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VII) CHARGING, CONVICTING AND SENTENCING

a) Cumulative charges and convictions

i) cumulative charges permitted

Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 863-864: “Cumulative charging is generally permissible, as it is not possible to determine which charges will be proven against an Accused prior to the presentation of the evidence.” See also Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1089.

Rutaganda, (Trial Chamber), December 6, 1999, para. 117: The Chamber held that genocide, crimes against humanity, and war crimes “have disparate ingredients and . . . their punishment is aimed at protecting discrete interests [and thus] multiple offenses may be charged on the basis of the same acts in order to capture the full extent of the crimes committed by an accused.”  See also Musema, (Trial Chamber), January 27, 2000, para. 297.

ii) cumulative convictions based on same conduct permitted only where crimes involve a materially distinct element

Prosecutor v. Musema, Case No. ICTR-96-13-A (Appeals Chamber), November 16, 2001, para. 358-370: The Appeals Chamber affirmed the test laid out in the Celebici Appeal Judgment as the one to be applied “in determining when multiple convictions based on the same set of facts may be entered or affirmed”:

“reasons of fairness to the accused and the consideration that only distinct crimes may justify multiple convictions, lead to the conclusion that multiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other.  An element is materially distinct from another if it requires proof of a fact not required by the other . . . . Where this test is not met, the Chamber must decide in relation to which offence it will enter a conviction.  This should be done on the basis of the principle that the conviction under the more specific provision should be upheld.  Thus, if a set of facts is regulated by two provisions, one of which contains an additionally materially distinct element, then a conviction should be entered only under that provision.”

“In applying this test, all the legal elements of the offences, including those contained in the provisions’ introductory paragraph must be taken into account.”  In response to a request by the prosecutor to the Appeals Chamber “to confirm that multiple convictions under different Articles of the Statute are always permitted,” the Appeals Chamber “decline[d] to give its opinion on the issue and limit[ed] its findings to the issues raised on appeal.”

Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 863-864: “Cumulative convictions are permissible only if the crimes involved comprise materially distinct elements.” See also Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1090.

Rutaganda, (Trial Chamber), December 6, 1999, para. 110-119: The Chamber re-affirmed the test set out by the Trial Chamber in Akayesu, establishing when a person can be charged and convicted for two or more offenses in relation to the same facts.  The Chamber disagreed with the majority finding in Kayishema and Ruzindana which held that the cumulative charges were improper because the crimes involved some of the same elements, the evidence relied upon to prove them was the same, and the protected social interests were the same. 

iii) application – multiple convictions

(1) permitted for genocide and crimes against humanity

Musema, (Appeals Chamber), November 16, 2001, para. 369-370: The Appeals Chamber held that “convictions for genocide and extermination as a crime against humanity, based on the same set of facts, are permissible,” and held that “cumulative charging is generally permitted.”

Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 864: “[T]he two offences [genocide and a crime against humanity (murder)] comprise materially distinct elements.  For example, the mens rea of genocide is the intent to destroy, in whole or in part, an ethnic or racial group, which element is not required for a crime against humanity.  The mens rea of a crime against humanity (murder) is the knowledge that the murder is part of a widespread or systematic attack against a civilian population on discriminatory grounds.”

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1090: “[T]he three Accused are guilty of conspiracy to commit genocide, genocide, direct and public incitement to commit genocide and crimes against humanity (persecution and extermination).  As these offences comprise materially distinct elements . . . convictions on these counts will be entered against the three Accused.”

But see Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 577-578, 590: In this particular case, the accused persons could not be convicted “for genocide as well as for crimes against humanity based on murder and extermination because the later two offences are subsumed fully by the counts of genocide.”  Although all the necessary elements for both exist, “the crimes against humanity in question are completely absorbed by the crime of genocide.  All counts for these crimes are based on the same facts and the same criminal conduct.  These crimes were committed at the same massacre sites, against the same people, belonging to the Tutsi ethnic group with the same intent to destroy this group in whole or in part.” 

