Human Rights Brief

Volume 20 | Issue 2 Article 10

2013 Criminal Courts and Tribunals Tracy French American University Washington College of Law

Megan Wakefield American University Washington College of Law

William Xu American University Washington College of Law

Alli Assiter American University Washington College of Law

Follow this and additional works at: http://digitalcommons.wcl.american.edu/hrbrief Part of the Human Rights Law Commons

Recommended Citation French, Tracy, Megan Wakefield, William Xu, and Alli Assiter. "Criminal Courts and Tribunals." Human Rights Brief 20, no. 2 (2013): 59-64.

This Column is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Human Rights Brief by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. French et al.: Criminal Courts and Tribunals

Criminal Courts and Tribunals

International Criminal Court attack on Bogoro were held in camps as of the Prosecutor does appear to be of sex slaves after the attack. The Charging concern to Bensouda, who was elected in ICC Hands Down Acquittal in Document indicted Ngudjolo and Katanga June 2012 to the position and confirmed Congolese Military Case under Article 25(3)(a) as principals who her commitment to the cause at the ICC indirectly co-perpetrated war crimes and Assembly of States Parties session in The The International Criminal Court crimes against humanity. Article 25(3) Hague in November. Without effective handed down its second verdict and first (a) provides that a person shall be crimi- investigation, prosecutorial practices, and acquittal in its ten-year history on December nally responsible and liable for punishment policy, it will be impossible for the ICC to 18, 2012, in the case of Mathieu Ngudjolo. if that person “commits such a crime, provide justice to victims of human rights Ngudjolo, together with Germain Katanga, whether as an individual, jointly with abuses worldwide. faced charges of war crimes and crimes another or through another person, regard- against humanity with regard to acts in the less of whether that other person is crimi- Ituri region of the Democratic Republic of ICC Appeals Chamber Confirms nally responsible.” The war crimes charges Congo in 2003. As of February 2013, the Jurisdiction in Case Against fell under Article 8(2)(b) and comprised Trial Chamber had not issued a verdict on Former Côte d’Ivoire President using child solders, directly attacking a the charges against Katanga. In Ngudjolo’s civilian population, willful killing, destruc- The ICC Appeals Chamber held on case, the panel of three judges of Trial tion of property, pillaging, sexual slavery, December 12, 2012, that the Court has Chamber II found that the Prosecutor had and rape. The crimes against humanity jurisdiction to try former Côte d’Ivoire presented insufficient evidence to estab- charges fall under Article 7(1) and include President Laurent Gbagbo despite the lish beyond a reasonable doubt Ngudjolo’s murder, rape, and sexual slavery. defense’s numerous challenges. Gbagbo responsibility for the attack on the village faces charges related to events surround- of Bogoro. Those who viewed Ngudjolo’s The ICC’s standard of proof in Article ing his failure to step down after losing the trial as a sign that the international com- 66(3) of the Rome Statute states that “in 2010 presidential election. The Court con- munity would hold accountable those order to convict the accused, the Court firmed charges on four counts of crimes responsible for the atrocities committed in must be convinced of the guilt of the against humanity including murder, rape the Ituri region see his acquittal as a major accused beyond a reasonable doubt.” and other sexual violence, , setback. The outcome has also raised ques- According to Article 66, accused persons and other inhuman acts committed during tions about the Office of the Prosecutor’s are presumed innocent until proven guilty. the post-election violence in Côte d’Ivoire ability to effectively collect and present In the judgment, the three-judge panel between December 16, 2010, and April 12, evidence in a court so far removed from the found that the prosecution failed this stan- 2011. The confirmation of jurisdiction in this crimes it tries. dard because the judges noted unreliable case strengthens the Court’s ability to exer- testimony by three crucial prosecution The Prosecutor issued warrants for cise jurisdiction in order to hold international witnesses who could not definitively sup- Ngudjolo’s and Katanga’s arrests on June human rights violators accountable. port that Ngudjolo was responsible for 25, 2007, and submitted the Amended the attack. Despite the ruling, Presiding Gbagbo served as president from his Charging Document in June 2008. On Judge Bruno Cotte added that Ngudjolo’s election in 2000 until his defeat by current September 30, 2008, Pre-Trial Chamber acquittal “does not necessarily mean that President Alassane Ouattara in the long I unanimously found sufficient evidence the alleged fact did not occur,” stressing overdue elections of November 28, 2010. to establish substantial grounds to believe that the ruling did not put into question the Gbagbo refused to accept defeat, leading that Ngudjolo and Katanga had commit- victims’ suffering. to protracted violence throughout Côte ted the crimes charged by the prosecution d’Ivoire until April 2011, when President and so the case progressed to be heard and Since the ICC announced its judg- Ouattara finally took power with the help decided by a Trial Chamber. On November ment, many human rights groups have of French and United Nations forces. The 21, 2012, Trial Chamber II severed the expressed grave concern over the Office of violence by both sides led to 3,000 deaths charges against Ngudjolo and Katanga, cit- the Prosecutor’s effectiveness in bringing and nearly one million displaced civilians. ing evidence that changed the legal charac- human rights abusers to justice. Geraldine The ICC Prosecutor requested authoriza- terization of one of the modes of liability Mattiolo-Zeltner, International Justice tion from the Pre-Trial Chamber to initiate for Katanga. Advocacy Director at Human Rights his own investigation into the situation in Watch, stated that, “given the judges’ com- The charges against Ngudjolo, a Côte d’Ivoire in June 2011. The Chamber ments on the insufficient evidence pro- Congolese militia leader, allege his respon- granted his proprio motu investigation duced during the trial, [Chief Prosecutor sibility for the attack by armed forces request in October 2011, and the Court Fatou] Bensouda should speed up efforts to in Bogoro that resulted in the rape and issued the warrant for Gbagbo’s arrest improve investigative practices and pros- murder of more than 200 people, includ- on November 23, 2011. Gbagbo is being ecutorial policy.” The need to improve ing children. Female survivors of the charged individually as an indirect co- investigations conducted by the Office perpetrator of the attacks against civilian Published by Digital Commons @ American University Washington College59 of Law, 2013 1 Human Rights Brief, Vol. 20, Iss. 2 [2013], Art. 10 Ouattara supporters that the prosecution his fundamental rights had been violated to commit , and extermination argues were committed by forces acting on to the extent that the Court should not and rape as crimes against humanity on his behalf. After his arrest in April 2011, exercise its jurisdiction over him. These December 20, 2012. Ngirabatware was Gbagbo was held under house arrest in claims were based on alleged violations of sentenced to 35 years in prison for his role Côte d’Ivoire until his extradition to The Gbagbo’s fundamental rights from his arrest in orchestrating the Hague in November 2011. by domestic authorities on April 11, 2011, as Planning Minister in the Hutu govern- until his transfer to The Hague on November ment. Ngirabatware was the last person The Pre-Trial Chamber categorically 29, 2011. The Appeals Chamber quickly facing trial before the Tribunal, and when rejected all challenges to the Court’s juris- denied these five grounds within the mean- the final cases on appeal are resolved, the diction, despite the fact that Côte d’Ivoire ing of Article 82(1)(a) of the Rome Statute ICTR will close. The Tribunal has stated is not a formal State Party to the Rome as not referring to a decision with respect that it must close by December 2014, Statute. The Chamber based its jurisdiction to jurisdiction. Article 82(1)(a) gives either when all further cases will be transferred on a declaration made by Côte d’Ivoire in party the ability to appeal a decision with to local courts in Kigali. Since its creation 2003 that recognized the Court’s jurisdic- respect to jurisdiction or admissibility. in 1994, the ICTR has resolved 71 cases, tion for actions that occurred from 2002 resulting in 92 indictments, ten acquittals, to 2003 pursuant to Article 12(3) of the The significance of the Appeals and 32 convicted Rwandans who are cur- Rome Statute. Chamber confirmation of jurisdiction in rently serving prison sentences in Mali and this case cannot be overstated given that On August 21, 2012, Gbagbo appealed Benin. The ICTR will attempt to complete Côte d’Ivoire is not a Member State and the decision to the Appeals Chamber the seven outstanding appeals involving that the Prosecutor initiated the investiga- on ten different grounds. The first two seventeen individuals before its closure tion proprio motu. Of the eight situations grounds dealt with the appropriateness next year. The first appellate decision — the Court has investigated, the Prosecutor of Côte d’Ivoire’s participation as a non- an acquittal in the cases of Justin Mugenzi initiated two, Kenya and Côte d’Ivoire. In State Party in the Pre-trial Chamber’s and Prosper Mugiraneza — was handed four of the eight situations, the State Party review of the jurisdictional challenge. The down on February 4, 2013, and ICTR initiated the investigation. The United Appeals Chamber found that the Pre- President Judge Vagn Joensen predicted Nations Security Council initiated the two Trial Chamber had erred in not issuing a that seven convicted persons will receive remaining situations in Darfur and Libya. separate decision on the request for leave appellate decisions during 2013, with the Proprio motu investigations give the Court to file submissions, thereby not allow- remaining ten appeals to be decided in the ability to act independent from