Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze v. The Prosecutor

Court	International Criminal Tribunal for Rwanda (Appeals Chamber), Tanzania
Case number	ICTR-99-52-A
Decision title	Judgement
Decision date	28 November 2007
Parties	Ferdinand Nahimana Jean-Bosco Barayagwiza Hassan Ngeze The Prosecutor
Other names	The Media Case
Categories	Crimes against humanity, Genocide
Keywords	crimes against humanity, ethnic group, extermination, genocide, intent to destroy, kill, persecution, serious bodily or mental harm, widespread or systematic attack
Links	Judgement

Summary

The present case concerned the role of Ferdinand Nahimana and Jean-Bosco Barayagwiza in the Radio television libre des mille collines (RTLM), that of Hassan Ngeze in the publication of the Kangura newspaper, as well as Jean-Bosco Barayagwiza’s involvement in the Coalition pour la défense de la République (CDR) and the role of Hassan Ngeze in the killing of Tutsis in Gisenyi prefecture on 7 April 1994.

Trial Chamber I originally found the Accused guilty of conspiracy to commit genocide, genocide, direct and public incitement to commit genocide and persecution and extermination as crimes against humanity and sentenced each Accused to a single term of life imprisonment. However, it has reduced the sentence imposed on Barayagwiza to 35 years, taking into account the violation of his rights.

The Accused appealed their convictions and sentence. The Appeals Chamber reversed certain findings of the Trial Chamber and affirmed others. With regard Nahimana, the Appeals Chamber reduced his sentence to 30 years’ imprisonment. Barayagwiza’s sentence was reduced to 32 years of imprisonment. Finally, the Appeals Chamber substituted Ngeze’s life sentence by a prison term of 35 years.

Procedural history

This judgment was rendered on the basis of three separate indictments. The initial Indictment against Mr. Nahimana was filed on 22 July 1996 and last amended on 15 November 1999. The initial Indictment against Barayagwiza was filed on 22 October 1997 and last amended on 14 April 2000. The indictment against Ngeze was filed on 6 October 1997 and last amended on 22 November 1999.

The Trial Chamber found the three Accused guilty of conspiracy to commit genocide, genocide, direct and public incitement to commit genocide and persecution and extermination as crimes against humanity. They were acquitted on the counts of complicity in genocide and murder as a crime against humanity. Barayagwiza was also found not guilty of serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II.

Nahimana challenged all the validity of the proceedings. He also alleged errors of law and fact in connection with the rules of fair trial and errors of law and of fact in the decisions on the merits. Barayagwiza raised 51 grounds and Ngeze eight grounds of appeal challenging their convictions and their sentence.

Legally relevant facts

In his appeal, Nahimana challenged all the interlocutory decisions rendered on issues relating to the validity of the proceedings. He further alleged errors of law and fact in connection with the rules of fair trial and errors of law and of fact in the decisions on the merits (para. 7).

Barayagwiza submitted 51 grounds of appeal. First, he identified five grounds which would allegedly justify annulment of the judgment and then he enumerated the grounds based on errors which allegedly rendered the judgment defective. Specifically, grounds 6 to 15 focus on errors relating to his conviction for genocide; grounds 16 and 17 focus on errors concerning Coalition pour la defense de la République (CDR); grounds 18 to 22 concern errors relating to his superior responsibility within CDR; grounds 23 to 29 identify errors concerning the instigation of genocide; grounds 30 and 31 identify errors relating to conspiracy to commit genocide; grounds 32 and 33 identify errors relating to direct and public incitement to commit genocide; grounds 34 to 41 concern errors regarding his convictions for crimes against humanity; grounds 42 to 51 identify errors affecting the sentence (para. 8).

Ngeze advanced eight grounds of appeal. In his first grounds, he argued that the Trial Chamber had exceeded its jurisdiction ratione temporis, in violation of Article 7 of the Statute of the Tribunal. His second ground concerned his right to fair trial and to equality of arms. Under his third ground, the Accused contended errors of law and of fact concerning the dismissal of his alibi defence and the credibility of witnesses. From his fourth to seventh ground, Mr. Ngeze identified errors of law and of fact relating to Articles 2, 3 and 6(1) of the Statute, as well as errors regarding cumulative convictions. His eighth ground concerned sentencing (para. 9).