           

(2) permitted for genocide, crimes against humanity and war crimes

Akayesu, (Trial Chamber), September 2, 1998, para. 468-470: “[G]enocide, crimes against humanity, and violations of article 3 common to the Geneva Conventions and of Additional Protocol II have different [constituent] elements and, are intended to protect different interests.  The crime of genocide exists to protect certain groups from extermination or protected extermination.  The concept of crimes against humanity exists to protect civilian populations from persecution.  The idea of violations of article 3 common to the Geneva Conventions and of Additional Protocol II is to protect non-combatants from war crimes in civil war.  These crimes have different purposes and are  . . . never co-extensive.  [I]t is legitimate to charge these crimes in relation to the same set of facts.  [I]t may . . . be necessary to record a conviction for more than one of these in order to fully reflect what crimes an accused committed.”  These crimes are not “lesser included offences of each other.”  Thus, “multiple convictions for these offences in relation to the same set of facts [are] permissible.”

b) Sentencing/penalties

i) instruments governing penalties

(1) Article 23, ICTR Statute: Penalties

“1. The penalty imposed by the Trial Chamber shall be limited to imprisonment.  In determining the terms of imprisonment, the Trial Chamber shall have recourse to the general practice regarding prison sentences in the courts of Rwanda.

2. In imposing the sentences, the Trial Chamber should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.

3. In addition to imprisonment, the Trial Chamber may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners.”

(2) Rule 101 of the Rules of Procedure and Evidence, ICTR

“(A) A person convicted by the Tribunal may be sentenced to imprisonment for a fixed term or the remainder of his life.

(B) In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 23(2) of the Statute, as well as such factors as

(i) Any aggravating circumstances;

(ii) Any mitigating circumstances including the substantial co- operation with the Prosecutor by the convicted person before or after conviction;

(iii) The general practice regarding prison sentences in the courts of Rwanda;

(v) The extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served, as referred to in Article 9(3) of the Statute.

(C) The Trial Chamber shall indicate whether multiple sentences shall be served consecutively or concurrently.

(D) Credit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending his surrender to the Tribunal or pending trial or appeal.”

ii) generally

(1) considerations in Statute and Rules not mandatory nor exhaustive

Rutaganda, (Trial Chamber), December 6, 1999, para. 458-459: “[A]s far as the individualization of penalties is concerned, the judges of the Chamber cannot limit themselves to the factors mentioned in the Statute and the Rules.  Here again, their unfettered discretion in assessing the facts and attendant circumstances should enable them to take into account any other factor that they deem pertinent . . . . Similarly, the factors referred to in the Statute and in the Rules cannot be interpreted as having to be applied cumulatively in the determination of the sentence.”  See also Ruggiu, (Trial Chamber), June 1, 2000, para. 34; Prosecutor v. Kambanda, Case No. ICTR-97-23 (Trial Chamber), September 4, 1998, para. 29-31.

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, Sentencing Judgment para. 3-4: The enumerated circumstances set out in the Statute and the Rules “are not necessarily mandatory or exhaustive.  It is a matter of individualising the penalty considering the totality of the circumstances.”  The Chamber also held that it had “unfettered discretion to go beyond the circumstances stated in the Statute and Rules to ensure justice in matters of sentencing.”  See also Ruggiu, (Trial Chamber), June 1, 2000, para. 35.

(2) only prison sentences dispensed

Kambanda, (Trial Chamber), September 4, 1998, para. 10: “[T]he only penalties the Tribunal can impose on an accused who pleads guilty or is convicted as such are prison terms up to and including life imprisonment . . . . The Statute of the Tribunal excludes other forms of punishment such as the death sentence, penal servitude or a fine.”  See also Prosecutor v. Serushago, Case No. ICTR-98-39 (Trial Chamber), February 5, 1999, Sentence para. 12; Rutaganda, (Trial Chamber), December 6, 1999, para. 448.

(3) restitution

Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 880: “[T]he Tribunal may impose . . . the restitution of property or proceeds acquired by criminal conduct.”  See also Kambanda, (Trial Chamber), September 4, 1998, para. 22.

