The Prosecutor v. Michel Bagaragaza

Court	International Criminal Tribunal for Rwanda (Trial Chamber III), Tanzania
Case number	ICTR-05-86-S
Decision title	Sentencing Judgement
Decision date	17 November 2009
Parties	The Prosecutor Michel B.
Categories	Genocide
Keywords	bodily harm, genocide, group, national, ethnic, racial, religious, Murder
Links	Sentencing Judgement

Summary

Until July 1994, Michel B. was the managing director of OCIR-Tea, the controlling body for the tea industry in Rwanda. B. is accused of conspiring with his employees in order to kill Tutsis in the Gisenyi Prefecture. In addition, he was a member of the local committee of the Republican Movement for Development and Democracy (MRND) for the Gisenyi Prefecture.

B. was indicted by the International Criminal Tribunal for Rwanda on charges of genocide and, in the alternative, war crimes. He pleaded guilty to complicity in genocide and he was sentenced to 8 years’ imprisonment. The Tribunal found that B. had substantially assisted the military and the Interahamwe militia launch an attack against Tutsis at Kesho Hill and Nyundo Cathedral by authorising that vehicles and fuel from his tea factories be used to transport attackers, that personnel from the factories participate in the attacks and that the attackers be provided with heavy weapons. These weapons were then stored in his factory. The Accused also contributed financially by providing the Interahamwe with money to purchase alcohol so as to motivate them to continue with killings.

Procedural history

On 1 December 2006, the International Criminal Tribunal for Rwanda indicted the Accused, Michel B., for charges of genocide and, in the alternative, war crimes.

On 13 April 2007, Trial Chamber III of the ICTR referred the case to the authorities of The Netherlands pursuant to Rule 11bis of the Rules of Procedure and Evidence of the ICTR, which permits the transfer of a case to a State in whose territory the crime was committed, in whose territory the Accused was arrested or a State who has jurisdiction and is willing and adequately prepared to accept such a case.

On 24 July 2007, the District Court of The Hague in the case of the Public Prosecutor V. Joseph Mpambara, decided that the Dutch courts lacked jurisdiction over the crime of genocide committed by non-Dutch nationals on foreign territory prior to 2003. Consequently, on 8 August 2007, the Prosecutor for the ICTR filed a motion requesting the Trial Chamber to revoke its referral of the case against the Accused to The Netherlands.

On 17 August 2007, Trial Chamber III granted the Prosecution’s request. The same day, the Registrar of the ICTR requested the Minister of Justice of The Netherlands to surrender the Accused to the ICTR for the purpose of prosecution.

By a decision of 21 March 2008, the District Court of The Hague authorised the surrender request and B. was transferred back to the ICTR.

On 17 September 2009, the Accused pleaded guilty to the count of complicity in genocide.

Related developments

By a decision of 24 October 2011, the Accused was granted early release as he had served 2/3 of his sentence.

Legally relevant facts

During the genocide, the Accused was the Director General of OCIR/Thè, the government office responsible for controlling the tea industry in Rwanda. In this capacity, the Accused controlled eleven factories and approximately 55,000 employees. The Accused was also a member of the comitè prèfectoral in Gisenyi, which established the Interahamwe militia in this prèfecture (para. 18).

It is alleged that the Accused substantially contributed to the killings of more than 1,000 Tutsis who sought refuge at Kesho Hill and Nyundo cathedral.

Core legal questions

What are the legal requirements for complicity in genocide?
What aggravating or mitigating circumstances may be taken into account at sentencing?

Specific legal rules and provisions

Articles 2(3)(e) and 6(1) of the ICTR Statute.

Court's holding and analysis

Complicity has been defined in the case-law of the ICTR as aiding and abetting, instigating and procuring. Complicity by aiding and abetting implies a positive action and may occur at the planning, preparation or execution stage of the crime. It is not necessary that the aider and abettor be present during the commission of the crime. It is necessary that the aider and abettor has knowledge of the genocidal intent of the principal perpetrators (paras. 22-23).

For the Accused to be convicted of complicity, the Prosecution must demonstrate that he carried out an act of substantial practical assistance, encouragement or moral support to the principal offender culminating in the principal offender’s commission of the crime. The assistance need not be indispensable but it must have a substantial effect on the commission of the crime (para. 23).

The Court found there to be no aggravating circumstances. It did take into account a number of mitigating factors, primarily that the Accused had no bias against Tutsis, that he confessed at an early stage and that he has been cooperating with the Prosecution since 2002 (paras. 36, 38-39).

He was sentenced to 8 years’ imprisonment (para. 44).