Human Rights BriefA Legal Resource for the International Human Rights Community
Sylvestre Gacumbitsi v. Prosecutor
Case No. ICTR-2001-64-T
by Anna Triponel*
edited by Anne Heindel**
On June 17, 2004, Trial Chamber III of the International Criminal Tribunal for Rwanda (ICTR) delivered its judgment in Prosecutor v. Sylvestre Gacumbitsi. Sylvestre Gacumbitsi was charged with criminal responsibility for his major role in organizing and executing a campaign against Tutsi in the Rusumo commune in April 1994 while he was bourgmestre. The Trial Chamber found him guilty of genocide and the crimes against humanity of extermination and rape, and not guilty of complicity in genocide and the crime against humanity of murder. He was sentenced to thirty years imprisonment.
In finding Gacumbitsi guilty of genocide, the Trial Chamber examined his deeds and words together. The Trial Chamber found he demonstrated his genocidal intent through urging the conseillers de secteur (lower-level government officials) to incite the Hutu to kill the Tutsi, encouraging the Hutu public to rape and kill Tutsi, and personally killing a Tutsi (thereby signaling the beginning of an attack at Nyarubuye Parish during which many Tutsis were killed). His public instigations to rape caused serious bodily harm to Tutsi women and girls by leading directly to their rape by Hutu attackers. He also planned, instigated, ordered, committed, and aided and abetted the killing of Tutsi civilians by convening a meeting of conseillers de secteur, instructing them to incite Hutu to kill Tutsi, delivering boxes of weapons to them, checking up on their efforts, and personally killing a Tutsi. Moreover, his speeches urging the Hutu public to kill Tutsi led to several attacks, including one under his direct supervision. Additionally, he assisted the attackers by leading vehicle convoys, doing nothing to prevent attackers from being transported in communal vehicles, and being present throughout the attacks. Although the Trial Chamber found that he ordered the communal policeman over whom he had formal superior authority to kill, it did not find sufficient evidence that he ordered any other armed groups to participate in the attacks. It determined that neither Gacumbitsi's superior authority over these groups, nor circumstances suggesting that his words would have been perceived by them as orders, was established. After finding that the charge of complicity in genocide was an alternative count to genocide, the Trial Chamber dismissed it without discussion.
Based on similar factual allegations as those underlying the genocide charge, the Trial Chamber found Gacumbitsi responsible for extermination as a crime against humanity. It determined that Gacumbitsi both knew of the widespread and systematic attack that was taking place against the civilian population and had the intent to participate in the massacre of a large number of victims at Nyarubuye Parish. His intent was shown by his leading role in preparing and launching the attack, his subsequent visits to the parish to instigate attackers to kill survivors, and his supervision of the attackers. The Trial Chamber found Gacumbitsi not guilty of the crime against humanity of murder, however, due to a lack of evidence of his responsibility for the particular murders listed in the indictment.
As noted above, Gacumbitsi was found to have instigated the rape of several Tutsi women and girls that led directly them being raped. The Trial Chamber, however, found no link between his words and other rapes that had a more distant connection in time and space. In finding Gacumbitsi guilty of the crime against humanity of rape, the Trial Chamber determined that the definition of rape was not limited to "any penetration of the victim's vagina by the rapist with his genitals or with any object." It cited in support of this definition the Akayesu Trial Judgment, which defined rape "as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive," as well as the more recent Kunarac Appeals Judgment by the International Criminal Tribunal for the Former Yugoslavia (ICTY), which further refined that standard to "the sexual penetration, however slight . . . of the vagina or anus . . . or mouth of the victim without the consent of the victim."
The Trial Chamber noted that the "victims' lack of consent to the rapes" was adequately established by the facts that Gacumbitsi threatened to kill them in an atrocious manner if they resisted, and that the victims who did flee were attacked. It is unclear from this statement whether the Trial Chamber found the defendant's threat or use of force necessary to establish the victim's lack of consent. Earlier jurisprudence by the Trial Chamber in Semanza and Kajelijeli has established that non-consent should be "assessed within the context of the surrounding circumstances." This standard was supported by the ICTY Appeals Chamber in Kunarac, which then clarified that although "[f ]orce or threat of force provides clear evidence of non-consent, . . . force is not an element per se of rape." It determined that
[t]here are 'factors [other than force] which would render an act of sexual penetration non-consensual or nonvoluntary on the part of the victim.' A narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force.
Because the Trial Chamber determined that Gacumbitsi was personally responsible for genocide and the crimes against humanity of extermination and rape under Article 6(1) of the ICTR Statute, it deemed it unnecessary to decide whether he could also be held responsible as a superior under Article 6(3), because these forms of responsibility "cannot be charged cumulatively on the same basis of facts. In case of cumulative charging, the Trial Chamber will retain only the form of responsibility that best describes the Accused's culpable conduct." This view seems to be in accord with a movement by both Tribunals towards alternative charging under these articles. For example, the Kayishema Trial Chamber found that these two forms of responsibility are "not mutually exclusive," but the more recent Ntagerura et al. Trial Judgment found that they are alternative modes of responsibility. Similarly, in Blaskic, the ICTY Trial Chamber allowed the cumulative application of personal responsibility and command responsibility, but in more recent cases, such as Krstic, Krnojelac, and Naletilic & Martinovic, the Trial Chamber has determined that only the mode of responsibility that most appropriately expresses the accused's culpability should be charged.
Nevertheless, in sentencing Gacumbitsi, the Trial Chamber considered that his "active participation in the said crimes explain[ed] why he could not take measures [as a superior] to prevent or punish the perpetrators" and was an aggravating factor. In doing so, it appears to have adopted the view of the Ntagerura et al. Trial Chamber that the alternative (uncharged) form of responsibility should be considered in sentencing "in order to reflect the totality of the accused's culpable conduct."
*Anna Triponel is an LL.M. 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