The Prosecutor v. Dominique Ntawukulilyayo

Court	International Criminal Tribunal for Rwanda (Trial Chamber III), Tanzania
Case number	ICTR-05-82-T
Decision title	Judgement and Sentence
Decision date	3 August 2010
Parties	The Prosecutor Dominique Ntawukulilyayo
Categories	Genocide
Keywords	bodily or mental harm, genocide, group, national, ethnic, racial, religious, intent to destroy
Links	Judgement and Sentence

Summary

Dominique Ntawukulilyayo was the sub-prefect of Gisaraga sub-prefecture in Butare prefecture in 1994. On 20 April 1994, hundreds of thousands of Tutsis and their families escaped attacks and sought refuge at Gisaraga market in Ndora commune. Some of these people were prevented from leaving the market that evening and the following morning by law enforcement personnel and were forced to return to Gisaraga market. From 21 April through 23 April many of the Tutsi refugees left Gisaraga market for Kabuye hill. There, an extensive assault on the refugees was carried out by armed civilians, police and military personnel resulting in the death or serious injury of hundreds, and possibly thousands of men, women, children and the elderly.

On 23 April 1994 the Accused had promised the Tutsi refugees that they would be protected at Kabuye hill, prompting them to go there. Yet, later that day, he transported soldiers to Kabuye hill to participate in the attack against them. For these reasons, Ntawukulilyayo was found guilty of genocide (Count I) and not guilty of complicity (Count II) and incitement (Count III) charges. He was sentenced to 25 years of imprisonment.

Procedural history

Dominique Ntawukulilyayo was the sub-prefect of Gisaraga sub-prefecture in Butare prefecture in 1994. The Prosecution charged him with genocide (Count I), complicity in genocide (Count II), as well as direct and public incitement to commit genocide (Count III) with respect to the events at Gisaraga market and Kabuye hill between 20 and 25 April 1994.

On 26 May 2005, The Prosecution filed its original indictment against the Accused charging him with genocide, complicity in genocide, and direct and public incitement to commit genocide.

The indictment was amended four times in May 2009. The fourth amended indictment, which was filed on 19 May 2009, was the operative indictment in this case. Ntawukulilyayo was charged with genocide, complicity in genocide, and direct and public incitement to commit genocide.

The Defence disputed all charges.

The Trial commenced on 6 May 2009 and closed on 17 December 2009. Closing arguments were heard on 14 June 2010.

Related developments

The Accused filed an appeal against the Trial judgment challenging his conviction and sentence. The Appeals Chamber affirmed some of the findings of the Trial Chamber and reversed others.

Legally relevant facts

The Prosecution charged Ntawukulilyayo with genocide, or alternatively, complicity in genocide pursuant to Articles 6(1) and 6(3) of the Statute. Ntawukulilyayo was further charged with direct and public incitement to commit genocide pursuant to Article 6(1) of the Statute (para. 391).

In its factual findings, the Trial Chamber established that possibly thousands of refugees, mostly Tutsi, had gathered at Gisaraga market between 20 and 23 April 1994, seeking refuge from attacks. The Chamber, with Judge Akay dissenting, determined that on 23 April, Ntawukulilyayo gathered refugees and directed them to Kabuye hill with the assurances that they would be protected there. The refugees complied and were escorted towards Kabuye hill by the communal police (para 392).

The Chamber, with Judge Akay dissenting, further found that in the late afternoon or evening of 23 April 1994 Ntawukulilyayo transported soldiers to Kabuye hill and then departed. The soldiers, together with communal police, attacked the civilians gathered at the hill. Although Ntawukulilyayo did not return, the coordinated assault continued into the following day, by that time including civilian participants, resulting in hundreds and possibly thousands of civilians, primarily Tutsis, being killed (para 393).

The Chamber found that none of the allegations supporting the charge of direct and public incitement to commit genocide had been proven, so it did not need to address the charge (para. 394).

Core legal questions

Whether the Accused was guilty of genocide, or in the alternative, complicity in genocide pursuant to Articles 6(1) and 6(3) of the Statute for his role in the events that took place at Gisaraga market and Kabuye hill between 20 and 25 April 1994.
What the appropriate sentence would be, in case the Accused were found guilty.

Specific legal rules and provisions

Articles 2(2), 2(3)(a),(c),(e), 6(1),(3) and 23 of the Statute of the International Criminal Tribunal for Rwanda.
Rules 46(A), 50, 66(A)(ii),(B), 67(A)(ii), 68(A), 73 bis (B)(v), 88(C), 89(C), 101 and 102(B) of the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda.

Court's holding and analysis

With regard to Count I (genocide), the Majority held that the Accused was responsible for aiding and abetting the killing of the primarily Tutsi civilians who had gathered at Kabuye hill under Article 6(1) of the Statute by instructing refugees at Gisaraga market to go to Kabuye hill and by transporting soldiers who took part in the attack there. He was found also liable under Article 6(1) of the Statute for ordering the killings (para. 457).

Since Count II (complicity in genocide) was pleaded alternatively to Count I, the Majority found Ntawukulilyayo not guilty on this Count (para. 458).

The Trial Chamber further concluded that the Prosecution had not proved the allegations relating to Count III (direct and public incitement to commit genocide) beyond reasonable doubt. Therefore, the Accused was acquitted on that Count (para. 459).

The Majority did not find Ntawukulilyayo guilty of genocide under Article 6(3) of the Statute (para. 460).

After taking into account the gravity of the crimes, the aggravating and mitigating factors, the Majority sentenced the Accused to 25 years of imprisonment (para. 479).

In his separate, dissenting opinion, Judge Akay argued that the Prosecution had not established beyond reasonable doubt that Ntawukulilyayo had ordered Tutsi refugees at Gisaraga market to go to Kabuye hill, nor that he had transported soldiers to Kabuye hill to take part in the subsequent attack against Tutsis. Therefore, Judge Akay did not join the Majority in its legal findings and did not convict Ntawukulilyayo for genocide (paras. 22-23 of the separate, dissenting opinion).