The Prosecutor v. Edouard Karemera & Matthieu Ngirumpatse

Court	International Criminal Tribunal for Rwanda, Tanzania
Case number	ICTR-98-44-T
Decision title	Judgement and Sentence
Decision date	2 February 2012
Parties	The Prosecutor Edouard Karemera Matthieu Ngirumpatse
Other names	Government I
Categories	Crimes against humanity, Genocide, War crimes
Keywords	bodily or mental harm, common Article 3, crimes against humanity, extermination, genocide, kill, Non-international armed conflict, rape, violence to person, war crimes
Links	Judgement and Sentence
Other countries involved	Rwanda

Summary

The Arusha Accords brought an end to the civil war in Rwanda that had opposed the government to the Tutsi dominated Rwandan Patriotic Front. They introduced a transitional multi-party government with Habyarimana of the Mouvement Républicain National pour la Démocratie et le Développement (MRND) as its President. Following the death of the president on 6 April 1994, however, hostilities broke out once more.

The MRND, with the Accused Ngirumpatse as its President and his co-Accused Karemera as its Vice President proceeded to introduce and implement measures designed to target the Tutsi population. They actively supported the Interahamwe, a civilian militia that acted as the youth wing of the MRND, and which was resopnsible for the mass killing as well as the rape and sexual assault of countless Tutsi women. The Accused interfered with the territorial administration in Rwanda, warning local officials to support the Hutu policy and replacing any who opposed the killing of Tutsis. They travelled across governemnt controlled parts of Rwanda and espoused their anti-Tutsi policy with a view to inciting more killings.

By a judgment of 2 February 2012, Trial Chamber III of the International Criminal Tribunal for Rwanda found both Accused guilty of genocide, conspiracy to commit the same, direct and public incitement of the same, rape and extermination as crimes against humanity and the war crime of killing. They were both sentenced to life imprisonment. The judgment comes after 7 years of trial, the withdrawal of three judges, the death of one co-Accused and the controversial decision taking judicial notice that a genocide occurred in Rwanda in 1994, thereby alleviating the Prosecution of having to introduce evidence in order to prove the allegation beyond a reasoinable doubt.

Procedural history

On 5 June 1998, Edouard Karemera was arrested in Togo and transferred to the detention facility of the International Criminal Tribunal for Rwanda on 10 July 1998. On 7 April 1999, Karemera refused to enter a plea to the 11 counts that he was charged with; under the ICTR’s Regulations, this was interpreted as a plea of not guilty.

On 11 June 1998, Matthieu Ngirumpatse was arrested and transferred to the ICTR on 17 July 1998.

Karemera’s trial was joined with that of Matthieu Ngirumpatse. Joseph Nzirorera and André Rwamakuba. The trial commenced on 27 November 2003.

On 23 February 2004, all Accused boycotted a hearing at which they were to enter pleas; their absence was entered as not-guilty pleas to the seven counts charged in the amended indictment.

On 14 May 2004, the trial was suspended following the withdrawal of Judge Vaz at the request of defence counsel for lack of impartiality. On 24 May 2004, the two remaining judges of Trial Chamber III decided to continue with the trial without a substitute judge, overruling the request of defence counsel for a new trial. The decision was appealed.

On 21 June 2004, the Appeals Chamber sent the case back to Trial Chamber III to hear submissions from the parties regarding a new trial.

On 16 July 2004, the two judges of Trial Chamber III, after hearing arguments, decided to continue the trial with a substitute judge. This decision was appealed again. On 28 September 2004, the Appeals Chamber repealed the decision and ordered that the trial should be resumed from the point of departure. On 22 October 2004, the Appeals Chamber disqualified the two remaining judges on the grounds that they were felt to have common cause with Judge Vaz.

On 14 February 2005, at the Prosecution’s request, the case against Rwamakuba was separated from that of his co-Accused. An amended indictment was duly introduced. On 21 March 2005, the co-Accused made their further initial appearance before the newly constituted Trial Chamber III and entered not guilty pleas.

