Ephrem Setako v. the Prosecutor

Court	International Criminal Tribunal for Rwanda (Appeals Chamber), Tanzania
Case number	ICTR-04-81-A
Decision title	Judgement
Decision date	28 September 2011
Parties	Ephrem Setako The Prosecutor
Categories	Crimes against humanity, Genocide, War crimes
Keywords	crimes against humanity, extermination, genocide, grave breaches of the Geneva Conventions, violence to life, health and physical or mental well-being of persons, war crimes
Links	Judgement

Summary

On 25 February 2010, Trial Chamber I of the ICTR convicted Lieutenant Colonel Ephrem Setako for genocide, extermination as a crime against humanity and violence to life as a war crime for ordering the killings of between 30 to 40 ethnic Tutsi refugees at Mukamira military camp on 25 April 1994 and the death of nine or 10 Tutsis on 11 May 1994. The Chamber imposed on Setako a sentence of 25 years of imprisonment.

Setako and the Prosecution both appealed the Trial judgment. Setako alleged errors of law and errors of fact of the judgment. The Prosecution submitted three grounds of appeal.

On 28 September 2011, the Appeals Chamber dismissed Setako’s appeal in its entirety, while it partially granted the Prosecution’s appeal but it did not increase Setako’s sentence. Specifically, the Appeals Chamber convicted Setako for murder as a war crime for the killings committed against Tutsis on 11 May 1994.

Procedural history

On 25 February 2010, Trial Chamber I convicted Setako of genocide under Article 6(1) of the Statute for ordering the killings of Tutsis at Mukarima military camp on 25 April 1004 and 11 May 1994. In addition, in relation to the 25 April killings, Setako was found guilty of extermination as a crime against humanity and of violence to life, health, and physical or mental well-being of persons (murder) as a war crime under Article 6(1) of the Statute. He was sentenced to a single term of 25 years of imprisonment.

Setako challenged his convictions advancing errors of law and errors of fact in the Trial judgment. He requested that the Appeals Chamber reverse his convictions, quash his sentence, and release him, or, in the alternative, order a retrial and his release on bail pending the commencement of the retrial. The Prosecution also submitted three grounds of appeal.

On 28 September 2011, the Appeals Chamber delivered its judgment dismissing Setako’s appeal in its entirety and granting the Prosecution’s appeal in part. The Chamber, however, did not increase Setako’s sentence.

Legally relevant facts

Setako challenged his convictions and requested that the Appeals Chamber overturn them, quash his sentence, and release him, or, alternatively, order a retrial and his release on bail pending the commencement of the retrial. He divided his grounds of appeal into two main categories: (i) errors of law; and (ii) errors of fact (para. 4).

The Prosecution advanced three grounds of appeal. It alleged that the Trial Chamber erred (i) in failing to convict the Accused for murder as a war crime in relation to the 11 May killings; (ii) in failing to make any finding on the Accused's responsibility under Article 6(3) of the Statute for the 25 April and 11 May killings; and (iii) in its determination of the sentence. The Prosecution requested that the Appeals Chamber find Setako responsible as a superior under Article 6(3) of the Statute for the 25 April and 11 May killings for the purpose of sentencing, convict him for murder as a war crime for ordering the 11 May killings and impose on him a sentence of life imprisonment (para. 5).

Core legal questions

Whether the Appeals Chamber should accept the grounds of appeal submitted by the Accused and the Prosecution.
What the effect on the sentence would be, in case any of the grounds of appeal was accepted.

Specific legal rules and provisions

Articles 4, 6(1),(3), 19, 20 and 24 of the ICTR Statute.
Rules 86(C), 94(A),(B), 95, 101(C), 103(B), 107, 118 and 119 of the ICTR Rules of Procedure and Evidence.
Article 3 common to the Geneva Conventions and of Additional Protocol II thereto.
Article 14(5) of the International Covenant on Civil and Political Rights.

Court's holding and analysis

The Appeals Chamber held that Setako had not established that the Trial Chamber had committed a discernible error in its Decision of 18 September 2007 by allowing the amendments to the 22 March 2004 indictment, and did not demonstrate how these amendments prejudiced him (para. 25).

The Chamber found no errors in the assessment of evidence by the Trial Chamber concerning the 25 April and 11 May killings (para. 229).

On the alleged violation of the standard and burden of proof, the Appeals Chamber held that the Trial Chamber had not shifted the burden of proof nor had it applied a higher standard to the Defence evidence (para. 234).

The Chamber dismissed Setako’s argument on errors of the Trial Chamber regarding his responsibility for ordering the killings at Mukamira camp (paras. 244-245).

Regarding the alleged error relating to the nexus between the killings at Mukamira camp and an armed conflict, the Chamber held that the 25 April killings were closely related to the hostilities (paras. 251-252).

The Appeals Chamber granted the Prosecution’s first ground of appeal and convicted, with Judge Pocar dissenting, Setako of murder as a war crime for ordering the 11 May killings (para. 262).

The Chamber dismissed the Prosecution’s second ground of appeal, while it allowed the third ground in part. However, it found that an increase in the sentence was not warranted and thus it confirmed Setako’s sentence of 25 years of imprisonment (paras. 274, 298-300).

In his partially dissenting opinion, Judge Pocar stated that he agreed with the Majority’s reasoning and conclusion regarding the Prosecution’s first ground of appeal, but he disagreed with the Majority’s decisions to enter a conviction against Mr. Setako on appeal (para. 1 of the partially dissenting opinion).

Further analysis

K. Margetts & K.I. Kappos, ‘Current Developments at the Ad Hoc International Criminal Tribunals’, Journal of International Criminal Justice, 2012, Vol. 10(2), pp. 447-487.