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

Volume 13 Issue 3
Spring 2006

Jean De Dieu Kamuhanda v. Prosecutor
Case No. ICTR-99-54A-A

by Lizzie Rushing*
edited by Anne Heindel**

On September 19, 2005, the ICTR Appeals Chamber delivered its judgment in the case of Jean De Dieu Kamuhanda v. Prosecutor. Jean De Dieu Kamuhanda served as Minister of Higher Education and Scientific Research in the interim government of Rwanda from May 25, 1994, to mid-July 1994. Before 1994 his various government positions had made him influential in Gikomero Commune (Kigali-Rural Prefecture). In its 2004 judgment, Trial Chamber II found that during the genocide Kamuhanda had distributed weapons to members of the Interahamwe and others in Gikomero. It also found that on April 12, 1994, Kamuhanda initiated and led attackers in slaughtering Tutsi who had taken refuge in a local church. The Trial Chamber sentenced Kamuhanda to life imprisonment after convicting him of genocide and extermination as a crime against humanity. The Appeals Chamber dismissed all but one of Kamuhanda's allegations of error with respect to the Trial Chamber judgment, vacated his convictions as far as they were based on the modes of responsibility of instigation and aiding and abetting, and confirmed his convictions as far as they were based on the mode of responsibility of ordering. Despite this amendment to the conviction, the Appeals Chamber determined that the "full picture of the case" had not changed and thus no modification in sentencing was required.


Kamuhanda argued that the Trial Chamber erred in finding him responsible for genocide and extermination based on the modes of responsibility of instigating, aiding and abetting, and ordering. With regard to instigation, Kamuhanda argued that the Prosecutor had not shown a causal link between his alleged incitement to kill and the April 12, 1994, attack at Gikomero Parish Compound. The Appeals Chamber first noted that the Trial Chamber's factual findings were unclear as to which assailants Kamuhanda had instigated. The Prosecution asserted that the Trial Chamber's factual findings related to a meeting at Kamuhanda's cousin's house a few days before the Parish attack, during which Kamuhanda distributed guns, grenades, and machetes and encouraged those present to distribute the weapons to others and to begin the killing in Gikomero Commune. The Prosecution argued that, due to Kamuhanda's influence and authority in Gikomero, it was "only reasonable [for the Trial Chamber] to conclude that the persons who had been present during the meeting � encouraged the perpetrators of the killings," even if they were not present at the attacks themselves. The Appeals Chamber rejected this reasoning as speculative due to the lack of evidence that the individuals who met at the cousin's house were present at the massacre at the Parish Compound or that the attackers came from Gikomero and thus would necessarily have been influenced by Kamuhanda. As a result, it held that the finding that Kamuhanda had instigated assailants to kill members of the Tutsi ethnic group was not supported by the evidence.

Kamuhanda also argued that the Trial Chamber had erred in concluding that he had aided and abetted the massacre at Gikomero Parish Compound. The Appeals Chamber again noted the lack of evidence that anyone who had received a weapon at Kamuhanda's cousin's house had taken part in the attack or that any of the weapons Kamuhanda distributed had been used in the attack. Consequently, it disregarded this factual finding. Nevertheless, it determined that there were several other findings in the record - including a finding that Kamuhanda had told the attackers at the Parish Compound to "work," which was understood as "an order to start the killings" - that supported the conclusion that Kamuhanda had directly and substantially contributed to the killings at the Gikomero Parish Compound as an aider and abetter.

Judge Schomburg disagreed with the Appeals Chamber's determination "that the evidence does not support any connection between the distribution of weapons and the subsequent attack." He asserted that the Trial Chamber had reasonably proved such a connection, particularly through the testimony of Witness GEK, a "highly credible" witness who testified that the weapons distributed at the home were the ones used during the massacre. Schomburg noted that "even if the weapons that were distributed by Kamuhanda had not been used at all, their mere distribution amounted to psychological assistance, as it was an act of encouragement that contributed substantially to the massacre, thus amounting to abetting if not aiding."