(4) goal of penalties: retribution, deterrence, rehabilitation, protecting society, justice, ending impunity, promoting reconciliation, and restoring peace 

Rutaganda, (Trial Chamber), December 6, 1999, para. 456: “[I]t is clear that the penalties imposed on accused persons found guilty . . . must be directed, on the one hand, at retribution of the said accused, who must see their crimes punished, and over and above that, on [the] other hand, at deterrence, namely to dissuade for ever, others who may be tempted in the future to perpetrate such atrocities by showing them that the international community shall not tolerate the serious violations of international humanitarian law and human rights.”  See also Kambanda, (Trial Chamber), September 4, 1998, para. 28; Musema, (Trial Chamber), January 27, 2000, para. 986.

  

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, Sentencing Judgment para. 2: “The Chamber must impose sentences on convicted persons for retribution, deterrence, rehabilitation, and to protect society.”  See also Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 882 and 887.

Niyitegeka, (Trial Chamber), May 16, 2003, para. 484: “Specific emphasis is placed on general deterrence, so as to demonstrate ‘that the international community [is] not ready to tolerate serious violations of international humanitarian law and human rights.’”

Ruggiu, (Trial Chamber), June 1, 2000, para. 32-33: “The objective in creating the Tribunal is to prosecute and punish the perpetrators of the atrocities in Rwanda, to put an end to impunity, and thereby to promote national reconciliation and restoration of peace.  The jurisprudence of the ICTR with regard to penalties has addressed the principal aims of sentencing, namely retribution, deterrence, rehabilitation and justice.”

iii) determining penalties

(1) taking account of Rwandan law/practice

Kambanda, (Trial Chamber), September 4, 1998, para. 11, 18, 22-24, 41: “Neither . . . the Statute nor . . . the Rules determine any specific penalty for each of the crimes.  The determination of sentences is left to the discretion of the Chamber, which should take into account . . . the general practice regarding prison sentences in the courts of Rwanda.”  The Trial Chamber “has recourse only to prison sentences applicable in Rwanda” and not the death penalty.  “Reference to the Rwandan sentencing practice is intended as a guide to determining an appropriate sentence and does not fetter the discretion of the judges of the Trial Chamber to determine the sentence.”  See also Serushago, (Trial Chamber), February 5, 1999, Sentence para. 18.

Prosecutor v. Serushago, Case No. ICTR-98-39-A (Appeals Chamber), April 6, 2000, para. 30: “It is settled jurisprudence of the ICTR that the requirement that ‘the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of Rwanda’ does not oblige the Trial Chambers to conform to that practice; it only obliges the Trial Chambers to take account of that practice.”  See also Ruggiu, (Trial Chamber), June 1, 2000, para. 31.

Rutaganda, (Trial Chamber), December 6, 1999, para. 454: The Chamber held that “[r]eference to the practice of sentencing in Rwanda and to the Organic law is for purposes of guidance.  While referring as much as practicable to such practice of sentencing, the Chamber maintains its unfettered discretion to pass sentence on persons found guilty.”8  See also Musema, (Trial Chamber), January 27, 2000, para. 984.

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, Sentencing Judgment para. 6-7: “Rwandan law empowers its courts to impose the death penalty for persons convicted . . . of [g]enocide . . . and to impose a life sentence for persons convicted of . . . intentional homicide or . . . serious assault against the person causing death.”  The Chamber held that “the general practice regarding prison sentences in Rwanda represents one factor supporting this Chamber's imposition of the maximum and very severe sentences, respectively” on Kayishema and Ruzindana. 

(2) ranking of crimes: genocide is “crime of crimes,” then crimes against humanity; war crimes are lesser

Kambanda, (Trial Chamber), September 4, 1998, para. 12-14, 16: “[T]he Statute does not rank the various crimes . . . and thereby, the sentence to be handed down.”  “In theory, the sentences are the same for each of the three crimes, namely a maximum term of life imprisonment.”  However, “[t]he Chamber has no doubt that despite the gravity of the violations of Article 3 common to the Geneva Conventions and of the Additional Protocol II thereto, they are considered as lesser crimes than genocide or crimes against humanity.”  The Chamber found it difficult “to rank genocide and crimes against humanity in terms of their respective gravity” and held that crimes against humanity and genocide are “crimes which particularly shock the collective conscience.”  However, the Chamber stated that the “crime of genocide is unique because of its element of dolus specialis (special intent)” and held that “genocide constitutes the crime of crimes, which must be taken into account when deciding the sentence.”  See also Serushago, (Trial Chamber), February 5, 1999, Sentence para. 13-15; Musema, (Trial Chamber), January 27, 2000, para. 979-981.

