International Criminal Tribunal for Rwanda Tribunal pénal international pour le Rwanda TRIAL CHAMBER II - PDF

Description
International Criminal Tribunal for Rwanda Tribunal pénal international pour le Rwanda OR: English TRIAL CHAMBER II Before: Registrar: Judge Arlette Ramaroson, Presiding Judge William H. Sekule Judge Solomy

Please download to get full document.

View again

of 19
All materials on our website are shared by users. If you have any questions about copyright issues, please report us to resolve them. We are always happy to assist you.
Information
Category:

School Work

Publish on:

Views: 20 | Pages: 19

Extension: PDF | Download: 0

Share
Transcript
International Criminal Tribunal for Rwanda Tribunal pénal international pour le Rwanda OR: English TRIAL CHAMBER II Before: Registrar: Judge Arlette Ramaroson, Presiding Judge William H. Sekule Judge Solomy Balungi Bossa Mr Adama Dieng Date: 13 April 2006 The PROSECUTOR v. Paul BISENGIMANA Case No. ICTR T JUDGEMENT AND SENTENCE The Prosecution Mr Charles Adeogun-Phillips Ms Memory Maposa Mr Peter Tafah Ms Florida Kabasinga The Defence Ms Catherine Mabille Ms Nathalie Passeron I. Introduction...4 A. Overview of the Case...4 B. The Indictment...4 C. Summary of the Procedure...5 D. The Tribunal and Its Jurisdiction...5 II. The Guilty Plea...6 A. Applicable Law...6 B. The Guilty Plea of 7 December III. Case on Merits...7 A. The Accused...7 B. Factual and Legal Findings Individual Criminal Responsibility for Aiding and Abetting Pursuant to Article 6 (1) of the Statute...8 a. The Indictment...8 b. Applicable Law...8 c. The Plea Agreement Crimes Against Humanity (Article 3 of the Statute)...10 a. General Elements of the Crime...10 i. The Attack...10 ii. The Attack Must Be Directed Against a Civilian Population...11 iii. The Attack Must Be Committed on Discriminatory Grounds...12 iv. The Mental Element of Crimes Against Humanity...12 b. Findings Crimes Against Humanity - Extermination...13 a. Indictment...13 b. The Plea Agreement...13 i. Events at Musha Church...14 ii. Events at Ruhanga Protestant Church and School...15 c. Applicable Law...15 d. Findings...16 i. Musha Church Massacres...16 ii. Ruhanga Protestant Church and School Massacres...16 iii. General Findings Crimes Against Humanity Murder...17 a. Indictment...17 b. The Plea Agreement...17 c. Applicable Law...17 d. Findings...18 e. Cumulative Convictions...19 i. Applicable Law...19 ii. Findings...19 IV. Issues Relating to the Sentence...20 A. Applicable Texts and Principles...20 B. Aggravating Circumstances Prosecution s Submissions on the Gravity of the Offence and the Official Position of the Accused Findings...22 C. Mitigating Circumstances Parties General Submissions Applicable Law...23 3. The Guilty Plea with Publicly Expressed Regrets...23 a. Prosecution Submissions...23 b. Defence Submissions...24 c. Findings Personal and Family Situation...25 a. Defence Submissions...25 b. Findings Character of the Accused...26 a. Prosecution Submissions...26 b. Defence Submissions...26 c. Findings Assistance Given to Certain Victims...27 a. Defence Submissions...27 b. Findings Lack of Prior Criminal Convictions and Good Conduct in Detention...28 a. Defence Submissions...28 b. Findings Age and Ill-Health...29 a. Defence Submissions...29 b. Findings Lack of Personal Participation in the Offences...30 a. Defence Submissions...30 b. Findings...30 D. Findings on Aggravating and Mitigating Circumstances...31 E. Sentencing Recommendations by the Parties The Prosecution The Defence...32 F. Findings The General Sentencing Practice in the Courts of Rwanda Credit for Time Served in Custody Conclusion...33 V. Verdict...34 VI. Annexes...36 A. The Procedure...36 B. Jurisprudence and Defined Terms ICTR ICTY Defined Terms...42 C. Indictment I. Introduction A. Overview of the Case 1. Paul Bisengimana (the Accused ), former bourgmestre of Gikoro commune in Kigali- Rural préfecture, has pleaded guilty to aiding and abetting the murder and extermination of Tutsi civilians at Musha Church and Ruhanga Protestant Church and School (the Ruhanga Complex ) in Gikoro commune between 13 and 15 April From 7 April 1994, massacres of Tutsis and murders of political opponents were perpetrated throughout the territory of Rwanda by militiamen, military personnel and gendarmes. In every region of the country, Tutsis fled from the massacres and sought refuge in places they thought to be safe. In many of these places, the refugees were attacked and killed, often with the complicity of the authorities. 