The Prosecutor v. Pauline Nyiramasuhuko et al.
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||International Criminal Tribunal for Rwanda, Tanzania
||Judgement and Sentence
||24 June 2011
- The Prosecutor
- Pauline Nyiramasuhuko
- Arsène Shalom Ntahobali
- Sylvain Nsabimana
- Alphonse Nteziryayo
- Joseph Kanyabashi
- Elie Ndayambaje
||Crimes against humanity, Genocide, War crimes
||common Article 3, crimes against humanity, extermination, genocide, Murder, Non-international armed conflict, other inhumane acts, outrages upon personal dignity, persecution, rape, violence to life, war crimes
|Other countries involved
The death of Rwandan President Habyariamana on 6 April 1994 reignited ethnic tensions in Rwanda between the Hutu and Tutsi populations that had previously resulted in a civil war in the early 1990s. An Interim Government was established, which developed a plan to eradicate the Tutsi “enemy” with the use of the armed forces and various civilian militia groups including the feared Interahamwe.
The six Accused in the present case all represented military, political or civilian authorities in Butare commune: Nyiramasuhuko was the Minister of Family and Women’s Development; Nsabimana served as the prefect of Butare from April until 17 June 1994; Nteziryayo was a member of the Ministry of the Interior; Kanyabashi was the mayor of Ngoma commune; Ndayambaje was the mayor of Muganza commune and Ntahobali was a leader of a unit of the Interahamwe. Following the replacement of the former prefect of Butare by Nsabimana on 20 April 1994, large scale massacres of Tutsi took place in Butare commune. Thousands were slaughtered with machetes and grenades at Mugombwe Church, Kabuye Hill, Kabakobwe Hill and Matyazo Clinic. In line with the Interim Government’s policy, roadblocks were set up at which Tutsi could be identified, separated, abducted, raped and killed by soldiers and Interhamwe alike. Megaphone announcements were heard throughout Butare town encouraging the Hutu to flush out and eradicate their Tutsi enemy.
The International Criminal Tribunal for Rwanda convicted each of the Accused variously for genocide, cnspiracy to commit genocide, direct and public incitement of genocide, the crimes against humanity of extermination, persecution and rape and the war crimes of violence to life and outrage supon personal dignity. Nyiramasuhuko, Ntahobali and Ndayambaje were sentenced to life imprisonment; Kanybashi, Nteziryayo and Nsabimana to 35, 30 and 25 years’ imprisonment respectively.
The case is currently on appeal before the Appeals Chamber of the ICTR.
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Kanyabashi and Ndayambaje were arrested in Belgium on 28 June 1995 and transferred to the detention centre of the International Criminal Tribunal for Rwanda on 8 November 1996. At their initial appearance before the Tribunal on 29 November 1996, the Chamber entered not guilty pleas for Kanyabashi on the basis of his lack of legal representation, Ndayambaje plead not guilty.
On 26 May 1997, the Prosecutor indicted Nyiramasuhuko and Ntahobali.
Nyiramasuhuko and Nsabimana were arrested in Kenya on 18 July 1997; Ntahobali was arrested in Kenya on 24 July 1997. All three Accused were subsequently transferred to the ICTR’s detention facility. Nteziryayo was arrested in Burkina Faso on 24 April 1998.
The Prosecution was authorised by the Trial Chamber to amend the indictment against each Accused on 10 and 12 August 1999 (see here for Nyiramasuhuko, Kanyabashi, Ndayambaje and Nsabimana).
Each Accused is charged with conspiracy to commit genocide; genocide; complicity in genocide; crimes against humanity of extermination, murder, persecution and other inhumane acts; and violence to life as a war crime. All except for Ntahobali are also charged with direct and public incitement to commit genocide. Finally, the Prosecution has charged Nyiramasuhuko and Ntahobali with rape as a crime against humanity, and with outrages upon personal dignity as a war crime.
On 12 August 1999, Kanyabashi, Ndayambaje, Nyiramasuhuko and Ntahobali entered new not guilty pleas in respect of their amended indictments. The next day, Nsabimana and Nteziryayo also entered not guilty pleas in respect of their amended indictments.
On 5 October 1999, the Chamber ordered that the cases of Nyiramasuhuko and Ntahobali, Nsabimana and Nteziryayo, Kanyabashi and Ndayambaje be tried together.
The trial commenced on 12 June 2001 before Trial Chamber II.
