Sylvestre Gacumbitsi v. Prosecutor
Case No. ICTR-2001-64-A
by Nick Leddy*
edited by Anne Heindel**
On July 6, 2006, the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) delivered its judgment in the case of Sylvestre Gacumbitsi v. Prosecutor. From 1983 through 1994 Sylvestre Gacumbitsi served as the highest-ranking local administrative official, or bourgmestre, of Rusumo Commune. On June 17, 2004, ICTR Trial Chamber III found Gacumbitsi guilty of genocide and the crimes of humanity of extermination and rape due to his role in organizing and executing a campaign against the Tutsi population in Rusumo Commune in April 1994. Gacumbitsi received a thirty-year sentence.
Both Gacumbitsi and the Prosecutor appealed the conviction. The Appeals Chamber dismissed all of Gacumbitsi's grounds of appeal. It granted the Prosecutor's appeal in part, finding Gacumbitsi guilty of aiding and abetting the murder (as a crime against humanity) of two of his female Tutsi tenants. Additionally, while the Trial Chamber held that Gacumbitsi's authority for ordering the crimes committed in Nyarubuye Parish on April 15, 16, and 17 and in Kigarama on April 14 was limited to the communal police, the Appeals Chamber found that it also extended to several other groups of attackers. Based on these additional findings, the Appeals Chamber quashed the Trial Chamber's thirty-year sentence and imposed a new life sentence.
Gacumbitsi's Appeal: "Committing" Genocide
The Trial Chamber convicted Gacumbitsi of planning, instigating, ordering, committing, and aiding and abetting the crime of genocide pursuant to Article 6(1) of the Statute of the ICTR. In claiming that his conviction for "committing" genocide was based in errors of both law and fact, Gacumbitsi argued, inter alia, that the indictment did not allege his personal participation in the killing of Murefu, a Tutsi refugee, with sufficient specificity. Because the indictment merely alleged as a general matter that Gacumbitsi was responsible for killing "members of the Tutsi population," the Appeals Chamber found that Gacumbitsi could not have reasonably known on this basis alone that he was being charged with killing Murefu. Nevertheless, the Appeals Chamber found that a witness statement disclosed before trial provided "timely, clear, and consistent information" about the time, place, and manner of the killing and thus, sufficiently cured the defective indictment.
Presiding Judge Shahabuddeen wrote separately to argue that the Appeals Chamber imposed "too formulaic" pleading requirements on the Prosecution and should not have found the indictment defective with respect to the killing of Murefu because the crime of genocide does not require the pleading of every individual killing. Judge Shahabuddeen stressed the distinction between material facts necessary to establish an offense and the evidence offered to prove those facts, remarking that:
The material facts must be pleaded, the evidence need not. When an indictment alleges genocide, proof of any one killing is not a material fact as it would be in the case of murder; it is evidence of a material fact, namely that the intent of the accused was the destruction of a group, as a group.
In contrast, Judges Liu and Meron wrote separately to argue that the Chamber had been too lenient in finding that a "vague chart-entry summarizing the anticipated testimony of one witness" cured the indictment.
Notably, the Appeals Chamber determined that even if the killing of Murefu was set aside, the Trial Chamber's conclusion that Gacumbitsi "committed" genocide would still be valid. This decision was based on witness allegations that Gacumbitsi arrived at a church in Nyarubuye Parish with a pick-up truck full of machetes, ordered the Hutus to separate from the Tutsis, and instructed the Hutus and Interahamwe: "Get machetes! Start killing and surround the church so no one escapes." From these facts, the Appeals Chamber concluded that Gacumbitsi "directed" and "played a leading role in conducting and especially, supervising" the Nyarubuye massacre and that Gacumbitsi's act of separating the crowd was as much an integral part of the genocide as were the killings that it enabled. The Appeals Chamber thus determined that Gacumbitsi's conviction was appropriately characterized to include his "commission" of genocide. To this end, the Appeals Chamber held that in the context of genocide, "direct and physical perpetration" need not mean physical killing - other acts, such as directing or supervising killings, can constitute the actus reus of the crime.
