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


Volume 13 Issue 2
Winter 2006

Prosecutor v. Mikaeli Muhimana
Case No. ICTR-95-1B-T

by Robin Murphy*
edited by Anne Heindel**

On April 28, 2005, the ICTR Trial Chamber delivered its judgment in the case of Prosecutor v. Mikaeli Muhimana. Muhimana, the former conseiller of Gishyita Secteur, was indicted on four counts - genocide, complicity in genocide, murder as a crime against humanity, and rape as a crime against humanity - based on his participation in events in the Bisesero area and Gishyita Commune between April and June 1994. The Trial Chamber found Muhimana guilty on all counts with the exception of complicity in genocide, which was charged in the alternative to genocide, and imposed three concurrent life sentences.

In finding Muhimana guilty of genocide, the Chamber noted his participation in several attacks on Tutsi civilians during which he shot at Tutsi refugees, raped Tutsi women, and threw a grenade into Mubuga Church, where Tutsi refugees were gathered. The Chamber then determined from his deeds, utterances, and the sheer scale of the attacks, during which a significant number of Tutsis died or were seriously injured, that Muhimana had committed these acts with the specific intent to destroy the Tutsi group in whole or in part. For example, he directed Hutu refugees to exit the church before he threw the grenade and specifically referred to the Tutsi ethnicity of his victims during his crimes.

Muhimana was found guilty of the crimes against humanity of murder and rape for committing these acts with the knowledge that they formed part of a discriminatory, widespread, and systematic attack against Tutsi civilians. The Trial Chamber determined that he had intentionally killed when he threw the grenade at Tutsi refugees gathered in the church (causing the death of one man), when he instigated the murder of two Tutsi sisters, and when he participated in the decapitation of a Tutsi businessman. Additionally, he was found to have murdered Pascasie Mukaremera, a pregnant woman, by disemboweling her after telling a gathering of fellow Hutu assailants that he wanted to see what a fetus looked like in its mother's womb. After opening her stomach with his machete, Muhimana removed the baby, who cried for some time before dying, while other assailants cut off Mukaremera's arms and stuck sharpened sticks into them. Although the Prosecution originally charged Muhimana with instructing another man to murder Pascasie Mukaremera, the evidence showed that Muhimana was responsible for her murder. The Trial Chamber found that Muhimana suffered no prejudice as a result of this defect in the indictment because he received timely, clear, and consistent information describing the factual basis of the crime of which he was accused. Moreover, the defense raised no objection to the error.

The Trial Chamber determined that Muhimana raped numerous women and a girl during April and May 1994. Two of his victims were forced out of his house while still naked, and those present were invited to see what naked Tutsi girls looked like. He apologized to one of his rape victims, an underage girl whom he attacked in a hospital basement, after being informed that she was not a Tutsi. By his presence during rapes committed by others, Muhimana was also found to have aided and abetted several rapes. Moreover, he was found to have encouraged the rape of a victim who was attacked multiple times over two days by allowing her to be taken away by a man who said he wanted to "smell the body of a Tutsi woman."

The Chamber adopted the Akayesu Trial Chamber's definition of rape - a "physical invasion of a sexual nature, committed on a person under circumstances which are coercive" - and noted that this definition was intended to include "acts which involve the insertion of objects and/or the use of bodily orifices not considered to be intrinsically sexual." It then found that the Akayesu definition "encompasses" the elements of rape set out by the Kunarac Trial Chamber and endorsed by the Kunarac Appeals Chamber, that is, "the sexual penetration, however slight�of the vagina or anus of the victim by the penis of the perpetrator or any other object � or of the mouth of the victim � where such sexual penetration occurs without the consent of the victim." The Trial Chamber noted that the Trial Chambers in the Semanza, Kajelijeli, and Kamuhanda cases appeared to have focused "only on the physical elements of the act of rape" as expressed in Kunarac and not on Akayesu's "conceptual" definition. The Trial Chamber rejected this approach and took the view that the two definitions "are not incompatible or substantially different in their application" because Kunarac merely refined Akayesu by "articulat[ing] the parameters of what would constitute a physical invasion of a sexual nature amounting to rape." Nevertheless, the Trial Chamber rejected without further elaboration the Prosecution's contention that Muhimana's disembowelment of Pascasie Mukaremera "by cutting her open with a machete from her breasts to her vagina" could be considered rape, determining that although this act "interfere[d] with the sexual organs � it [did] not constitute a physical invasion of a sexual nature."

The Trial Chamber found no mitigating factors but noted numerous aggravating factors in Muhimana's case. These included his position of influence in Gishyita Commune; his participation in attacks against persons who had sought refuge in places of sanctuary and safety, such as churches and a hospital; his rape of an underage girl; his intentionally degrading and humiliating treatment of his female victims by, for example, raping them in the presence of other people and parading them naked in public; and his particularly violent and cruel conduct toward his victims. Further, the Chamber found that his "savage" mutilation of Pascasie Mukaremera "deserve[d] condemnation in the strongest possible terms and constitute[d] a highly aggravating factor." These factors and the gravity of the crimes of which he was convicted persuaded the Chamber to sentence Muhimana to the maximum sentence allowed on each guilty count: three life sentences of imprisonment.

* Robin Murphy 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).

Back to Volume 13, Issue 2