Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana
Case Nos. ICTR-96-10-A and ICTR-96-17-A
by Jeffery Forbes*
edited by Anne Heindel**
On December 13, 2004, the Appeals Chamber of the ICTR issued its judgment in Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana. The case involved the conviction of a father and son, Elizaphan and Gérard Ntakirutimana, and stemmed from their participation in attacks at the Mugonero complex on April 16, 1994, and in the Bisesero area of Kibuye Prefecture over the following several months. Under the Mugonero indictment, the Trial Chamber found Elizaphan, a pastor at the Seventh Day Adventist Church at the Mugonero complex, guilty of aiding and abetting genocide for conveying attackers to the site and encouraging them to kill Tutsi refugees. It found Gérard, who worked as a doctor at the complex, guilty of genocide and murder as a crime against humanity for his direct participation in the killing. Under the Bisesero indictment, Elizaphan was found guilty of aiding and abetting genocide for leading attackers into the countryside and pointing out Tutsi refugees and for ordering the removal of a church's roof to facilitate the attacks. Gérard was found guilty of genocide and murder as a crime against humanity for personally killing at least three victims during the attacks.
The Appeals Chamber recalled that it must defer to the Trial Chamber's factual findings unless "no reasonable trier of fact could have reached the same finding or where the finding is wholly erroneous." It will overturn an erroneous finding only if it resulted in a miscarriage of justice. Regarding errors of law, the party seeking reversal must explain how an error invalidates the Trial Chamber's decision. Finding several errors of fact and law, the Appeals Chamber quashed one of each of the Appellants' convictions, entered several new convictions, and affirmed their sentences.
The only ground of appeal by Gérard and Elizaphan that the Appeals Chamber accepted was their allegation that the Mugonero and Bisesero indictments failed to plead material facts, and that in some instances this failure had prejudiced their right to a fair trial. Citing the judgment of the ICTY in the Kupreskic case, the Appeals Chamber noted that the Prosecution has an obligation to disclose "the material facts underpinning an indictment" and can cure a faulty indictment by providing defendants with clear, consistent, and timely information prior to the start of the trial. The Appeals Chamber then dismissed several of the Trial Chamber's factual findings due to the prejudice caused to the Appellants by the Prosecution's failure to meet this obligation. As a consequence, the Appeals Chamber reversed Elizaphan's conviction for aiding and abetting genocide under the Mugonero indictment, which was based on the unpled allegation that he had conveyed attackers to the Mugonero site. In addition, due to the Prosecution's failure to plead specific material facts regarding Gérard's responsibility for shooting particular individuals, the Chamber reversed his conviction for murder as a crime against humanity under the Bisesero indictment. Although the Appeals Chamber determined that the remaining findings also did not support Gérard's conviction for personally committing genocide under the Bisesero indictment, as discussed below, it nevertheless found that he could be held responsible as an aider and abetter to genocide for his participation in the attacks.
Also due to the Prosecution's failure to provide proper notice, the Appeals Chamber rejected its argument that the Trial Chamber should have considered whether the accused were guilty of genocide or of extermination as a crime against humanity under a theory of joint criminal enterprise liability (JCE). The Prosecution argued that it was sufficient that the indictment referred generally to the mode of liability of "commission" in Article 6(1) of the Statute and need not "specify the precise mode of liability alleged against the accused in an indictment as long as it makes clear to the accused the nature and cause of the charge against him." The Appeals Chamber recognized that it had been the practice of the Prosecution to plead generally the modes of liability in Article 6(1) but noted that the Prosecution had "long been advised" by the ICTY Appeals Chamber, for example in the Aleksovski judgment, that it would be preferable to "indicate in relation to each individual count precisely and expressly the particular nature of the responsibility alleged." In the present case, because the Prosecution had failed to provide notice to the Appellants or the Trial Chamber in either the indictment or the Pre-Trial Brief that the Appellants were charged with JCE liability, the Appeals Chamber found that the Prosecution had not established error.
Both Elizaphan and the Prosecution appealed the Trial Chamber's findings regarding the Appellants' responsibility for aiding and abetting genocide. Elizaphan argued that the ICTR Statute did not include aiding and abetting as a mode of liability for genocide, and that insufficient evidence existed to prove he had the requisite mens rea for a genocide conviction. Noting that both the ICTR and the ICTY have found that the mode of complicity in genocide in their Statutes encompasses "aiding and abetting," and finding sufficient evidence in the record that Elizaphan knew of the genocidal intent of the principle perpetrators, the Appeals Chamber dismissed his appeal on this ground. The Prosecution, on the other hand, argued that the Trial Chamber erred in convicting Gérard of genocide only on the basis of acts that he personally committed. The Appeals Chamber agreed and found that he had aided and abetted genocide under both the Mugonero and the Bisesero indictments by procuring gendarmes and ammunition for the attacks. It noted that "a finding by the Trial Chamber that the accused had the intent to commit genocide and did so by killing and causing harm to members of the group does not per se prevent a finding that he also knowingly aided and abetted other perpetrators of genocide." Consequently, it entered an additional conviction for genocide under the Mugonero indictment and affirmed Gérard's conviction for genocide under the Bisesero indictment, limiting his responsibility to that of an aider and abetter due to the Chamber's dismissal of several factual findings relating to his personal participation in the killing.
The Prosecution also appealed the Trial Chamber's acquittal of the Appellants on the charge of extermination as a crime against humanity, arguing that the Trial Chamber erred by requiring that "victims be named or described persons." The Appeals Chamber agreed that this is not an element of the crime and concluded that if the Trial Chamber had applied the correct legal standard based on its findings supporting the Appellants' substantial contribution to mass killing it would have convicted Elizaphan for aiding and abetting extermination under the Bisesero indictment and Gérard for aiding and abetting this crime under both the Mugonero and the Bisesero indictments.
After determining that its revision of the verdict did not affect the underlying basis of the sentences imposed by the Trial Chamber, the Appeals Chamber upheld the original sentences of ten years imprisonment for Elizaphan Ntakirutimana and 25 years imprisonment for Gérard Ntakirutimana.
*Jeffery Forbes 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
The proper citation for this article in the Human Rights Brief Volume 13, Issue 2, beginning at page 10 is: 13 No. 2 Hum. Rts. Brief 10 (2006).