The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana

Court	International Criminal Tribunal for Rwanda (Trial Chamber I), Tanzania
Case number	ICTR-96-10 & ICTR-96-17-T
Decision title	Judgement and Sentence
Decision date	21 February 2003
Parties	The Prosecutor Elizaphan Ntakirutimana Gérard Ntakirutimana
Categories	Crimes against humanity, Genocide, War crimes
Keywords	cause serious bodily or mental harm, crimes against humanity, ethnic group, extermination, genocide, intent to destroy, Internal armed conflict, kill, Murder, other inhumane acts, Serious violations of the Geneva Conventions and Additional Protocol II, widespread or systematic attack
Links	Judgement and Sentence

Summary

On 21 February 2003, Trial Chamber I of the ICTR delivered its unanimous judgment on the case of Elizaphan and Gérard Ntakirutimana. Gérard Ntakirutimana, a medical doctor practicing at the Mugonero Adventist hospital, was convicted of genocide and of crimes against humanity (murder). His father, Elizaphan Ntakirutimana, a senior pastor of the Seventh-day Adventist church in Mugonero was convicted of aiding and abetting in genocide.

The two Accused jointly faced two indictments, the “Mugonero” indictment with five counts and the “Bisesero” indictment with seven counts. Both indictments charged them with genocide, in the alternative complicity in genocide, conspiracy to commit genocide as well as crimes against humanity. The Accused allegedly participated in killings, attacks and caused serious bodily and mental harm to a large number of men, women and children who sought refuge in the Mugonero Adventist complex as well as in the area of Bisesero.

Pastor Ntakirutimana was sentenced to ten years of imprisonment while his son, Gérard, was sentenced to imprisonment for twenty five years. In both cases credit was given for the time they had already served in the United States and in Arusha.

Procedural history

On 22 February 2001, the Chamber granted the Prosecution’s motion for a joint trial pursuant to Rule 48 bis of the Rules, in respect of two Indictments. The first indictment (no. ICTR-96-10-I), as amended on 27 March 2000 and on 20 October 2000, concerned the case of Prosecutor v. Elizaphan Ntakirutimana, Gérard Ntakirutimana, and Charles Sikubwabo (“the Mugonero indictment”). The second indictment (no. ICTR-96-17-I), as amended on 7 July 1998, concerned the case of Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana (“the Bisesero indictment”). On 17 September 2001, the Chamber granted the Prosecution’s request to have the charges against Sikubwabo severed from the Mugonero indictment.

The indictments charged the two Accused with genocide, complicity in genocide, conspiracy to commit genocide, crimes against humanity, and with violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. Individual responsibility for the above crimes was brought in both indictments under Article 6(1) of the Statute. Additionally, the Mugonero indictment charged Gérard Ntakirutimana with responsibility under Article 6(3) (command responsibility) for all counts except conspiracy to commit genocide.

Related developments

Both the Accused and the Prosecution appealed against the findings of the Trial Chamber and the sentenced imposed.

Legally relevant facts

Under Count 1A of the Mugonero indictment, both Accused were charged with genocide for their role in the killing and the causing of serious bodily or mental harm to Tutsis in Gishyita commune, Kibuye Prefecture (para. 783).

Counts 2 and 3 respectively of the Mugonero indictment charged both Accused with conspiracy to commit genocide and murder as a crime against humanity for their participation in the attacks against Tutsis that occurred during April 1994 in Gishyita commune (paras. 797, 802).

Under Counts 4 and 5 respectively of the Mugonero indictment, both Accused were charged with extermination and other inhumane acts as crimes against humanity for their role in the killing of Tutsi civilians during April 1994 in Gishyita commune (paras. 811, 815).

Count 1 of the Bisesero indictment charged both Accused with genocide for their participation in the attacks against Tutsis during the months of April through June 1994 in the area known as Bisesero, in Gishyita and Gisovu communes (para. 824).

Under Count 4 of the Bisesero Indictment, both Accused were charged with murder as a crime against humanity for their role in the events in Bisesero (para. 842).

Counts 5 and 6 respectively of the Bisesero indictment charged the Accused with extermination and other inhumane acts as crimes against humanity for their involvement in the events in Bisesero (paras. 850-853).

Count 7 of the Bisesero indictment charged both Accused with serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II for the events in Bisesero (para. 857).

Core legal questions

Whether Gérard and Elizaphan Ntakirutimana’s participation in the attacks against Tutsis at the Mugonero Complex on 16 April 1994 amounted to genocide.
Whether the Accused were guilty of complicity in genocide, conspiracy to commit genocide and crimes against humanity (murder, extermination and other inhumane acts) for their role in the attacks against Tutsis during the month of April 1994 in Gishyita commune.
Whether the Accused were guilty of genocide, complicity in genocide, conspiracy to commit genocide, crimes against humanity (murder, extermination and other inhumane acts) and war crimes for their role in the attacks against Tutsis that took place during the months of April through June 1994 in the area of Bisesero, as alleged in the Bisesero indictment.
Which factors the Trial Chamber should take into account upon sentencing.
What the appropriate sentence would be, in case the Accused were found guilty.

Specific legal rules and provisions

Articles 1, 2, 3, 4, 5, 6(1),(3), 7, 8, 15(2), 17(4), 20(2),(4)(a),(b), 22, 23 and 26 of the Statute of the International Criminal Tribunal for Rwanda.
Rules 45, 47(C), 48 bis, 67(ii)(a), 73bis (B)(i), 101(A),(B),(C),(D), 87(C), 89, 94(B), 98bis, 102, 103 and 104 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.

Court's holding and analysis

The Chamber found both Accused guilty of genocide for their role in the killing and causing of serious bodily harm to Tutsi refugees at the Mugonero Complex on 16 April 1994 (paras. 790, 795). Count 1B, complicity in genocide, was pleaded alternatively to Count 1A (genocide), so it ceased to apply for both Accused (para. 796).

The Chamber acquitted both Accused of conspiracy to commit genocide. (para. 801).

Regarding Count 3, the Chamber found Elizaphan Ntakirutimana not guilty and Gérard Ntakirutimana guilty of murder as a crime against humanity (paras. 805, 810).

The Trial Chamber found both Accused not guilty of extermination and other inhumane acts as crimes against humanity (paras. 814, 818).

The Chamber found both Accused guilty on Count 1 (genocide) and not guilty on Count 3 (conspiracy to commit genocide) of the Bisesero indictment (paras. 831, 836). Count 2 of the Bisesero indictment was charged in the alternative to Count 1, thus it was dismissed (para. 837).

Elizaphan Ntakirutimana was acquitted, while Gerard Ntakirutimana was convicted of murder as a crime against humanity (Count 4 of the Bisesero Indictment) (paras. 844, 849).

The Chamber found both Accused not guilty on Counts 5, 6 and 7 of the Bisesero Indictment (paras. 852, 856, 861).

After taking into account the mitigating and aggravating circumstances, the Trial Chamber sentenced Elizaphan Ntakirutimana to 10 years of imprisonment and Gerard Ntakirutimana to 25 years of imprisonment, with credit given to time already served in detention (paras. 921, 924, 927).