Laurent Semanza v. Prosecutor
Case No. ICTR-97-20-A
by Anne Heindel*
On May 20, 2005, the ICTR Appeals Chamber delivered its judgment in the case of Laurent Semanza v. Prosecutor. Laurent Semanza had served as bourgmestre of Bicumbi commune for 20 years until 1993 and was subsequently selected to represent the Mouvement R�publicain National et D�mocratique (MRND) in the National Assembly envisioned by the Arusha Accords. The Trial Chamber sentenced him to 25 years imprisonment in May 2003 after finding him guilty of complicity in genocide, aiding and abetting the crime against humanity of extermination, and instigating the crimes against humanity of rape, torture, and murder for his participation in attacks committed in Bicumbi and Gikoro communes in April 1994, including massacres at Musha Church and Mwulire Hill.
The Appeals Chamber rejected all of Semanza's grounds of appeal, including those relating to an apprehension of bias of the Trial Chamber; defects in the indictment; violations of the right to counsel; errors with respect to his alibi defense, the taking of judicial notice and the evaluation of evidence; cumulative charging and convictions; and errors in sentencing.
The Appeals Chamber also rejected the Prosecution's contention that the Trial Chamber had incorrectly required proof of a superior-subordinate relationship to establish the mode of responsibility of "ordering." Instead, the Appeals Chamber found that, in seeking evidence of the implied existence of such a relationship, the Trial Chamber had acted in accord with the views of the International Criminal Tribunal for the Former Yugoslavia (ICTY) Appeals Chamber in Kordic and Cerkez. The Appeals Chamber agreed with the ICTY that, under this approach, to prove the actus reus of "ordering," "It is sufficient that there is proof of some position of authority on the part of the accused that would compel another person to commit a crime in following the accused's order." Although the Appeals Chamber held that the Trial Chamber had applied the appropriate legal standard, it nevertheless found that the evidence did not support the Trial Chamber's determination that Semanza lacked any form of authority over the attackers at Musha Church. The Trial Chamber's finding that refugees at the church had been executed "on the directions" of Semanza meant that "no reasonable trier of fact could hold otherwise than that the attackers to whom the Appellant gave directions regarded him as speaking with authority." This authority established a real superior-subordinate relationship, even if "informal or of a purely temporary nature." As a consequence the Appeals Chamber reversed Semanza's conviction for complicity in genocide and aiding and abetting extermination as a crime against humanity at Musha Church and entered a conviction for ordering these crimes as a principal perpetrator.
The Prosecution also challenged the Trial Chamber's finding that, although Semanza was responsible for serious violations of Common Article 3 to the Geneva Conventions and Additional Protocol II, a conviction could not be entered for these crimes because they were based on the same conduct as his convictions for complicity in genocide and crimes against humanity. The Appeals Chamber noted that it is settled law that cumulative convictions are permissible "if each statutory provision involved has a materially distinct element not contained in the other." As held by the Rutaganda Appeals Chamber, war crimes have materially distinct element from genocide and crimes against humanity, "namely the existence of a nexus between the alleged crimes and the armed conflict." Likewise, convictions for genocide and crimes against humanity require proof of materially distinct elements: the specific intent to commit genocide for the former and the existence of a widespread or systematic attack against a civilian population for the latter. Because the Trial Chamber's failure to enter a conviction for war crimes thus constituted legal error, the Appeals Chamber entered a conviction on this basis for aiding and abetting the murders at Mwulire Hill, instigating the rape and torture of Victim A and the murder of Victim B, committing the torture and intentional murder of Victim C, and due to its previous finding as to Semanza's individual responsibility for the attacks at the church, ordering the murders at Musha Church.
Because Semanza was responsible for ordering and not merely aiding and abetting the killings at Musha Church, the Appeals Chamber determined that, in accordance with the prior practice of the Tribunals of imposing higher sentences for co-perpetration, Semanza's sentence should be increased. Although it agreed with the Prosecutor that convictions for perpetrating genocide had generally resulted in life sentences, it determined that "the length of Appellant's sentence should be mitigated by violations of his pre-trial rights," suggesting that the fact that Semanza was neither promptly notified of the charges against him nor provided with an opportunity to challenge the lawfulness of his detention while awaiting transfer to the Tribunal made the imposition of a life sentence inappropriate. Instead, the Appeals Chamber increased his sentence by ten years to a total of 35 years imprisonment, minus credit for time served and the six-month reduction ordered by the Trial Chamber as a consequence of his unlawful detention. In their separate opinion, Judges Shahabuddeen and G�ney opined that the new sentence for genocide was "lenient," stating that, but for the six-month reduction, Semanza's participation in genocide would have justified a life sentence.
*Anne Heindel is the assistant director of the War Crimes Research Office at the Washington College of Law
The proper citation for this article in the Human Rights Brief Volume 13, Issue 2, beginning at page 10 is: 13 No. 2 Hum. Rts. Brief 10 (2006).