The Prosecutor v. André Ntagerura, Emmanuel Bagambiki and Samuel Imanishimwe

Court	International Criminal Tribunal for Rwanda (Trial Chamber III), Tanzania
Case number	ICTR-99-46-T
Decision title	Judgement
Decision date	25 February 2004
Parties	The Prosecutor André Ntagerura Emmanuel Bagambiki Samuel Imanishimwe
Categories	Crimes against humanity, Genocide, War crimes
Keywords	crimes against humanity, extermination, genocide, grave breaches of the Geneva Conventions and of Additional Protocol II, imprisonment, intent to destroy, kill, Murder, serious bodily or mental harm, torture, widespread or systematic attack
Links	Judgement

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Summary

The three Accused in this case were charged with genocide, crimes against humanity, and serious violations of Article 3 Common to the Geneva Conventions and Additional Protocol II in connection with the massacres and other crimes committed in Cyangugu Prefecture in 1994.

Trial Chamber III of the ICTR sentenced Samuel Imanishimwe, former military commander in the Rwanda armed forces to 27 years in prison after convicting him on six counts of genocide, crimes against humanity and serious violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II.

The Chamber found that Imanishimwe, as the commander of Karambo military camp, issued orders to soldiers authorizing the arrest, detention, mistreatment, and execution of civilians. He was also found criminally responsible for extermination and for failing to prevent or to punish his subordinate soldiers’ participation in the massacre at the Gashirabowba football field on 12 April 1994.

Imanishimwe was found guilty of genocide,; of murder, of extermination, of imprisonment, of torture as crimes against humanity, and of serious violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II, count 13.

However, the Chamber acquitted both André Ntagerura, former Minister of Transport and Communications and Emmanuel Bagambiki, former Prefect of Cyangugu of similar charges.

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Procedural history

The Prosecutor submitted an indictment against Ntagerura on 9 August 1996. On 28 November 1997, the Tribunal ordered the Prosecutor to amend certain parts of the indictment. Acting upon this order, the Prosecutor filed an amended indictment on 29 January 1998, which constituted the final text of the Ntagerura indictment, charging him with genocide, conspiracy to commit genocide, complicity in genocide, crimes against humanity (extermination) and war crimes.

On 9 October 1997, the Prosecutor submitted an indictment against Bagambiki and imanishimwe. On 10 October 1997, the indictment was confirmed. The Prosecutor charged Bagambiki with genocide, complicity in genocide and conspiracy to commit genocide; murder, extermination and imprisonment as crimes against humanity, and war crimes. Imanishimwe was charged with genocide, complicity in genocide and complicity to commit genocide; murder, extermination, imprisonment and torture as crimes against humanity, and war crimes.

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Related developments

On 7 July 2006, the Appeals Chamber reduced Samuel Imanishimwe’s sentence from 27 to 12 years imprisonment and recalled that it had confirmed the acquittals of André Ntagerura, former Minister of Transport and Communications, and Emmanuel Bagambiki, former Prefect of Cyangugu on 8 February 2006.

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Legally relevant facts

The Chamber was satisfied that Imanishimwe knew or should have known about the participation of his soldiers in the attack at the Gashirabwoba football field. The Chamber recalled that Imanishimwe was present at the Gashirabwoba football field on 11 April 1994 and thus was fully aware of the presence of refugees (para. 654).

The Chamber also found that on 11 April 1994, soldiers participated in the arrest, detention, and mistreatment of seven civilians, including Prosecution Witness LI, as well as in the execution of Witness LI’s brother and his classmate. The Chamber further concluded that Imanishimwe was present during a part of this mistreatment, which occurred at the Karambo camp, and that he did nothing to prevent it (para. 655).

The Chamber was satisfied that, in June 1994, soldiers participated in the arrest and detention of Witness MG, his father, and two sisters. Soldiers, acting on Imanishimwe’s orders, unsuccessfully attempted to have Witness MG and his family members killed by Interahamwe at Gatandara. Imanishimwe ordered that these individuals be transferred from the gendarmerie camp and be incarcerated at the Karambo military camp. At the military camp, soldiers severely beat Witness MG and another prisoner. Soldiers also drove a nail into the foot of a detainee, removed the nail, and drove it into the foot of another detainee. Imanishimwe was present during this mistreatment and did nothing to stop it. Also, soldiers participated in the killing of Witness MG’s sister and her cellmate Mbembe. In addition, at the end of June 1994, Imanishimwe ordered the detention of Witness MA at Karambo camp (paras. 656-657).

