The Prosecutor v. Simon Bikindi

Court	International Criminal Tribunal for Rwanda (Trial Chamber III), Tanzania
Case number	ICTR-01-72-T
Decision title	Judgement
Decision date	2 December 2008
Parties	The Prosecutor Simon Bikindi
Categories	Crimes against humanity, Genocide
Keywords	crimes against humanity, ethnic group, genocide, intent to destroy, kill, Murder, persecution, serious bodily or mental harm, widespread or systematic attack
Links	Judgement

Summary

During the Rwanda genocide, Bikindi was a famous singer and composer, and the leader of a ballet troupe, the Irindiro.

The Prosecution charged Bikindi with six Counts: conspiracy to commit genocide, genocide or, alternatively, complicity in genocide, direct and public incitement to commit genocide, murder and persecution as crimes against humanity.

On 2 December 2008, Trial Chamber III of the ICTR found the Accused guilty of direct and public incitement to commit genocide for his calls to exterminate Tutsi at the end of June 1994 on the Kivumu-Kayone road and acquitted him on all other Counts. The Chamber further concluded that there were no mitigating factors, and that the fact that the Accused had used his influence to incite genocide was an aggravating factor. The Chamber sentenced Bikindi to 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.

The initial indictment filed by the Prosecution on 27 June 2001 charged the Accused with five counts: conspiracy to commit genocide, genocide, direct and public incitement to commit genocide and murder and persecution as crimes against humanity. On 22 October 2003, the Prosecution filed an amended Indictment, which included the alternative count of complicity in genocide. On 11 April 2005, the Chamber ordered the Prosecution to file a second amended indictment. On 15 June 2005, the Prosecution filed a second amended indictment pursuant to the Decisions of 11 May 2005 and 10 June 2005, charging Bikindi with conspiracy to commit genocide; genocide, or in the alternative, complicity in genocide; direct and public incitement to commit genocide; murder and persecution as crimes against humanity. The Accused was charged under Articles 6(1) and 6(3) of the Statute for genocide and murder as a crime against humanity. He was charged only under Article 6(1) for conspiracy to commit genocide, complicity in genocide, direct and public incitement to commit genocide and persecution as a crime against humanity.

Related developments

Bikindi appealed his convictions, while 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.

Legally relevant facts

Under Count 1, the Prosecution charged Bikindi with conspiracy to commit genocide pursuant to Articles 2(3)(b) and 6(1) of the Statute (para. 404).

In its factual findings, the Chamber found that the Prosecution failed to prove its allegation that the Accused had agreed or collaborated with leaders of the Mouvement Révolutionnaire national pour le développement (MRND) and other persons to militarise the MRND youth wing and to disseminate anti-Tutsi propaganda (para. 406).

Under Count 2, the Prosecution charged the Accused with genocide pursuant to Articles 2(3)(a), 6(1) and 6(3) of the Statute (para. 408).

The Chamber held that the Prosecution had not established that Bikindi’s alleged subordinates had participated in the killings or infliction serious bodily or mental harm to members of the Tutsi ethnic group (para. 411).

Under Count 4, the Prosecution charged Bikindi with direct and public incitement to commit genocide pursuant to Articles 2(3)(c) and 6(1) of the Statute (para. 417).

Under Count 5, the Prosecution charged Bikindi with murder as a crime against humanity under Articles 3(a), 6(1) and 6(3) of the Statute (para. 427); and under Count 6, the Prosecution charged Bikindi with persecution as a crime against humanity pursuant to Articles 3(h) and 6(1) of the Statute (para. 433).

Core legal questions

Whether songs may constitute direct and public incitement to commit genocide and/or persecution as a crime against humanity.
Whether Bikindi had conspired with others to commit genocide.
Whether Bikindi was guilty of genocide and complicity in genocide.
Whether the Accused was guilty of direct and public incitement to commit genocide based on his exhortations to kill Tutsi on the main road between Kivumu and Kayove in June 1994.
Whether the Accused was criminally responsible for murder and persecution as crimes against humanity.
What the appropriate sentence would be, in case the Accused was found guilty.

Specific legal rules and provisions

Articles 1, 2, 3, 6(1),(3), 7, 20(3),(4)(a),(b) and 23(1),(2) of the ICTR Statute.
Rules 50(C), 67(A)(ii)(a), 73 bis (b)(ii), 73 ter (B), 87(A), 89(B), 94, 101(A),(B),(C), 102(A) and 103 of the ICTR RPE.
Articles 7 and 19 of the Universal Declaration of Human Rights.
Articles 19 and 20 of the International Covenant on Civil and Political Rights.
Articles 4 and 5 of the International Convention on the Elimination of All Forms of Racial Discrimination.
Article 10(1),(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Article 13(1),(2),(5) of the American Convention on Human Rights.
Articles 9, 27(2) and 28 of the African Charter on Human and Peoples’ Rights.

Court's holding and analysis

The Trial Chamber held that, depending on the nature of the message conveyed and the circumstances, songs may constitute direct and public incitement to commit genocide and /or persecution as a crime against humanity (paras. 389, 395).

The Chamber found that the Prosecution failed to establish Bikindi’s criminal responsibility for conspiracy to commit genocide (Count 1) (para. 407). Thus, the Chamber concluded that the Prosecution failed to establish Bikindi’s criminal responsibility under Articles 2(3)(a), 6(1) or 6(3) of the Statute for genocide and complicity in genocide (Counts 2 and 3 respectively) (paras. 414, 416).

However, the Chamber held that the Accused was criminally responsible under Articles 2(3)(c) and 6(1) of the Statute as a principal perpetrator relying on his exhortations to kill Tutsis on the main road between Kivumu and Kayove towards the end of June 1994. Thus, the Accused was found guilty on Count 4 of the indictment (para. 426).

The Chamber found that the Prosecution had failed to establish Bikindi’s criminal responsibility for murder as a crime against humanity (Count 5) (para. 432).

The Accused was acquitted on Count 6 of the indictment for aiding and abetting persecution on the grounds that the Prosecution had failed to prove that Bikindi had disseminated or played a role in the deployment of Twasezereye, Nanga Abahutu and Bene Sebahinzi in 1994 (para. 440).

After taking into account the gravity of the offences, the mitigating and aggravating factors, as well as the time already served, the Chamber sentenced the Accused to fifteen years of imprisonment (para. 460).