The Prosecutor v. Augustin Ndindiliyimana, Augustin Bizimungu, Francois-Xavier Nzuwonemeye and Innocent Sagahutu

Court	International Criminal Tribunal for Rwanda, Tanzania
Case number	ICTR-00-56-T
Decision title	Judgement and Sentence
Decision date	17 May 2011
Parties	The Prosecutor Augustin Ndindiliyimana Augustin Bizimungu Francois-Xavier Nzuwonemeye Innocent Sagahutu
Other names	Military II Case
Categories	Crimes against humanity, Genocide, War crimes
Links	Judgement and Sentence
Other countries involved	Rwanda

Summary

The death of Rwandan President Habyariamana in April 1994 reignited ethnic tensions in Rwanda between the Hutu and the Tutsi. Members of the pre-dominantly Hutu Rwandan Armed Forces, including the Rwandan Army (FAR), the Gendarmerie Nationale and the elite reconnaissance unit, the RECCE Battalion, along with Interahamwe militia members perpetrated a series of attacks against largely unarmed Tutsi civilians.

The incidents concerned by the present case are numerous and include the killings of Tutsi at Kansi Parish, St André College, Nyanza Hill, Musambara commune office and many more. Women and girls were also raped. The Prime Minister and the Belgian personnel guarding her were also assassinated by members of the RECCE Battalion. The present case brings together four key military leaders, responsible for the conduct of the soldiers and gendarmes who perpetrated the afore-mentioned attacks: Ndindiliyimana was Chief of the Gendarmerie Nationale, Bizimungu was head of the FAR, Nzuwonemeye was Commander of the RECCE Battalion and Sagahutu was commander of one of the combat squadrons of the same RECCE Battalion. In light of their authority over their respective forces, Trial Chamber II of the International Criminal Tribunal for Rwanda found Ndindiliyimana guily of genocide, crimes against humanity and murder as a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II; Bizimungu guilty of genocide, crimes against humanity, murder and rape as a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II; and Nzuwonemeye and Sagahutu guilty of crimes against humanity and murder as a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II.

Bizimungu received a 30-year sentence, Nzuwonemeye and Sagahutu each received 20 year sentences. Controversially, Ndindiliyimana received a sentence for time served, meaning that his 11 years in detention prior to and during the trial sufficed and he was released following the judgment. On Appeal, Ndindiliyimana and Nzuwonemeye were aquitted, Sagahutu had his conviction for war crimes and crimes against humanity affirmed, but the sentence lowered from 20 to 15 years and Bizimungu's sentence was upheld to 30 years inprisonment.

Procedural history

On 20 January 2000, the Prosecutor of the International Criminal Tribunal for Rwanda indicted Augustin Ndindiliyimana, Augustin Bizimungu, Protais Mpiranya, Francois-Xavier Nzuwonemeye and Innocent Sagahutu on charges of crimes against humanity, genocide and war crimes.

On 28 January 2000, Judge Kama confirmed the indictment. That same day, Judge Kama issued an arrest warrant for Ndindiliyimana. The latter was arrested a day later and transferred to Tanzania on 22 April 2000. At his initial appearance on 27 April 2000, he entered a plea of not guilty.

On 2 February 2000, an arrest warrant was issued against Nzuwonemeye and Sagahutu. Both Accused were arrested on 15 February 2000. Nzuwonemeye was transferred to Tanzania on 23 May 2000 and entered a plea of not guilty at his initial appearance on 25 May 2000. Sagahutu was transferred to Tanzania on 24 November 2000 and entered a plea of not guilty on 28 November 2000.

On 12 April 2002, an arrest warrant was issued against Bizimungu. The latter was arrested on 2 August 2002 and transferred to Tanzania on 14 August 2002. At his initial appearance before the Tribunal on 21 August 2002, he entered a plea of not guilty.

On 26 March 2004, Trial Chamber II granted the Prosecution leave to amend the indictment.

On 30 April 2004, all co-accused entered new pleas of not guilty to the new charges. Ndindiliyimana’s plea was entered on his behalf by the Chamber in light of his silence.

On 20 August 2004, the Chamber severed the case of Mpiranya from those of the remaining co-Accused in light of the fact that he remained at large. On 23 August 2004, the Prosecution filed an amended indictment to reflect this change; the trial commenced on 20 September 2004.

