The Prosecutor v. Tharcisse Muvunyi

Court	International Criminal Tribunal for Rwanda (Trial Chamber II), Tanzania
Case number	ICTR-2000-55A-T
Decision title	Judgement and Sentence
Decision date	12 September 2006
Parties	The Prosecutor Tharcisse Muvunyi
Categories	Crimes against humanity, Genocide
Keywords	bodily and mental harm, crimes against humanity, ethnic group, genocide, intent to destroy, kill, other inhumane acts, rape, widespread or systematic attack
Links	Judgement and Sentence

Summary

Lieutenant Colonel Tharcisse Muvunyi was the former Commander of the Rwandan military school, École des sous-officiers (ESO). On 12 September 2006, Trial Chamber II of the ICTR found him guilty of genocide and crimes against humanity (other inhumane acts). The Chamber acquitted him of rape as a crime against humanity and of the alternative charge of complicity in genocide.

The Chamber took into account the gravity of the offences, the aggravating and mitigating factors and sentenced Muvunyi to 25 years of imprisonment. Aggravating factors considered by the Chamber were the ethnic separation and subsequent killing of orphan children at the Groupe Scolaire by soldiers under the Muvunyi's command in collaboration with civilian militia. In addition, the fact that Muvunyi had chastised the bourgmestre (mayor) of the Nyakizu community for hiding a Tutsi man, who was later killed by an armed Hutu mob under Muvunyi’s instructions, was also considered an aggravating factor.

Mitigating factors taken into account were the good character of Muvunyi prior to 1994, his family status, the fact that he had spent most of his life working for the defence of his country and that he was regarded as a highly respected and devout person.

Procedural history

Tharcisse Muvunyi served as Lieutenant Colonel in the Rwandan Armed Forces, stationed at the École des Sous-officiers (ESO) in Butare prefecture from 1 March until mid-June 1994,

On 23 December 2003, the Prosecution filed its indictment against Tharcisse Muvunyi charging him with five counts pursuant to Articles 2 and 3 of the Statute: genocide, or, in the alternative, complicity in genocide, direct and public incitement to commit genocide, rape and other inhumane acts as crimes against humanity. The Prosecution charged Muvunyi with individual criminal responsibility pursuant to Article 6(1) and 6(3) of the Statute for genocide, complicity in genocide and rape. With regard to the charge of direct and public incitement to commit genocide, Muvunyi is charged only under Article 6(1), while Article 6(3) is referred to for the count of other inhumane acts.

The trial commenced on 28 February 2005 and closed on 23 June 2006. The Accused chose not to testify in his own defence.

Related developments

Both the Accused and the Prosecution appealed against the Trial judgment. On 29 August 2008, the Appeals Chamber reversed the convictions and ordered a retrial limited to the allegation under Count 3 of the indictment that the Accused was responsible for direct and public incitement to commit genocide based on a speech he purportedly gave at the Gikore Trade Center in Nyaruhengeri Commune, Butare Prefecture.

Following the retrial, the Accused was convicted and sentenced to 15 years of imprisonment.

The Accused presented two grounds of appeal and requested that the Appeals Chamber overturn his conviction. The Prosecution submitted one ground of appeal challenging the sentence and requested the Appeals Chamber to increase his sentence to 25 years of imprisonment. The Appeals Chamber of the ICTR dismissed both appeals and upheld the Accused’s sentence to 15 years of imprisonment.

On 6 March 2012, the President of the Tribunal granted the Accused’s Application for early release.

Legally relevant facts

In the indictment, the Prosecution alleged that the Accused, by virtue of the fact that he became the Interim Commander of the École des sous-officiers (ESO) Camp and was the most senior military officer in Butare prefecture from 7 April 1994, was responsible for the activities of all the military personnel in the area. The Prosecution further submitted that instead of protecting the public, soldiers under command of the Accused had committed several serious violations of international humanitarian law. These allegations were the basis of the charges contained in the Indictment (para. 8).

A main point of contention during the trial revolved around whether or not the Accused held a position of command authority, and thus responsibility, over military personnel in the area. The Accused also maintained that there was no evidence that he had either directly participated in, or ordered the commission of, any of the crimes charged in the indictment (para. 9).

The Prosecution had charged the Accused with individual criminal responsibility pursuant to Article 6(1) for genocide, or in the alternative, complicity in genocide, direct and public incitement to commit genocide, and for rape as a crime against humanity. The Accused had also been charged with command responsibility under Article 6(3) for genocide, complicity in genocide, as well as rape and other inhumane acts as crimes against humanity (para. 458).

Core legal questions

Whether the Accused was guilty of genocide and if so, under which form of liability, for his role in the attack at the Groupe Scolaire and in the attacks at the Butare University Hospital, the University of Butare, the Beneberika Convent, the Mukura forest and at roadblocks in Butare.
Whether the Accused’s conduct during the meetings held at Gikonko in April and at Gikore in May 1994 amounted to the crime of direct and public incitement to commit genocide.
Whether the Accused had committed the rape and other inhumane acts as crimes against humanity against Tutsis.
Which factors the Trial Chamber should take into account upon sentencing.
What the appropriate sentence would be, in case the Accused was found guilty.

Specific legal rules and provisions

Articles 1, 2(2),(3)(c),(e), 3(a)-(i), 4, 6(1),(3), 20(4)(a), 23 and 28 of the Statute of the International Criminal Tribunal for Rwanda.
Rules 45(H), 47(C), 50, 89(C), 92 bis, 94(A), 96(i),(ii), 98 bis, 101, 102(A) and 103 of the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda.

Court's holding and analysis

The Trial Chamber found the Accused guilty of genocide pursuant to Article 6(1) of the Statute for the attack at the Groupe scolaire, and pursuant to Article 6(3) for the attacks at the Butare University Hospital, the University of Butare, the Beneberika Convent, the Mukura forest, and at various roadblocks in Butare (para. 498).

The Chamber dismissed count 2 (complicity in genocide) since it had been charged in the alternative to count 1 of the Indictment (genocide) (para. 499).

The Trial Chamber further convicted the Accused of direct and public incitement to commit genocide with regard to the meetings held at Gikonko in April and at Gikore in May 1994 pursuant to Article 6(1) of the Statute (para. 510).

With respect to count 4 (rape as a crime against humanity), the Chamber held that the evidence did not support the allegation that soldiers from Ngoma Camp had committed rape, and that it would be prejudicial and unfair to hold this evidence against the Accused. Therefore, he was acquitted of rape under count 4 of the Indictment (para. 526).

The Chamber also found the Accused guilty as a superior under Article 6(3) for the actions of his subordinates, ESO soldiers, and guilty of other inhumane acts as crimes against humanity (para. 530).

After considering the gravity of the offences, the aggravating and mitigating circumstances, the Chamber sentenced the Accused to 25 years’ imprisonment (paras. 544-545).