The Prosecutor v. Augustin Ngirabatware

Court	International Criminal Tribunal for Rwanda, Tanzania
Case number	ICTR-99-54-T
Decision title	Judgement and Sentence
Decision date	20 December 2012
Parties	The Prosecutor Augustin Ngirabatware
Categories	Crimes against humanity, Genocide
Keywords	extermination, genocide, rape
Links	Sumary text (full text yet to be made available)
Other countries involved	Rwanda

Summary

In the final trial before the International Criminal Tribunal for Rwanda, the Accused was Augustin Ngirabatware, the Minister of Planning from 1990 until July 1994 in the Rwandan government and an influential figure by virtue of his education and wealthy background. Indicted on charges of genocide and crimes against humanity, the Trial Chamber found that Ngirabatware had actively espoused the killing of the Tutsi population in Rwanda by delivering speeches to large assembled crowds encouraging them to man roadblocks and kill Tutsis. He distributed weapons to the Interahamwe militia and encouraged them to perpetrate crimes against the Tutsi population. Ngirabatware was convicted of genocide, direct and public incitement to commit genocide and rape as a crime against humanity. He was sentenced to 35 years’ imprisonment on 20 December 2012.

Procedural history

On 1 October 1999, the Prosecutor of the International Criminal Tribunal for Rwanda indicted the Accused, Augustin Ngirabatware, for six counts of genocide, conspiracy to commit genocide or alternatively complicity in genocide, direct and public incitement to commit genocide, and extermination and rape as crimes against humanity.

The Accused was arrested in Germany in September 2007 and transferred to the detention centre of the Tribunal in Arusha, Tanzania on 8 October 2008.

At the preliminary hearing on 10 October 2008, the Accused pleaded not guilty to all charges.

On 13 April 2009, the Prosecution filed an amended indictment.

The trial commenced on 23 September 2009. After a brief adjournment, it resumed on 1 February 2010. On 3 June 2010, the Trial Chamber rejected a motion filed by counsel for Ngirabatware which sought revocation of the charge of having used public funds to finance the Interahamwe militia.

The Prosecution rested its case on 31 August 2010.

The defence commenced its case on 16 November 2010 and concluded on 22 February 2012.

With the authorisation of the Trial Chamber, the Prosecution was allowed to reopen its case to present rebuttal evidence.

Closing arguments were heard between 23 and 25 July 2012 during which time the Prosecution dropped the charge of conspiracy to commit genocide.

Legally relevant facts

Ngirabatware served as the Minister of Planning from 1990 until July 1994. He also held various leadership roles in the Mouvement Républicain Nationale pour la Démocratie et le Développement (MRND) political party (para. 2).

In early 1994, a few hundred people attended a meeting held at Kanyabuhombo School. The Accused was not only present but spoke in support of the Interahamwe militia and told the crowd that he would be providing weapons (para. 10).

The Accused made further speeches at the Electrogaz and Cyanika-Gisa roadblocks in which he encouraged the assembled crowds to build further road blocks in order to prevent Tutsis from crossing it and to kill Tutsis (paras. 14, 16).

Following the death of Rwandan President Habyarimana on 6 April 1994, the activities against the Tutsi escalated. The Accused distributed weapons to the Interahamwe which were used in the latter’s perpetration of crimes against the Tutsi (paras. 27-29).

Around the 13 April 1994, a Tutsi woman was abducted and raped repeatedly by members of the Interahamwe militia (paar. 39).

Core legal questions

What is the distinction between hate speech and direct and public incitement to genocide?
Can the Accused be held liable for the rape committed by non-members of the joint criminal enterprise (JCE) in which he is alleged to have participated where such crime fell outside the scope of the JCE?

Specific legal rules and provisions

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

Court's holding and analysis

Speech intended to mobilise hatred against an ethnic group is distinct from direct incitement to commit a violent act against that group. Hate speech may precede or accompany direct incitement to commit genocide but it is not of itself an offence under the Genocide Convention or the ICTR Statute (para. 11).

Although the common purpose of the joint criminal enterprise in which the Accused participated was the destruction and extermination of the Tutsis, the Trial Chamber found that it was a natural and foreseeable consequence that at least some members of the JCE would resort to rapes and sexual assaults. The Accused was aware of this risk and willingly accepted it by distributing weapons and encouraging Interahamwe to kill Tutsis. Accordingly, the Accused can be held liable for rape as a crime against humanity under the third or extended form of JCE (para. 40).

The Accused was convicted of genocide, direct and public incitement to commit genocide and rape as a crime against humanity (paras. 56, 58, 60). He was sentenced to 35 years’ imprisonment (para. 63).