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, Sentence para. 8-9: Genocide is “an offence of the most extreme gravity.”  Previous ICTR judgments held “that genocide constitutes the ‘crime of crimes.’”

(3) gradation in sentencing: imposing highest penalties on those who planned or ordered atrocities, or those who committed crimes with especial zeal or sadism

Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 884: “[T]he principle of gradation in sentencing . . . enables the Tribunals to distinguish between crimes which are of the most heinous nature, and those which, although reprehensible and deserving severe penalty, should not receive the highest penalties.  The imposition of the highest penalties upon those at the upper end of the sentencing scale, such as those who planned or ordered atrocities, or those who committed crimes with especial zeal or sadism, enables the Chamber to punish, deter, and consequently stigmatize those crimes at a level that corresponds to their overall magnitude and reflects the extent of the suffering inflicted upon the victims.”  See also Niyitegeka, (Trial Chamber), May 16, 2003, para. 486.

(4) range of sentences

Semanza, (Trial Chamber), May 15, 2003, para. 562-564: “The . . . practice of awarding a single sentence for the totality of an accused’s conduct makes it difficult to determine the range of sentences for each specific crime.  [Yet] it is possible to ascertain general ranges of sentences . . . . Principal perpetrators convicted of either genocide or extermination as a crime against humanity, or both, have been punished with sentences ranging from fifteen years’ imprisonment to life imprisonment.  Secondary or indirect forms of participation have generally resulted [sic] a lower sentence.” “[R]ape as a crime against humanity has resulted in specific sentences between twelve years and fifteen years.  Torture as a crime against humanity has been punished with specific sentences between five years and twelve years.  Murder as a crime against humanity has been punished by specific fixed term sentences ranging from twelve years to twenty years.  In other cases, convictions for these crimes have formed part of a single sentence of a fixed term or of life imprisonment for the totality of the conduct of the Accused.”

Semanza, (Trial Chamber), May 15, 2003, para. 559: “The penalty of life imprisonment, the highest penalty available at this Tribunal, should be reserved for the most serious offenders.” 

(5) single sentence: discretionary

Prosecutor v. Kambanda, Case No. ICTR-97-23-A (Appeals Chamber), October 19, 2000, para 101-102: “[N]othing in the Statute or Rules expressly states that a Chamber must impose a separate sentence for each count on which an accused is convicted.”  “[T]he Statute is sufficiently liberally worded to allow for a single sentence to be imposed.  Whether or not this practice is adopted is within the discretion of the Chamber . . . . [A] Chamber is not prevented from imposing a global sentence in respect of all counts for which an accused has been found guilty.”

Musema, (Trial Chamber), January 27, 2000, para. 989: The Chamber noted that “nothing in the Statute or the Rules requires a separate penalty for each proven count” and that “the Chamber may impose one penalty for all the counts on which the accused has been found guilty.”

Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 917: “[E]ven where the crimes may be characterized in different ways, the imposition of a single sentence will usually be appropriate in cases in which the offences may be recognized as belonging to a single criminal transaction.  However, the decision whether to impose a single sentence is left entirely to the discretion of the Chamber, so long as the fundamental consideration in imposing sentence is the totality of the criminal conduct of the accused.”

Niyitegeka, (Trial Chamber), May 16, 2003, para. 483: “In the case of an accused convicted of multiple crimes . . . the Chamber may, in its discretion, impose a single sentence or one sentence for each of the crimes.  The imposition of a single sentence will usually be appropriate in cases in which the offences may be recognized as belonging to a single criminal transaction.  In the case of multiple sentences, the Chamber will determine whether the sentences shall be served consecutively or concurrently.”  See also Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1104.

iv) individualization of penalties

Kambanda, (Trial Chamber), September 4, 1998, para. 29: “[I]t is true that ‘among the joint perpetrators of an offence or among the persons guilty of the same type of offence, there is only one common element: the target offence which they committed with its inherent gravity.  Apart from this common trait, there are, of necessity fundamental differences in their respective personalities and responsibilities: their age, their background, their education, their intelligence, their mental structure . . . . It is not true that they are a priori subject to the same intensity of punishment.’” 

