Omar Serushago v. The Prosecutor

Court	International Criminal Tribunal for Rwanda, Tanzania
Case number	ICTR-98-39-A
Decision title	Reasons for Judgement
Decision date	6 April 2000
Parties	The Prosecutor Omar Serushago
Categories	Crimes against humanity, Genocide
Keywords	assassination, extermination, genocide, torture
Links	Reasons for Judgement
Other countries involved	Rwanda

Summary

When Rwandan President Habyariamana was killed on 6 April 1994, it reignited ethnic tensions in Rwanda between the Hutu and Tutsi populations, which had earlier in the same decade culminated in a bloody civil war.

Omar Serushago was the de facto leader of the civilian Interahamwe militia, one of the primary perpetrators of the crimes committed against Tutsis and moderate Hutus in the genocide of 1994. In his official capacity, Serushago led a group of militiamen in raids against Tutsis seeking refuge in parish churches, on commercial property, in bishop’s houses, and even those who were detained in the Gendarmerie station jail. Tutsis would then be summarily executed, some personally at the hands of Serushago. Having pleaded guilty to one count of genocide and three counts of crimes against humanity (assassination, extermination and torture), Serushago was sentenced to 15 years’ imprisonment by the Trial Chamber. By a decision of 14 February 2000, the Appeals Chamber dismissed Serushago’s arguments that the sentence against him was excessively long. The present decision contains the reasons of the Appeals Chamber for having reached this conclusion.

Procedural history

The Accused, Omar Serushago, voluntarily surrendered himself to the Ivorian authorities in Abidjan, Côte d’Ivoire on 9 June 1998. On 30 June 1998, he was transferred to the detention facility of the International Criminal Tribunal for Rwanda in Arusha, Tanzania.

On 14 October 1998, the Prosecutor of the ICTR indicted the Accused for one count of genocide and four counts of crimes against humanity: assassination, extermination, torture and rape. On 14 December 1998, the Accused pleaded guilty to the first four charges and not guilty to the charge of rape as a crime against humanity. The Prosecutor subsequently withdrew this charge.

On 5 February 1999, Trial Chamber I found the Accused guilty of the four charges and sentenced him to 15 years’ imprisonment.

On 7 August 1999, Serushago appealed the sentence on the grounds that the Trial Chamber had not taken sufficiently into account the mitigating circumstances of his case. On 14 February 2000, the Appeals Chamber dismissed the appeal and confirmed the sentence. The present decision is the reasons for that judgement.

Related developments

On 4 December 2000, Serushago filed a request for early release before the ICTR on the grounds, inter alia, of his substantial and continuing cooperation with the Prosecutor, family circumstances, voluntary surrender and guilty plea.

This request was denied by the President of the Tribunal on 12 May 2005 in light of the gravity of the crime for which Serushago had been convicted and that the factors indicated by Serushago in his application had already been taken into consideration by the Tribunal during sentencing as mitigating circumstances.

Legally relevant facts

Following the death of Rwandan President Jabyarimana on 6 April 1994, violence broke out between the Hutu and Tutsi ethnic populations in Rwanda. President Habyarimana having been a Hutu, it was alleged that his plane was delibertaely shot down, which triggered Hutu led violence against Tutsis and moderate Hutus. A militia organisation known as the Interahamwe has been recognised as one of the primary perpetartors of these crimes (paras. 4-5).

The Appellant was a de facto leader of the Interahamwe and a prominent member of his local prfeecture in Gisenyi (paras. 16-17). In these capacities, the Appellant attended a number of secret Hutu meetings (para. 18).

From April to July 1994, large numbers of Tutsis were killed in the Appeallant’s home prefecture of Ginsenyi and throughout Rwanda. The Appellant, as the leader of one of the groups of Interahamwe, led militiamen who perpetarted repeated attacks against Tutsis, including those refugees in hding at a parish church at Nyundo, those having sought refuge at a bishop’s home in Gisenyi, those in detention in the Gendarmerie station jail, and those seekin refuge on the premises of a commercial enterprise called Rwandex. At these locations Tutsis were abducted and summarily executed, including in four cases by the Appellant personally (para. 19).

Core legal questions

Did the Trial Chamber err in its appreciation of the weight of some mitigating circumstances, namely, the Appellant’s co-operation with the Prosecutor, his voluntary surrender, his guilty plea and public expression of remorse?
Is the International Criminal Tribunal for Rwanda obligated to take into consideration the sentencing practices of domestic Rwandan courts?

Specific legal rules and provisions

Articles 23(1) and 24 of the ICTR Statute.
Rule 101(B)(iii) of the ICTR Rules of Procedure and Evidence.

Court's holding and analysis

Under the Statute and the Rules of the Tribunal, a Trial Chamber is required as a matter of law to take into account mitigating circumstances. However, the weight to be attributed to any mitigating circumstance is a question of fact (para. 22). The Sentence pronounced by the Trial Chamber demonstrates that the mitigating circumstances referred to by the Appellant were take into account in order to afford the Appellant some clemency (para. 24). The Trial Chamber’s finding in this respect can only be overturned if the Appellant can demonstrate either that the Chamber took into account what it ought not to have or failed to take into account what it should have, and that this led to a miscarriage of justice (para. 23). This not being the case, the Appeals Chamber dismissed this ground of appeal.

Pursuant to Article 23(1) of the Statute, the Trial Chamber shall have recourse to the general sentencing practices of the Rwandan courts. This would include, arguendo, the Rwandan law of 30 August 1996, which provides for sentences between 7 and 11 years’ imprisonment in case of certain crimes. However, the obligation to take this law into account does not oblige the Trial Chamber to conform to its practice, merely to take account of it. This having been done by the Trial Chamber, the second ground for appeal is dismissed (paras. 29-30).

The appeal was dismissed and the sentence of 15 years’ imprisonment affirmed (para. 34).