3. The massacres in Gikoro commune started on 7 April Thousands of Tutsi civilians, fleeing from the on-going attacks in Kigali-rural préfecture, sought refuge in Musha Church in Gikoro commune between 8 and 13 April On or about 12 April 1994, with the knowledge of the Accused, members of the Rwandan Army distributed weapons to Interahamwe militiamen and civilians at Musha Church to be used to attack the refugees. 4. On or about 13 April 1994, in the presence of the Accused, Rwandan Army soldiers, Interahamwe, armed civilians and communal policemen launched an attack against the Tutsi civilians at Musha Church using guns, grenades, machetes and pangas. A civilian militiaman set fire to the Church during the attack. More than a thousand Tutsis were killed as a result of the attack. The Accused was present when a Tutsi civilian named Rusanganwa was murdered at that location. 5. Many Tutsi civilians had also sought refuge at the Ruhanga Protestant Church and School in Gikoro commune between 8 and 10 April Between 10 and 15 April 1994, an attack was launched on the Ruhanga Complex by a brigadier, soldiers from the Presidential Guard, civilian militiamen and communal policemen. The attackers used guns, grenades, machetes and pangas. Many Tutsi civilians were killed. Paul Bisengimana knew of the previous attack at Musha Church and, despite his position as bourgmestre of Gikoro commune, did not take any steps to protect the Tutsis refugees. 6. On 7 December 2005, Trial Chamber II (the Chamber ) accepted the guilty plea of the Accused and found him guilty of having aided and abetted the commission of murder and extermination as crimes against humanity. B. The Indictment 7. Under the Amended Indictment of 1 December 2005 (the Indictment ), the Prosecution charged Paul Bisengimana for his individual responsibility on five counts: genocide (Art. 6 (1) and 6 (3) of the Statute 1 ), complicity in genocide (Art. 6 (1)), and murder (Art. 6 (1)) extermination (Art. 6 (1)) and rape (Art. 6 (1) and 6 (3)) as crimes against humanity. At the second further appearance of the Accused on 7 December 2005, the Prosecution withdrew the 1 Statute of the Tribunal (the Statute ). 4 counts of genocide, complicity in genocide and rape as crimes against humanity. The Indictment is annexed to this judgement (Annex C). C. Summary of the Procedure 8. On 4 December 2001, Paul Bisengimana was arrested in Mali. On 11 March 2002, the Accused was transferred to the United Nations Detention Facility in Arusha (the UNDF ). On 18 March 2002, the Accused made his initial appearance and pleaded not guilty to all counts. 9. On 19 October 2005, the Parties filed a joint motion for consideration of a guilty plea agreement between Paul Bisengimana and the Office of the Prosecutor On 17 November 2005, during his further appearance, the Accused pleaded guilty to murder and extermination as crimes against humanity pursuant to Article 6 (1) of the Statute. 3 The Chamber dismissed the joint motion for consideration of a guilty plea agreement for not being unequivocal. On behalf of the Accused, the Chamber entered a plea of not guilty regarding the counts of murder and extermination and duly noted the plea of not guilty for all the other counts The Indictment was filed on 1 December On 7 December 2005, during his second further appearance, the Accused pleaded guilty to the counts of murder and extermination as crimes against humanity pursuant to Article 6 (1) of the Statute. 5 The Chamber found the Accused guilty of having aided and abetted the commission of murder (Count 3) and extermination (Count 4) as crimes against humanity pursuant to Article 6 (1) of the Statute. 