Volume 14 Issue 2
Prosecutor v. Jean Mpambara
Case No. ICTR-01-65-T
by Linda Frautschi*
edited by Anne Heindel**
On September 11, 2006, the ICTR Trial Chamber delivered its judgment in Prosecutor v. Jean Mpambara. Jean Mpambara, the former bourgmestre of Rukara Commune, was charged with genocide or complicity in genocide and extermination as a crime against humanity for attacks on Tutsi refugees in Rukara Commune over a period of several days in April 1994. Mpambara denied all allegations and insisted that he had attempted to maintain security and protect the refugees. The Prosecution withdrew the complicity count in its closing brief. The Trial Chamber found Mpambara not guilty on the remaining counts and called for his immediate release from the custody of the Tribunal.
Mpambara was not alleged to have physically participated in the attacks, but to have participated in a joint criminal enterprise (JCE) to destroy the Tutsi racial or ethnic group throughout Rwanda and to have ordered, instigated, and aided and abetted the crimes. The Trial Chamber found that, in some of its submissions, the Prosecution sought to prove "criminal responsibility for commission by aiding and abetting the physical perpetrators in furtherance of a JCE." The Trial Chamber described that statement as "legally incoherent," noting that aiding and abetting is a form of accomplice liability, whereas participation in a joint criminal enterprise is a type of direct commission of a crime with other persons. As stated by the ICTY Appeals Chamber in Kvocka et al., "it would be inaccurate to refer to aiding and abetting a joint criminal enterprise." The Trial Chamber therefore decided to "consider whether the material facts show either that the Accused participated in a joint criminal enterprise, or that he aided and abetted others in the commission of crimes."
The Prosecution also alleged that as bourgmestre Mpambara had a duty under Rwandan law to prevent and punish criminal acts. Liability for failing to discharge a legal duty requires proof that an accused is bound by a specific legal duty to prevent a crime, that the accused was aware of and willfully refused to discharge this legal duty, and that the crime took place. Although the Prosecution provided evidence supporting these allegations in its closing brief, because neither the indictment nor the pre-trial brief identified the source or scope of Mpambara's legal duty, the Trial Chamber determined that he had not been given reasonable notice of the charge and that no conviction could be entered on this basis.
The case against Mpambara revolved around three sets of events over a six-day period in 1994: looting and killing of Tutsi residents of Gahini Secteur on April 7 and 8; an attack on Gahini Hospital on April 9; and attacks on April 9 and 12 at the Parish church of Rukara. Much of the evidence against Mpambara was circumstantial. In assessing whether circumstantial evidence proves a conclusion "beyond a reasonable doubt," the Trial Chamber applied the standard adopted by the ICTY Appeals Chamber in the Mucic et al. judgment:
It is not sufficient that it is a reasonable conclusion from that evidence. It must be the only reasonable conclusion available. If there is another conclusion which is also reasonably open from that evidence, and which is consistent with the innocence of the accused, he must be acquitted.
The killings on April 7 and 8 in Gahini Secteur stemmed from attacks on the homes of five Tutsis. The attackers surrounded each home, broke down doors, killed anyone inside the house and looted whatever objects could be found. On April 8 instructions were given by Jean Bosco Butera, a civilian, for more killings and the attackers were divided into four groups, which proceeded to "ravage" a portion of Rukara Commune for the remainder of that day. The Trial Chamber found that "the evidence [left] open the reasonable possibility that Mpambara was overwhelmed by the situation" in Gahini Secteur, that he did not know with any certainty who was leading the attacks, and would have been incapable of restoring order with the law enforcement resources at his disposal. The uncorroborated testimony of Prosecution Witness AVK alleged that Mpambara instigated the killing of Tutsis on April 7 at Akabeza Centre and attended a meeting during which attacks were planned. However, a more credible witness contradicted this testimony, leaving reasonable doubt that Mpambara had criminal intent or contributed to the attacks.
The morning of April 9, Gahini Hospital was surrounded and attacked by a mob armed with "clubs, spears, machetes, and other traditional weapons." Refugees had begun to seek refuge at the hospital between April 7 and 8, and by April 9 there were between 20 and 50 refugees waiting for assistance on the steps of the hospital's main building. Mpambara arrived at the hospital compound sometime after the attack, and there was evidence beyond a reasonable doubt "that after [his] departure, Interahamwe invaded the hospital compound a second time and killed Tutsi refugees." There was conflicting witness testimony about Mpambara's role in the attacks. Mpambara testified that he left the chief of communal police and gendarmes at the hospital, "plead[ing] with them that they should do everything they can to make sure that no one else is killed in that place." The Trial Chamber found that the evidence did not show that Mpambara actively participated in, encouraged, was present during, or deliberately failed to stop the attack.
Beginning on April 7, refugees from Rukara commune began to gather at the Rukara Parish church. Defence witness Father Ganuza Lasa Santos testified that "nature itself had gone silent" as thugs roamed the streets of Rukara Commune and people boarded up their homes. By April 9 there were approximately 3,000 refugees at the church compound, about 900 of whom were children. In the late afternoon of April 9, groups of "civilians armed with machetes and a few grenades, allegedly distributed by gendarmes," attacked the church, killing numerous people. By the late afternoon of April 12, the refugees were barricaded inside the church. That night the Parish was attacked again, and any refugees who tried to escape were beaten to death with clubs or hacked to death with machetes. By morning, between one and two thousand Tutsi men, women and children had been massacred.
There was uncorroborated testimony that Mpambara instigated the attack and distributed grenades and stones to the attackers. However, Father Santos testified for the Defence that "at all times" Mpambara demonstrated a "commitment to defend the refugees .� [H]e didn't want to see anyone else being killed." Although he indicated that he wanted to leave he said, "I am the bourgmestre and I have to stay." According to Santos, Mpambara "could see himself being accused as a bourgmestre and felt powerless because of the situation. He felt like fleeing in order not to be involved but, on the other hand, he felt obliged to stay - in order to live up to his responsibilities." The Trial Chamber found that the evidence that Mpambara contributed to the attack was "weak, disconnected, and uncorroborated."
* Linda Frautschi is an LL.M 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