global ing Gbagbo or the Prosecutor to respond 2014. The United Nations has also stepped politics to hold states accountable. While to Côte d’Ivoire’s submissions. However, up its search for nine alleged perpetrators of state sovereignty is a recognized and cen- Gbagbo failed to demonstrate how that the Rwandan genocide who remain at large. tral right in modern world politics, the error materially affected the decision and ICC’s independence and corresponding The ICTR determined that local courts the Chamber therefore rejected the first two ability to effectively prosecute impunity have demonstrated their ability to fairly try grounds of appeal. and enforce accountability requires that it Jean Uwinkindi, the first indictee trans- Grounds three through five related to be able to exercise jurisdiction in a broad ferred to Kigali, justifying the transfer of the interpretation of Article 12(3) and the array of circumstances. Despite limited the remaining indictments for trial in local declarations made by Côte d’Ivoire in rela- state consent and non-party status of the courts. However, Uwinkindi’s case has tion to Article 12(3). On April 18, 2003, state in question, a confirmation of the been stayed since his counsel challenged the Minister of Foreign Affairs of Côte Prosecutor’s ability to initiate investiga- the constitutionality of the transfer. As this d’Ivoire submitted a declaration to the tions may have broad ramifications for the case is resolved, public opinion throughout Court accepting the Court’s jurisdiction potential scope of future investigations. the international community will have pursuant to Article 12(3) “for the purposes to act as a check on fair and humane Tracy French, a J.D. candidate at the of identifying, investigating and trying treatment of indictees by monitoring how American University Washington College the perpetrators and accomplices of acts individuals are treated when they return of Law, is a staff writer for the Human committed on Ivorian territory since [the] to their home country. Eight individuals Rights Brief. events of 19 September 2002.” Gbagbo convicted by the ICTR, including those challenged the scope of this declaration, who have been acquitted or who have arguing that it only gave the Court jurisdic- Internationalized completed their sentences, have already tion over events that occurred before the dec- Criminal Tribunals stated that they do not want to return to laration was made. The Appeals Chamber, , but no other state has agreed to looking to the text and purpose of Article 12, With End in Sight for Rwandan accept them. found that there was no temporal limit on the International Criminal Tribunal, Despite the availability of local courts, jurisdiction submitted to by the 2003 declara- Questions of Jurisdiction, the ICTR has determined that if any of the tion, and that the wording suggested explicit Procedure, and Public Perception three most wanted indictees are captured, consent to jurisdiction with respect to crimes Remain they will be tried using a special interna- committed after the declaration. The International Criminal Tribunal for tional legal structure, the Mechanism for Grounds six through ten of Gbagbo’s Rwanda (ICTR, the Tribunal) convicted International Criminal Tribunals (MICT). appeal claimed the Pre-Trial Chamber Augustin Ngirabatware, a former govern- One such indictee, Ngirabatware’s father- had erred in addressing his argument that ment minister, of genocide, incitement in-law, Felicien Kabuga, is still at large http://digitalcommons.wcl.american.edu/hrbrief/vol20/iss2/10 60 2 French et al.: Criminal Courts and Tribunals and wanted by the international commu- Acquittals for Croatian Generals conviction of engaging in a joint criminal nity for genocide, crimes against human- Raise Questions about the ICTY enterprise. ity, and serious violations of international and its Legacy In December 2012, university stu- humanitarian law. Kabuga is a millionaire The International Criminal Tribunal for dents, joined by Minister of Justice Nikola accused of funding the 1994 genocide the former Yugoslavia (ICTY, the Tribunal) Selakovic, crowded around the Serbian that killed one million Tutsi people. He raised worldwide questions about the legit- Parliament to protest the recent acquittals has a $5 million bounty on his head, put imacy of internationalized criminal justice of the Croatian Generals, asking for an up by the United States. Kabuga is still in and the impartiality of the tribunal with extraordinary parliament session to adopt hiding, allegedly in Kenya, according to its recent acquittals of Croatian Generals a resolution ensuring fair conclusions for ICTR prosecutor Hassan Bubacar Jallow. Ante Gotovina and Mladen Markac. The the remaining cases before the Tribunal. The two other most wanted indictees are generals were sentenced to 24 and eigh- In a June 2012 debate at the UN Security Protais Mpiranyi, former Commander teen years, respectively, for committing Council, members maintained an East- of the Rwandan Presidential Guard, and crimes of murder and inhumane acts West split on opinions about ICTY rul- Augustin Bizimana, former Minister of against Croatian Serbs during the war in ings. While the United