ICTR Judgment Summaries: Semanza
THE PROSECUTOR V. LAURENT SEMANZA
by Mario Cava*
edited by Anne Heindel**
On May 15, 2003, the International Criminal Tribunal for Rwanda (ICTR) Trial Chamber delivered its judgment in the case of the Prosecutor v. Laurent Semanza, ICTR-97-20-T. It found Semanza guilty of complicity in genocide and five counts of crimes against humanity (rape, torture, extermination, and two murder counts). It found him not guilty of genocide, direct and public incitement to commit genocide, three counts of crimes against humanity (persecution, rape, murder), and three counts of serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. The Chamber handed down a twenty-five-year prison sentence that was reduced by six months due to the fact that he was not informed of the charges against him for thirty-six days when he was detained in custody. The sentence was further reduced more than seven years for time already served.
Aiding and Abetting and Complicity in Genocide
Semanza was charged both with committing genocide under Article 6(1) and with complicity to commit genocide under Article 2(3). The Trial Chamber determined that, because the count under Article 6(1) could be read as charging both for direct and accomplice liability, it overlapped with the charge of complicity in genocide under Article 2(3)(e). After finding no material distinction between responsibility for aiding and abetting under Article 6(1) and complicity under Article 2(3) or their mens rea requirements, it decided to narrow the charge under 6(1) to include only direct participation and retain the complicity charge under 2(3).
The Chamber then found Semanza guilty of complicity in genocide under Article 2(3) for providing substantial assistance to the principal perpetrators of the genocide committed in Bicumbi and Gikoro communes with the awareness that he was contributing to the crime of genocide. He was found to have gathered Interahamwe for an attack on the Musha church, to have directed the attackers to kill Tutsi refugees at the church, and to have participated in the killings at Mwulire Hill by bringing soldiers and Interahamwe there to assist in the killings. The Chamber inferred that Semanza knew of the principal perpetrator's genocidal intent from the context in which he committed his acts, including his presence at several sites where a substantial number of Tutsi were massacred because of their identification as Tutsi. Moreover, it found that his actions and words demonstrated that he possessed an independent genocidal intent. For example, he said that the Musha church needed to be burned to kill the Tutsi refugees inside, instructed soldiers to separate Hutu from Tutsi, who were then killed, and told attackers to go find those who had not yet been killed and exterminate them. Due to the Tribunal's finding that Semanza acted with specific genocidal intent, it is unclear why it did not find him guilty as a principal perpetrator; however, it stated without elaboration that "the participation of the Accused is most accurately described as that of an accomplice."
Comparatively, in the recent Krstić1 decision, the Appeals Chamber described complicity to commit genocide as a broader form of criminal liability than aiding and abetting and said that there is legal authority suggesting that genocidal intent must be shown for actions constituting complicity that go beyond mere aiding and abetting. However, since the Appeals Chamber found Krstic responsible as an aider and abettor, it did not take a position on the mens rea required for complicity. Instead, it limited its holding to a determination that the mens rea for aiding and abetting is knowledge of the principal perpetrator's genocidal intent. Consequently, as recently pointed out by the Milosevic Trial Chamber,
[t]here is . . . no authoritative decision within the Tribunal as to whether there is a difference in the mens rea for aiding and abetting genocide and complicity in genocide, either when the latter is broader than aiding and abetting, or indeed, when it is of the same scope as aiding and abetting.2
Under Krstić, Semanza might have been convicted of aiding and abetting under Article 6(1) instead of complicity under Article 2(3). However no material change in the verdict would likely have resulted from this substitution since, although the Semanza Trial Chamber found that Semanza had the specific intent to commit genocide, it nevertheless applied the lower-level knowledge mens rea in finding him guilty of complicity.
