ICTR Judgment Summaries: Kamuhanda

Prosecutor v. Jean De Dieu Kamuhanda
Case No. ICTR-2001-64-A

by Brian McPherson*
edited by Anne Heindel**

On January 22, 2004, Trial Chamber II issued its judgment in Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-95-54A-T. The indictment contained nine counts: conspiracy to commit genocide, genocide, complicity in genocide, crimes against humanity (murder, extermination, rape, and other inhumane acts), and violations of Article 3 common to the Geneva Conventions and Additional Protocol II (outrages upon personal dignity, and killing and violence). Kamuhanda was convicted of genocide and the crime against humanity of extermination, for which he received a sentence of life imprisonment.

Kamuhanda was a respected and influential member of the Gikomero commune before the genocide due to his high position as a civil servant. Then, from late May until mid-July 1994, he became Minister of Higher Education and Scientific Research in the interim government. The charges against him were based on his alleged individual and superior responsibility for attacks killing thousands of Tutsi refugees at Gikomero Parish Compound and Gishaka Catholic Parish Church in Kigali-Rural pr´┐Żfecture in April 1994.

Kamuhanda contended that the indictment did not provide sufficient notice that he was being charged with the massacre at Gishaka Catholic Parish Church. The Trial Chamber noted that while the events at Gishaka Church were not specifically mentioned in the indictment, the indictment did allege generally that Kamuhanda supervised killings in the area of Kigali-Rural, where the church is located. In addition, the Prosecutor's opening statement set out allegations with respect to Gishaka Church. The Chamber thus concluded that the indictment was not vague and gave the defense sufficient notice. Moreover, it noted that no prejudice to the defense resulted from the indictment's lack of specificity since the defense was given additional time to prepare for its cross-examination of witnesses to the massacre. Nevertheless, the Trial Chamber found the evidence regarding the attack on the Gishaka Church insufficient to implicate Kamuhanda.

With regard to the attack at Gikomero Parish Compound, Kamuhanda submitted an alibi defense that the Chamber determined not to be credible. The Trial Chamber observed that in an alibi defense, the accused seeks raise reasonable doubt regarding the case against him by demonstrating that he could not have committed the alleged crime. The burden rests upon the prosecution to prove its case beyond a reasonable doubt in all aspects - including eliminating the reasonable possibility that the alibi is true. The Chamber stressed that the failure of Kamuhanda to sufficiently establish that he could not have been present when the crimes were committed was not an indication of his guilt.

In considering the evidence of Kamuhanda's participation in the Gikomero Parish Compound attack, the Trial Chamber found that at a meeting at Kamuhanda's cousins' home in early April 1994, Kamuhanda had incited those present to kill Tutsi and had distributed weapons for that purpose. A few days later on April 12, Kamuhanda led a group of Interahamwe, soldiers, policemen, and members of the local population to the Gikomero Compound and initiated the attack against the Tutsi seeking refuge there by telling them to "work," which was understood as an order that the killings should start. Once the killings began, he left the Compound. During the attack, several thousand Tutsi were killed and injured, and some women were raped before being killed. The Trial Chamber found that the killings were systematically directed against Tutsi civilians and that Kamuhanda's conduct showed that he participated with the specific intent to destroy the Tutsi ethnic group. Although the Trial Chamber determined that Kamuhanda had been in a position of authority over the attackers, it found no specific evidence that he had a formal superior-subordinate relationship with them or that he maintained effective control over them at the time of the attack. Consequently he was found to have individual responsibility for instigating, ordering, and aiding and abetting the killings, but not to have superior responsibility for those who killed. The Chamber convicted him of genocide and dismissed the alternative count of complicity in genocide. Due to insufficient evidence, at the end of the prosecution case Kamuhanda had already been acquitted of the charge of conspiracy in genocide.

On the basis of the same facts, Kamuhanda with was charged with the crimes against humanity of murder, extermination, rape and other inhumane acts. The Trial Chamber found that the attack on the Gikomero Parish Compound was part of a widespread attack against the civilian Tutsi population and that Kamuhanda knew that his actions formed part of the attack. The Trial Chamber noted that a conviction for extermination requires that there have been large scale killing of a substantial number of individuals, and it found that the attack met this criterion. Accordingly, the Chamber found Kamuhanda guilty of extermination as a crime against humanity. The Chamber determined that the indictment had drawn "insufficient distinction" between this charge and the charge of murder and had not specifically identified those persons whom he was accused of having murdered. Consequently, the Chamber dismissed the murder charge and considered evidence relating to specific killings as examples of groups of people who were targeted for extermination. Regarding the charge of rape, the Chamber found credible the witnesses who testified that groups of women and girls had been separated out and led away before Kamuhanda left the area, including one who heard the attackers say "we are going to rape you and taste Tutsi women." Nevertheless, because these witnesses did not personally witness the rapes, but heard about them afterward, the Chamber was not satisfied with the evidence and found Kamuhunda not guilty of this crime. With regard to the charge of "other inhumane acts," the Chamber found that there was not enough specific evidence to establish this crime beyond a reasonable doubt.

The Trial Chamber found insufficient the evidence that Kamuhanda, either in a private capacity or in his role as a civil servant, worked with the military, actively supported the war effort or that his actions were closely related to the hostilities or committed in conjunction with the armed conflict. Accordingly, the necessary nexus to the armed conflict had not been demonstrated and the Chamber acquitted Kamuhanda of serious violation of outrages upon personal dignity and for killing and causing violence under common Article 3 of the Geneva Conventions and Additional Protocol II.

In imposing a life sentence, the Trial Chamber found no mitigating factors. As an aggravating factor, it noted that due to his influence within his community Kamuhanda had been in the position to promote tolerance, but had instead led an attack against people who had taken shelter in a sanctuary.

* Brian McPherson is an attorney specializing in international criminal law **Anne Heindel is the assistant director of the War Crimes Research Office at the Washington College of Law