On 24 August 2005, the Prosecutor filed a new amended indictment. The new trial formally started on 19 September 2005.

Nzirorera died in custody on 1 July 2010 (see RNW, 'Genocide Suspect Dies in Arusha', 2 July 2010)

Related developments

On 29 September 2014, the Appeals Chamber of the ICTR upheld the convictions of Edouard Karemera and Matthieu Ngirumpatse and affirmed their sentences of life imprisonment.

Legally relevant facts

Following the conclusion of the Arusha Accords, which put an end to the civil war between the government of Rwanda and the Tutsi-led Rwandan Patriotic Front (RPF), a Transitional Government was established with Habyarimana of the Mouvement Républicain National pour la Démocratie et le Développement (MRND) party remaining President (paras. 118, 121).

In 1992, the Interahamwe was established as a youth wing of the MRND but it developed as members received military training and weapons (paras. 205, 358, 444).

From July 1993, Ngirumpatse was President and Karemera was Vice President of the MRND (paras. 146-147). Following the death of President Habyarimana on 6 April 1994, hostilities resumed between the Rwandan Armed Forces (FAR) and the RPF (para. 666).

The Accused, in their capacities as President and Vice President of MRND intervened in the activities of the territorial administration, namely by warning local leaders to stop protecting Tutsis and to allow the Interahamwe to continue killing and by replacing officials who opposed killing Tutsis (paras. 860, 892, 909).

Tutsis were the subject of a number of attacks at the hands of the Interahamwe and FAR. Killings of a massive scale of unarmed men, women and children occurred in Kigali, Gitarama, Butare and Kibuye (par. 1295). In particular, Tutsis were killed in Bisesero Hills on the orders of Karemera in June 1994 (paras. 1210, 1234). Women were raped by members of the Interahamwe, gendarmes, soldiers and civiliansin a number of locations (paras. 1373, 1390, 1407, 1412, 1424).

Core legal questions

Under what conditions may the Accused be held liable for the rape and sexual assault perpetrated by members of the Interahamwe and other militiamen where the perpetrators were not members of the joint criminal enterprise with the Accused and the rape fell outside the common purpose of the JCE?
Does liability for conspiracy to commit genocide necessitate that the accused conspired with all named co-conspirators?

Specific legal rules and provisions

Articles 2(2), 3(g), 6(1) and (3) of the Statute of the International Criminal Tribunal for Rwanda.

Court's holding and analysis

The third form of joint criminal enterprise (JCE III) provides that a member of the JCE, in the present instance, the Accused, can be held liable for the crime of a non-JCE member even where such crime fell outside the purpose of the JCE on the condition that: the accused had the requisite intent to participate in and significantly contributed to the JCE, it was foreseeable that the non-member would commit the extended crime in the execution of a crime forming part of the common purpose of the JCE and the accused was aware that the extended crime was a possible consequence of the implementation of the common purpose of the JCE and he willingly took the risk that it would be committed (para. 1464). The Chamber found that where the purpose of a JCE is to commit genocide, it is a natural and foreseeable consequence that the soldiers and militias who participate in the campaign of destruction will resort to rape and sexual assault unless prohibited by their superiors (para. 1476).

The Chamber, having taken judicial notice of the fact that genocide occurred in Rwanda in 1994 by an earlier decision, needed only to determine the Accused’s culpability with respect to conspiracy to commit, complicity, direct and public incitement and perpetration of genocide (para. 1582).

There is no requirement that the Accused should have conspired with all alleged co-conspirators; in the present instance, it suffices for the Prosecution to establish beyond a reasonable doubt that Karemera and Ngirumpatse conspired with at least each other or one other person with whom they are alleged to have planned to commit genocide (para. 1583).

Karemera and Ngirumpatse were convicted of genocide, conspiracy to commit and direct and public incitement of the same, rape and extermination as crimes against humanity and serious violations of Common Article 3 (paras. 1714-1715). They were sentenced to life imprisonment (paras. 1762-1763).