The Prosecutor v. Jean de Dieu Kamuhanda
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||International Criminal Tribunal for Rwanda (Trial Chamber II), Tanzania
||22 January 2004
- The Prosecutor
- Jean de Dieu Kamuhanda
||Crimes against humanity, Genocide, War crimes
||causing violence to health and to the physical or mental well-being of civilians, crimes against humanity, ethnic group, extermination, genocide, grave breaches of the Geneva Conventions, intent to destroy, kill, killing, Murder, Non-international armed conflict, other inhumane acts, outrages upon personal dignity, rape, serious bodily or mental harm, widespread or systematic attack
On 22 January 2004, Trial Chamber II of the ICTR found Jean de Dieu Kamuhanda, former Rwandan Minister of Higher Education and Scientific Research, guilty on two counts of genocide and extermination as a crime against humanity. The Tribunal sentenced him to prison for the remainder of his life.
The Trial Chamber found the Accused not guilty of five counts in the nine counts indictment against him. They included conspiracy to commit genocide, rape and other inhumane acts as crimes against humanity, and two counts of violations of the Geneva Conventions and of Additional Protocol II. The Chamber also dismissed two counts of complicity in genocide and murder as a crime against humanity.
In reaching its guilty verdict on two counts, the Trial Chamber found that Kamuhanda had the intent to destroy the Tutsi ethnic group in whole or in part and was individually criminally responsible for instigating, ordering, aiding and abetting genocide against Tutsi by virtue of his role in the killing of members of the Tutsi ethnic group in the Gikomero Parish Compound where he ordered Interahamwe militia, soldiers, and policemen to kill the Tutsis. The Trial Chamber also found that a large number of Tutsi were exterminated as a direct result of Kamuhanda’s participation by ordering, instigating, aiding and abetting the attack at the Gikomero Parish compound.
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On 1 October 1999, an indictment dated 27 September 1999 against Jean de Dieu Kamuhanda and Augustin Ngirabatware was confirmed. On 7 November 2000, Trial Chamber II granted the Defence’s motion for severance and separate trial and ordered the Prosecutor to file a separate indictment pertaining exclusively to Kamuhanda. The separate indictment was filed on 15 November 2000. The Trial Chamber did not consider this separate indictment to be an amendment of the original Indictment.
For his alleged involvement in the acts described in the indictment, the Accused was charged with conspiracy to commit genocide (Count 1); genocide (Count 2) or, alternatively, complicity in genocide (Count 3); murder as a crime against humanity (Count 4), extermination as a crime against humanity (Count 5), rape as a crime against humanity (Count 6), and other inhumane acts as a crime against humanity (Count 7). The Accused was also charged with the war crimes of outrages upon personal dignity (Count 8) and killing and causing violence to health and to the physical or mental well-being of civilians (Count 9). For all the Counts, the Accused was charged cumulatively with all forms of personal responsibility pursuant to Article 6(1) and with superior responsibility pursuant to Article 6(3) of the Statute.
On 20 August 2002, the Trial Chamber partly granted a Defence motion, under Rule 98, for partial acquittal in respect of Count 1 of the indictment: conspiracy to commit genocide. The Chamber denied the motion to enter a judgment of acquittal with respect to Count 6 (rape as a crime against humanity).
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The Accused appealed his convictions and his sentence. The Appeals Chamber overturned certain findings made by the Trial Chamber, though it did not impose a lesser sentence.
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Legally relevant facts
The indictment charged Kamuhanda with genocide, crimes against humanity, and war crimes (para. 12).
According to the indictment, from late 1990 until July 1994, the Accused conspired with others to develop a plan with the intent to exterminate the civilian Tutsi population and to eliminate members of the opposition. The Indictment further alleged that in executing this plan, the Accused and others, organized, ordered and participated in the massacres perpetrated against the Tutsi population and moderate Hutu (para. 15).
The Prosecution further alleged that, from 7 April 1994, massacres of the Tutsi population and murders of numerous political opponents were perpetrated throughout the territory of Rwanda and that these crimes were carried out by militiamen, military personnel, and gendarmes on the orders and directives or with the knowledge of authorities, including the Accused (para. 16).