6 The Chamber granted the Prosecution motion for withdrawal and dismissal of the remaining counts but denied the Prosecution request for acquittal on these counts because the Prosecution had failed to justify its motion on this point A Pre-Sentencing Hearing was held on 19 January A full review of the procedural history is annexed to this judgement (Annex A). D. The Tribunal and Its Jurisdiction 15. The Judgement in the case of Prosecutor v. Paul Bisengimana is rendered by Trial Chamber II of the International Criminal Tribunal for Rwanda (the Tribunal ), composed of Judge Arlette Ramaroson, presiding, Judge William H. Sekule, and Judge Solomy B. Bossa. 16. The Tribunal is governed by the Statute annexed to Security Council Resolution 955 and by the Rules of Procedure and Evidence of the Tribunal (the Rules ) The Tribunal was established to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States. The Tribunal has jurisdiction over acts of genocide, crimes against humanity, and serious violations of Article 3 2 Requête conjointe visant à l examen d un accord entre Paul Bisengimana et le Bureau du Procureur aux fins d un plaidoyer de culpabilité, filed on 19 October T. 17 November 2005 p T. 17 November 2005 p T. 7 December 2005 pp T. 7 December 2005 p T. 7 December 2005 p Originally adopted by the Judges of the Tribunal on 5 July 1995, the Rules were last amended on 7 June 2005 during the Fifteenth Plenary Session. 5 common to the Geneva Conventions and of Additional Protocol II thereto, committed between 1 January 1994 and 31 December II. The Guilty Plea A. Applicable Law 18. The Chamber notes that there is no specific provision in the Statute regarding guilty pleas and plea agreements. The relevant provisions of the Rules regarding the procedure relating to guilty pleas and plea agreements are Rule 62 (B) and Rule 62 bis. 9 B. The Guilty Plea of 7 December On 7 December 2005, after Paul Bisengimana pleaded guilty to murder (Count 3) and extermination (Count 4) as crimes against humanity pursuant to Article 6 (1) of the Statute, the Chamber proceeded to verify the validity of the plea. 20. The Chamber summarised the consequences of the plea. It indicated that when an accused pleads not guilty, he is presumed innocent until his guilt is established beyond reasonable doubt. In consequence, an accused pleading not guilty has a right to a fair trial; to cross-examine Prosecution witnesses, to call Defence witnesses, and to testify in his defence. The Chamber asked the Accused if he understood that by pleading guilty, he was renouncing these rights. The Accused responded that he understood and that he consciously waived these rights Pursuant to Rule 62 (B)(i), (ii), and (iii) of the Rules, the Chamber first asked if the guilty plea was made freely and voluntarily; in other words, if the Accused was fully aware of what he was doing and was not threatened or pressured to so plea. The Accused answered that he was aware of what he was doing, that there were no threats against him, and that he pleaded guilty of his own will Rule 62: Initial Appearance of Accused and Plea (B) If an accused pleads guilty in accordance with Rule 62 (A)(v), or requests to change his plea to guilty, the Trial Chamber shall satisfy itself that the guilty plea: (i) is made freely and voluntarily; (ii) is an informed plea; (iii) is unequivocal; and (iv) is based on sufficient facts for the crime and accused s participation in it, either on the basis of objective indicia or of lack of any material disagreement between the parties about the facts of the case. Thereafter the Trial Chamber may enter a finding of guilt and instruct the Registrar to set a date for the sentencing hearing. Rule 62 bis: Plea Agreement Procedure (A) The Prosecutor and the Defence may agree that, upon the accused entering a plea of guilty to the indictment or to one or more counts of the indictment, the Prosecutor shall do one or more of the following before the Trial Chamber: (i) apply to amend the indictment accordingly; (ii) submit that a specific sentence or sentencing range is appropriate; (iii) not oppose a request by the accused for a particular sentence or sentencing range. (B) The Trial Chamber shall not be bound by any agreement specified in paragraph (A) (C) If a plea agreement has been reached by the parties, the Trial Chamber shall require the disclosure of the agreement in open session or, on a showing of good cause, in closed session, at the time the accused pleads guilty in accordance with Rule 62 (A) (v), or requests to change his or her plea to guilty. 