Prosecutor v. Emmanuel Ndindabahizi
Case No. ICTR-2001-71-I
by Christina Barba*
edited by Anne Heindel**
On July 15, 2004, Trial Chamber I of the International Criminal Tribunal for Rwanda (ICTR) delivered its judgment in Prosecutor v. Ndindabahizi. The accused, Emmanuel Ndindabahizi, served as Minister of Finance in the interim government that seized power after the April 9, 1994, plane crash that killed the President of Rwanda and launched the Rwandan genocide. The amended indictment charged the accused with genocide, extermination as a crime against humanity, and murder as a crime against humanity. The Chamber found Ndindabahizi guilty on all charges and sentenced him to imprisonment for the remainder of his life.
The Ndindabahizi case concerned the accused's actions in relation to the events at Gitwa Hill and the roadblocks along the Kibuye-Gitarama road in Gitesi Commune in April and May 1994. Gitwa Hill was the site of a gathering of thousands of Tutsi refugees who were encircled and sporadically attacked from approximately April 17 - April 26, 2005, by a mostly civilian group armed with machetes, guns, grenades, and other weapons, resulting in the death of thousands of Tutsis. The roadblocks along the Kibuye-Gitarama road were also the site of numerous killings of Tutsis in May 1994.
ATTACKS AT GITWA HILL
The Trial Chamber found Ndindabahizi guilty of instigating and aiding and abetting genocide at Gitwa Hill. On the two occasions he was found to have visited the Hill, the attackers taking part in the siege gathered around him and listened to his words, which held considerable authority due to his position in the government. Consequently, he was found to have substantially contributed to the mass killing of Tutsis by verbally encouraging the killings with statements such as, "'Go. There are Tutsi who have become difficult �There are Tutsi on the hill and they've proved to be difficult. You, therefore have to kill them, and when you kill them, you will be compensated.'" In addition to urging the attackers to kill, Ndindabahizi distributed weapons to them and, on at least one occasion, transported about 50 armed Interahamwe militia to join in the attacks. The Chamber found that Ndindabahizi knew that his actions and words were part of a wider context of targeted killings of Tutsis throughout the Kibuye Prefecture and Rwanda. Moreover, his explicit instructions to kill Tutsis and his actions to that effect demonstrated his intent to destroy the Tutsi ethnic group in whole or in part.
The Chamber determined that the killing of the refugees also met the requirements of a crime against humanity because it was part of the widespread ethnic massacres occurring throughout Rwanda and the Kibuye Prefecture during this period. Ndindabahizi knew that the attack at Gitwa Hill was part of these attacks and clearly demonstrated his intent to kill the refugees. The Chamber noted that no evidence established that the accused had directly killed any person at Gitwa Hill. Nevertheless, he had distributed weapons, transported attackers, and urged the Interahamwe to kill Tutsis because of their ethnic identity. The Chamber reiterated that, as a government minister, the accused's words and actions were perceived as authoritative and had a motivating effect on the attackers. Thus, his actions satisfied the material element of the crime of extermination, which requires contribution to or participation in the killings of large numbers of individuals. Consequently, Ndindabahizi was found guilty of committing extermination by creating and contributing to the conditions for mass killing and, in the alternative, of instigating and aiding and abetting extermination.
ROADBLOCKS IN GITESI COMMUNE
In relation to the roadblocks along Kibuye-Gitarama Road, the Trial Chamber found that, although the accused distributed weapons and encouraged the killing of Tutsis at two different locations, there was limited evidence that he had directly and substantially contributed to the multiple killings that took place. For example, although Ndindabahizi had encouraged Interahamwe and others at a roadblock near Nyabahanga Bridge to kill Tutsi women married to Hutu men, the Chamber found that there was insufficient evidence of when or where such killings actually occurred to connect his conduct to the crimes.
Nevertheless, the Chamber found Ndindabahizi guilty of instigating and aiding and abetting genocide for the killing of one individual named Nors, who was apprehended and killed immediately after the accused had passed out machetes and money to people manning the Gaseke roadblock and asked them why Tutsis were being allowed passage. The Trial Chamber affirmed that the killing of a single person who is a member of a protected group is sufficient to satisfy the definition of genocide if committed with the requisite specific intent. Because many Tutsi had been targeted and killed at the Gaseke roadblock, and the attackers had to have been aware that Tutsis were being targeted throughout the area, the Chamber found that, in killing Nors, the attackers had committed genocide.
The Trial Chamber noted that Nors was part German and part Rwandan, and that his ethnic identity was characterized in different ways by different witnesses. To determine whether Nors had been targeted on the basis of his membership in the Tutsi ethnic group, the Chamber followed the Bagilishema judgment in finding that "the subjective intentions of the perpetrators are of primary importance." Consequently, "if a victim was perceived by a perpetrator as belonging to a protected group, the victim should be considered by the Chamber as a member of the protected group, for purposes of genocide." The Chamber noted that Nors had been described as having some physical traits of the Tutsi, was perceived to be part-Tutsi, and was killed immediately after the accused had instructed the attackers to kill Tutsis. It thus determined that Nors was targeted and killed because he was understood to be, at least in part, of Tutsi ethnicity. Although one witness testified that Nors had been targeted "because he was white, or Belgian," the Trial Chamber found that the existence of possible additional motivations for his killing did not displace the attackers' genocidal intent. The Trial Chamber cited the Niyitegeka case, in which the ICTR Appeals Chamber found that acting with the specific intent to destroy a group "as such � does not prohibit a conviction for genocide in a case in which the perpetrator was also driven by other motivations that are legally irrelevant in this context."
The Chamber then found that the killing of Nors was committed as part of a widespread and systematic attack against the Tutsi and was therefore also punishable as a crime against humanity. The Chamber noted that the roadblocks were part of planned attacks on the Tutsi civilian population and that Nors' death resulted from those attacks. By explicitly urging the roadblock guards to kill Tutsis and providing them with machetes and money for that purpose, the accused directly and substantially contributed to the intentional killing of Nors. As such, the Trial Chamber found that the accused both instigated and aided and abetted in the crime against humanity of murder.
In sentencing Ndindabahizi to life imprisonment, the Trial Chamber noted that, although he had been found guilty of participating in only a few criminal events, his active support for a policy of genocide as an influential governmental figure outweighed any mitigating factors.
*Christina Barba is 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
The proper citation for this article in the Human Rights Brief Volume 13, Issue 1, beginning at page 10 is: 13 No. 1 Hum. Rts. Brief 10 (2005).