The Prosecution had argued that the Accused was an influential member of the Mouvement Révolutionnaire National pour la Démocratie er le Développement (MRND) in Kigali-Rural. It had also stated that the Accused supervised killings during the month of April 1994 in the area of Gikomero commune, Kigali-Rural prefecture, where he had family ties. The Indictment further asserted that the Accused had personally led attacks of soldiers and Interahamwe against Tutsi refugees in Kigali-Rural prefecture, notably on or around 12 April 1994, at the Parish Church and adjoining school in Gikomero, where several thousands were killed. During the attack on the school in Gikomero the militia also selected women from among the refugees and raped them before killing them (para.18).
According to the Indictment, on several occasions the Accused personally distributed firearms, grenades, and machetes to civilian militia in Kigali-Rural for the purpose of “killing all the Tutsi and fighting the [RPF]” (para. 19).
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Core legal questions
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- Whether the Accused was guilty of genocide and complicity in genocide for his role in the killing of members of the Tutsi ethnic group at the Gikomero Parish Compound on 12 April 1994.
- Whether the Accused’s acts at the Gikomero Parish Compound, where numerous Tutsis were killed, amounted to murder and/or extermination as crimes against humanity.
- Whether the Accused was criminally responsible for rape and other inhumane acts as crimes against humanity for his acts at the Gikomero Parish Compound.
- Whether the Accused had committed war crimes against Tutsis during the events at the Gikomero Parish Compound.
- What the appropriate sentence would be, in case the Accused was found guilty.
Specific legal rules and provisions
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- Articles 1, 2, 3, 4, 6(1),(3), 17, 22 and 23 of the Statute of the International Criminal Tribunal for Rwanda.
- Rules 15(E), 15bis(C), 66, 67, 85(A)(ii), 86(C), 87(A), 89(A),(B),(C), 92bis, 98, 101, 102(A) and 103 of the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda.
- Article 3 common to the Geneva Conventions and of Additional Protocol II thereto.
- Articles II and III of the Genocide Convention.
Court's holding and analysis
The Trial Chamber found the Accused guilty of instigating, ordering, and aiding and abetting the killing of Tutsis in Gikomero Parish Compound, pursuant to Article 6(1) of the Statute. Accordingly, in relation to Count 2 of the Indictment, the Chamber found the Accused guilty of genocide (paras. 651-652).
The Chamber dismissed Count 3 (complicity in genocide) since it had been pleaded as an alternative to Count 2 (paras. 653-654).
The Chamber dismissed the charges of murder, rape and other inhumane acts as crimes against humanity, and the charges of serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (paras. 688, 713, 720, 746, 748).
The Chamber held the Accused guilty, pursuant to Article 6(1) of the Statute, for instigating, ordering, and aiding and abetting the extermination of members of Tutsis at the Gikomero Parish Compound in Gikomero Commune (para. 700).
After taking into account the sentencing practices, the aggravating and mitigating factors, the Chamber, with Judge Maqutu dissenting, sentenced the Accused to imprisonment for the remainder of his life (para. 770).
In his Separate and Concurring opinion on the verdict, Judge Maqutu differed from the majority who accepted from witness testimony that, at the location of the killings, the Accused was actually heard giving an order for the killing to begin. However, he agreed with the majority that Kamuhanda had led an armed group to commit the crimes of genocide and extermination as a crime against humanity against the Tutsis who were at Gikomero Parish (paras. 57, 60). In his dissent on the sentence, Judge Maqutu proposed a sentence of 25 years of imprisonment (para. 14).
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- D.J. Franklin, ‘Failed Rape Prosecutions at the International Criminal Tribunal for Rwanda’, Georgetown Journal of Gender and the Law, 2008, Vol. 9, pp. 181 et seq.;
- P. Kim, ‘The Law of Genocide in the Jurisprudence of ICTY and ICTR in 2004’, International Criminal Law Review, 2005, Vol. 5, pp. 431-446.
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- Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I), 12 August 1949, 75 UNTS 35, entered into force 21 October 1950.
- Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II), 12 August 1949, 75 UNTS 81, entered into force 21 October 1950.
- Geneva Convention relative to the Treatment of Prisoners of War (GC III), 12 August 1949, 75 UNTS 135, entered into force 21 October 1950.
- Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC IV), 12 August 1949, 75 UNTS 287, entered into force 21 October 1950.
- Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 227, 9 December 1948, entered into force 12 January 1951.
- Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (AP II), 1125 UNTS 609, 8 June 1977, entered into force 7 December 1979.
- Statute of the International Criminal Tribunal for Rwanda (ICTR Statute), UN Doc S/RES/955, UN Security Council, 1994.
- Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda (ICTR RPE), UN Doc ITR/3/Rev. 6, adopted on 29 June 1995, as amended on 8 June 1998.