Today, the Appeals Chamber of the Mechanism for International Criminal Tribunals (MICT) delivered its first appeals judgment in the case of Augustin Ngirabatware v. The Prosecutor. President of the Appeals Chamber, Judge Theodor Meron delivered a summary of the judgment in Arusha, Tanzania, in the case of Rwanda’s former Minister of Planning, Mr. Augustin Ngirabatware.
The Appeals judgment originated from the International Criminal Tribunal for Rwanda (ICTR)’s final trial judgment, delivered on 20 December 2012. With this judgment, the Trial Chamber had convicted Mr Ngirabatware for direct and public incitement to commit genocide, genocide and rape as a crime against humanity.
This morning, the Appeals Chamber unanimously affirmed Ngirabatware’s conviction for direct and public incitement to commit genocide. A majority of the Appeals Chamber also affirmed Ngirabatware’s conviction for instigating and aiding and abetting genocide. However, it held that that the Trial Chamber had erred in convicting Mr Ngirabatware for rape as a crime against humanity pursuing to the extended form of Joint Criminal Enterprise.
The Trial Chamber had convicted Ngirabatware pursuant to the extended form of JCE (JCE III) in relation to the repeated rape of a Tutsi woman in april 1994 by two members of the Joint Criminal Enterprise. As a quick reminder: the third, and most controversial, category of the Joint Criminal Enterprise, provides that all participants who had the intend to participate in the common design of the Joint Criminal Enterprise can be held criminally responsible for acts that fall outside of the common plan or purpose of the JCE if such acts are a “natural and foreseeable consequence of the effecting of that common purpose and if the defendant was reckless or indifferent to that risk.”
Mr Ngirabatware alleged that the Trial Chamber erred in holding him responsible for the crime of rape on the basis for his participation in a JCE because his contribution to the JCE was not pleaded in the indictment. Furthermore, he argued that his conviction for rape as a crime against humanity was based on his participation in a Joint Criminal Enterprise with the criminal purpose of destroying, in whole or in part, the Tutsi ethnic group. However, the Trial Chamber had acquitted him for the crime of extermination.
The Appeals Chamber held that “the Trial Chamber impermissibly expanded the charge of rape as a crime against humanity” in relation to Ngirabatware’s contribution to a joint criminal enterprise to exterminate the Tutsis. It continued that since the Prosecution had failed to prove Ngirabatwares contribution to the common purpose of exterminating the Tutsi civilian population pleaded under the count of extermination, Ngirabatware’s conviction for rape pursuant to the extended form of JCE could not be sustained.
As a consequence, the Appeals Chamber granted Mr Ngirabatware’s third ground of appeal and reversed his conviction for rape as a crime against humanity. “Nonetheless,” it held, “Mr Ngirabatware remains convicted of very serious crimes, including direct and public incitement to commit genocide and genocide”. The Chamber ruled that it “sets aside the sentence of 35 years of imprisonment and imposes a sentence of 30 years imprisonment.”
This judgment of the MICT Appeals Chamber does not mean the end of the mandate of the ICTR. The Nyiramasuhuko et al. case (Butare) remains on appeal before the Tribunals Appeals Chamber and is expected to be completed in 2015. Furthermore, nine fugitives remain at large, three of which are earmarked for trial by the MICT (Félicien Kabuga, Protais Mpiranya and Augustin Bizimana.) and six are to be tried by the Rwandan judiciary (Fulgence Kayishema, Charles Sikubwabo, Ladislas Ntaganzwa, Aloys Ndimbati, Ryandikayo, and Phénéas Munyarugarama).
Today’s Appeal judgment comes at the end of the year that marked the passage of 20 years since the Genocide occurred in Rwanda, which began on the 7th of April 1994. This year also saw the ICTR’s 20th anniversary of its establishment in November 1994 and the announcement of its new legacy website, which should play a role in preserving the legacy of the ICTR by ensuring access to information about the work of the Tribunal.