10 T. 7 December 2005 p T. 7 December 2005, p.14. 6 22. Secondly, the Chamber asked the Accused if the plea was informed: that is if the Accused clearly understood the nature of the charges brought against him and the consequences of the plea for each of the counts. 12 The Accused answered that he pleaded advisedly Thirdly, the Chamber asked the Accused if his plea was unequivocal: that is whether the Accused knew that the plea was not compatible with any defence that would contradict it. The Accused answered that there was absolutely no incompatibility Further, the Chamber notes the following elements of the Plea Agreement: the Accused elected freely, with full knowledge of the facts, to plead guilty; 15 the Accused decided to plead guilty after a long reflection during which he became fully aware of the scope and consequences of the offences he had committed; 16 the Accused decided to change his plea after being fully briefed on the legal consequences of so changing and having accepted these consequences; 17 the Accused s decision to plead guilty was voluntary, informed and unequivocal In its oral ruling of 7 December 2005, the Chamber was satisfied that, on account of the absence of any disagreement on the part of the Prosecutor and the Accused about the facts of the case, the plea was based on sufficient facts to establish the crimes and the participation of the Accused in their commission. The Chamber stated that the requirements of Rule 62 (B) were met and it therefore declared the Accused guilty of having aided and abetted the commission of the crimes of murder and extermination as crimes against humanity pursuant to Article 6 (1) of the Statute. 19 The Chamber granted the Prosecution motion for withdrawal and dismissal of the counts to which the Accused had pleaded not guilty. 20 However, the Chamber denied the Prosecution motion for acquittal on those counts because the Prosecution had failed to justify its motion on this point. 21 III. Case on Merits A. The Accused 26. Paul Bisengimana was born in in Duha secteur, Gikoro commune, Kigali-rural préfecture 23 and is the son of Verdiana Nyirabatera and Gervais Ngirumpatse, 24 both of whom are deceased. 25 He spent most of his adult life in Gikoro commune Paul Bisengimana is married and is the father of ten children. He had seven children with his first wife, Dorca Kantarama, who died in He later married Marie Hérondine Mukandagijimana, with whom he had two children. He adopted his second wife s child T. 7 December 2005 p T. 7 December 2005 p T. 7 December 2005 p Plea Agreement, para Plea Agreement, para Plea Agreement, para Plea Agreement, para T. 7 December 2005 p T. 7 December 2005 p T. 7 December 2005 p Plea Agreement, para. 24; T.17 November 2005 p. 11; T. 7 December 2005 p Plea Agreement, para. 24; Indictment, para T. 17 November 2005 p. 11; T. 7 December 2005 p T. 17 November 2005 p Plea Agreement, para 28. Paul Bisengimana went to primary school in Gikoro commune. He completed the premier cycle of his secondary education in Rwamagana in three years. He then went to Byumba école normale, which he left in 1970 with a teacher s D 5 certificate From 1970 to 1974, Paul Bisengimana worked in his native commune as a teacher. From 1974 to 1978, he was headmaster of a secondary school in Nyanza. From 1978 to 1981, he was Presiding Judge of the Cantonal Court of Nyamata, Kigali préfecture. 29 In May 1981, he was appointed bourgmestre of Gikoro commune, a position he held until 1994, when he went into exile. 