Human Rights BriefA Legal Resource for the International Human Rights Community
Prosecutor v. Elizaphan & Gérard Ntakirutimana
Case Nos. ICTR-96-10, ICTR-96-17-T
by Annelies Brock*
edited by Anne Heindel**
The Mugonero indictment addressed the April 16th attack on Tutsis gathered in the Mugonero Complex in Kibuye Pr�fecture. The Complex was run by the Seventh Day Adventist Association and contained a nursing school, a chapel, and a hospital, as well as other office and residential buildings. Elizaphan was a senior pastor at the Complex, and G�rard worked as a doctor at the Complex hospital. Most of the hundreds killed during the attack were unarmed Tutsi patients and civilians who had sought shelter during the recent violence in the area. The Bisesero indictment addressed numerous attacks in the Bisesero area of Kibuye Prefecture over a period of several months, during which Interahamwe, gendarmes, soldiers, and civilians in convoys of vehicles chased and shot at Tutsi refugees, killing hundreds. While chasing the refugees, many of whom were survivors of the massacre at the Mugonero Complex, the attackers sang, "[e]xterminate them; look for them everywhere; kill them; and get it over with, in all the forests."
Regarding the charge of genocide, the Trial Chamber noted that Elizaphan drove armed attackers to the Complex and to areas in Bisesero where Tutsis were believed to be hiding, pointed out refugees who were attempting to flee, and encouraged the attackers to "kill" and "exterminate" them. He also conveyed attackers to the Murambi Church and ordered them to remove the roof so that it could no longer be used as a hiding-place for the Tutsis, thus facilitating the work of the attackers in hunting them down and killing them. The Chamber considered "his position of authority in the community" in finding that his actions and presence at the scene of the attacks "constituted practical assistance and encouragement, which substantially contributed to the commission of the crime of genocide by these attackers," thus meeting the elements for aiding and abetting. The totality of this behavior, together with Elizaphan's knowledge that Tutsis were being targeted for attack, led the Court to conclude that he had acted with the specific intent to commit genocide. After finding Elizaphan guilty of aiding and abetting genocide, the Chamber held that the alternative charge of complicity in genocide ceased to apply without discussing the relationship between these types of responsibility.
The Chamber found G�rard guilty of committing genocide based on his participation in multiple attacks against Tutsi refugees, his killing of three named Tutsis, and his procurement of ammunition and manpower for the attack on the Complex. These actions, together with his leadership (on at least one occasion) of attackers shooting at fleeing Tutsi refugees during the Bisesero attacks, led the Chamber to find that he had acted with genocidal intent. The Chamber consequently found it unnecessary to consider the alternative charge of complicity in genocide.
In requiring the same level of intent for both aiding and abetting genocide and committing genocide, the Trial Chamber applied a higher standard for aiding and abetting than that required by the International Criminal Tribunal for Yugoslavia (ICTY) Appeals Chamber in the subsequent Krnojelac case and upheld by it again last year in Krstic. In Krstic, the Appeals Chamber did not require that the accused share the principal actor's specific intent to commit genocide to be found guilty of aiding and abetting genocide. It found that "an individual who aids and abets a specific intent offense may be held responsible if he assists the commission of the crime knowing the intent behind the crime." Because proof of specific intent to aid and abet genocide would likely imply knowledge that the principle perpetrators acted with the intent to commit genocide, it does not appear that this jurisprudence would have impacted Elizaphan's conviction on this charge.
Elizaphan and G�rard were also charged with conspiring with each other and with Charles Sikubwabo to commit genocide. The Chamber found that G�rard attended meetings in which he participated in the planning of attacks and distributed weapons, but there was no evidence that Elizaphan or Charles Sikubwabo were present during any of those meetings. Since there was no proof that the accused had an agreement to commit genocide, both Elizaphan and G�rard were found not guilty of this charge. The Chamber noted that to date the ICTR had convicted only one person of conspiracy to commit genocide, following a guilty plea.
Elizaphan and G�rard were also both charged with crimes against humanity for acts of murder, extermination, and "other inhumane acts." Although the Chamber had found that there was a widespread and systematic attack against the civilian Tutsi population at the Mugonero Complex on April 16th and in Bisesero from April to June 1994, it did not find that Elizaphan had "aided an abetted in the planning, preparation and execution of a crime against humanity (murder)." G�rard was found guilty of the crime against humanity of murder for killing three people. The Chamber found that he shot and killed Charles Ukobizaba during the attack on the Mugonero Complex, killed Esdras at a primary school, and shot and killed the wife of Nzamwita at Muyira Hill. Given the Chamber's previous findings that G�rard participated in many attacks, was associated with attackers, and procured munitions and other support for the attackers, the Chamber found that he knew the killings were part of a widespread and systematic attack.
