Siméon Nchamihigo v. The Prosecutor

Court	International Criminal Tribunal for Rwanda (Appeals Chamber), Tanzania
Case number	ICTR-2001-63-A
Decision title	Judgement
Decision date	18 March 2010
Parties	Siméon Nchamihigo The Prosecutor
Categories	Crimes against humanity, Genocide
Keywords	crimes against humanity, extermination, genocide, Murder, other inhumane acts
Links	Judgement

Summary

In 1994, Simèon Nchamihigo was a Deputy Prosecutor in Cyangugu prefecture, Rwanda.

On 18 March 2010, the Appeals Chamber of the ICTR reversed the Accused’s convictions rendered by Trial Chamber III on 24 September 2008 for genocide and murder as a crime against humanity for aiding and abetting the killing of Joséphine Mukashema, Hélène and Marie. The Appeals Chamber also quashed his conviction for genocide for instigating the killings at Shangi parish and Hanika parish. It also reversed his convictions for genocide and extermination as a crime against humanity in relation to instigating the massacre at Mibilizi parish and hospital and the massacre at Nyakanyinya school.

The Appeals Chamber affirmed Nchamihigo’s convictions for genocide and extermination as a crime against humanity for instigating killings, including those of Karangwa, Dr. Nagafizi and Ndayisaba’s family on or about 7 April 1994 and for instigating the massacre in Gihundwe sector on 14 or 15 April 1994. It also affirmed his conviction for other inhumane acts as a crime against humanity for ordering the attack on Jean de Dieu Gakwandi and for genocide and murder as a crime against humanity for instigating the killing of Father Boneza.

The Appeals Chamber reduced Nchamihigo's sentence from life imprisonment to forty years' imprisonment.

Procedural history

In 1994, the Accused was Deputy Prosecutor in Cyangugu, Rwanda. On 12 November 2008, Trial Chamber III convicted Nchamihigo pursuant to Article 6(1) of the Statute of genocide (Count 1), murder as a crime against humanity (Count 2), extermination as a crime against humanity (Count 3) and other inhumane acts as a crime against humanity (Count 4). He was sentenced to life imprisonment.

The Accused presented thirty-six grounds of appeal challenging his convictions and sentence. He requested that the Appeal Chamber overturn the trial judgment, enter acquittals on all counts of the indictment and order his immediate release. In the alternative, he requested the Appeals Chamber to consider the existence of extensive mitigating circumstances and re-evaluate his sentence.

The Prosecution responded that all grounds of appeal submitted by the Accused should be dismissed as none of them demonstrated any error of law invalidating the judgment, or an error of fact causing a miscarriage of justice, pursuant to Article 24 of the Statute.

Legally relevant facts

Under grounds 1, 2, 3, the Accused alleged errors relating to the indictment (para. 14).

Under grounds 5 and 4 in part, the Accused submitted that the Trial Chamber had erred in relation to the corroboration of accomplice witnesses’ testimony (para. 37).

Under ground 6, the Accused argued that the Trial Chamber had favoured Prosecution witnesses (para. 50).

Under ground 7, the Accused contended that the Trial Chamber had erred in finding that he possessed the mens rea for the killings on or about 7 April 1994 (para. 52).

Under ground 8, the Accused claimed that the Trial Chamber had erred in its findings relating to the killing of Josephine Mukashema, Hélène and Marie (para. 66).

Under ground 9, he challenged the methods and results of the Prosecution’s investigators (para. 84).

Under grounds 10, 11 and 12, the Accused submitted that the Trial Chamber had erred in relation to his alibi (para. 91).

Under ground 13, the Accused argued that the Trial Chamber had erred in its findings regarding the Accused’s political relationships (para. 129).

Under ground 14, He contended that the Trial Chamber had erred in its findings relating to roadblocks in Cyangugu (para. 174).

Under grounds 15 to 19, the Accused claimed that the Chamber had erred in its findings relating to individual killings of Tutsis (para. 182).

Under ground 20, He submitted that the Trial Chamber had erred in assessing related to the order to kill Gakwandi (para. 240).

Under ground 21, the Accused maintained that the Trial Chamber had erred with regard to the killing of Father Boneza (para. 255).

Under grounds 22 to 28, the Accused argued that the Trial Chamber had erred in convicting him for the killings at Kamarampaka Stadium (para. 293).

Under ground 32, the Accused challenged his conviction relating to the attack on Mibilizi parish and hospital (para. 316).

Under ground 33, the Accused challenged his conviction for the attack at Nyakanyinya school (para. 324).

