The Prosecutor v. André Ntagerura, Emmanuel Bagambiki and Samuel Imanishimwe

Court	International Criminal Tribunal for Rwanda (Appeals Chamber), Tanzania
Case number	ICTR-99-46-A
Decision title	Judgement
Decision date	7 July 2006
Parties	The Prosecutor (Appellant and Respondent) André Ntagerura (Respondent) Emmanuel Bagambiki (Respondent) Samuel Imanishimwe (Appellant and Respondent)
Categories	Crimes against humanity, Genocide, War crimes
Keywords	crimes against humanity, extermination, genocide, grave breaches of the Geneva Conventions and of Additional Protocol II, imprisonment, Murder, torture
Links	Judgement

Summary

From March 1981 through July 1994 André Ntagerura served as a minister in the Rwandan Government. His last position was as Minister of Transport and Communications in the interim government. From 4 July 1992 to 17 July 1994, Emmanuel Bagambiki served as the prefect of Cyangugu. Samuel Imanishimwe, a lieutenant in the Rwandan Armed Forces, served as the acting commander of the Cyangugu military camp from October 1993 until he left Rwanda in July 1994.

On 7 July 2006, the Appeals Chamber of the ICTR reduced Samuel Imanishimwe’s sentence from 27 to 12 years imprisonment and recalled that it had confirmed the acquittals of André Ntagerura, former Minister of Transport and Communications, and Emmanuel Bagambiki, former Prefect of Cyangugu on 8 February 2006. Specifically, the Appeals Chamber granted Imanishimwe’s first ground of appeal, quashing his convictions for genocide, extermination as a crime against humanity and serious violations of Article 3 Common of the Geneva Conventions and of Additional Protocol II for the events which took place at the Gashirabwoba football stadium. The Appeals Chamber however, affirmed the convictions entered against Imanishimwe for murder, imprisonment and torture as crimes against humanity and for murder, torture and cruel treatment as serious violations of the Geneva Conventions and of Additional Protocol II.

Procedural history

On 25 February 2004, Trial Chamber III acquitted Ntagerura and Bagambiki on all counts in the indictment. The Trial Chamber had already acquitted Imanishimwe of conspiracy to commit genocide during the trial. In the Trial judgment, Imanishimwe was by majority found guilty of genocide (Count 7), extermination as a crime against humanity (Count 10) and serious violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II (Count 13) under Article 6(3) of the Statute. The Trial Chamber unanimously found him not guilty of complicity in genocide, but guilty of murder (Count 9), imprisonment (Count 11), and torture (Count 12) as crimes against humanity and serious violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II (Count 13) under Article 6(1) of the Statute. Imanishimwe’s total sentence was 27 years’ imprisonment.

The Prosecution raised 11 grounds of appeal, two of which related exclusively to Imanishimwe. Imanishimwe lodged six grounds of appeal. They related to defects in the form of the indictment, his conviction under Article 6(3) of the Statute for the Gashirabwoba events, multiple convictions, the application of Article 4 of the Statute, evidentiary matters and sentencing.

The Appeals Chamber unanimously dismissed the grounds of appeal raised by the Prosecutor in respect to Andre Ntagerura and Emmanuel Bagambiki and affirmed their acquittal in the disposition of the judgment concerning the Prosecutor’s appeal against the acquittal of Andre Ntagerura and Emmanuel Bagambiki, delivered at the close of the hearings on 8 February 2006. The present judgment set on the reasons for the decision and elaborated on the grounds of appeal raised by the Prosecutor in relation to Imanishimwe and his appeal.

Related developments

Samuel Imanishimwe was released from prison on 8 August 2009 after having served his sentence.

Legally relevant facts

The Prosecution raised 11 grounds of appeal, two of which related exclusively to Imanishimwe. In the other nine grounds of appeal, the Prosecution objected to the Trial Chamber’s conclusions on the form of the indictments. In addition, the Prosecution contended that the Trial Chamber’s assessment of the evidence was erroneous and that Bagambiki should have been held criminally responsible for several crimes that the Trial Chamber found had been established. The Prosecution further submitted that Imanishimwe should have been held criminally responsible under Article 6(1) for the crimes committed at the Gashirabwoba football field, and that the sentence imposed by the Trial Chamber was too lenient (para. 8).