Core legal questions

Whether the grounds of appeal raised by the three Accused relating to the independence and impartiality of the Tribunal, the allegations of abuse of process, miscarriage of justice and violations of the rights of the Defence of the three Accused should be granted.
Whether the Trial Chamber had erred in finding Nahimana guilty of genocide, conspiracy to commit genocide, direct and public incitement t commit genocide, and persecution and extermination as crimes against humanity.
Whether Barayagwiza’s convictions for the crimes of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, and persecution and extermination as crimes against humanity should be reversed.
Whether the Trial Chamber had erred in finding Ngeze guilty of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, and persecution and extermination as crimes against humanity.
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, 5(h), 6(1),(3), 7, 8(1), 11(1), 12, 12 ter (2), 15(1),(2), 17(4), 19, 20, 21(4)(d), 23, 24, 27, 29(2) and 31 of the Statute of the International Criminal Tribunal for Rwanda.
Rules 2, 6(C), 7, 14(A), 15(A),(B) 40 bis, 42(B), 44(A), 45(1),(H),(I), 45 quater, 47(C), 50, 54, 60(A)(i),(B), 62, 66(A)(ii), 67(A)(ii)(a), 68(A), 72(B)(ii),(D), 73(C), 73 bis (B)(iv)(b),(E), 73 ter (B)(iii)(b), 74, 80(B), 82 bis, 86, 87(C), 89(C),(D) 90(F), 92 bis, 93, 94(A), 94 bis, 95, 101, 103(B), 107, 108, 115, 116, 118, 119 and 124-126 of the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda.
Articles 14(3)(d), 20 of the International Covenant on Civil and Political Rights.
Articles 11(1), 24(1) and 77(1) of the Statute of the International Criminal Court.
Articles, II, III of the Convention on the Prevention and Punishment of the Crime of Genocide.
Articles 4, 5 of the Convention on the Elimination of all Forms of Racial Discrimination.

Court's holding and analysis

The Appeals Chamber rejected the grounds of appeal advanced by the three Accused regarding the independence and impartiality of the Tribunal, the alleged abuse of process, miscarriage of justice and violations of the rights of the Defence (paras. 46,90, 92, 192, 215, 217, 246, 257, 263, 265, 276, 295, 298).

The Chamber reversed Nahimana’s convictions based on Article 6(1) for genocide, direct and public incitement to commit genocide, conspiracy to commit genocide, and extermination and persecution as crimes against humanity. The Chamber replaced the sentence of life imprisonment imposed by the Trial Chamber by a sentence of 30 years, Judge Meron dissenting, subject to credit being given for the period already spent in detention. Judge Shahabuddeen partly dissented from these findings (Disposition, p. 346).

The Chamber reversed Barayagwiza’s convictions under Article 6(1) direct and public incitement to commit genocide for his acts within the CDR and conspiracy to commit genocide, as well as his convictions under Article 6(3) in respect of his acts within Radio Télévision Libre des Mille Collines (RTLM) and the CDR for the crimes of genocide, direct and public incitement to commit genocide, and extermination and persecution as crimes against humanity. The Chamber replaced the sentence of 35 years imprisonment imposed by the Trial Chamber by a sentence of 32 years, subject to credit being given for the period already spent in detention. Judge Shahabuddeen partly dissented from these findings (Disposition, p. 346-347).

The Chamber also reversed Ngeze’s convictions based on Article 6(1) for (1) the crimes of conspiracy to commit genocide and persecution as a crime against humanity; (2) having instigated genocide through matters published in his newspaper Kangura and having ordered genocide on 7 April 1994 in Gisenyi; (3) having directly and publicly incited the commission of genocide in the prefecture of Gisenyi; (4) having ordered extermination as a crime against humanity on 7 April 1994 in Gisenyi. The Chamber replaced the sentence of life imprisonment imposed by the Trial Chamber by a sentence of 35 years, subject to credit being given for the period already spent in detention. Judge Shahabuddeen partly dissented from these findings (Disposition, p. 347).