States, Germany, Defense. While the end of its mandate Yugoslavia. Both men were sentenced for and Great Britain wished to respect the is in sight, the ICTR stated last month crimes that Croatian troops allegedly com- verdicts acquitting Gotovina and Markac, that it will not relent in its search for the mitted during Operation Storm, a large- Russia asserted that the decisions were remaining indictees, and has expanded its scale operation that began on August 4, unfair, and China reiterated the impor- search to other African countries outside of 1995, and resulted in the defeat of the tance of maintaining impartiality in inter- Kenya. As the UN increases its resources Republic of the Serbian Krajina, a self- nationalized judicial proceedings. At the to apprehend the three most wanted indict- determined Serbian state. Security Council hearing, Serbian First ees from Rwanda, there is a danger that Deputy Prime Minister Aleksandar Vucic public perception of their guilt necessarily Gotovina was a colonel general in the condemned the acquittals, pointing out that follows, decreasing the chances for the Croatian Army and commanded Operation no Croatian indictees have been convicted indictees, assuming they are apprehended, Storm. Markac was the Assistant Minister for war crimes committed against the to receive a fair trial either at the local or of the Interior and commanded the special Serbs, nor has any top Croatian or Bosnian international level. police in Croatia in 1995. In Gotovina’s trial, the prosecution alleged that his shell- official been charged, despite common The MICT, established by the UN ing offensive killed 324 Serb civilians belief that all parties committed crimes Security Council on December 22, 2010, and soldiers, and displaced almost 90,000 during the conflict beginning on June 25, will assume the remaining functions of Serbs from a contested territory. Gotovina 1991, throughout the former Yugoslavia. the ICTR as it completes its mandate. It and Markac appealed their convictions, Croatian Ambassador to the United will manage the archives from the ICTR’s arguing that they did not intend to target Nations Ranko Vilovic, however, stated tenure, continue to protect witnesses and civilians. Judges overturned the ruling the that although Croatians may be frus- victims, and hear all appeals filed after following year, with the majority granting trated that individuals who committed war June 2012, including a potential appeal by acquittal, due to a lack of evidence that crimes are not being held to the same the recently convicted Ngirabatware. the generals intended to target civilians, account as the criminal organization of the In the pursuit of justice, the public’s based on a totality of the circumstances. Croatian authorities, they are not justified perception of trials within Rwanda remains Gotovina and Markac returned to Croatia in questioning the validity of the verdicts. of chief importance. International criminal to a hero’s welcome, where they were met Many Serbs do not feel the ICTY is serv- tribunals in general suffer a fair amount of in Zagreb’s main square by tens of thou- ing justice, and this feeling may increase criticism regarding whether justice is truly sands of people singing nationalist songs the divisive ethnic divide between the served by prosecuting individuals outside and waving flags. Serbs, Croats, and Bosniaks, and inten- of the country in which war crimes were The Appeals Chamber rendered the sify feelings of victimization, vindica- committed. Critics have also raised the acquittals when, upon review of the trial tion, and persecution. Brammertz claimed question of whether prosecutions executed court’s decision, it found a number of that those affected by Operation Storm in an international tribunal promote or mistakes in the verdicts. ICTY Chief feel that the international community has contravene efforts of transitional justice. Prosecutor Serge Brammertz pointed out not recognized their suffering. According As the ICTR closes and the execution of that the acquittals were issued after the to Brammertz, because justice is being justice is transferred to yet another external appeals judges “assess[ed] the evidence on served one-sidedly, this process, which tribunal, Rwandan citizens and the interna- the record in its totality and [gave] appro- should be characterized by transition and tional community will be watching closely priate deference to a trial chamber’s factual healing, will more likely serve as ammuni- to ensure that each indictee receives a fair findings.” Many critics of the Gotovina tion for future conflicts. trial, that the State of Rwanda eventually and Markac acquittals cite the dissent- When the ICTY’s mandate ends in gains control over its process of transi- ing opinions of Judges Fausto Pocar and the coming year, its legacy will leave the tional justice, and that justice is served. Carmel Agius. These dissents, however, do international community with a number not have widespread legal traction because of difficult questions: What has been the of their harsh tone and misapplication of purpose of the ICTY? Whose justice has the legal standard applied in support of the it served? Can internationalized criminal