Prosecutor's Appeal: Murder As a Crime Against Humanity
The Prosecutor appealed Gacumbitsi's acquittal for the murder as a crime against humanity of Marie and Beatrice, two of his Tutsi tenants. The Prosecutor advanced the theory that Gacumbitsi aided and abetted their murder, a mode of responsibility not considered by the Trial Chamber. The Appeals Chamber found that the Trial Chamber entered sufficient findings of fact to support a conviction under this theory of liability, including that Gacumbitsi expelled the women from his home in the context of the genocidal campaign in which he was involved, that he knew expelling them under these circumstances would expose them to the risk of being attacked on the grounds of their ethnicity, and that they were subsequently killed. The language of the indictment was sufficiently clear for the Appeals Chamber to find that the accused had ample timely notice of this charge. The Appeals Chamber therefore entered a new conviction for aiding and abetting the crime against humanity of murder.
Prosecutor's Appeal: Rape As a Crime Against Humanity
The Trial Chamber convicted Gacumbitsi for eight counts of rape. However, it acquitted him on three additional counts after finding insufficient evidence to demonstrate that Gacumbitsi had instigated the crimes. The Prosecutor argued that the Trial Chamber "erred in law by requiring it to establish that the Appellant's instigation was a condition sin qua non of the commission of the rapes" and that it should have convicted Gacumbitsi on this basis, or in the alternative, for his Article 6(3) superior responsibility for the perpetrators.
The Appeals Chamber found that the Trial Chamber had applied the correct legal standard, noting that to convict someone of instigation it is sufficient for the Prosecution to demonstrate that "the instigation was a factor substantially contributing to the conduct of another person committing the crime," and that "it is not necessary to prove the crime would not have been perpetrated without the involvement of the accused." Moreover, despite the Trial Chamber's findings that Gacumbitsi drove around Nyarubuye Parish with a megaphone inciting Hutu men to rape and kill Tutsis and that a victim claimed one of her rapists told her Gacumbitsi had ordered the rape of Tutsi females, the Appeals Chamber held that the Prosecution did not prove the presence of a nexus between the instigation and the rapes beyond a reasonable doubt. In making this determination, the Appeals Chamber cited a lack of credible witness testimony and a lack of evidence that Gacumbitsi's words substantially contributed the three rapes, noting in particular that the Prosecutor did not establish the perpetrators' awareness of Gacumbitsi's inciting statements.
Nevertheless, the Appeals Chamber agreed with the Prosecutor that the Trial Chamber had a duty to consider in the alternative whether Gacumbitsi had Article 6(3) superior responsibility for these rapes. The Trial Chamber did not make any formal legal finding on this question, stating that it did not "deem it necessary to enquire whether [Gacumbitsi] is equally responsible pursuant to Article 6(3) � given the similarity of the acts charged and the lack [of ] evidence of a superior-subordinate relationship between the Accused and the perpetrators of the rapes." After looking at the relevant evidence, the Appeals Chamber agreed with the Trial Chamber that the Prosecution failed to offer sufficiently specific facts demonstrating Gacumbitsi's effective control over the perpetrators of the rapes in question, and therefore denied the Prosecution's appeal on this count.
The Prosecution also sought general clarification on the elements of rape as a crime against humanity. The Prosecution argued that in such a context, non-consent of the victim and the perpetrator's knowledge of that non-consent should not be considered elements of the offense to be proved, but rather that consent should be considered an affirmative defense. The Prosecutor reasoned that when prosecuted at the ICTR, rape will always take place in the context of genocide, crimes against humanity, or war crimes. There should therefore be no need to prove the absence of consent, as is the case with other crimes in the statute such as torture. The Appeals Chamber reiterated the definition of the rape as a crime against humanity provided by the ICTY Appeals Chamber in the Kunarac et al. judgment, and found that it established non-consent and knowledge thereof as elements that the Prosecution must prove beyond a reasonable doubt. However, to prove the element of non-consent, the Prosecution need not provide evidence of the victim's words or conduct, or evidence of force, but need only demonstrate the existence of coercive circumstances under which meaningful consent is not possible, i.e., the existence of a genocidal campaign or a situation of detention. Further, the Prosecution can establish knowledge of non-consent by proving the accused was aware, or had reason to be aware, of the coercive circumstances that undermined the possibility of genuine consent.
