The Prosecutor v. Théoneste Bagosora, Gratien Kabiligi, Aloys Ntabakuze, Anatole Nsengiyumva

Court	International Criminal Tribunal for Rwanda (Trial Chamber I), Tanzania
Case number	ICTR-98-41-T
Decision title	Judgement and Sentence
Decision date	18 December 2008
Parties	The Prosecutor Théoneste Bagosora Gratien Kabiligi Aloys Ntabakuze Anatole Nsengiyumva
Other names	Military I
Categories	Crimes against humanity, Genocide, War crimes
Links	Judgement and Sentence

Summary

The Accused in this case were Colonel Théoneste Bagosora, the directeur de cabinet of the Ministry of Defence, General Gratien Kabiligi, the head of the operations bureau of the army general staff, Major Aloys Ntabakuze, the commander of the elite Para Commando Battalion, and Colonel Anatole Nsengiyumva, the commander of the Gisenyi operational sector. They were charged with conspiracy to commit genocide, genocide, crimes against humanity, namely murder, exterminations, rape, persecution and other inhumane acts, and war crimes, namely violence to life and outrages upon personal dignity, for crimes committed in Rwanda in 1994. The victims of said crimes included a great number of Tutsis, the Prime Minister Uwilingiyimana and 10 Belgian peacekeepers.

Bagosora was found guilty by the Chamber of genocide, crimes against humanity and war crimes. Kabiligi was acquitted of all counts, while Ntabakuze and Nsengiyumva were convicted for genocide, crimes against humanity and war crimes. After taking into account the gravity of each of the crimes the Accused were convicted for, as well as aggravating and mitigating circumstances, the Chamber sentenced them to life imprisonment.

During the 408 trial days of this case, 242 witnesses were heard, 82 for the Prosecution and 160 for the Defence.

Procedural history

The Prosecution charged the four Accused with conspiracy to commit genocide, genocide, crimes against humanity (murder, extermination, rape, persecution and other inhumane acts) and serious violations of Article 3 common to the Geneva Conventions and Additional Protocol II (violence to life and outrages upon personal dignity). Nsengiyumva was also charged with direct and public incitement to commit genocide. The Prosecution relied on direct or superior responsibility. See for the indictments: Bagosora, Kabiligi & Ntabakuze, Nsengiyumva).

The Chamber pronounced its unanimous judgment on 18 December 2008.

Related developments

The judgment of the Chamber was appealed by Théoneste Bagorosa, Aloys Ntabakuze and Anatole Nsengiyumva.

Legally relevant facts

The four Accused were charged with conspiracy to commit genocide, crimes against humanity, namely murder, extermination, rape, persecution and other inhumane acts) and serious violations of Article 3 common to the Geneva Conventions and Additional Protocol II, namely violence to life and outrages upon personal dignity. Nsengiyumva was also accused of direct and public incitement to commit genocide. The prosecution relied on direct or superior responsibility as modes of liability (para. 2).

The Defence challenged the credibility of the evidence submitted by the Prosecution. Specifically, Bagosora and Kabiligi denied that they had actual authority over members of the Rwandan military, while Nsengiyumva and Ntabakuze contested that soldiers under their command committed criminal acts. With regard to some of the events, the Accused presented the defence of alibi, most notably Kabiligi and Bagosora (para. 3).

The four Accused challenged certain aspects of the fairness of the proceedings, principally the right to trial without undue delay, the right to an initial appearance without delay, provisional detention, the right to notice, the right to be present at trial, the admission of documents and the Prosecution’s disclosure obligations (para. 72).

Core legal questions

Has the Prosecution proved beyond a reasonable doubt that Théoneste Bagosora, Gratien Kabiligi, Aloys Ntabakuze, Anatole Nsengiyumva had committed the crimes they were charged with, namely conspiracy to commit genocide, genocide, crimes against humanity (murder, extermination, rape, persecution and other inhumane acts) and serious violations of Article 3 common to the Geneva Conventions and Additional Protocol II (violence to life and outrages upon personal dignity) and for Nsengiyumva, direct and public incitement to commit genocide?
What would be the appropriate sentence, in case the Accused were found guilty?

Specific legal rules and provisions

Articles 2(2), 2(3)(a),(b),(g-i), 3(b),(g),(h),(i) 4(a), 4(e), 6(1),(3),(4) 15(2), 20(4)(c),(d), 22 and 23 of the ICTR Statute.
Rules 40 bis (C), (D), (F), (G), (H), (J), 62, 68, 89 (C), 92 bis, 98 bis, 101, 102 (B) of the ICTR RPE.
Common Article 3 to the Geneva Conventions and to Additional Protocol II.

Court's holding and analysis

With regard to the preliminary issues raised by the Accused, the Chamber held that there had been a violation of the right of Mr. Kabiligi and Mr. Bagosora to an initial appearance without undue delay and that, in view of the circumstances of this case, a formal recognition that this occurred was the appropriate remedy (para. 97). The Chamber found no other violations concerning the aspects challenged by the Accused (paras. 73-84, 98-138).

The Chamber found Théoneste Bagosora guilty of genocide, murder, murder of the Belgian Peacekeepers, extermination, rape, persecution and other inhuman acts as crimes against humanity and of the war crimes of violence to life, violence to life of the Belgian Peacekeepers and outrages upon personal dignity (para. 2258).

Gratien Kabiligi was acquitted of all counts (para. 2258).

Aloys Ntabakuze and Anatole Nsengiyumva were convicted for genocide, murder, extermination, persecution and other inhumane acts as crimes against humanity and for the war crime of violence to life (para. 2258).

After taking into account the gravity of the offences, the individual circumstances of the Accused, including aggravating and mitigating factors, the Chamber sentenced the three Accused to life imprisonment (paras. 2263-2279.