Following Judge Maqutu’s departure from the ICTR, Judge Bossa joined Trial Chamber II on 20 October 2003. Proceedings resumed on 26 January 2004. The Prosecution closed its case on 18 October 2004. The defence cases commenced on 31 January 2005 and concluded on 2 December 2008, and closing arguments were heard from 20 April 2009 to 30 April 2009.
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The case is currently on appeal before the Appeals Chamber.
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Legally relevant facts
A civil war between the Hutu government forces and the predominantly Tutsi Rwandan Patriotic Front (RPF) broke out in 1990 and eventually led to the installation of a multi-party Transitional Government with the Hutu Habyarimana as its President (paras. 231, 238-240). Following the assassination of the latter on 6 April 1994 and several other key political figures on 7 April 1994, an Interim Government was established. All the Accused held various roles in the political, civilian and military administration of Rwanda, and particualrly Butare: Nyiramasuhuko served as Minister of Family and Women’s Development; her son, Ntahobali, was a student and leader of an Interahamwe unit; Nsabimana served as the prefect of Butare from April until 17 June 1994; Nteziryayo was a member of the Ministry of the Interior; Kanyabashi was the mayor of Ngoma commune; Ndayambaje was the mayor of Muganza commune (paras. 18, 30-31, 45-46, 53, 64, 67, 243-244).
From 20 April 1994 onwards (that is, following the replacement of the former prefect of Butare for Nsabimana), large-scale massacres occured in Butare commune (para. 927). In particular, thousands of Tutsi refugees seeking shelter at Mugombwa Church on 20-21 April 1994 were massacred at the direction of Ndayambaje; Tutsi were massacred at Kabuye Hll over several days in April again at the direction of and with weapons supplied by Ndayambaje; Tutsi refugees were attacked and killed at Kabakobwe Hill on 22-23 April 1994 by members of the Ngoma commune police under Kanyabashi’s authority; Tutsi were massacred at Matyazo Clinic at the end of April 1994 by soldiers at the direction of Kanyabashi (paras. 1194, 1245-1246, 1454-1456, 1756, 2080, 2103).
Roadblocks were set up at the encouragement of the Interim Government throughout Butare commune at which Tutsi would be identified, frequently abducted and killed. In particular, 40 Tutsi were abducted on 21 April 1994 from the Rugira roadblock by Ntahobali and others and subsequently killed by members of the Interahamwe on Ntahobali’s orders (para. 1480). Crimes of murder, beatings and rapes were also pepretarted agaibst the Tutsis at the roadblock outside Hotel Ihuliro (para. 3144).
The Butare Prefecture Office was also the scene of abductions, assaults, rapes and murders of Tutsi refugees perpetrated by Interahamwe and soldiers under the direction of Nyiramasuhuko and Ntahobali from April until the end of June 1994 (para. 2781).
Violence against the Tutsi was also publicly encouraged by way of megaphone announcements made by Kanyabashi in Butare town inciting the population to search for the Tutsi enemy. As a result of this, searches were conducted in Butare town for Tutsis in hiding who were flushed out and killed (paras. 3792-3832).
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Core legal questions
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- What are the elements of rape as a crime against humanity?
- How is the required nexus between the alleged offence and the armed conflict defined for the purposes of establishing liability for a war crime?
Specific legal rules and provisions
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- Articles 3(g), 4(a) and (e), 6(1) and (3) of the Statute of the International Criminal Tribunal for Rwanda.
Court's holding and analysis
The actus reus of rape involves the non-consensual penetration, however slight, of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator, or of the mouth of the victim by the penis of the perpetrator. Consent for this purpose must be given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim. Force or threat of force provides clear evidence of non-consent, but force is not an element per se of rape (para. 6075).
A nexus exists between the alleged offence and the armed conflict when the two are closely related. The existence of an armed conflict must have, at a minimum, played a substantial part in the perpetrator’s ability to commit the offence, his or her decision to commit it, the manner in which it was committed or the purpose for which it was committed. It suffices to prove that the perpetrator acted in furtherance of or under the guise of the armed conflict (para. 6154). To this end, the Chamber considered that the implication of soldiers in a large number of the events provides further corroboration of the nexus to the armed conflict (para. 6156).
The Trial Chamber convicted all Accused of genocide with the exception of Nteziryayo; the latter, along with Kanyabashi and Ndayambaje, were also convicted of direct and public incitement to commit genocide. Nyiramasuhuko was additionally convicted of conspiracy to commit genocide. On the charges of crimes against humanity, Nyiramasuhuko, Ntahobali, Nsabimana, Kayabashi and Ndayambaje were convicted of extermination and persecution; only Nyiramasuhuko and Ntahobali were additionally convicted of rape. On the charge of war crimes, all Accused except Nteziryayo were convicted of violence to life; Nyiramasuhuko and Ntahobali were additionally convicted of outrages upon personal dignity (para. 6186).
