The Prosecutor v. Ferdinand Mahimana, Jean-Bosco Barayagwiza and Hassan Ngeze

Court	International Criminal Tribunal for Rwanda (Trial Chamber I), Tanzania
Case number	ICTR-99-52-T
Decision title	Judgement and Sentence
Decision date	3 December 2003
Parties	The Prosecutor Ferdinand Nahimana Jean-Bosco Barayagwiza Hassan Ngeze
Other names	The Media Case
Categories	Crimes against humanity, Genocide, War crimes
Keywords	crimes against humanity, ethnic group, extermination, genocide, intent to destroy, kill, Murder, persecution, serious bodily or mental harm, widespread or systematic attack
Links	Judgement and Sentence

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Summary

The three Accused – Ferdinand Nahimana, Jean Bosco Barayagwiza and Hassan Ngeze - were charged in separate indictments but were tried jointly for their role in the Rwandan genocide. They were all charged with genocide, conspiracy to commit genocide, direct and public incitement to commit genocide and persecution and extermination as crimes against humanity. Nahimana and Barayagwiza were additionally charged murder as a crime against humanity, while Barayagwiza was also charged with war crimes.

On 3 December 2003, Trial Chamber I of the ICTR found the three Accused guilty of conspiracy to commit genocide, genocide, direct and public incitement to commit genocide and persecution and extermination as crimes against humanity. They were found not guilty of complicity in genocide and of murder as a crime against humanity. Barayagwiza was also acquitted of the charges for war crimes. The Chamber sentenced Nahimana and Ngeze to life imprisonment. Regarding Barayagwiza, the Chamber considered that the appropriate sentence was life imprisonment, but, in its decisions dated 31 March 2000, the Appeals Chamber had decided that for the violation of his rights, the Accused was entitled to a reduction of his sentence, if he was found guilty. Therefore, the Trial Chamber sentenced him to twenty-seven years, three months and twenty-one days. 

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Procedural history

Nahimana was charged, pursuant to the amended indictment filed on 15 November 1999, with seven counts: conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, complicity in genocide, and crimes against humanity (persecution, extermination and murder). He was charged with individual responsibility under Article 6(1) for these crimes, and was also charged with superior responsibility under Article 6(3) in respect of direct and public incitement to commit genocide and crimes against humanity (persecution).

Barayagwiza was charged, pursuant to the amended indictment filed on 14 April 2000, with nine counts: conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, complicity in genocide, crimes against humanity (persecution, extermination and murder), and two counts of serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. He was charged with individual responsibility under Article 6(1) in respect of these counts, except the two counts relating to serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. He was additionally charged with superior responsibility under Article 6(3) of the Statute in respect of all the counts, except that of conspiracy to commit genocide.

Ngeze was charged, pursuant to the amended indictment dated 10 November 1999, with seven counts: conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, complicity in genocide, and crimes against humanity (persecution, extermination and murder). He was charged with individual responsibility under Article 6(1) for these crimes, and was additionally charged with superior responsibility under Article 6(3) in respect of all but one of the crimes - conspiracy to commit genocide.

On 25 September 2002, the Chamber acquitted Mr. Nahimana and Mr. Barayagwiza of crimes against humanity (murder), and further acquitted Mr. Barayagwiza of the two counts of serious violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II, since the Prosecution had conceded that there was no evidence presented of these crimes.

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Related developments

The Accused appealed their convictions and sentence. The Appeals Chamber judgment reversed certain findings of the Trial Chamber and affirmed others. Nahimana’s sentence was reduced to 30 years’ imprisonment. Barayagwiza’s sentence was reduced to 32 years of imprisonment. And Ngeze’s sentence was substituted for a 35 years prison term.

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Legally relevant facts

In 1992, Nahimana and others founded a comité d’ initiative to set up the company known as Radio Télévision Libre des Mille Collines, S.A. He was a member of the party known as Mouvement Révolutionnaire National pour le Développement (MRND) (para. 5).

Barayagwiza was a lawyer by training and a founding member of the Coalition pour la Défense de la République (CDR) party, which had been formed in 1992. He was a member of the comité d’ initiative. During this time, he also held the post of Director of Political Affairs in the Ministry of Foreign Affairs (para. 6).

In 1990, Ngeze had founded the newspaper Kangura and held the post of Editor-in-Chief. He was a founding member of the CDR party (para. 7).

Nahimana was charged with seven counts: conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, complicity in genocide, and crimes against humanity (persecution, extermination and murder) (para 8).

