Human Rights BriefA Legal Resource for the International Human Rights Community
International Criminial Tribunal for Rwanda
The Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T
by Malissa Khumprakob*
edited by Anne Heindel**
On May 15, 2003, the Trial Chamber of the International Criminal Tribunal for Rwanda rendered its judgment in the case of The Prosecutor v. Eli�zer Niyitegeka. The amended indictment charged Niyitegeka with genocide, complicity in genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, four counts of crimes against humanity (murder, extermination, rape, and other inhumane acts), and two counts of serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. The prosecution withdrew the war crimes charges in its closing brief. Niyitegeka was charged with individual responsibility under Article 6(1) of the ICTR Statute for all counts, and with superior responsibility under Article 6(3) for all counts except conspiracy to commit genocide. He was found guilty of individual responsibility under Article 6(1) for genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, and three counts of crimes against humanity (murder, extermination, and other inhumane acts) and was sentenced to life in prison.
Niyitegeka was a journalist and news presenter on Radio Rwanda. He was sworn in as Minister of Information of the Interim Government on April 9, 1994. He was also Chairman of the Mouvement Démocratique Républicain (MDR) in the Kibuye Prefecture from 1991 to 1994, and a member of the national political bureau. The Trial Chamber found that, between April and June 1994, he transported soldiers and weapons to an attack on Rwandan Tutsi, whom he called "Inyenzi" or "Cockroaches;" that, together with other prominent figures, he led several large-scale attacks by soldiers, policemen, and Interahamwe (paramilitary forces) against Tutsi refugees, during which "Tuba Tsemba Tsembe" ("let's exterminate them") was chanted; that he shot at Tutsi refugees during these attacks; that he personally murdered an old man, a young boy, and a young girl; and that he instructed attackers where to go and how to attack refugees.
Based on the findings above, as well as Niyitegeka's attendance and participation at meetings held to plan and organize the killing of Tutsis, his acts of incitement and encouragement, his ordering of Interahamwe to mutilate the body of a dead Tutsi woman, and his encouragement of the killing and subsequent mutilation of a prominent Tutsi leader, the Chamber ruled that Niyitegeka caused serious bodily or mental harm against the Tutsi ethnic group with the specific intent to destroy them in whole or in part. He was consequently found guilty of genocide and not guilty of the alternative charge of complicity in genocide. The Chamber also found him guilty of conspiracy to commit genocide for participating in an agreement between two or more persons to commit genocide.
The Chamber additionally found that Niyitegeka had directly or publicly incited genocide because he had both the specific intent to commit genocide and the intent to "directly prompt or provoke another to commit genocide." The Chamber followed the Akayesu definition of "direct and public." The Chamber thus considered whether the incitement was "public" in "light of the place where the incitement occurred and whether or not assistance was selective or limited," and whether it was "direct" in "light of its cultural and linguistic content." The Chamber found that Niyitegeka had told attackers to go to "work," which they had understood to mean kill Tutsis, and which had led to the launching of an attack. Moreover, at a subsequent meeting held to organize the next day's killings, Niyitegeka had thanked and commended the attackers for their "work," and encouraged them to participate in future attacks.
Due to the methodical, organized, and large-scale nature of the attacks in which Niyitegeka participated, the Trial Chamber found that he had committed murder, extermination, and other inhumane acts with the knowledge that these acts were part of a widespread or systematic attack against a civilian population on national, political, racial, or religious grounds. The Chamber found Niyitegeka not guilty of rape as a crime against humanity due to insufficient evidence that he had raped a young girl or "caused women to be raped."
In finding Niyitegeka guilty of murder as a crime against humanity, the Chamber found that he had murdered three Tutsis and participated in the mass killing of Tutsi refugees. In finding him also guilty of extermination as a crime against humanity, the Chamber followed the Vasiljevic judgment, which held that the material element of extermination "consists of any one act or combination of acts which contributes to the killing of a large number of individuals." The Chamber did not address whether these two offenses amounted to impermissible multiple convictions for the same conduct.
In finding Niyitegeka guilty of committing inhumane acts as a crime against humanity, the Chamber followed the Bagilishema decision that "an approving spectator, who is held in such respect by other perpetrators that his presence encourages them in their conduct," may be guilty of aiding and abetting a crime against humanity under Article 6(1) of the ICTY Statute. The Chamber decided that, by encouraging the attackers during the murder, mutilation, and public display of a prominent Tutsi leader, Niyitegeka had supported and encouraged the attack and aided and abetted the commission of the crime. The Chamber decided that by this act, and by ordering the Interahamwe to sexually mutilate the body of a dead Tutsi woman and leave her in plain view for several days, Niyitegeka had participated in a serious attack on the human dignity of the Tutsi community as a whole. His conduct thus met the material requirements for an inhumane act of similar gravity to other enumerated crimes against humanity in the Statute "such as would cause serious physical or mental suffering or constitute a serious attack on human dignity."
The Chamber rejected the charge that Niyitegeka had incurred superior responsibility for any of these crimes. It cited Musema for the proposition that "a civilian superior may be charged with superior responsibility only where he has effective control, be it de jure or de facto, over the persons committing violations." It followed Delalic in defining "effective control" as the ability to prevent subordinates from committing crimes or to punish them after they commit the crimes. The Chamber found that Niyitegeka's position as a Minister of Information did not by itself provide him authority over the subordinates named by the prosecution, such as bourgmestres or Interahamwe. It also found that evidence of influence in the community does not alone establish a superior-subordinate relationship. Thus, although Niyitegeka was found to have led several attacks, to have acted in a leadership position at meetings, and to have instructed attackers to carry out his orders on several occasions, the Chamber found insufficient evidence that he had the ability to prevent or punish the crimes committed by the attackers. Consequently, the Chamber did not examine the other elements of superior responsibility.
Citing Blaskic, the Trial Chamber found it appropriate to impose a single sentence for all offenses, as they could be recognized as belonging to a single transaction. The Chamber then sentenced Niyitegeka to life imprisonment after taking into account the gravity of the crimes, the practice of sentencing in Rwanda and in previous ICTR judgments, and the totality of the circumstances in the case.
* Malissa Khumprakob 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