30 B. Factual and Legal Findings 1. Individual Criminal Responsibility for Aiding and Abetting Pursuant to Article 6 (1) of the Statute a. The Indictment 30. In support of the counts of murder and extermination, the Indictment alleges that during April 1994, in the Bugesera region of Kigali-Rural préfecture, Paul Bisengimana acting individually and/or in concert with others, was responsible for killing or causing persons to be killed during mass killing events in Gikoro commune and its environs, as part of a widespread and systematic attack against a civilian population on political, ethnic or racial grounds. 31 For all the acts adduced in support of this charge, the Prosecutor alleges that the Accused either planned, or otherwise aided and abetted in the planning, preparation or execution of the said offence pursuant to Article 6 (1) of the Statute. 32 b. Applicable Law 31. Article 6 (1) reflects the principle that criminal responsibility for any crime in the Statute is incurred not only by individuals who physically commit the crime, but also by individuals who participate in and contribute to the commission of the crime in other ways, such as by aiding and abetting Aiding means assisting another to commit a crime. 34 Abetting means facilitating, encouraging, advising or instigating the commission of a crime. 35 In legal usage, including that of the Statute and of the case law of the Tribunal and the International Criminal Tribunal for the Former Yugoslavia (the ICTY ), the two terms are so often used conjunctively that they are treated as a single broad legal concept T. 17 November 2005 p. 11; T.7 December 2005 p T. 17 November 2005 p. 11; T. 7 December 2005 p T. 17 November 2005 p. 11; T. 7 décembre 2005 p Plea Agreement, paras ; T. 17 November 2005 p. 11; Indictment, para. 3; T. 7 December 2005 p Indictment, paras. 35 and Indictment, paras. 36 and Kajelijeli, Judgement (TC), para. 757; Semanza, Judgement (TC), para. 377; Kayishema and Ruzindana, Judgement (AC) para. 185; Musema, Judgement (TC), para. 114; Rutaganda, Judgement (TC), para. 33; Kayishema and Ruzindana, Judgement (TC) paras ; Akayesu, Judgement (TC), para Kajelijeli, Judgement (TC), para. 765, Semanza, Judgement (TC), para. 384; Ntakirutimana, Judgement (TC), para. 787; Akayesu, Judgement (TC), para Id. 36 Kajelijeli, Judgement (TC), para. 765; Semanza, Judgement (TC), para. 384, referring to Mewett & Manning, Criminal Law (3rd ed. 1994) p. 272 (noting that aiding and abetting are almost universally used conjunctively ) 8 33. Aiding and abetting is a form of accessory liability. The actus reus of the crime is not performed by the accused but by another person referred to as the principal offender. 37 The accused s participation may take place at the planning, preparation or execution stage of the crime and may take the form of a positive act or omission, occurring before or after the act of the principal offender. 38 The Prosecution is required to demonstrate that the accused carried out an act of substantial practical assistance, encouragement, or moral support to the principal offender, culminating in the latter s actual commission of the crime. 39 While the assistance need not be indispensable to the crime, 40 it must have a substantial effect on the commission of the crime Mere presence at the crime scene may constitute aiding and abetting where it is demonstrated to have a significant encouraging effect on the principal offender, particularly if the individual standing by was the superior of the principal offender or was otherwise in a position of authority. 42 In those circumstances, an omission may constitute the actus reus of aiding and abetting, provided that this failure to act had a decisive effect on the commission of the crime However, it is not necessary that the person aiding and abetting the principal offender be present during the commission of the crime The mens rea of aiding and abetting is demonstrated by proof that the aider and abettor is aware that his act is assisting the commission of the crime by the principal offender. 45 The aider and abettor must have known the int
Related Search
Similar documents
View more...
We Need Your Support
Thank you for visiting our website and your interest in our free products and services. We are nonprofit website to share and download documents. To the running of this website, we need your help to support us.

Thanks to everyone for your continued support.

No, Thanks