Dominique Ntawukulilyayo v. The Prosecutor

Court	International Criminal Tribunal for Rwanda (Appeals Chamber), Tanzania
Case number	ICTR-05-82-A
Decision title	Judgement
Decision date	14 December 2011
Parties	Dominique Ntawukulilyayo The Prosecutor
Categories	Genocide
Keywords	genocide, intent to destroy, kill
Links	Judgement

Summary

Dominique Ntawukulilyayo was the sub-prefect of the Gisaraga sub-prefecture within Butare prefecture, in Rwanda, from 21 September 1990 until he left Rwanda in July 1994.

On 3 August 2010, the Trial Chamber of the ICTR convicted Mr. Ntawukulilyayo of genocide for ordering, as well as aiding and abetting, the killings of Tutsi civilians at Kabuye hill in April 1994. He was sentenced to 25 years of imprisonment.

Ntawukulilyayo appealed his conviction. On 14 December 2011, the Appeals Chamber of the ICTR acquitted him of the charge of ordering the killings at Kabuye hill. Nevertheless, the Appeals Chamber agreed with the Trial Chamber that the Accused was guilty of aiding and abetting genocide by instructing the refugees who had gathered at Gisaraga market to move to Kabuye hill, and by transporting soldiers who participated in the attack at Kabuye hill on 23 April 1994. His sentence was reduced to a term of 20 years of imprisonment.

Procedural history

On 26 May 2005, The Prosecution filed its original indictment against the Accused charging him with genocide, complicity in genocide, and direct and public incitement to commit genocide.

The indictment was amended four times in May 2009 due to certain errors. The fourth amended indictment, which was filed on 19 May 2009, was the operative indictment in this case. Ntawukulilyayo was charged with genocide, complicity in genocide, and direct and public incitement to commit genocide.

On 3 August 2010, Trial Chamber III found Ntawukulilyayo guilty of genocide pursuant to Article 6(1) of the Statute for the killing of Tutsis at Kabuye hill in Butare prefecture. It concluded that Ntawukulilyayo had aided and abetted these killings by instructing the refuges who had gathered at Gisaraga market to move to Kabuye hill, and by transporting soldiers who participated in the attack at Kabuye hill. The Chamber also held Ntawukulilyayo responsible for ordering the killings at Kabuye hill. He was acquitted of genocide and of direct and public incitement to commit genocide. He was sentenced to 25 years of imprisonment.

The Accused filed an appeal against the Trial judgment challenging his conviction and sentence.

The Appeals Chamber heard oral arguments on this appeal on 26 September 2011.

Legally relevant facts

Under ground 1 of his appeal, the Accused submitted that the Trial Chamber had erred in its assessment of both witness testimonies and of the Defence’s evidence relating to orders to leave Gisaraga market for Kabuye hill (para. 14).

Under Ground 2, the Accused requested that the Appeals Chamber vacate the Trial Chamber’s findings on the Kabuye hill attack due to errors made with respect to witness testimonies and the assessment of alleged exculpatory evidence (para. 116).

Under grounds 3, in part, and 4, he contended that the Trial Chamber had erred in convicting him for ordering genocide with respect to the killing of Tutsis at Kabuye hill (para. 180).

Under grounds 3, in part, and 5, he argued that the Trial Chamber had erred in finding that the actus reus and mens rea for aiding and abetting the crime of genocide had been established (para. 209).

In addition, he submitted that the Trial Chamber had erred in imposing on him a sentence which was clearly excessive in light of the limited nature of his participation in the crimes and the mitigating circumstances in his case. He requested that the Appeals Chamber significantly reduce his sentence (para. 230).

Core legal questions

Whether the Trial Chamber had erred in its assessment of both witness testimonies and of the Defence’s evidence in respect of the orders to leave Gisaraga market for Kabuye hill.
Whether the Trial Chamber had erred in its findings regarding the Kabuye hill attack.
Whether the Trial Chamber had erred in convicting Ntawukulilyayo for ordering genocide with respect to the killing of Tutsis at Kabuye hill.
Whether the Trial Chamber had erred in finding that the actus reus and mens rea for aiding and abetting the crime of genocide had been established.
Whether the Trial Chamber had erred in imposing on the Accused the sentence of 25 years of imprisonment.

Specific legal rules and provisions

Articles 2(3)(a),(c).(e), 6(1) and 24 of the Statute of the International Criminal Tribunal for Rwanda.
Rules 50, 101(C), 103(B), 107, 118 and 119 of the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda.

Court's holding and analysis

The Appeals Chamber found that the Accused had failed to demonstrate that errors had been made by the Trial Chamber in its assessment of witness testimonies and of the Defence’s evidence regarding his presence at Gisaraga market. Therefore, the Chamber dismissed Ntawukulilyayo’s first ground of appeal (para. 114). The Appeals Chamber also found no error in the Trial Chamber’s findings regarding the Kabuye hill attack and, thus, dismissed the Accused’s second ground of appeal (paras. 177-178).

The Appeals Chamber granted the Accused’s fourth ground of appeal and held that the Trial Chamber had erred in holding him responsible for ordering the Kabuye hill killings (para. 207).

The Appeals Chamber dismissed Ntawukulilyayo’s fifth ground of appeal and the relevant part of his third ground of appeal on the grounds that the Accused failed to demonstrate that the Trial Chamber had erred in finding him responsible for aiding and abetting genocide (para. 229). And regarding his sixth ground of appeal, the Appeals Chamber found that he had not demonstrated that the Trial Chamber had erred in the determination of his sentence (para. 242).

After considering the particular circumstances of this case, the mitigating and aggravating factors and the form and degree of Ntawukulilyayo’s participation in the crime, the Appeals Chamber reduced his sentence to 20 years of imprisonment (para. 245).

Further analysis

K. Margetts & K.I. Kappos, ‘Current Developments at the Ad Hoc International Criminal Tribunals’, Journal of International Criminal Justice, 2012, Vol. 10(2), pp. 447-487.