Under grounds 29 and 30, the Accused challenged his conviction for the killings at Shangi parish (para. 32).

Under ground 31, the Accused challenged his conviction for instigating the killing of refugees at Hanika parish (para. 346).

Under ground 34, He challenged his conviction for the attacks in Gihundwe sector (para. 357).

Under ground 36, the Accused requested that the Appeals Chamber reduce his sentence (para. 383).

Core legal questions

Whether the Trial Chamber had committed errors relating to the Indictment and the corroboration of accomplice witnesses’ testimony (grounds of appeal 1, 2, 3, 4 and 5, in part).
Whether the Trial Chamber had favoured Prosecution witnesses (ground of appeal 6).
Whether the Trial Chamber had erred in finding that the Accused possessed the mens rea for the killings on or about 7 April 1994 (ground of appeal 7).
Whether the Trial Chamber had erred in finding that the Accused had aided and abetted the killing of Josephine Mukashema, Hélène and Marie (ground of appeal 8).
Whether the Trial Chamber had committed errors relating to the investigations, the alibi and the Accused’s political relationships (ground of appeal 9, 10, 11, 12, 13).
Whether there were errors in the Trial Chamber’s findings regarding the roadblocks in Cyangugu, the Accused’s participation in individual killings of Tutsis, the attack on Mr. Gakwandi and the killing of father Boneza (grounds of appeal 14, 15-19, 20, 21).
Whether the Trial Chamber had erred in its findings relating to Kamarampaka Stadium, the attacks on Mibilizi Parish and Hospital, Nyakanyinya School, Shangi Parish, Hanika Parish and Gihundwe Sector (grounds of appeal 22-28, 32, 33, 29-30, 31, 34).
Whether the Trial Chamber had erred in not considering documentary evidence provided by the Defence (ground of appeal 35).
Whether the Trial Chamber had erred in law and in fact in imposing a sentence of life imprisonment on the Accused (ground of appeal 36).
What the effect on the sentence would be, in case any of the grounds of appeal was accepted.

Specific legal rules and provisions

Articles 2(3), 3(a), 6(1), 19, 20, 22(2) and 24 of the Statute of the International Criminal Tribunal for Rwanda.
Rules 50, 67(B), 68(A), 72(A), 86(C), 88(C), 90(A), 94, 95, 101(B)(ii),(C), 103(C), 107, 108, 111, 115, 118 and 119 of the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda.

Court's holding and analysis

The Chamber dismissed the Accused's first, second and third grounds of appeal (para. 35). Regarding grounds 4 and 5 in part, the Chamber found that the Trial Chamber retained the discretion to rely on uncorroborated, but otherwise credible, witness testimony (para. 48-49).

The Chamber addressed the Accused’s arguments regarding ground 6 in other relevant sections of his appeal (para. 50).

The Chamber dismissed ground 7 of appeal in its entirety (para. 64).

The Chamber, with Judges Pocar and Liu dissenting, granted the Accused’s eighth ground of appeal and quashed his convictions based on the killing of the three Tutsi girls (para. 83).

The Chamber dismissed the Accused’s ninth up to eighteenth grounds of appeal in whole (paras. 89, 127), and the fourth and fifth in part. The Chamber also dismissed the grounds 20, 21, 22, 23, 27 and 28 (paras. 253, 289, 294, 300).

The Chamber, with Judge Pocar dissenting, granted the Accused’s grounds of appeal 24 to 26 and reversed his conviction for genocide based on the killings of the refugees taken from Kamarampaka stadium (para. 314).

The Chamber, with Judge Pocar dissenting, found that the Trial Chamber had erred in convicting the Accused of genocide and extermination as a crime against humanity based on the attack on Mibilizi parish and hospital and on the attack at Nyakanyinya school (paras. 322, 326).

The Chamber reversed the conviction for genocide based on the killings at Shangi parish (para. 344). The Chamber further reversed the Accused’s conviction in relation to the killings at Hanika parish (para. 355).

The Chamber dismissed ground of appeal 34 (para. 380).

The Chamber, with Judge Pocar dissenting, set aside the Accused’s sentence to life imprisonment and sentenced him to a term of 40 years of imprisonment (para. 404).

In their joint partly dissenting opinion, Judges Pocar and Liu, considered that the Accused’s eighth ground of appeal should have been dismissed and his convictions under this ground upheld (para. 6).

In his partly dissenting opinion, Judge Pocar considered that a Trial Chamber is better placed that the Appeals Chamber to evaluate the probative value of witnesses’ testimonies. He also dissented on the reduction in the sentence decided by the Appeals Chamber (paras. 8-9)