The Prosecutor v. Ephrem Setako

Court	International Criminal Tribunal for Rwanda (Trial Chamber I), Tanzania
Case number	ICTR-04-81-T
Decision title	Judgement and Sentence
Decision date	25 February 2010
Parties	The Prosecutor Ephrem Setako
Categories	Crimes against humanity, Genocide, War crimes
Keywords	crimes against humanity, ethnic group, extermination, genocide, grave breaches of the Geneva Conventions, intent to destroy, Murder, Non-international armed conflict, pillage, serious bodily or mental harm, violence to life, health and physical or mental well-being of persons, war crimes, widespread and systematic attack
Links	Judgement and Sentence

Summary

On 25 February 2010 the ICTR delivered its judgment on the case of Ephrem Setako, a former senior Rwandan military officer. Lieutenant Colonel Ephrem Setako was the head of the division of legal affairs at the Ministry of Defence in Kigali in 1994. The Prosecution charged him with six counts: genocide or complicity in genocide, murder and extermination as crimes against humanity, serious violations (violence to life and pillage) of common Article 3 to the Geneva Conventions and Additional Protocol II, for his role in the attacks against Tutsis in Ruhengeri and Kigali.

The Trial Chamber found Setako guilty of genocide, extermination as a crime against humanity and violence to life as a war crime for ordering the killings of between 30 to 40 ethnic Tutsi refugees at Mukamira military camp on 25 April 1994 and the death of nine or 10 Tutsis on 11 May 1994. The Chamber imposed on Setako a sentence of 25 years of imprisonment.

Procedural history

Lieutenant Colonel Ephrem Setako was the head of the division of legal affairs in the Ministry of Defence in Kigali in 1994. Relying on his alleged acts in Ruhengeri and Kigali, the Prosecution charged him with six counts: genocide or complicity in genocide, murder and extermination as crimes against humanity and serious violations (violence to life and pillage) of common Article 3 to the Geneva Conventions and Additional Protocol II.

On 16 March 2004, the Prosecution filed its original indictment against the Accused. On 22 March 2004 Judge Egorov confirmed a modified indictment charging Setako with genocide, complicity in genocide, complicity in genocide, murder and exterminations as crimes against humanity, as well as pillage and violence to life, health and physical or mental well-being as war crimes. On 18 September 2007 the Chamber allowed the Prosecution to amend the indictment, but denied its request to add counts of conspiracy to commit genocide and direct and public incitement to commit genocide. The Prosecution filed the amended indictment on 23 September 2007. On 3 March 2008, the Chamber ordered the Prosecution to provide additional specificity to certain Indictment paragraphs. The Prosecution submitted its amended indictment on 10 March 2008. On 17 June 2008, the Chamber granted, in part, a Defence motion to modify the indictment. The Prosecution filed the final indictment on 23 June 2008.

Related developments

Setako and the Prosecution both appealed the Trial judgment. Setako alleged errors of law and errors of fact of the judgment. The Prosecution submitted three grounds of appeal.

On 28 September 2011, the Appeals Chamber dismissed Setako’s appeal in its entirety, while it partially granted the Prosecution’s appeal but it did not increase Setako’s sentence.

Legally relevant facts

The Prosecution charged Setako with genocide (count 1) or complicity in genocide (count 2); murder (count 3) and extermination (count 4) as crimes against humanity; and violence to life, health and physical or mental well-being of persons (count 5) and pillage (count 6) as serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II thereto. The Accused was allegedly responsible pursuant to Articles 6(1) and 6(3) of the Statute (para. 443).

In its factual findings, the Trial Chamber concluded that Setako was involved in the killing of 30 to 40 Tutsis at Mukamira camp on 25 April and about 10 others there on 11 May 1994. No other allegation in the Indictment was proven. Hence, the Trial Chamber addressed the Accused’s criminal responsibility for these two events, which were charged as genocide, or, in the alternative, complicity in genocide. The killings of 25 April 1994 were also cumulatively charged as extermination as a crime against humanity and violence to life as serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II thereto (para. 444).

Core legal questions

Whether the Accused had committed any of the crimes the Prosecution had charged him with in the indictment, namely genocide (count 1) or complicity in genocide (count 2); murder (count 3) and extermination (count 4) as crimes against humanity; and violence to life, health and physical or mental well-being of persons (count 5) and pillage (count 6) as serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II thereto.
What the appropriate sentence would be, in case the Accused was found guilty.

Specific legal rules and provisions

Articles 2(2), 2(3)(a), 3(a),(b), 4(a),(f), 6(1),(3) and 23 of the ICTR Statute.
Rules 40 bis (A), 67(A)(ii), (B), 68, 101 and 102(B) of the ICTR Rules of Procedure and Evidence.
Article 3 common to the Geneva Conventions and of Additional Protocol II thereto.

Court's holding and analysis

The Chamber convicted the Accused for genocide (count 1) for ordering under Article 6(1) the killings of 30 to 40 Tutsis at Mukamira camp on 25 April 1994 and the death of nine or 10 Tutsis on 11 May 1994. The alternative charge of complicity to commit genocide (count 2) was dismissed (para. 474).

Regarding murder as a crime against humanity (count 3), the Trial Chamber determined that the Prosecution had not proved any of the allegations against Setako. Thus, the Chamber found him not guilty of murder as a crime against humanity (para. 479).

With respect to count 4, the Chamber held that the Accused was guilty of extermination as a crime against humanity for ordering under Article 6(1) the killings of 30 to 40 Tutsis at Mukamira camp on 25 April 1994 (para. 482).

The Trial Chamber found Setako guilty of violence to life (count 5) as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II thereto for ordering under Article 6(1) the murder of 30 to 40 Tutsis at Mukamira camp on 25 April 1994 (para. 491).

With regard to count 6 (pillage), the Chamber concluded that the Prosecution has not proved any of the allegations against Setako in support of this count (para. 492).

After considering the gravity of the crimes, aggravating and mitigating factors, the Chamber sentenced the Accused to 25 years of imprisonment (para. 509).