Current Developments in the Jurisprudence of the International Criminal Tribunal for Rwanda

ICLA_5,1_F4-147-160 3/5/2005 4:57 Page 147

GREGORY TOWNSEND1

PROSECUTOR V. NTAKIRUTIMANA & NTAKIRUTIMANA, JUDGEMENT AND SENTENCE, 21 February 2003; PROSECUTOR V. NIYITEGEKA, JUDGEMENT AND SENTENCE, 16 May 2003; RUTAGANDA V. PROSECUTOR, JUDGEMENT, Appeals Chamber, 26 May 2003.

“Genocide; Conspiracy to commit genocide; Crimes against humanity- extermination, murder, rape; Violations of Common Article 3; “Nexus” requirement between criminal act and non-international armed conﬂict; Speciﬁcity required of indictments; Sentencing.”

Introduction

On 21 February 2003, Trial Chamber I of the United Nations International Criminal Tribunal for Rwanda,2 sitting in Arusha, Tanzania, convicted Seventh-Day Adventist pastor Elizaphan Ntakirutimana and his son, a medical doctor, Gérard Ntakirutimana.3 On 16 May 2003, Trial Chamber I convicted former Rwandan Minister Eliézer Niyitegeka.4 These judgements represent the ninth, tenth, and twelfth convictions, respectively, at the ICTR. The eleventh conviction was that of 15 May 2003 by Trial Chamber III, convicting former

1 International Prosecutor, United Nations Interim Administration Mission in Kosovo (UNMIK); former Assistant Trial Attorney, Ofﬁce of the Prosecutor (OTP), International Criminal Tribunal for Rwanda (ICTR). LLD candidate, University of South Africa; JD, Loyola Law School; DES, Institut Universitaire des Hautes Études Internationales; MALD, Fletcher School of Law and Diplomacy; BA, UCLA. The views expressed herein are those of the author and not attributable to UNMIK, OTP, ICTR, or the United Nations. 2 Hereinafter referred to as the “ICTR” or the “Tribunal”. 3 Prosecutor v. Ntakirutimana & Ntakirutimana, Judgement and Sentence, No. ICTR-96-10 & ICTR-96-17-T (21 February 2003) [hereinafter “Ntakirutimana Judgement”]. 4 Prosecutor v. Niyitegeka, Judgement and Sentence, No. ICTR-96-14-T (16 May 2003) [hereinafter “Niyitegeka Judgement”]. The Trial Chamber orally pronounced its judgement 15 May 2003. ICLA_5,1_F4-147-160 3/5/2005 4:57 Page 148

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Rwandan mayor and businessman Laurent Semanza.5 Additionally, on 26 May 2003, the ICTR Appeals Chamber affirmed the conviction and life sentence of Georges Rutaganda,6 a former vice president of the Interahamwe, or youth wing and militia of the ruling political party in Rwanda in April 1994, the MRND (Mouvement Républicain National pour le Développement et la Démocratie). In affirming the Trial Chamber’s conviction and life sentence, the Appeals Chamber in Rutaganda overturned two acquittals and convicted on two additional counts of violations of Article 3 common to the 1949 Geneva Conventions for the Protection of War Victims7 and their 1977 Additional Protocol II,8 and overturned one conviction and acquitted on a count of crime against humanity-murder. This Article discusses the judgements in Ntakirutimana, Niyitegeka, and Rutaganda, in turn, compares them, and draws some conclusions. These conclusions on recent case law of the Tribunal include findings related to the “nexus” requirement between criminal acts in Rwanda and the non-international armed conflict, and holdings on the specificity required of indictments and on sentencing.

Ntakirutimana

In Ntakirutimana, a three-judge panel, or Trial Chamber, unanimously convicted Elizaphan and Gérard Ntakirutimana of genocide.9 The Trial Chamber

5 Prosecutor v. Semanza, Judgement and Sentence, No. ICTR-97-20-T (15 May 2003), para. 121 [hereinafter “Semanza Judgement”]. For a detailed discussion of the Semanza Judgement, see R. Boed, Current Developments in the Jurisprudence of the Rwanda Tribunal: Judgement of a Trial Chamber in the Case of The Prosecutor v. Laurent Semanza, INTERNATIONAL CRIMINAL LAW REVIEW 3 (2003), pp. 405–413. 6 Rutaganda v. Prosecutor, Judgement, No. ICTR-96-3-A, Appeals Chamber (26 May 2003) [hereinafter “Rutaganda Judgement”]. 7 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention No. I), (1950) 75 U.N.T.S. 31; Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea (Geneva Convention No. II), (1950) 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War (Geneva Convention No. III), (1950) 75 U.N.T.S. 135; Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention No. IV), (1950) 75 U.N.T.S. 287 [hereinafter the “Geneva Conventions”]. Article 3 common to the four conventions [hereinafter “Common Article 3”] and Additional Protocol II are codiﬁed in the ICTR Statute as Article 4. See ICTR Statute, Art. 4. 8 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conﬂicts, (1978) 1125 U.N.T.S. 609 [hereinafter “Additional Protocol II”]. 9 Ntakirutimana Judgement, supra note 3, paras. 877(i)–878(i).