Human Rights Brief
A Legal Resource for the International Human Rights Community

Volume 13 Issue 1
Fall 2005

Prosecutor v. Andr� Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe
Case No. ICTR-99-46-T

by Brianne McGonigle*
edited by Anne Heindel**

On February 25, 2004, Trial Chamber III of the ICTR rendered its judgment in the case of Prosecutor v. Andr� Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe. This case addressed the responsibility of the accused for large-scale attacks against primarily Tutsi refugees, as well as the imprisonment, mistreatment, and killing of specific individuals in Cyangugu from April - June 1994. During this period, the Interahamwe militia and other groups killed massive numbers of Tutsi civilians in the prefecture. Moreover, groups such as gendarmes, soldiers, and Kagano Commune officials, over whom the accused had legal authority, participated in several attacks.

Ntagerura, the Minister of Transportation and Communication in the interim government, was charged with genocide, conspiracy to commit genocide, two counts of complicity in genocide, extermination as a crime against humanity, and serious violations of Article 3 common to the Geneva Conventions. Bagambiki, the prefect of Cyangugu, was charged with genocide, complicity in genocide, conspiracy to commit genocide, crimes against humanity (murder, extermination, and imprisonment), and serious violations of Article 3 common to the Geneva Conventions. Imanishimwe, the army commander of the Karambo military camp in Cyangugu, was charged with genocide, complicity in genocide, crimes against humanity (murder, extermination, torture, and imprisonment), and serious violations of Article 3 common to the Geneva Conventions. The charges of conspiracy to commit genocide against Ntagerura and Bagambiki were dismissed after the Chamber determined that the supporting allegations, even if proven, could not constitute the material elements of the crime of conspiracy. Due to a lack of evidence, Ntagerura and Bagambiki were also acquitted of all remaining charges. Since then, their movement has been largely restricted to a safe house in Arusha as they await the prosecutor's appeal of the verdict. Except for Rwanda, which is not acceptable to the defendants, no country has expressed a willingness to host them during this period. Imanishimwe, on the other hand, was found guilty on all counts with the exception of complicity in genocide. He was sentenced to 27 years imprisonment, minus credit for time served.

The Trial Chamber did not make any factual findings with respect to several allegations in the Ntagerura indictment due to the vagueness of the charges and the failure of the prosecutor to allege any criminal conduct on the part of the accused. Additionally, a significant amount of evidence in the indictment was not proved beyond a reasonable doubt. Although the Chamber accepted that the accused had attended and addressed a meeting at the Bushenge market in February of 1994, it noted that this meeting occurred outside the temporal scope of the Tribunal's jurisdiction. Moreover, it did not find any link between his participation in that meeting and any subsequent illegal act. Because this allegation formed the sole remaining basis for the counts against him, Ntagerura was found not guilty on all charges.

Bagambiki was prefect at the time of the incidents and had legal authority to requisition both gendarmes and soldiers. Nevertheless, the Chamber did not find that he had a superior-subordinate relationship with either group due to the lack of proof that he had either the de jure authority to issue them operational orders or the de facto authority to control how they carried out their missions. On the other hand, Bagambiki was found to be the direct supervisor of Bourgmestre Kamana and the Kagano commune police, both of whom had participated in an attack against refugees at Nyamasheke. Although there was no evidence that Bagambiki knew about the attack before it happened, the Chamber found that he should have known of Kamana's participation due to Kamana's possession of looted items. With regard to the Kagano police, however, the Chamber found that it lacked sufficient evidence to determine if he should have known about their involvement. The Chamber noted that in suspending Kamana for his actions Bagambiki had exercised the apparent extent of his disciplinary powers under the law. Consequently, the Chamber determined that the Prosecutor had not shown that Bagambiki had failed to take "necessary and reasonable measures" to punish Kamana for his role in the attack. As a result, Bagambiki was found not to have superior responsibility for the Nyamasheke massacre.