Nyiramasuhuko, Ntahobali and Ndayambaje were sentenced to life imprisonment; Kanybashi, Nteziryayo and Nsabimana to 35, 30 and 25 years’ imprisonment respectively (paras. 6271).
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- M.A. Drumble, '‘She Makes Me Ashamed to be a Woman’: The Genocide Conviction of Pauline Nyiramasuhuko, 2011', Michigan Journal of International Law, 2013;
- H. Gulaid, 'Ordinary Women: Understanding Female Agency in the Perpetration of Genocide', The Armenian Weekly, 21 January 2011;
- Y. McDermott, 'Rights in Reverse: A Critical Analysis of Fair Trial Rights Under International Criminal Law', in: The Ashgate Research Companion to International Criminal Law:Critical Perspectives, W,A. Schabas, Y. McDermott & N. Hayes, eds., Aldershot: Ashgate
- Human Rights Brief, 'Updates from the International and Internationalized Criminal Courts', Human Rights Brief, 2011, Vol. 19, No. 1;
- C. Sperling, 'Mother of Atrocities: Pauline Nyiramasuhuko’s Role in the Rwandan Genocide', Fordham Urban Law Journal, 2005, Vol. 33, pp. 637 et seq.;
- S. Blathazar, 'Gender Crimes and the International Criminal Tribunals', Gonzales Journal of International Law, 2006, Vol. 10, pp. 43 et seq.;
- G. Sluiter, 'The ICTR and the Protection of Witnesses', Journal of International Criminal Justice, 2005, Vol. 3, pp. 962-976;
- A. A. Miller, 'From the International Criminal Tribunal for Rwanda to the International Criminal Court: Expanding the Definition of Genocide to Include Rape', Pennsylvania State Law Review, 2003, Vol. 108, pp. 349 et seq.
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- Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I), 12 August 1949, 75 UNTS 35, entered into force 21 October 1950.
- Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II), 12 August 1949, 75 UNTS 81, entered into force 21 October 1950.
- Geneva Convention relative to the Treatment of Prisoners of War (GC III), 12 August 1949, 75 UNTS 135, entered into force 21 October 1950.
- Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC IV), 12 August 1949, 75 UNTS 287, entered into force 21 October 1950.
- Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (AP II), 1125 UNTS 609, 8 June 1977, entered into force 7 December 1979.
- Statute of the International Criminal Tribunal for Rwanda (ICTR Statute), UN Doc S/RES/955, UN Security Council, 1994.
- Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda (ICTR RPE), UN Doc ITR/3/Rev. 6, adopted on 29 June 1995, as amended on 8 June 1998.
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- ET, 'Nyiramasuhuko Gets Life for her Role in Rwanda Genocide', The London Evening Post, 26 June 2011;
- E. Kagire, 'Nyiramasuhuko Gets Life Sentence for Genocide', The New Times, 25 June 2011;
- M. Simons, 'Life Sentences in Rwanda Genocide Case', The New York Times, 24 June 2011;
- J. Hazeley, 'Profile: Female Rwandan Killer Pauline Nyiramasuhuko', BBC News, 24 June 2011;
- BBC, 'Rwanda: Ex-Women’s Minister Guilty of Genocide, Rape', BBC News, 24 June 2011;
- S. Chhatbar, 'Pauline Nyiramasuhuko, Rwandan Woman and First Ever Convicted of Genocide, Given Life Sentence', The Huffington Post, 24 June 2011;
- Hirondelle News Agency, 'Rwanda: Nyiramasuhuko, Son Sentenced to Life Imprisonment', All Africa, 24 June 2011;
- Hirondelle News Agency, 'Rwanda: ICTR Prosecutor Welcomes Judgement Against Nyiramasuhuko', All Africa, 24 June 2011;
- UN, 'UN’s Rwanda Genocide Tribunal Convicts Woman of Genocide for First Time, UN News Center, 24 June 2011;
- AP, 'Rwandan Woman Jailed for Genocide', Al Jazeera, 24 June 2011;
- P. Landesman, 'Pauline Nyiramasuhuko, la Barbarie au Feminine', Courrier International, 14 November 2012;
- Human Rights Watch, 'The Rwandan Genocide: How It Was Prepared', 2006.
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