92 bis, 93(C), 94(B), 94 bis(C), 95, 98(C), 101(D), 103(B), 107, 108, 115, 118, 119 and 120 of the ICTR Rules of Procedure and Evidence.

Court's holding and analysis

The Appeals Chamber dismissed the Accused’s arguments against the interlocutory decisions of the Trial Chamber (paras. 16, 25, 34, 39). The Appeals Chamber found that the Accused had failed to demonstrate any interference of the Rwandan authorities with one of the two individuals who would testify to his defence (paras. 44-45, 61).

The Chamber dismissed the Accused’s submissions regarding the alleged defects of the indictment, as well as his arguments concerning the assessment of the Prosecution evidence by the Trial Chamber (paras. 66-97, 101-162).

The Chamber also dismissed his submissions with respect to the allegedly biased treatment of Prosecution and Defence evidence, as well as his argument regarding the distortion of facts by the Trial Chamber (paras. 233, 242). The Chamber found no errors in the Trial Chamber’s findings regarding the Accused’s convictions for genocide and extermination (para. 255), and dismissed the Accused's argument concerning his conviction for genocide with respect to the events at Murambi Technical School and Kaduha Parish (para. 270).

The Chamber held that convictions for genocide and extermination as a crime against humanity, based on the same facts are, as a matter of law, permissible (paras. 277-278).

The Chamber dismissed the Accused’s contention concerning his sentence, as well as the Prosecution’s grounds of appeal (paras. 288, 304, 338).

In his partially dissenting opinion, Judge Daqun considered that the Majority’s decision to proprio motu find that the Trial Chamber had erred in considering zeal and sadism in its assessment of the gravity of the offence was unsupported by the jurisprudence (para. 6).

In his partially dissenting opinion, Judge Schomburg stressed that he could not find any reason to depart from the Tribunal’s jurisprudence on sentencing and uphold the sentence of 25 years’ imprisonments for the Accused (para. 1).

Further analysis

H. Brady & B. Goy, ‘Current Developments at the Ad Hoc International Criminal Tribunals’, Journal of International Criminal Justice, 2008, Vol. 6, pp. 569-607;
K. Margetts & K.I. Kappos, ‘Current Developments at the Ad Hoc International Criminal Tribunals’, Journal of International Criminal Justice, 2012, Vol. 10, pp. 447-487.