Bagambiki and Imanishimwe were both found to have received a list of names of people who were suspected to have connections with the rebel Rwandan Patriotic Front (RPF) from persons who were threatening to attack the Kamarampaka Stadium. The Chamber, however, lacked sufficient evidence to determine whether either of the accused had participated in the preparation of the lists or provided them to the attackers. Bagambiki and Imanishimwe discussed the names on the list with other members of the prefectural security council and removed 16 Tutsis and one Hutu opposition leader from the Kamarampaka Stadium and Cyangugu Cathedral for questioning. Most of these persons were subsequently killed. They also removed several persons from the Gashirabwoba football field, one of whom was later found dead. Nevertheless, the Chamber found that it lacked sufficient evidence to determine that either accused bore criminal responsibility for these deaths. Judge Williams dissented from this view based on the belief that the circumstances surrounding the crime, including the fact that Bagambiki handed the victims over to soldiers who had been involved in an earlier massacre at the Gashirabwoba field, demonstrated that Bagambiki substantially contributed and consented to their deaths as an aider and abetter. Although the Chamber also found that Bagambiki escorted refugees from the cathedral to the stadium, it found that it had not been proven that the refugees were then forcibly prevented from leaving or were executed at the stadium. The Chamber found Bagambiki not guilty on all charges based on its determination that Bagambiki could not be held responsible as a superior for the acts of his subordinates at the Nyamasheke massacre.

Imanishimwe was the commander of the Karambo military camp. He testified both to his role in the command structure and to particular instances in which he had issued orders to, deployed, and disciplined soldiers from the camp. Consequently, he was found to have both de jure authority and effective control over them. The Chamber further found that he either knew or should have known that some of these soldiers surrounded and killed a group of refugees at the Gashirabwoba football field after determining that they were Tutsi. Not only had he visited the football field, but "[g]iven the relatively small size of the camp, Imanishimwe's control over his soldiers, and the fact that he remained in regular contact with his soldiers stationed away from the camp, the Chamber [could] not accept that fifteen or more soldiers would have participated in such a systematic, large-scale attack without the knowledge of their commander." Further, there was no evidence that Imanishimwe had attempted either to prevent the attack or to punish any of the soldiers who participated.

The Chamber found from the context of the massacre, as well as the many other attacks taking place in Cyangugu at the time, that the soldiers had intended to destroy the Tutsi group. As a consequence, Imanishimwe was found guilty of superior responsibility for genocide. Because the charge of complicity in genocide was based on the same facts as his conviction for genocide, he was found not guilty on this count.

The massacre at the football field was also found to have been part of a systematic attack on political grounds against civilians suspected to have had connections to the RPF. This political attack was related to a widespread attack on ethnic grounds against the Tutsi population of Cyangugu as a whole. Both the soldiers and Imanishimwe were found to have been aware of these attacks. Imanishimwe was held responsible as a superior for the crime against humanity of murder because the killings at Gashirabwoba were intentional. The Chamber, however, decided that a conviction for the crime against humanity of extermination provided a better or more complete description of Imanishimwe's criminal conduct because a substantial number of refugees had been killed.

Regarding the killing of several other individuals, including at least one Hutu, the Chamber found that it lacked evidence that the soldiers had acted with genocidal intent because the evidence indicated that the victims were targeted due to their suspected association with the RPF (and thus on political rather than ethnic grounds). Imanishimwe was consequently not found responsible for genocide for these acts. Instead, because the Chamber inferred that Imanishimwe had issued an order "authorizing the arrest, detention, mistreatment, and execution of individuals with suspected connections to the RPF�[,]" he was found guilty for the crimes against humanity of imprisonment and murder. Moreover, he was found guilty of both ordering and aiding and abetting the torture of several civilian detainees who had been mistreated in his presence. Notably, with regard to two of the detainees, the Chamber found that although they were severely beaten and threatened with death their mistreatment "was not such as to cause severe suffering or pain sufficient for a finding of torture" because they were able to forcibly escape by pushing past two guards who were hitting them.

Based on the same underlying facts as his convictions for genocide and crimes against humanity, Imanishimwe was also found guilty of serious violations of Article 3 common to the Geneva Conventions and Additional Protocol II, including "violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment." The Chamber noted that many of the victims, although not taking a direct part in the hostilities at the time of the violations, were accused of ties to the RPF. Moreover, "the soldiers' actions were [either] motivated by their search for enemy combatants and those associated with them" or, as in the attack at the Gashirabwoba football field, "carried out under the pretext of such a search." Consequently, Imanishimwe was found guilty of superior responsibility for the intentional killing of the refugees at the Gashirabwoba field by soldiers under his effective control. Moreover, he was found to have been individually responsible for ordering the murder of several civilians and for both ordering and aiding and abetting the torture and cruel treatment of several others.

*Brianne McGonigle 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).

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