Théoneste Bagosora and Anatole Nsengiyumva v. The Prosecutor

Court	International Criminal Tribunal for Rwanda (Appeals Chamber), Tanzania
Case number	ICTR-98-41-A
Decision title	Judgement
Decision date	14 December 2011
Parties	Théoneste Bagosora Anatole Nsengiyumva The Prosecutor
Categories	Crimes against humanity, Genocide, War crimes
Keywords	crimes against humanity, extermination, genocide, Grave breaches of th Geneva Conventions, Murder, Non-international armed conflict, other inhumane acts, outrages upon personal dignity, persecution, rape, violence to life, war crimes, widespread or systematic attack
Links	Judgement

Summary

Anatole Nsengiyumva served as Head of the Intelligence Bureau of the Army General Staff and Commander of the Gisenyi Operational Sector from June 1993 to July 1994. He was initially found guilty by Trial Chamber I of the ICTR on 18 December 2008 of genocide, crimes against humanity (murder, extermination, persecution, and other inhumane acts), and violence to life for ordering the killings in Gisenyi town on 7 April, Mudende University, Nyundo Parish and aiding and abetting the killings in Bisesero. The Chamber later reversed some of these convictions and it set aside his sentence to life imprisonment imposing on him a sentence of 15 years imprisonment instead.

Théoneste Bagosora was appointed directeur de cabinet for the Ministry of Defence in June 1992, where he served until July 1994. The Trial Chamber I convicted him for genocide, crimes against humanity (murder, extermination, persecution, other inhumane acts, and rapes), and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (violence to life and outrages upon personal dignity), for his participation in the events in Rwanda in 1994. The Appeals Chamber reversed some of these convictions, setting aside his sentence to life imprisonment and sentencing him to 35 years of imprisonment instead.

Procedural history

The Trial judgment was rendered on 18 December 2008 by Trial Chamber I in the joint case against Théoneste Bagorosa, Aloys Ntabakuze and Anatole Nsengiyumva on the basis of three separate indictments (Bagorosa, Ntabakuze, Nsengiyumva).

Nsengiyumva was found guilty of genocide, crimes against humanity (murder, extermination, persecution, and other inhumane acts), and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (violence to life) pursuant to Article 6(1) of the Statute. He was sentenced to life imprisonment.

Bagosora was convicted for genocide, crimes against humanity (murder, extermination, persecution, other inhumane acts, and rapes), and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (violence to life and outrages upon personal dignity) pursuant to Articles 6(1) and 6(3) of the Statute. He was sentenced to life imprisonment.

Legally relevant facts

Nsengiyumva submitted 15 grounds of appeal. Specifically, he alleged a violation of Article 22 of the Statute (para. 21), numerous errors of law and fact which violated his right to fair trial and caused prejudice to him (para. 27), errors relating to the Indictment (para. 91), the burden of proof and the assessment of evidence (para. 220), errors relating to the elements of criminal responsibility (para. 229), errors in law and in fact in convicting him for the killings in Gisenyi Town (para. 237), for the killing of Alphonse Kabiligi (para. 305), for the killings at Nyondo Parish (para. 333) and at Mudende University (para. 350), errors relating to the elements of the crimes (para. 379), errors concerning cumulative convictions (para. 410) and sentencing (para. 418).

Bagosora presented six grounds of appeal with numerous sub-grounds challenging his convictions and sentence. He alleged errors relating to his superior position and effective control (para. 433), violation of fair trial rights by failing to enforce subpoena (para. 529), errors in the assessment of circumstantial evidence (para. 548), in applying the law of superior responsibility (para. 637), errors relating to the roadblocks (para. 700), errors relating to the sexual violence against the Prime Minister (para. 723) and to cumulative convictions (para. 732). He further submitted that the sentence imposed on him should be reduced (para. 738).

Core legal questions

Whether the Trial Chamber had committed the errors and/or violations submitted by the two Accused in their grounds of appeal.
If the Appeals Chamber found such errors and/or violations to have been committed, whether this would result in a reduction of the overall culpability of the Accused which would call for a reduction in their sentences.

Specific legal rules and provisions

Articles 3, 4, 6(1),(3), 20(4)(d), 22 and 24 of the ICTR Statute.
Rules 50, 53, 54, 66, 69(A),(C), 75(A), 85, 86(C), 88(A),(C), 98, 101(C), 103(B), 107, 108, 115, 118 and 119 of the ICTR RPE.
Common Article 3 to the Geneva Conventions.
Articles 1 and 3 of Additional Protocol II relating to the Protection of Victims of Non-International Armed Conflict.

Court's holding and analysis

The Chamber reversed Nsengiyumva’s convictions for genocide, crimes against humanity, and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II for the crimes at Bisesero. The finding that Nsengiyumva was responsible under Article 6(1) of the Statute for ordering the killings in Gisenyi town was set aside and he was found responsible as a superior under Article 6(3). Nsengiyumva’s convictions relating to the killings at Mudende University, at Nyundo Parish and the killing of Alphonse Kabiligi, as well as his convictions for murder as a crime against humanity regarding the killings in Gisenyi town were reversed. The Chamber set aside Nsengiyumva’s sentence of life imprisonment and sentenced him to 15 years of imprisonment (para. 742).

The Chamber reversed Bagosora’s convictions for crimes against humanity and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II regarding the killings of Kabiligi, Maharangari, the Belgian peacekeepers, the killings at Nyundo Parish, in Gisenyi town and at Mudende University. The Chamber set aside the finding that Bagosora was responsible under Article 6(1) of the Statute and found him responsible as a superior under Article 6(3) for the crimes at Kigali area roadblocks. Bagosora’s conviction for inhumane acts as a crime against humanity concerning the defilement of the corpse of Prime Minister Uwilingiyimana was set aside. The Chamber reversed proprio motu Bagosora’s conviction for murder as a crime against humanity. Bagosora’s sentence to life imprisonment was set aside and he was sentenced to 35 years of imprisonment instead (para. 742).

Further analysis

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