Published by Digital Commons @ American University Washington College61 of Law, 2013 3 Human Rights Brief, Vol. 20, Iss. 2 [2013], Art. 10 tribunals truly contribute to the transi- community are already discussing the mer- including jurisdiction for international tional justice process? How will the les- its and methods of a Syrian ad hoc tribunal. criminal prosecution. sons learned from this tribunal inform A tribunal, whether administered through Megan Wakefield, a J.D. candidate future tribunals or alternative methods of the Arab League or through the United at the American University Washington post-conflict criminal justice? In Syria, Nations, like the ICTY, would raise the College of Law, is a staff writer for the although protracted conflict is ongoing, same questions for Syria and other nations Human Rights Brief. civil society groups and the international facing future periods of transitional justice,

Judgment Summaries: Drawings” competition. In response, the in reviewing the relevant evidence to International Criminal Appeals Chamber held that, although produce a conviction. The Appeals Tribunal for Rwanda it was “highly improper” to display Chamber also dismissed several attempts the drawing, Hategekimana failed to by the Defense to discredit witness tes- The Prosecutor v. Ildephonse establish that the drawing would itself timony concerning the involvement of Hategekimana, Appeals Judgment, be sufficient to create an appearance of Hategekimana and his men in the alleged Case No. ICTR-00-55-A bias in the mind of a reasonable observer crimes, such as claims that questioned the who had been properly informed of the witnesses’ ability to distinguish between On May 8, 2012, the Appeals Chamber circumstances. In reaching this conclu- Hategekimana’s soldiers and militant of the International Criminal Tribunal for sion, the Appeals Chamber gave particular groups such as the Interahamwe, and Rwanda (ICTR) issued its judgment in the weight to the fact that when Hategekimana witness testimony regarding the defen- case against Ildephonse Hategekimana, complained about the picture prior dant’s presence at the scene of the crimes. dismissing each of the Defense’s seven to the public reading of the judgment In rejecting these grounds of appeal, the grounds of appeal. Hategekimana, a lieu- against him, the Trial Chamber imme- Appeals Chamber cited to the significant tenant in the Rwandan army who com- diately ordered the drawing removed. deference allotted to the Trial Chamber manded soldiers at the Ngoma Military The Appeals Chamber also rejected as the trier of fact to determine the reli- Camp in the Butare Prefecture during Hategekimana’s claim with regard to ability of and appropriate weight to be the 1994 genocide in Rwanda, was ini- the Legal Officer, noting that the charge given to witness testimony. tially convicted on December 6, 2010, was “based on the erroneous premise on several counts of genocide and crimes Hategekimana’s final ground of that legal officers play a controlling against humanity and sentenced to life appeal related to his life sentence, which role in judicial decision-making.” The imprisonment. The Appeals Chamber he claimed was inappropriate because the Appeals Chamber similarly dismissed the affirmed each of his convictions and his Trial Chamber erroneously assessed the accused’s other claims that his fair trial term of imprisonment. gravity of his crimes and the aggravat- rights were violated, including allegations ing circumstances, while disregarding a Hategekimana’s first ground for that the Trial Chamber breached his right number of mitigating circumstances put appeal alleged that the Trial Chamber to be tried in his presence when it permit- forward by the Defense. The Appeals violated his right to a fair trial. This ted Hategekimana’s Defense counsel to Chamber began by disagreeing that the challenge involved a number of claims, deliver closing arguments in the absence