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, Sentence para. 10-12: “Article 23(2) of the Statute provides that the Trial Chamber should take into account the individual circumstances of the convicted person in determining the sentence.”  In this case, the Chamber considered “previous criminal convictions” with respect to the two accused persons, and  “the possibility of . . . rehabilitation” and “relatively young age” with respect to Ruzindana. 

Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 883: “Application of these principles [Article 23 of the Statute and Rule 101(B) of the Rules] allows the Chamber to fulfill its ‘overriding obligation to individualize [the] penalty,’ with the aim that the sentence be proportional to the gravity of the offence and the degree of responsibility of the offender.”

Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Trial Chamber), October 2, 1998: “[A]s far as the individualisation of penalties is concerned, the Judges cannot limit themselves to the factors mentioned in the statutes and the Rules.  Here again their unfettered discretion to evaluate the facts and attendance circumstances should enable them to take into account any other factor that they deem pertinent.”

Akayesu, (Appeals Chamber), June 1, 2001, para. 416: “The right to take into account other pertinent factors goes hand in hand with the overriding obligation to individualize a penalty to fit the individual circumstances of the accused, the overall scope of his guilt and the gravity of the crime the overriding consideration being that the sentence to be imposed must reflect the totality of the accused’s criminal conduct.”

Semanza, (Trial Chamber), May 15, 2003, para. 560: The Chamber’s “overarching obligation [is] to tailor the sentence to the gravity of the crime and to the individual circumstances of the offender.”

(1) aggravating circumstances

Kambanda, (Trial Chamber), September 4, 1998, para. 42-44: “The heinous nature of the crime of genocide and its absolute prohibition makes its commission inherently aggravating. The magnitude of the crimes involving the killing of an estimated 500,000 civilians in Rwanda, in a short span of 100 days constitutes an aggravating fact.” “Abuse of positions of authority or trust is generally considered an aggravating factor.”

Kambanda, (Trial Chamber), September 4, 1998, para. 61-62: The Chamber considered the following as aggravating circumstances: the “intrinsic gravity” of the crimes for which Kambanda is responsible, and “their widespread, atrocious and systematic character, [which] is particularly shocking to the human conscience;” the fact that he committed the crimes “knowingly and with premeditation;” and that he abused the “duty and authority” entrusted to him as Prime Minister “to protect the population.”  The Chamber held that the “aggravating circumstances . . . negate the mitigating circumstances, especially since . . . Kambanda occupied a high ministerial post, at the time he committed the . . . crimes.”  

Serushago, (Trial Chamber), February 5, 1999, Sentencing Judgment para. 27-30: The Chamber considered the following as aggravating circumstances: the “extreme gravity” of the offenses because genocide is considered the “crime of crimes;” Serushago’s individual criminal responsibility because he played a leading role in the commission of the crimes and because he personally murdered four Tutsi; the fact that he gave orders as a de facto leader and several victims were executed on his orders; his voluntary participation; and the fact that he “committed the crimes knowingly and with premeditation.”  

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, Sentencing Judgment para. 13-18: The Chamber considered the following to be aggravating circumstances: voluntary commission of and participation in the offenses; the “zeal” with which the crimes were committed (i.e., attacking places traditionally regarded as safe havens); the “heinous means” by which killings were committed; the “methodical and systematic execution of . . . [the] crimes;” “the behaviour . . . after the criminal act, . . . notably [the] inaction to punish the perpetrators” or smiling or laughing as survivors testified during trial; the irreparable harm suffered by victims and their families; the assertion of an alibi defence and the denial of guilt at all times; and most significantly, “the abuse of power and betrayal of . . . high level office.”