Although the Trial Chamber had previously determined that "many hundreds" of people died in the attacks, neither Elizaphan nor G�rard was found guilty of the crime against humanity of extermination. The Trial Chamber cited the Vasiljevic judgment of the ICTY for the proposition that even a "remote or indirect" contribution would be sufficient for a finding of responsibility for extermination. Nevertheless, because only three of the individuals killed had been named or described, it found "insufficient evidence as to a large number of individuals killed as a result of the Accused's actions." Comparatively, in its subsequent Niyitegeka decision, the Trial Chamber found the accused guilty of extermination because of "his participation in attacks against Tutsi, and his acts of shooting at Tutsi refugees . . ., and his killing of . . . three persons." Notably, in neither decision were more than three Tutsis killed during the attacks "named or described."
Elizaphan and G�rard were also found not guilty of the crime against humanity of "other inhumane acts." The indictment charge G�rard with inhumane acts for closing the medical store, denying treatment to Tutsi patients, and cutting off supplies at Mugonero Complex. Elizaphan was charged with responsibility for G�rard's acts "by virtue of his position as head of the Complex." The Trial Chamber found, however, that the Prosecution had not proved that any of these alleged acts had taken place. Elizaphan and G�rard were also charged with inhumane acts for the removal of the roof of the Murambi Church at Bisesero, which had deprived the refugees of a place to hide. The Chamber found that G�rard did not have sufficient notice that he was charged with removing the church roof. While Elizaphan had conveyed attackers to Murambi Church and ordered them to remove the roof, thus facilitating "the hunting down and killing of the refugees," the Trial Chamber held that it had not been proved that this act "resulted in serious physical or mental suffering, or amounted to a serious attack on human dignity, of the refugees." The Chamber was also not satisfied that this act met the threshold requirement for this category of crimes that it be "of similar seriousness to other enumerated acts in the Article."
G�rard was charged with individual criminal responsibility as a superior for genocide, complicity in genocide, and the crimes against humanity of murder, extermination, and other inhumane acts. The Chamber found some evidence that G�rard had taken charge of Mugonero Hospital during the time of the attack, and that he played a prominent role during some of the attacks on Tutsis at Bisesero. Nevertheless, it found that the Prosecution had failed to prove that G�rard had "effective control" over anyone participating in the attacks.
Under the Bisesero indictment, both Elizaphan and G�rard were charged with violations of common Article 3 to the Geneva Conventions and of Additional Protocol II for committing "violence to life, health and physical or mental well-being, in particular murder and cruel treatment of persons not taking an active part in hostilities." The Chamber stated that the ICTR had never found anyone guilty under this charge and cited the ICTY's Vasiljevic Trial Judgment for the proposition that because "customary international law does not provide a sufficiently precise definition of a crime under this provision," it violates the principle of nullum crimen sine lege (no crime without law). The provision addressed by the Vasiljevic holding is not identical to the one at issue in this case, however. Additionally, that holding referred only to the charge of "violence to life and person" as a violation of the laws and customs of war. The offence of murder as a violation of the laws and customs of war was charged as a separate offence and found by the Vasiljevic Chamber to be "a well-defined crime under customary international law." Notably, the provision under which Elizaphan and G�rard were charged explicitly addressed violence that amounted "in particular" to murder and cruel treatment. The Ntakirutimana Trial Chamber, however, offered no additional reasons for finding a lack of clarity in the definition of the crime with which they were charged. Nonetheless, the Chamber was also not satisfied that all elements of the offence, including proof of the existence of a nexus between the alleged acts and the armed conflict, had been met.
At sentencing, the Chamber noted as mitigating circumstances that Elizaphan was 78 years old, was in poor health, and "was essentially a person of good moral character until the events of April to July of 1994 during which he was swept along with many Rwandans into criminal conduct." The Chamber, however, considered these same factors to be aggravating circumstances. Because many of those killed in the attacks were his own parishioners who had specifically sought his assistance in the hope that his intervention could save their lives, Elizaphan was deemed to have abused the trust placed in him as a leader in the community. Nevertheless, the Chamber sentenced him to imprisonment for ten years. In considering the mitigating circumstances in G�rard's case, the Chamber noted that he assisted a number of Tutsi women and children during April 1994. However, the Chamber found it "particularly egregious that, as a medical doctor, he took lives instead of saving them." The Chamber also took into consideration the fact that his crimes were committed with zeal, and that he attacked civilians even in the hospital in which he worked. Determining that the aggravating factors outweighed those in mitigation, the Chamber sentenced G�rard to imprisonment for 25 years.
*Annelies Brock 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