Simon Bikindi v. The Prosecutor

Court	International Criminal Tribunal for Rwanda (Appeals Chamber), Tanzania
Case number	ICTR-01-72-A
Decision title	Judgement
Decision date	18 March 2010
Parties	Simon Bikindi The Prosecutor
Categories	Genocide
Keywords	genocide
Links	Judgement in Appeal

Summary

During the Rwandan genocide, Simon Bikindi was a singer, composer and leader of a ballet troupe called the “Irindiro”.

On 2 December 2008, Trial Chamber III of the ICTR had found Bikindi guilty of direct and public incitement to commit genocide based on public exhortations to kill Tutsis, which he made on the Kivumu-Kayove road in Gisenyi prefecture in late June 1994. The Trial Chamber had sentenced him to 15 years of imprisonment.

Bikindi appealed his convictions, and the sentence was challenged by both the Accused and the Prosecution. The Appeals Chamber dismissed the appeals of both Bikindi and the Prosecution in their entirety and affirmed the sentence of 15 years of imprisonment.

Procedural history

In 1994, Simon Bikindi was a composer and singer and worked at the Ministry of Youth and Association Movements of the Government of Rwanda.

On 2 December 2008, Trial Chamber III convicted Bikindi pursuant to Articles 2(3)(c) and 6(1) of the Statute for direct and public incitement to commit genocide, based on public exhortations to kill Tutsis which he made on the Kivumu-Kayove road towards the end of June 1994. He was acquitted of the other charges, and the Chamber imposed a sentence of 15 years’ imprisonment, with credit being given for time already served following his arrest in the Netherlands on 12 June 2001.

The Accused appealed his conviction and his sentence. He requested that his conviction be overturned, or, in the alternative, that the Appeals Chamber order a reduction in his sentence.

The Prosecution appealed against the sentence imposed by the Trial Chamber and requested the Appeals Chamber to revise the sentence and impose a sentence in the range of 30 years’ to life imprisonment.

Legally relevant facts

Under ground 5, the Accused submitted that his case had suffered as a result of the “ineffective assistance” and “gross incompetence and/or gross negligence” of his Co-Counsel during the cross-examination of Witness AKJ (para. 19).

Under grounds 1 and 2, the Accused argued that the Trial Chamber had erred in finding that he had incited the killing of Tutsis on Kivumu-Kayove Road (para. 51).

Under ground 3, Bikindi contended that the Trial Chamber had failed to take into account evidence related to Operation Turquoise (para. 88).

Under ground 4, Bikindi claimed that the Trial Chamber had erred in law and fact in assessing the Defence evidence (para. 104).

Under ground 6 in part, Bikindi challenged the Trial Chamber’s findings with regard to his stature and influence within the Mouvement républicain national pour la démocratie et le développement (MRND) and Interahamwe (para. 131).

The Accused requested that the Appeals Chamber revise and reduce his sentence (para. 142). The Prosecution requested that the Appeals Chamber impose on the Accused a sentence in the range of 30 years’ to life imprisonment (para. 187).

Core legal questions

Whether the Accused was precluded from raising the issue of his Co-Counsel’s competence for the first time on appeal.
Whether the Accused rebutted the presumption of competence of his Co-Counsel.
Whether the Trial Chamber had erred in its finding that the Accused had incited the killing of Tutsis on Kivumu-Kayove Road.
Whether the Trial Chamber had erred in its assessment of Defence evidence.
Whether it was within the Trial Chamber’s discretion to make findings as to the perceived influence of the Accused within the MRND and Interahamwwe, and whether the Trial Chamber’s reasoning in this regard was correct.
Whether the Prosecution’s appeal in relation to the Trial Chamber’s alleged failure to properly consider the aggravating and mitigating factors upon sentencing should be granted.
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)(c), 6(1), 19(1), 20(4)(d), 23 and 24 of the ICTR Statute.
Rules 44(A), 90, 94(A), 101, 103(B), 107, 108, 115, 118 and 119 of the ICTR RPE.

Court's holding and analysis

The Appeals Chamber held that the Accused was not precluded from raising the issue of his Co-Counsel’s competence for the first time on appeal. The Chamber concluded, however, that he had not rebutted the presumption of competence of his Co-Counsel. Therefore, it dismissed the Accused’s fifth ground of appeal (paras. 29, 48-49).

The Appeals Chamber found no errors in the Trial Chamber’s findings regarding the killing of Tutsis on Kivumu-Kayove Road and, thus, dismissed the Accused’s first and second grounds of appeal (para. 86). The Chamber also dismissed Bikindi’s third and fourth grounds of appeal (paras. 102, 129). Furthermore, the Appeals Chamber found no error in the Trial Chamber’s reasoning regarding the Accused’s influence in the MRND and Interahamwe. Therefore, it dismissed the relevant part of the sixth ground of appeal (paras. 137-138); and also the Accused's appeal on sentencing was dismissed (para. 186).

As regards the Prosecutor's request for a higher prison sentence, the Chamber found that the Prosecution had not demonstrated that the sentence of 15 years’ imprisonment was manifestly inadequate considering the gravity of the crime and the Appellant’s role. Therefore, it dismissed the Prosecution’s appeal in sentencing (paras. 209-210).