Related developments

All four accused and the Prosecution have appealed the judgment and sentence.

On 11 February 2014, the Appeals Chamber acquitted Augustin Ndindiliyimana and Francois-Xavier Nzuwonemeye. Innocent Sagahutu's
conviction for war crimes and crimes against humanity were affirmed, but his sentence was reduced from 20 to 15 years.

On 30 June 2014, the Appeals Chamber dismissed Augustin Bizimungu's appeal and upheld the 30-year prison sentence.

Legally relevant facts

The Rwandan Civil War began in October 1990 when the Rwandan Patriotic Front (RPF), a primarily Tutsi politico-military group, attacked Rwanda from their base in Uganda. A ceasefire was agreed to in July 1992, leading to the conclusion of the Arusha Accords which established a transitional government in Rwanda led by President Habyarimana and including members of the RPF. RPF members were integrated into the new Rwandan Army. A UN peacekeeping force was disptached to monitor the implementation of the Accords, which arrived in October 1993 (paras. 196-199, 206).

The Rwandan Army (FAR) was comprised of government and RPF forces; its Chief of Staff from April 1994 was Bizimungu (para. 1). The FAR contained a number of elite units, including the RECCE Battalion. In April 1994, Nzuwonemeye was Battalion Commander and Sagahutu was Commander of one of its combat squadrons (paras. 218-221).

The Gendarmerie nationale were part of the Rwandan Armed Forces, their Chief of Staff was Ndindiliyimana (paras. 222-225, 1922).

Following the death of President Habyarimana on 6 April 1994, a series of attacks were perpetarted by members of the RPF, Gendarmerie National and FAR against the Hutu civilian population in Rwanda. Of relevance to the present case are the following incidents: the assassination of Prime Minister Uwilingiyimana and the Belgian soldiers assigned to protect her by members of the RECCE Battalion (paras. 506-517, 1852-1871); the killing of Tutsi civilians by members of the Interahamwe militia in Rwankeri and at the Ruhengeri Court of Appeal (paras. 923-930, 1000); the attack against Tutsi civilians by members of the FAR at Jospehite Brothers compound, Nyanza Hill, Musambira commune office, TRAFIPRO (paras. 1146, 1155, 1191, 1195); the killing of Tutsis by members of the Gendarmerie at Kansi Parish and St André College (paras. 1226-1294, 1339-1372).

Core legal questions

How is a superior-subordinate relationship defined for the purposes of establishing command responsibility pursuant to Article 6(3) of the Statute of the ICTR?
What are the elements of rape as a crime against humanity?

Specific legal rules and provisions

Articles 3(g), 4(a) and (e), 6(1) and (3), Statute of the International Criminal Tribunal for Rwanda.
Article 3, Common to the 1949 Geneva Conventions.

Court's holding and analysis

A superior-subordinate relationship may exist as a matter of law or fact. It is necessary for the superior to exercise effective control over his subordinates at the time of the offence, meaning that the superior must have had the ability to prevent the commission of the offence or punish the principal perpetrators (para. 1917). Although Ndindiliyimana, Chief of Staff of the Gendarmerie in 1994, had significantly reduced authority over the Gendarmes after hostilities resumed with the RPF on 6 April 1994, the Chamber concludes that the gendarmes who committed the crimes at Kansi Parish and St André College remained under the Accused’s control (paras. 1931, 1948).

Rape as a crime against humanity requires proof of the non-consensual penetration, however slight, of the vagina or anus of the victim by the penis of the perpetrator or by any other object used by the perpetrator, or of the mouth of the victim by the penis of the perpetrator. Consent for this purpose must be consent given voluntarily and freely and is assessed within the context of the surrounding circumstances. Force or threat of force provides clear evidence of non-consent, but force is not an element per se of rape (para. 2121).

Ndindiliyimana and Bizimungu were convicted of genocide, crimes against humanity and war crimes while Nzuwonemeye and Sagahutu were convicted of crimes against humanity and war crimes (para. 2162). Ndindiliyimana was sentenced to time served in detention (meaning that he was immediately released); Buzimanga was sentenced to 30 years’ imprisonment; Nzuwonemeye and Sagahutu each received sentences of 20 years’ imprisonment (paras. 2265-2268).