The Trial Chamber found Semanza not guilty of persecution as a crime against humanity for the killings of moderate Hutu and other Tutsi sympathizers after concluding that Tutsi were the primary target of the attacks. It interpreted the listed grounds for discrimination (political, racial, and religious) strictly, excluding ethnicity as falling within these grounds. Moreover, it said that nothing in the facts suggested that moderate Hutu were a "political" group or that there was a political motive for the killings. A less restrictive view was taken in the Ruggiu case, in which the Trial Chamber found the defendant guilty of persecution on political grounds for making broadcasts "directed towards rallying the population against the 'enemy', the RPF and those who were considered to be allies of the RPF, regardless of their ethnic background." Similarly, the International Criminal Tribunal for the Former Yugoslavia (ICTY) has found that the discriminatory requirement can be satisfied if the victim group is composed of members defined by their exclusion from the persecutory group. Thus, in the Kvocka case, the Trial Chamber said that "it is disingenuous to contend that religion, politics, and ethnicity did not define the group targeted for attack. . . . For example, if a Bosnian Serb was targeted on suspicion of sympathizing with Bosnian Muslims, that attack could be classified as persecutory."3
Due to Semanza's substantial participation in the massacre of Tutsi refugees at Musha church and Mwulire Hill, he was found responsible for aiding and abetting both murder and extermination as crimes against humanity. The Trial Chamber applied the Musema test to determine if multiple criminal convictions were appropriate for these crimes since they transpired out of the same set of facts. In Musema, the Appeals Chamber found multiple convictions permissible if each statutory provision involved has a materially distinct element not contained in the other. The Trial Chamber therefore determined that because murder as a crime against humanity requires premeditation, and extermination as a crime against humanity requires mass killing, they are legally distinct. Nevertheless, noting the Appeals Chamber's instruction in Kunarac to avoid applying this test mechanically, the Trial Chamber concluded that the crimes were not substantially different and that a conviction on both counts "would not provide a better or more complete description of the entire criminal culpability of the Accused." He was thus convicted only on the charge of extermination.
Comparatively, after finding Semanza guilty of instigating rape and torture (severe mental suffering) as crimes against humanity due to facts arising from the same incident, the Trial Chamber decided that both convictions should be entered to give a complete picture of Semanza's conduct. Likewise, in finding Semanza guilty of both torture and murder as crimes against humanity for his striking of a victim with a machete during questioning, it determined that "when acts of torture lead to the killing of the victim, the culpable torturous conduct remains of such great independent importance that it must be reflected in the cumulative conviction on both crimes."
In addition to individual responsibility, Semanza was charged with superior responsibility under Article 6(3) and with "ordering" under Article 6(1). The Chamber found that both types of leadership responsibility require proof of a superior-subordinate relationship, which the prosecutor had not established. The Chamber applied the Musema standard, pursuant to which "[a] superior-subordinate relationship is established by showing a formal or informal hierarchical relationship involving an accused's effective control over the direct perpetrators." The Chamber rejected the prosecution's allegation that Semanza had exercised either de jure and/or de facto authority over militiamen during the attacks on Tutsi refugees. It found that evidence that Semanza had been appointed to the transitional parliament did not establish his de jure authority because the prosecutor had not established the scope and nature of a parliamentarian's authority or demonstrated that this position gave Semanza authority over militiamen. The Chamber also rejected the theory that Semanza's general influence in the community, evidenced by such factors as his twenty years of service as bourgmestre and his close connections to high government persons, was sufficient to establish a superior-subordinate relationship. Likewise, the Chamber found that eyewitness testimony that Semanza had commanded or coordinated attacks was unreliable due to the lack of adequate detail showing that he had actual authority over the principal perpetrators.
*Mario Cava is a J.D. candidate at the Washington College of Law
**Anne Heindel is the assistant director of the War Crimes Research Office at the Washington College of Law
1. Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, ICTY Appeals Chamber Judgment, 19 April 2004.
2. Prosecutor v. Slobodon Milosevic, Case No. IT-02-54-T, ICTY Trial Chamber Judgment 296, 16 June 2004.
3. Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30/1, ICTY Trial Chamber Judgment 195, 2 Nov. 2001.