Rutaganda, (Trial Chamber), December 6, 1999, para. 468-470: The Chamber considered the following to be aggravating circumstances: the gravity of the crimes because genocide is the “crime of crimes;” the abuse of Rutaganda’s position of authority; and the “important leading role” he played in the execution of the crimes (which included weapon distribution, positioning of the Interahamwe at Nyanza and inciting and ordering the killings of Tutsis, and killing someone by striking him on the head with a machete).

Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 900-905: The Chamber considered the following to be aggravating circumstances: that as a highly respected personality and a man wielding certain authority within the Seventh Day Adventist Church, Elizaphan Ntakirutimana “abused the trust placed in him;” he “distanced himself from his Tutsi pastors and his flock in the hour of their need;” and his presence at the scenes of attack could only be construed by attackers as an approval of their actions.

Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 910-912: The Chamber considered the following to be aggravating circumstances: Gerard Ntakirutimana was a prominent personality, one of the few individuals in his area of origin to have achieved a higher education; as a medical doctor, “he took lives instead of saving them;” he “abused the trust placed in him;” his crimes were committed over a lengthy period of time; “he personally shot at Tutsi refugees;” “he participated in the attack against a safe haven;” and in several instances, he was found to have led attackers against Tutsi refugees.

Ruggiu, (Trial Chamber), June 1, 2000, para. 47-51: The Chamber considered the following to be aggravating circumstances: the gravity of the offenses (genocide and crimes against humanity); the role of the accused in the commission of the offenses (the accused, who was a journalist and broadcaster, played a crucial role in the incitement of ethnic hatred and violence and his broadcasts incited massacres of the Tutsi population); and the fact that even once the accused became aware that the broadcasts were contributing to the massacres, he made a deliberate choice to continue his employment with the radio station.

Musema, (Trial Chamber), January 27, 2000, para. 1001-1004: The Chamber considered the following to be aggravating circumstances: that the offenses for which Musema was found guilty are “extremely serious” (genocide); “he led attackers who killed a large number of Tutsi refugees;” he “was armed with a rifle and used the weapon during the attacks;” he “took no steps to prevent tea factory employees or vehicles from taking part in the attacks” (as Director of the Gisovu Tea Factory, Musema exercised legal and financial control over its employees); as a figure of authority who wielded considerable power in the region, he “was in a position to take reasonable measures to help in the prevention of crimes;” he “did nothing to prevent the commission of the crimes;” and he “took no steps to punish the perpetrators over whom he had control.” 

Akayesu, (Trial Chamber), October 2, 1998: The Chamber considered the following to be aggravating factors: Akayesu “consciously chose to participate in the systematic killings in Taba;” his status as burgomaster made him the most senior government personality in Taba and in this capacity he was responsible for protecting the population, which he failed to do; he “publicly incited people to kill;” he ordered the killing of a number of persons; he participated in the killings; and he supported the rape of many women in the bureau communal through his presence and acts.  

Semanza, (Trial Chamber), May 15, 2003, para. 566-573: The Chamber considered the following to be aggravating factors: the number of victims killed as a result of Semanza’s conduct with respect to the appropriate sentence for complicity in genocide; and the “influence and relative importance” of Semanza in his commune. 

Niyitegeka, (Trial Chamber), May 16, 2003, para. 499: The Chamber considered the following to be aggravating circumstances: Niyitegeka was a “well-known and influential figure in his native prefecture of Kibuye, where his crimes were committed,” and he “abused the trust placed in him by the population;” he held an official position at the national level at the time the crimes were committed and instead of promoting peace and reconciliation in his capacity as Minister of Information, he actively participated in the commission of massacres and influenced others to commit crimes while also, in some instances, giving instructions to attackers or acting as one of their leaders; the callous nature of some of the murders; the fact that he “joined in the jubilation over the killing, decapitation and castration of Kabanda, and the piercing of his skull through the ears with a spike;” the cruel and insensitive disregard for human life and dignity shown by the order he gave for a sharpened piece of wood to be inserted into the genitalia of a dead Tutsi woman; and the “prolonged nature of his participation in widespread and systematic attacks against defenseless civilians.”