To rebut an allegation of non-consent, the accused may enter evidence that the victim consented, but such evidence is inadmissible pursuant to Rule 96(ii) if the victim "has been subjected to or threatened with or has reason to fear violence, duress, detention, or psychological oppression," or "reasonably believed that if [one] did not submit, another might be so subjected, threatened, or put in fear." Moreover, the Trial Chamber is free to disregard evidence of consent if it concludes that consent cannot be given voluntarily under the circumstances.
Prosecutor's Appeal: Joint Criminal Enterprise
The Prosecution also argued Gacumbitsi should have been found responsible for his crimes under the theory of joint criminal enterprise (JCE). The Appeals Chamber disagreed, citing the ICTY appeal judgment in Kvocka and holding that the Prosecutor's failure to plead the category of JCE alleged and the supporting material facts in the indictment constituted a defect that neither the Prosecutor's pre-trial brief nor its opening statement cured. In a separate opinion, Judge Shahabuddeen argued that the Prosecutor had provided the requisite notice. In his view, although the words "joint criminal enterprise" were not used in the indictment, the use of terms such as "acting in concert with others" in pursuit of a "common purpose" meaningfully informed Gacumbitsi of the JCE charge and enabled him to prepare an effective defense.
Prosecutor's Appeal: Authority for Ordering
In its judgment, the Trial Chamber found that Gacumbitsi ordered the crimes committed by the communal policemen in his commune, but that he did not have the authority to order the crimes committed there by the conseillers, gendarmes, soldiers, and Interahamwe. The Prosecution appealed this finding, alleging both an error of fact and an error of law. The Appeals Chamber found that the Trial Chamber correctly defined "ordering" to take place when someone in a position of authority instructs another to commit an offense. Moreover, "[n]o formal superior-subordinate relationship between the accused and the perpetrator is required. It is sufficient that there is proof of some position of authority on the part of the accused that would compel another to commit a crime in following the accused's order."
Although it upheld the Trial Chamber's citation of the relevant law, the Appeals Chamber found error with the Trial Chamber's characterization of the relevant facts. Specifically, it recalled the Trial Chamber's finding that as bourgmestre, Gacumbitsi was the "highest authority and most influential person on the commune, with the power to take legal measures binding all residents." The Appeals Chamber then pointed to four consecutive days in April of 1994 where the Trial Chamber found that Gacumbitsi "instructed," "ordered," or "directed" groups of assailants - not just the communal policemen - to attack many Tutsi civilians. For example, the Trial Chamber found that in Nyarubuye parish on April 16, 1994, Gacumbitsi "directed" an attack during which a group of assailants killed survivors and looted the parish building. According to the Appeals Chamber, these findings proved Gacumbitsi's authority over all the attackers in question and that his orders had a substantial and direct effect on the commission of those crimes. It consequently upheld this subground of the Prosecutor's appeal.
Prosecutor's Appeal: Sentencing
The Prosecution alleged that the Trial Chamber erred in failing to impose a sentence reflecting the gravity of the crimes and Gacumbitsi's degree of criminal culpability. While the Appeals Chamber held that the Trial Chamber properly stated the relevant sentencing principles, it determined that those principles were applied incorrectly. The Appeals Chamber noted that "Gacumbitsi played a central role in planning, instigating, ordering, committing, and aiding and abetting genocide and extermination in his commune of Rusumo, where thousands of Tutsis were killed or seriously harmed." Citing Gacumbitsi's instigation of particularly sadistic rapes, the absence of significant mitigating circumstances, and its findings on appeal, the Appeals Chamber quashed Gacumbitsi's thirty-year prison sentence and imposed a life sentence in its place.
* Nick Leddy 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 14, Issue 1, beginning at page 10 is: 14 No. 1 Hum. Rts. Brief 10 (2006).