Volume 14 Issue 2
Prosecutor v. Tharcisse Muvunyi
Case No. ICTR-2000-55A-T
by Jaime M. Gher* edited by Anne Heindel**
On September 12, 2006, the ICTR Trial Chamber delivered its judgment in the case of Prosecutor v. Tharcisse Muvunyi. Muvunyi was indicted on five counts-genocide, or alternatively, complicity in genocide, direct and public incitement to commit genocide, and rape and other inhumane acts as crimes against humanity. These charges were based on events that occurred in the Butare prefecture between April and June 1994. The Trial Chamber found Muvunyi guilty on all counts with the exception of complicity in genocide, which was charged in the alternative of genocide, and the crime against humanity of rape, based on evidentiary grounds. After considering various aggravating and mitigating factors, the Trial Chamber sentenced Muvunyi to twenty-five years imprisonment.
The Trial Chamber determined that Muvunyi held the Office of Commander of Ecole de sous-officiers (ESO). Relying on the ICTY Appeal Chamber's holding in Celebici, the Trial Chamber found that absence of a formal appointment, as was the case for Muvunyi, is not fatal to the finding of superior criminal responsibility so long as the de facto superior exercises effective control over his subordinates. As ESO commander, Muvunyi was "the most senior officer and commander on the ground with power and authority to make day-to-day operational decisions." As a consequence he was found to have exercised effective control over ESO soldiers during the period of April to mid-June 1994.
Muvunyi was found individually responsible for aiding and abetting genocide for deliberately refusing to prevent an attack by ESO soldiers on Tutsi refugees at the Groupe scolaire. By virtue of Muvunyi's position of authority as the most senior military officer in Butare, the proximity of the ESO Camp to the Groupe scolaire, the repeated nature of the attacks, and Muvunyi's instructions to protect one Tutsi family from harm, the Chamber determined that he could not have been unaware that his subordinates were committing genocidal acts. Although there was no evidence that Muvunyi directly engaged in the attack, the Trial Chamber found that his overall conduct substantially contributed to the crime. For example, he implicitly permitted a large number of his subordinates to leave the ESO camp fully equipped with ammunition to attack unarmed refugees. Additionally, his selective treatment of the refugees was found to amount to tacit encouragement of the crimes.
Muvunyi was also found responsible as a superior for the genocidal killing of Tutsi civilians by ESO soldiers at the Butare University Hospital, University of Butare, Beneberika Convent, Mukura forest, and various roadblocks in Butare. Despite insufficient evidence to hold Muvunyi individually responsible for the attacks at these locations, the attacks widespread nature, high-level coordination, and proximity to the ESO camp showed that he knew or should have known about them. As Muvunyi failed to take steps to prevent or punish his subordinates for these crimes, he bore superior responsibility for genocide.
In finding Muvunyi guilty of direct and public incitement to commit genocide, the Trial Chamber adopted Akayesu's elaboration of the elements of "direct" and "public." The "direct" element requires "more than a vague or indirect suggestion of incitement," thus implying that the expression must specifically provoke another to engage in criminal conduct. The Trial Chamber noted that cultural and linguistic factors, the nature of the audience, and whether the message was immediately understood by the audience are important considerations in making this determination. With regard to the "public" element, the Chamber took into account "the place where the incitement occurred and whether attendance was selective or limited." The number of listeners and the medium by which the message is communicated may also indicate whether the incitement was public.
The Trial Chamber's finding of guilt was primarily based on two public meetings of Hutu civilians at which Muvunyi likened Tutsis to "snakes" and "poisonous agents" and associated them with the wartime enemy. Such characterizations during a time of interethnic killing, and contextualized within the Rwandan language and culture, were found tantamount to condemning members of the Tutsi ethnic group to death. At one of the meetings, Muvunyi also reprimanded the bourgmestre of Gikonko for hiding a Tutsi man named Vincent Nkurikiyinka, and demanded that he be brought forward to be killed. As a result, the man was produced and killed by the mob. The Trial Chamber concluded that these facts satisfied the "direct" and "public" elements of the charge. Moreover, Muvunyi had the requisite mental intent for the crime, as he knew his audience would understand the implication of his words and intended his words to provoke genocide.
The Trial Chamber also found Muvunyi guilty as a superior for the crime against humanity of other inhumane acts. Muvunyi had knowledge that his subordinates engaged in inhumane treatment including the mistreatment of individuals at the �conomat General, the Butare Cathedral, and at the ESO camp; the humiliation two Tutsi women at Butare roadblocks; and the beating of Tutsi civilians at Beneberika Covent and Groupe scolaire. Despite having available material and human resources at the ESO camp, Muvunyi failed to take necessary and reasonable measures to prevent or punish the soldiers for these actions.
Finally, the Trial Court found Muvunyi not guilty of either individual or superior responsibility for the crime against humanity of rape. The evidence proved that Tutsi women as young as 17 years old were raped in the Butare and Gikongoro prefectures during the period in question. However, it did not support the specific allegation in the indictment that Ngoma Camp soldiers and Interahamwe militia members committed the rapes. Instead, it showed that ESO soldiers were responsible. Although the Prosecutor's pre-trial brief and opening statement attempted to cure this omission by alleging the responsibility of ESO soldiers for these crimes, the Trial Chamber found that "the Accused did not have the opportunity to defend himself against such a fundamentally different case." As a consequence, the Trial Chamber found Muvunyi not guilty on this count.
Notably, just prior to trial, without explanation the Prosecution had sought to amend the indictment and withdraw the rape charge in its entirety. The Trial Chamber denied the request, noting that the Defense had likely expended time and resources defending the charge, and that questions of double jeopardy and judicial economy merited against dismissal. Considering the substantial evidence the Prosecution brought forward proving that rapes indeed occurred, it is unclear why it did not seek instead to amend the indictment to name ESO soldiers as the perpetrators of the rapes.
In determining Muvunyi's sentence, the Trial Chamber considered as an aggravating factor Muvunyi's failure to exercise his duty to protect the community and his selective exercise of authority to save civilian lives. As mitigating factors, the Trial Chamber noted that, with the exception of the incitement conviction, the Prosecution failed to prove that Muvunyi was present for, gave direct orders to commit, or directly participated in or encouraged the crimes of which he was convicted. The Trial Chamber also considered Muvunyi's good character prior to 1994, the fact that he spent a good portion of his life in the service of his country, and the lack of evidence that he had ever previously discriminated on the basis of ethnicity.
* Jaime M. Gher 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