Barayagwiza was charged with nine counts: conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, complicity in genocide, crimes against humanity (persecution, extermination and murder), and two counts of serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (para. 9).

Ngeze was charged with seven counts: conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, complicity in genocide, and crimes against humanity (persecution, extermination and murder) (para. 10).

Due to lack of evidence, the Chamber acquitted Nahimana and Barayagwiza of crimes against humanity (murder), and further acquitted Barayagwiza of the two counts of serious violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II (para.12).

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Core legal questions

• Whether Nahimana was guilty of the crimes of conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, complicity in genocide, and crimes against humanity (persecution, extermination and murder).
• Whether the Prosecution proved beyond reasonable doubt that Barayagwiza had committed the crimes of conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, complicity in genocide, crimes against humanity (persecution, extermination and murder), and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II.
• Whether Ngeze was guilty of conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, complicity in genocide, and crimes against humanity (persecution, extermination and murder).
• Which factors the Trial Chamber should take into account upon sentencing.
• What the appropriate sentence would be, in case the Accused were found guilty.

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Specific legal rules and provisions

• Articles 2, 3, 4, 6(1),(3), 20, 22 and 23 of the Statute of the International Criminal Tribunal for Rwanda.
• Rules 40bis(D),(F),(G), 48, 48bis, 62(A)(iii), 65, 66, 67, 68, 70(A), 72, 73(E), 73bis, 73ter, 89(A),(B),(C), 91, 98bis, 101, 102(A) and 103 of the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda.
• Article 3 common to the Geneva Conventions and of Additional Protocol II thereto.
• Articles 7 and 19 of the  Universal Declaration of Human Rights.
• Articles 19(2),(3) and 20 of the International Covenant on Civil and Political Rights.
• Article 4(a),(b) of the Convention on the Elimination of all Forms of Racial Discrimination.
• Article 10 of the European Convention of Human Rights.

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Court's holding and analysis

The Trial Chamber found Nahimana guilty of conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, as well as persecution and extermination as crimes against humanity. He was acquitted of complicity in genocide and of murder as a crime against humanity (para. 1092).

The Chamber held that that Barayagwiza was guilty of conspiracy to commit genocide, genocide, direct and public incitement to commit genocide as well as persecution and extermination as crimes against humanity. He was acquitted of complicity in genocide and of murder as a crime against humanity, as well as of serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (para. 1093).

Ngeze, was found guilty of conspiracy to commit genocide, genocide, direct and public incitement to commit genocide and persecution and extermination as crimes against humanity. He was acquitted of complicity in genocide and of murder as a crime against humanity (para. 1094).

After taking into account the gravity of the offences, the individual circumstances of the Accused and the aggravating and mitigating factors, the Trial Chamber sentenced Nahimana and Ngeze to life imprisonment. After giving credit to time served, the Chamber sentenced Barayagwiza to twenty-seven years, three months and twenty-one days (paras. 1105,1107-1108).

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Further analysis

• D.F. Orentlicher, ‘Criminalizing Hate Speech in the Crucible of Trial: Prosecutor v. Nahimana’, American University International Law Review, 2005-2006, Vol. 21, pp. 557-592;
• C.A. MacKinnon, ‘International Decisions: Prosecutor v. Nahimana, Barayagwiza, & Ngeze, Case No. ICTR-99-52-T, Judgment and Sentence’, The American Journal of International Law, 2004, Vol. 98, pp. 325-330.

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Instruments cited

• Universal Declaration of Human Rights, UNGA Res. 217 A(III), UN Doc A/810 91, UN General Assembly, 10 December 1948.
• 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.
• European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5, 213 UNTS 222, 4 November 1950.
• International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195, 21 December 1965.
• International Covenant on Civil and Political Rights, 999 UNTS 171, 16 December 1966.
• 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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Additional materials

• TRIAL Fact Sheet: Ferdinand Nahimana;
• TRIAL Fact Sheet: Jean Bosco Barayagwiza;
• TRIAL Fact Sheet: Hassan Ngeze;
• ICTR, 'Three Media Leaders convicted for Genocide', ICTR Press Release, 3 December 2003;
• Hirondelle News Agency, 'Media Trial Goes into Deliberation after Three Years pf Debates', 22 August 2003;
•  Hirondelle News Agency, 'Ngeze and Nahihana Get Life Sentences, Barayagwiza to Serve 27 Years', 3 December 2003.