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Public Prosecutor v. Joseph Mpambara

Court District Court of The Hague, The Netherlands
Case number 09/750009-06 and 09/750007-07
Decision title Judgment
Decision date 23 March 2009
  • Public Prosecutor
  • Joseph Mpambara
Categories War crimes
Keywords child, hostage, Murder, Non-international armed conflict, rape, torture, war crimes
Other countries involved
  • Rwanda
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Between April and July 1994, as much as 10% of the entire Rwandese civilian population was murdered in an ethnic conflict in which the Hutu sought to eliminate the Tutsi. At the same time, an armed conflict was fought between the Rwandese government army (FAR) and the armed forces of the Rwandese Patriotic Front (RPF). The RPF were a rebel army primarily composed of descendants of Rwandese Tutsi who fled from Rwanda in preceding years.

The Accused, Joseph Mpambara, fled Rwanda for The Netherlands. He was brought before the Dutch courts on charges of war crimes, torture and genocide. The present decision by the District Court of The Hague convicted the Accused of complicity in torture on two separate incidents. The first concerned the threatening of a German man, his Tutsi wife and their baby at a roadblock. The second concerned the mutilation and murder of a number of Tutsi women and their children who were stopped and forced outside from the ambulance in which they were being transported from one locality to another.

The Court was not able to convict the Accused for war crimes as it found that there wasn’t a sufficient link between the acts and the armed conflict in Rwanda. It was precluded from prosecuting the charges of genocide because the Dutch courts lacked jurisdiction. The Accused was sentenced to 20 years’ imprisonment.

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Procedural history

The Accused, Joseph Mpambara, was a member of the interahamwe militia in Rwanda in 1994. He subsequently fled to Kenya and in November 1998, he sought asylum in The Netherlands.

In June/July 2006, the Public Prosecutor contacted the Prosecutor of the International Criminal Tribunal for Rwanda as to the possibility of investigating the criminal offences allegedly committed by the Accused in Rwanda.

Following the arrest of the Accused in Amsterdam on 7 August 2006, on 3 October 2006, the Prosecutor of the ICTR requested the Dutch government to accept the transfer of the case of the Accused for national prosecution. This request was accepted on 27 November 2006.

In pro forma hearings on 11, 16 and 17 May 2007, the Public Prosecutor requested the District Court of The Hague to determine whether the Public Prosecutor may institute proceedings for genocide.

On 24 July 2007, in an interlocutory decision, the District Court of The Hague determined that Dutch courts do not have jurisdiction over the crime of genocide allegedly committed by the Accused.

On 17 December 2007, the Court of Appeal of The Hague upheld the decision of the District Court and found that the Public Prosecutor was barred from proceeding against the Accused for charges of genocide due to a lack of jurisdiction.

On 21 October 2008, the Supreme Court of The Netherlands upheld the decision of the Court of Appeal.

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Related developments

On 7 July 2011, the Court of Appeal of The Hague upheld the conviction of the Accused with respect to the counts of torture. It additionally found that the count of hostage taking was also proven. It requalified the basis for the Accused’s conviction as co-participation in violating the laws and customs and war. The Accused was sentenced to life imprisonment (in Dutch only).

On 26 November 2013, the Supreme Court confirmed this decision, thereby rendering Mpambara's life sentence final.

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Legally relevant facts

On or around 13 April 1994, a number of individuals, allegedly including the Accused, stopped an ambulance carrying two Tutsi women and their children. The ambulance was surrounded by the attackers and the Tutsi women and their children were hacked with machetes, clubs and other weapons. All of them died (para. 2.I).

On 16 April 1994, a number of individuals, allegedly including the Accused, attacked Tutsi civilians seeking refuge at the Seventh Day Adventists Complex. The civilians were shot at, hacked with machetes and teargas was thrown into the building (para. 2.II). The Accused also allegedly threatened two Tutsi women, proceeeded to rape them and then cut their throats, as a result of which they died (para. 3.Ib).

On that same day, a number of individuals, allegedly including the Accused, threatened two Tutsi women who had taken refuge in a  hospital room.

On 27 April 1994, a number of individuals, allegedly including the Accused, refused passage to a vehicle at a road block in Mugonero carrying a German man, his Tutsi wife and their baby. The occupants of the vehicle were intimidated as depracatory remarks were made against Tutsis and weapons were brandished (para. 2.III).

On 13 May 1994, a number of individuals, allegedly including the Accused, grabbed a woman and threatened her. The Accused allegedly directed his men to rape her repeatedly after which time he stabbed her with a bayonet and shot her, killing her (para. 3.Ia).

In the period between 6 April and 1 July 1994, the Accused allegedly kidnapped three children from the home of their grandparents. They have never been heard of again (para. 4).

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Core legal questions

  • For the purposes of establishing war crimes, how is the nexus requirement – that is a link between the indicted offence and the armed conflict – to be interpreted?
  • What are the legal requirements for incitement to commit torture?

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Specific legal rules and provisions

  • Articles 3 and 8 of the Act on Criminal Law in Time of War (Wet Oorlogsstrafrecht).
  • Articles 2(1)(a), 5, 6, and 7 of the International Crimes Act.
  • Articles 1, 2, 5, and 6 of the Torture Convention Implementation Act
  • Article 3, Common to the Geneva Conventions.
  • Articles 1 and 4 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

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Court's holding and analysis

A clear interpretation of the required nexus between the offence being tried and the armed conflict does not result from the case law of the international criminal tribunals. Rather, a case-by-case approach is followed whereby the existence of a nexus depends on the evaluation of all relevant facts and circumstances. However, the four criteria established by the International Criminal Tribunal for the former Yugoslavia in the Kunarac decision are the main reference points for the assessment by the Court of the nexus: the existence of an armed conflict must at least (i) have played a substantial part in the decision taken by the perpetrator to commit the crime, (ii) the opportunity he had to commit the crime, (iii) the way in which he committed the crime or (iv) the purpose of the crime. In the case of the Accused, this nexus is not established and he is acquitted of war crimes (Chapter 15, paras. 47, 53-66).

The following requirements must be fulfilled for incitement:

  1. The intention of the inciter must be aimed at (a) incitement and (b) all component parts of the incited crime.
  2. The inciter has induced another (the incited person) to commit the criminal offence. One of the requirements is that the inciter has caused the offender to take the ‘wilful’ decision to commit the alleged crimes.
  3. One or more means of incitement have been used.
  4. The incited crime has been carried out.
  5. The incited person must be liable to punishment.

An individual is liable to punishment if he is either the public official who incites or intentionally allows a person to commit torture, or a person who inflicts severe pain and suffering, while a public official has incited him to do so or has intentionally allowed him to commit torture (Chapter 16, paras. 38-39).

The Accused was convicted of complicity in torture and sentenced to 20 years’ imprisonment (Chapter 20).

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Further analysis

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Instruments cited

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Related cases

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Additional materials

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