Imanishimwe advanced six grounds of appeal. They related to defects in the form of the Indictment, his conviction under Article 6(3) of the Statute for the Gashirabwoba events, multiple convictions, the application of Article 4 of the Statute, evidentiary matters and sentencing (para. 9).

The Appeals Chamber unanimously dismissed the grounds of appeal raised by the Prosecutor in respect of Andre Ntagerura and Emmanuel Bagambiki and affirmed their acquittal in the disposition of the judgment concerning the Prosecutor’s appeal against the acquittal of Andre Ntagerura and Emmanuel Bagambiki, delivered at the close of the hearings on 8 February 2006 (para. 10).

Core legal questions

Whether the Appeals Chamber should accept the grounds of appeal related to defects of the Indictments.
Whether the grounds of appeal advanced by the Prosecution regarding the standard of proof, the assessment by the Trial Chamber of accomplice evidence, rebuttal evidence in relation to certain letters, an alleged error of law committed by the Trial Chamber relating to Ntagerura’s supposed relations with RTLM, Bagambiki’s participation in the crimes and his criminal responsibility as well as the nature of Imanishimwe’s criminal responsibility for the events of Gashirabwoba and the sentence imposed on him by the Trial Chamber, should be granted.
Whether the grounds of Imanishimwe’s appeal concerning his superior responsibility under Article 6(3) of the Statute, his conviction for war crimes for the acts committed at Gashirabwoba, the Trial Chamber’s assessment of evidence in respect of Karambo Military Camp and the consideration it had given to mitigating factors upon sentencing, should be accepted.
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)(a), 3, 4, 6(1),(3), 8, 17(4), 18, 19(3), 20(2),(3),(4)(a),(b), 22(2), 23 and 24 of the Statute of the International Criminal Tribunal for Rwanda.

Rules 2, 3, 47(A),(B),(C), 48, 50, 66(A)(ii), 72(A)(ii), 82, 87(A), 88(C), 89(C), 90(E),(F)(i),(ii),(G)(i), 98 bis, 101, 103(B), 107, 108, 115, 116, 118 and 119 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.

Court's holding and analysis

The Appeals Chamber unanimously dismissed the grounds of appeal raised by the Prosecutor (Disposition, p. 129).

The Chamber unanimously granted the first ground of appeal raised by Imanishimwe against his convictions under Article 6(3) for the events at the Gashirabwoba football field. Thus, the Chamber set aside the convictions entered against Imanishimwe for genocide, extermination as a crime against humanity, and serious violations of Article 3 Common to the Geneva Conventions and Additional Protocol II under Counts 7, 10 and 13 of the Bagambiki/Imanishimwe Indictment (Disposition, p. 129).

The Chamber found moot the second and fourth grounds of appeal raised by Imanishimwe (Disposition, p. 129).

The Chamber further dismissed, unanimously, the third, fifth and sixth grounds of appeal of Imanishimwe regarding the cumulative convictions, the assessment of the evidence relating to the Karambo military camp, and the sentence (Disposition, p. 129).

The Chamber upheld, unanimously, Imanishimwe’s convictions under Article 6(1) for murder, imprisonment and torture as crimes against humanity under Counts 9, 11 and 12 of the Bagambiki/Imanishimwe indictment and for murder, torture and cruel treatment constituting serious violations of Article 3 Common to the Geneva Conventions and Additional Protocol II under Count 13 of the Bagambiki/Imanishimwe indictment (Disposition, p. 129).

The Chamber further reversed, unanimously, the two concurrent sentences of 15 years’ imprisonment imposed on Imanishimwe for genocide and extermination as a crime against humanity under Counts 7 and 10 of the Bagambiki/Imanishimwe indictment to be served consecutively with the other sentences pronounced under the other Counts (Disposition, p. 129).

The Chamber upheld the four concurrent sentences imposed on Imanishimwe under Counts 9, 11, 12 and 13 of the Bagambiki/Imanishimwe indictment sentencing the accused, with Judge Schomburg dissenting, to a total term of 12 years’ imprisonment (Disposition, p. 130).

In his dissenting opinion, Judge Schomburg considered that the indictment against Ntagerura should have been declared null and void (para. 2).

Further analysis

F. Gaynor & B. Goy, ‘Current Developments at the Ad Hoc International Criminal Tribunals’, Journal of International Criminal Justice, 2007, Vol. 5(5), pp. 1175-1214.