The Prosecutor v. Grégoire Ndahimana

Court	International Criminal Tribunal for Rwanda (Trial Chamber II), Tanzania
Case number	ICTR-01-68-T
Decision title	Judgement and Sentence
Decision date	30 December 2011
Parties	The Prosecutor Grégoire Ndahimana
Categories	Crimes against humanity, Genocide
Keywords	bodily or mental harm, crimes against humanity, extermination, genocide, intent to destroy, kill, widespread or systematic attack
Links	Judgement and Sentence

Summary

Grégoire Ndahimana was Mayor of Kivumu commune (community)in Rwanda in April 1994. Following the death of President Habyarimana, a common plan was realised in Kivumu commune. The purpose of this plan was to exterminate the Tutsis who lived there.

After the President’s death, one to two thousand Tutsi civilians sought refuge at Nyange parish. Only a very small number of these civilians survived the attacks on the parish that occurred on 15 and 16 April 1994.

The Prosecutor of the ICTR charged Ndahimana with genocide and extermination as a crime against humanity for his role in the massacres of Tutsis that took place in Kivumu commune over ten days from 6 April 1994 to 16 April 1994. He was found guilty of genocide and extermination by aiding and abetting as well as by virtue of his command responsibility over the communal police. Ndahimana was sentenced to 15 years of imprisonment.

Both the Prosecution and the Defence have lodged appeals against the judgment.

Procedural history

The Accused was a member of the Mouvement Démocratique Républicain (MDR) political party and the bourgmestre (mayor)of Kivumu commune (community) in April 1994. He left Rwanda in July 1994, he was arrested in the Democratic Republic of the Congo on 11 August 2009 and was transferred to the custody of the Tribunal on 20 September 2009.

The Prosecution charged him with genocide (Count I), or, in the alternative, complicity in genocide (Count II), as well as extermination as a crime against humanity (Count III) for actions related to the events that took place over 10 days from 6-16 April 1994 in Rwanda. He denied all charges.

In the initial indictment, Prosecution had charged the Accused with genocide, or, in the alternative complicity in genocide, conspiracy to commit genocide and extermination as a crime against humanity.

On 16 November 2009, the Prosecution filed an amended indictment charging Ndahimana with genocide (Count I), alternatively, complicity in genocide (Count II), and extermination as a crime against humanity (Count III).

On 3 February 2010, the Chamber granted leave for the Prosecution to file an(other) amended indictment. The Prosecution then filed this final amended indictment on 5 February 2010.

Related developments

The Prosecution and the Defence have lodged notices of appeal challenging certain findings in the judgment. See Hirondelle News Agency, 'Prosecution, Defence Challenges Judgment for former Rwandan Mayor', 21 February 2012.

Legally relevant facts

The Prosecution charged Ndahimana with genocide, or, in the alternative, complicity in genocide, and extermination as a crime against humanity pursuant to Article 6(1) of the Statute (para. 707).

With respect to Count I (genocide), the Prosecution charged Ndahimana with killing and causing serious bodily or mental harm to members of the Tutsi group. The Majority took judicial notice of the fact that the Tutsi ethnicity is a protected group (para. 805).

With regard to extermination as a crime against humanity, having taken into account the totality of the evidence, the Majority was satisfied that widespread attacks against the Tutsi population had taken place in Kivumu commune in April 1994 and that Ndahimana’s position of authority at the time and his presence at Nyange parish on 16 April 1994 rendered it inconceivable that he did not know that his actions formed part of a widespread attack (paras. 837-838). Ndahimana was charged with the crime of extermination in relation to the events at Nyange parish on 15 and 16 April 1994 (para. 840).

Core legal questions

Whether the Accused had committed the crime of genocide or, alternatively, had conspired to commit genocide, and extermination as a crime against humanity during the events that took place in April 1994 in Rwanda.
In case the Accused was found guilty, what the appropriate sentence would be.

Specific legal rules and provisions

Articles 2(2), 2(3)(a),(e), 3(b), 6(1),(3), 22 and 23 of the Statute of the International Criminal Tribunal for Rwanda.
Rules 2(B), 15 bis, 50, 54, 67(A)(ii)(a), 89(C), 90(A), 92 bis, 101(B)(i)-(iv),(C), 102(B) and 120-123 of the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda.
Articles 1, 3 and 146 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War.
Part IV of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (AP II).
Articles I, V, VI of the Convention on the Prevention and Punishment of the Crime of Genocide.

Court's holding and analysis

The Majority of the Chamber found that the allegations regarding Ndahimana’s criminal responsibility for the meeting of 13 and 14 April 1994 were not proven (para. 708).

In its factual findings, the Majority found that the alibi presented by the Defence concerning the events of 15 April 1994 was reasonably possibly true, while the alibi presented regarding the events of 16 April 199 was not. The Majority found that Ndahimana participated in a meeting at Nyange church on 16 April 1994 just before the attacks started. During the attacks he was present and, by his presence, he aided and abetted the crime of genocide (paras. 709-710).

Ndahimana was found responsible pursuant to Article 6(1) of the Statute for aiding and abetting the killing of Tutsi refugees in Nyange church on 16 April 1994 (para. 832). The Majority found Ndahimana also guilty of extermination as a crime against humanity by aiding and abetting as well as by virtue of his command responsibility over the communal police (para. 843).

After taking into account the gravity of the crimes, the aggravating and mitigating circumstances, the Majority sentenced the Accused to 15 years of imprisonment (paras. 871-872).

Judge Arrey disagreed with the Majority’s view on certain mitigating factors and concluded that Ndahimana was not a mere accomplice in the genocide at Nyange Parish, but a principal perpetrator of that crime. Therefore, he should have been sentenced to a longer term of imprisonment (paras. 232-237 of the appended dissenting opinion).