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Sylvestre Gacumbitsi v. The Prosecutor

Court International Criminal Tribunal for Rwanda (Appeals Chamber), Tanzania
Case number ICTR-2001-64-A
Decision title Judgement
Decision date 7 July 2006
  • Sylvestre Gacumbitsi
  • The Prosecutor
Categories Crimes against humanity, Genocide
Keywords extermination, genocide, rape
Other countries involved
  • Rwanda
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Following the death of Rwandan President Habyariamana in April 1994, ethnic tensions reignited the conflict in Rwanda between the Hutu and Tutsi populations.

By a decision of 17 June 2004, the International Criminal Tribunal for Rwanda convicted Sylvestre Gacumbitsi, the former mayor of Rusumo commune, of genocide and crimes against humanity. In particular, the Trial Chamber found that Gacumbitsi had used his position of authority to meet with high ranking members within the commune and perpetuate a policy of extermination against the Tutsi population. He received weapons and distributed them to Hutus within the commune. He instigated the Hutu population to kill Tutsis and to rape Tutsi women. On appeal by the Prosecution and the Defence, the Appeals Chamber had the occasion to clarify a number of important areas of law including the law applicable to instigation and rape as a crime against humanity. The Chamber dismissed all of Gacumbitsi’s grounds of appeal but entered new convictions for murder as a crime against humanity. Gacumbitsi’s sentence was increased to life imprisonment.

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Procedural history

On 19 June 2001, Judge Williams granted the request of the Prosecutor and requested the Tanzanian authorities to arrest the suspect, Sylvestre Gacumbisti, and detain him until his transfer to the Tribunal. 

On 20 June 2001, Judge Williams confirmed the indictment. The Accused is charged with genocide (or alternatively complicity in genocide) and extermination, murder and rape as crimes against humanity. That same day, Tanzanian authorities arrested the Accused and transferred him to the Tribunal’s Detention Facility.

On 26 June 2001, the Accused pleaded not guilty to the counts against him.

On 28 July 2003, the trial commenced with opening statements and closed on 25 November 2003 with the closure of the Defence case. On 17 June 2004, the Tribunal convicted the Accused of genocide and crimes against humanity. He was sentenced to 30 years’ imprisonment.

Both the Prosecution and the Defence appealed.

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Related developments

Gacumbitsi is currently serving his life sentence at Koulikoro Prison in Mali. Recent reports have surfaced alleging that the prisoners enjoy too comfortable a life at the facility. See: All Africa, 'Rwanda Complains to UN Over Convict’s Lavish Life', 10 December 2012.

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Legally relevant facts

The Accused, Sylvestre Gacumbitsi, was the Mayor (bourgmestre) of Rusumo commune from 1983 until April 1994 (para. 6, Trial judgment). On 6 April 1994, the Rwandan President Habyariamana died when his airplane was shot during flight; the blame was put on the Tutsis. On 7 and 8 April 1994, the Accused met with members of the Rwandan Gendarmerie who informed him that Tutsis must be killed in order to stop the war (paras. 90-91, Trial judgment).

On 9 April 1994, the Accused held a meeting with the advisors of the Rusumo commune in which the Accused asked the advisors to hold secret meetings at which they would communicate to the Hutu to kill all the Tutsi (para. 93, Trial judgment). The nexy day he collected boxes of weapons from the Kibungo gendarmerie camp and proceeded to have them deliveed to different locations in the commune (para. 95, Trial judgment).

On 11 and 12 April 1994, the Accused travelled all over the commune in order to verify that his advisors had carried out his instructions (para. 96, Trial Judgment).

On 13 and 14 April 1994, the Accused spoke in front of large crowds of Hutu’s inciting them to take up arms against the enemy and hunt down all the Tutsi (par. 97-99). As a result of his words, a number of Tutsis were attacked, their properties looted (paras. 98-99, Trial judgment). The Accused further incited Hutu men to rape Tutsi women as a result of which a number of rapes and other acts of sexual violence occurred (para. 224, Trial Judgment).

On 15 April 1994, the Accused took part in an attack against Nyarubuye Parish at which many Tutsi refugees had gathered (para. 167, Trial judgment). The Accused killed Tutsi himself and ordered policemen and Interahamwe militia to attack the refugees (par. 168-170). The attack was repeated on 16 April 1994 in presence of and at the direction of the Accused (para. 171, Trial judgment).

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Core legal questions

  • Is the existence of a policy or plan a legal element to a finding of the crime against humanity of extermination?
  • In order to establish liability for instigation of a crime, what is the required threshold for demonstrating the connection between the instigation and the commission of the crime?
  • Is the victim’s lack of consent a constitutive element of rape as a crime against humanity or is consent instead an affirmative defence?

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Specific legal rules and provisions

  • Articles 3(b),(g) and 6 of the Statute of the International Criminal Tribunal for Rwanda.
  • Rule 96 of the ICTR Rules of Procedure and Evidence.

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Court's holding and analysis

The Appellant submits that the Trial Chamber incorrectly appreciated the mental element of the crime against humanity of extermination. He submits that the mental element requires the existence of a widespread practice, which implies planning and tolerance of such act by the State. The Appeals Chamber dismissed this ground: the existence of a policy or plan can be evidentially relevant but does not by itself constitute a separate element of the crime (para. 84).

The Trial Chamber correctly held that conviction for instigation required proof of a causal connection between the instigation and the actus reus of the crime; thus the Prosecution is correct when it asserts that a substantial contribution suffices, the Appellant’s instigation does not have to be a condition sine qua non of the commission of the crimes. However, the Trial Chamber did not misapply the test (paras. 127-128).

Following the case law of the ICTY in Kunarac, the Appeals Chamber held that non-consent and the accused’s knowledge thereof are elements of rape as a crime against humanity. Consequently, the Prosecution bears the burden of proving this element beyond a reasonable doubt. Non-consent may be proved by the Prosecution by proving the existence of coercive circumstances under which meaningful consent is not possible. Non-consent may also be inferred from the background circumstances of a case. The afore-mentioned reasoning applies to the accused’s knowledge of the victim’s lack of consent. Although Rule 96 of the Rules of Procedure and Evidence refers to consent as a defence, this must be interpreted as simply defining the circumstances in which evidence of consent will be admissible (paras. 153-157). 

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Further analysis

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Instruments cited

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Additional materials