With regard to the Trial Chamber's finding that Kamuhanda ordered the attackers to kill the Tutsi who had taken refuge in the Parish Compound, Kamuhanda asserted that it had not been demonstrated that he held a position of authority in relation to the assailants. The Appeals Chamber, however, found that a reasonable trier of fact could conclude that Kamuhanda had authority over the attackers because they obeyed his order to start the massacre.

Although the Appeals Chamber determined that the facts supported Kamuhanda's conviction both for aiding and abetting and ordering, it ultimately vacated the conviction in so far as it was based on aiding and abetting. In doing so, the Appeals Chamber noted that, because both of these modes of responsibility were based on the same set of facts (i.e., Kamuhanda leading the attack and ordering the attackers to start the killings), and because the finding that Kamahunda had distributed weapons was found to be insufficient to maintain a conviction for aiding and abetting, the mode of responsibility of ordering "fully encapsulate[d]" Kamuhanda's criminal conduct at the Gikomero Parish Compound.

In separate opinions Judges Schomburg, Shahabuddeen, and Meron expressed different views as to the basis for and appropriateness of this holding. Judge Schomburg agreed with the decision to convict Kamuhanda for "the more specific mode of liability" and argued that it would be a "violation of the principle of logic to punish a person for having ordered and aided and abetted at the same time in relation to the same offense if ordering and aiding and abetting [were] based on the same criminal conduct." On the other hand, Judge Shahabuddeen strongly disagreed with the holding, which he found to be "a significant extension" of the Chamber's previous decisions regarding concurrent convictions. Noting that "[t]he fact that more than one method is employed does not mean that there is more than one conviction for the crime," he asserted there was no reason why an accused could not be convicted for a crime based on multiple methods of responsibility so that the "true measure" of his or her criminal conduct could be defined. Although Judge Meron agreed with Judge Shahabuddeen that an accused can be prosecuted for multiple modes of responsibility for a single crime, in his view the Appeal Chamber's determination was "relevant only to the factual findings of this particular case." For this reason he did not consider this decision to make any change to the law of the Tribunal.


Unusually, the Appeals Chamber decided to hear additional testimony with regard to Kamuhanda's alibi defense. Witness GAA had testified before the Trial Chamber that he had seen Kamuhanda at the Gikomero Parish Compound on April 12, 1994. In his testimony before the Appeals Chamber, however, GAA stated that he had not been at the Parish Compound on April 12th but had testified falsely because he had believed Kamuhanda was responsible for the death of many of his family members. Similarly, Witness GEX had testified before the Trial Chamber that Kamuhanda was present at the Parish Compound on April 12th and had started the attack by saying the word "mukore," which means "to work." Before the Appeals Chamber, however, GEX testified that she had not seen Kamuhanda at the Parish that day and that she and several witnesses had colluded to incriminate Kamuhanda.

Despite this testimony the Appeals Chamber found it "highly implausible" that these witnesses would have been able to invent the detailed testimony they had originally provided, "which [was] corroborated by other evidence." The Appeals Chamber noted that "[w]itness GAA was consistent for many years in his statements that he had been at the Gikomero Parish in 1994, and that he had seen [Kamuhanda] there." Further, the Appeals Chamber took into account the fact that neither GEX nor GAA had contacted the Prosecution to recant their testimony, but instead first contacted the Defense. The Appeals Chamber consequently dismissed the additional evidence in its entirety and noted that "if additional evidence admitted on appeal is subsequently determined by the Appeals Chamber to be irrelevant or not credible, it provides no basis for disturbing the Trial Chamber's judgment, since it could not have been a decisive factor if the Trial Chamber had considered it."

* Lizzie Rushing 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 3, beginning at page 10 is: 13 No. 3 Hum. Rts. Brief 10 (2006).