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1099: The Chamber considered the following to be aggravating circumstances: Nahimana “was fully aware of the power of words, and he used the radio – the medium of communication with the widest public reach – to disseminate hatred and violence;” “[h]e was motivated by his sense of patriotism and the need he perceived for equity for the Hutu population [b]ut instead of following legitimate avenues of recourse, he chose a path of genocide;” “he betrayed the trust placed in him as an intellectual and a leader;” and “[w]ithout a firearm, machete or any physical weapon, he caused the deaths of thousands of innocent civilians.”

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1100: The Chamber considered the following to be aggravating circumstances: Barayagwiza “is a lawyer by training and in his book professes a commitment to international human rights standards;” “he deviated from these standards and violated the most fundamental human right, the right to life;” “[h]e did so both through the institutions he created, and through his own personal acts of participation in the genocide;” and “[h]e was the lynchpin of the conspiracy, collaborating closely with both Nahimana and Ngeze.”

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1101: The Chamber considered the following to be aggravating circumstances: “as owner and editor of a well-known newspaper in Rwanda, [Ngeze] was in a position to inform the public and shape public opinion towards achieving democracy and peace for all Rwandans;” “[i]nstead of using the media to promote human rights, he used it to attack and destroy human rights;” “Ngeze did not respect the  responsibility that comes with” the freedom of expression; “[h]e abused the trust of the public by using his newspaper to instigate genocide;” although “Ngeze saved Tutsi civilians from death by transporting them across the border out of Rwanda,” “[h]is power to save was more than matched by his power to kill;” and “[h]e poisoned the minds of his readers, and by words and deeds caused the death of thousands of innocent civilians.”

(2) mitigating circumstances

(a) generally

Kambanda, (Trial Chamber), September 4, 1998, para. 36-37, 56-58: The Chamber held that “substantial co-operation by the accused with the Prosecutor could only be one mitigating circumstance, among others, when the accused pleads guilty plea [sic] or shows sincere repentance.”  The Chamber stressed that “the principle must always remain that the reduction of the penalty stemming from the application of mitigating circumstances must not in any way diminish the gravity of the offence.”  The Chamber held that “a finding of mitigating circumstances relates to assessment of sentence and in no way derogates from the gravity of the crime.  It mitigates punishment, not the crime.”  “The degree of magnitude of the crime is still an essential criterion for evaluation of sentence.” “A sentence must reflect the predominant standard of proportionality between the gravity of the offence and the degree of responsibility of the offender.”

   

(b) application

Kambanda, (Trial Chamber), September 4, 1998, para. 61-62: The Chamber considered the following as mitigating circumstances: Kambanda’s past and present cooperation with the Prosecutor; the fact that his guilty plea “is likely to encourage other individuals to recognize their responsibilities during the tragic events;” and that guilty pleas are “generally considered, in most national jurisdictions, including Rwanda, as a mitigating circumstance.”  The Chamber held that the “aggravating circumstances surrounding the crimes committed by . . . Kambanda negate the mitigating circumstances especially since . . . Kambanda occupied a high ministerial post, at the time he committed the . . . crimes.”  

 

Serushago, (Trial Chamber), February 5, 1999, Sentencing Judgment para. 31-42: The Chamber considered the following as mitigating circumstances: Serushago’s “cooperation with the Prosecutor;” his “voluntary surrender;” his “guilty plea;” “his family and social background” (i.e., “the political background of his family played a crucial role in his involvement with the . . . militia” and strong ties of friendship between his father and the president led him to “play a prominent role in Interahamwe circles”); assistance given to certain Tutsis victims; individual circumstances, including his young age, his six children, two of whom are very young, and the possibility of his rehabilitation; and his “[p]ublic expression of remorse and contrition.”  The Chamber held “that exceptional circumstances in mitigation surrounding the crimes . . . may afford him some clemency.”

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, Sentencing Judgment para. 19-23: The Chamber held that “mitigating circumstances may include: cooperating with the Prosecutor; surrendering to authorities; admitting guilt . . . ; demonstrating remorse for victims,” and the fact that the accused was not a “de jure official.”