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Core legal questions

• Whether Ntagerura was guilty of genocide, complicity in genocide and extermination as a crime against humanity for his acts against members of the Tutsi ethnic group.
• Whether Bagambiki was criminally responsible of genocide, complicity in genocide, conspiracy to commit genocide; and murder, extermination and imprisonment as crimes against humanity for his participation in the killings of members of the Tutsi ethnic group in April 1994.
• Whether Imanishimwe had committed the crimes of genocide, complicity in genocide and crimes against humanity (murder, extermination, imprisonment and torture) through his participation in the massacres against Tutsis that took place in April 1994.
• 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 1, 2, 3, 4, 6(1),(3), 9, 17(4), 19(2), 20(2),(4)(a),(b) 22 and 23 of the Statute of the International Criminal Tribunal for Rwanda.
• Rules 2, 40bis,47, 48, 48bis, 49, 50, 62(B), 66(C), 73bis, 87(A), 89, 98bis, 99(A),(B), 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.
• Article 14(3)(a) of the International Covenant on Civil and Political Rights.
• Article 6(3)(a) of the European Convention on Human Rights.

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Court's holding and analysis

Ntagerura was unanimously acquitted of all charges (para. 804).

Bagambiki was unanimously acquitted of complicity in genocide, crimes against humanity (imprisonment) and conspiracy to commit genocide. He was also acquitted, with Judge Williams dissenting, of genocide; murder and extermination as crimes against humanity and war crimes (para. 805).

Imanishimwe was unanimously acquitted of complicity in genocide and conspiracy to commit genocide and convicted of murder, imprisonment and torture as crimes against humanity. The Chamber, with Judge Dolenc dissenting, further convicted the Accused of genocide, extermination as a crime against humanity, and war crimes (paras. 806-807).

Imanishimwe was sentenced to twenty-seven years’ imprisonment. Since the Accused was entitled to credit for time served, as of 25 February 2004, there were twenty years, five months and sixteen days remaining in his sentence (paras. 827-828).

In his dissenting opinion, Judge Williams disagreed with the Majority on the acquittal of Bagambiki with regard to the events at the football field in Gashirabwoba on 11 and 12 April 1994, and his role in the removal of the refugees from Cyangugu Cathedral and Kamarampaka Stadium on 16 April 1994 (para. 16).

In his separate opinion, Judge Ostrovsky was not convinced that Bagambiki, with the resources available to him, could do more for the protection of refuges in Cyangugu prefecture (para. 17).

In his separate opinion, Judge Dolenc considered that the Trial Chamber’s explanation of why precision was required when pleading the material facts of a crime was insufficient and should be supplemented. He also expressed the view that he would have found Imanishimwe guilty only of genocide for the massacre at Gashirabwoba football field on 12 April 1994, and for murder, imprisonment, and torture at the Karambo military camp as crimes against humanity under counts 9, 11 and 12, since in a case of inter-article ideal concurrence of crimes, genocide, consumes extermination as a crime against humanity and murder as a war crime (paras. 2,71).

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Further analysis

• L. van den Herik & E. van Sliedregt, ‘Ten Years Later, The Rwanda Tribunal still Faces Legal Complexities: Some Comments on the Vagueness of the Indictment, Complicity in Genocide, and the Nexus Requirement for War Crimes’, Leiden Journal of International Law, 2004, Vol. 17(3), pp. 537-557;
• D.H. Wallace, ‘Criminal Justice Decisions of Various International Courts of 2004’, International Criminal Justice Review, 2005, Vol. 15(2), pp. 205-235;
• P. Kim, ‘The Law of Genocide in the Jurisprudence of ICTY and ICTR in 2004’, International Criminal Law Review, 2005, Vol. 5, pp. 431-446.

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Instruments cited

• 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 Covenant on Civil and Political Rights, 999 UNTS 171, 16 December 1966.
• Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (AP II), 1125 UNTS 609, 8 June 1977, entered into force 7 December 1979.
• 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: André Ntagerura;
• TRIAL Fact Sheet: Emmanuel Bagambiki;
• TRIAL Fact Sheet: Samuel Imanishimwe;
• ICTR, 'Trial Chamber Convicts Imanishimwe but Acquits Ntagerura and Bagambiki', ICTR Press Release, 25 February 2004.