    

Rutaganda, (Trial Chamber), December 6, 1999, para. 471-473: The Chamber considered the following to be mitigating circumstances: assistance given by Rutaganda to certain individuals (helping people to evacuate and providing food and shelter to some refugees), and his poor health.  The Chamber held that the “aggravating factors outweigh the mitigating factors” especially since “Rutaganda occupied a high position in the Interahamwe” and he “knowingly and consciously participated in the commission of such crimes and never showed remorse for what he inflicted upon the victims.”

Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 895-898: The Chamber considered the following to be mitigating circumstances: Elizaphan Ntakirutimana was “a highly respected personality within the Seventh Day Adventist Church of the West-Rwanda Field” and until 1994 he, as a pastor, led an “exemplary life as a church leader;” he was a “highly religious and tolerant person,” who showed no ethnic bias, including in times of unrest and ethnic tension, for over half a century; during the events of 1994, he did not personally participate in killings, nor was he found to have fired on refugees or even carried a weapon; his age of 78 years; and his frail health.

     

Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 908-909: The Chamber considered the following to be mitigating circumstances: Gerard Ntakirutimana was a person of good character and he did not profess or show any ethnic bias until April 1994; and he provided or offered shelter to several Tutsi, including a colleague and friends, a house-help and orphaned children.

Ruggiu, (Trial Chamber), June 1, 2000, para. 53-80: The Chamber considered the following to be mitigating circumstances: Ruggiu’s guilty plea; the accused’s cooperation with the prosecutor; the absence of a criminal record; the character of the accused; his regret and remorse; the accused’s assistance to victims; the accused’s position with Radio Television Libres des Milles Collines and in political life (i.e., he was a subordinate at the radio station and played no part in formulating editorial policy); and the fact that he did not personally participate in the killings.  The Chamber held that these “circumstances . . . operate as mitigatory factors to warrant some clemency,” but still stated that “[m]itigation of punishment in no way reduces the gravity of the crime or the guilty verdict against a convicted person.” 

Musema, (Trial Chamber), January 27, 2000, para. 1005-1008: The Chamber considered the following to be mitigating circumstances: Musema “admitted the genocide against the Tutsi people in Rwanda in 1994;” he “expressed his distress about the deaths of so many innocent people and paid tribute to all victims of the tragic events;” he expressed deep regret that the facilities of the Gisovu Tea Factory (of which he was Director) may have been used by the perpetrators of atrocities; his co-operation through his admission of facts pertaining to the case facilitated an expeditious trial; and his continuous co-operation throughout the trial which contributed to proceedings without undue delay.  The Chamber held that “the aggravating circumstances outweigh the mitigating circumstances, especially as on several occasions Musema personally led attackers to attack large numbers of Tutsi refugees.”  The Chamber further held that Musema “knowingly and consciously participated in the commission of crimes and never showed remorse for his personal role in the atrocities.”  

Akayesu, (Trial Chamber), October 2, 1998: The Chamber considered the following to be mitigating factors: Akayesu was “not a very high official in the government hierarchy in Rwanda;” his influence and power was not commensurate with the events; he expressed sympathy for the victims of the genocide; and he identified himself with the survivors of the events.

Semanza, (Trial Chamber), May 15, 2003, para. 579-584: The Chamber considered the following to be mitigating factors: prior character and accomplishments of Semanza (bringing prosperity and development to his region).

Niyitegeka, (Trial Chamber), May 16, 2003, para. 495-498: The Chamber considered as mitigating circumstances the fact that Niyitegeka intervened and saved from the Interahamwe militia, the lives of a group of refugees.  However, the Chamber held that this carried limited weight since he also took the lives of others.  The Chamber also considered that Niyitegeka was “a person of good character prior to the events” and as a public figure and a member of the Mouvement Democratique Republicain (MDR), he advocated democracy and opposed ethnic discrimination.  Again, however, the Chamber held that this carried little weight because when faced with the choice between participating in massacres of civilians or holding fast to his principles, Niyitegeka chose the path of ethnic bias and participated in the massacres.



8 The “Organic law” refers to the Rwandan Organic Law on the Organization of Prosecutions for Offences constituting the Crime of Genocide or Crimes Against Humanity committed since 1 October 1990, adopted in 1996.


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February 2004