lower court incorrectly assessed the grav- including a charge that his presump- of his client after Hategekimana refused ity of Hategekimana’s crimes, finding tion of innocence was violated when the to appear in court, and that the Chamber that the Trial Chamber aptly compared Tribunal chose to display, in the building “assumed the role of Prosecutor or wit- his crimes to those of other accused where Hategekimana was being tried, a ness” by posing questions to witnesses appearing before the Tribunal in the past, drawing by a twelve-year-old who was from the bench. while also taking note of the “inher- one of the winners of an “Essays and In addition to challenging his convic- ent limitations” of comparing cases and Drawings” contest held by the ICTR. tion on grounds relating to alleged viola- “specifically assess[ing] the individual This particular drawing depicted a judge tions of his fair trial rights, Hategekimana nature” of Hategekimana’s case. With pointing his finger at a defendant and sought to overturn a number of the Trial regard to aggravating factors, the Appeals saying the words: “You Hategekimana… Chamber’s findings on the ground that Chamber agreed with the accused that the tell what you have done in genocide. the Chamber inappropriately evaluated Trial Chamber inappropriately character- You, Hategekimana you will go in prison the evidence against him. In particular, ized Hategekimana as being “in charge 30 years.” The defendant in the picture Hategekimana challenged the fact that of peace and security” in the Ngoma is saying: “I have killed 77 people.” the Trial Chamber relied on hearsay and region and erred in concluding that he Hategekimana argued that displaying circumstantial evidence to convict him was on the Prefecture Security Council, this picture in the corridor outside his on several counts. The Appeals Chamber both of which were factors found to trial room may have influenced the Trial dismissed these claims, and stated that “… aggravate his crimes. However, given the Chamber judges. He also pointed out that as a matter of law, it is permissible to base presence of other aggravating factors and one of the Legal Officers that contributed a conviction on circumstantial or hearsay the gravity of the accused’s crimes, the to drafting the judgment against him was evidence,” and determined that the lower Appeals Chamber did not feel that these on the jury that judged the “Essays and court had exercised sufficient caution errors had any impact on the “overall http://digitalcommons.wcl.american.edu/hrbrief/vol20/iss2/10 62 4 French et al.: Criminal Courts and Tribunals

assessment” of Hategekimana’s sentence. Secretary of the MRND, as well as the by their superiors. Thus, the rape and Finally, the Appeals Chamber determined National Party Chairman and Chairman sexual assault of Tutsi women and girls that the Defense failed to demonstrate of the MRND Executive Bureau. In by soldiers, gendarmes, and militiamen, any “discernable error” with regard to the addition, the Chamber determined that including the MRND Interahamwe, was Trial Chamber’s assessment of mitigating Ngirumpatse supported the creation a natural and foreseeable consequence circumstances. of the youth wing of the MRND, the of the JCE to destroy the Tutsis. The Interahamwe, and was the individual Chamber was thus convinced beyond William Xu, a J.D. candidate at the in Rwanda with the most de facto a reasonable doubt that Karemera and American University Washington College power, influence, and authority over the Ngirumpatse were aware that widespread of Law, wrote this summary for the Interahamwe during the genocide. rapes and sexual assaults on Tutsi women Human Rights Brief. Katherine Cleary were foreseeable consequences of the Thompson, Assistant Director of the One notable aspect of this judg- JCE to pursue the destruction of the War Crimes Research Office, edited this ment is that the Trial Chamber found Tutsi population in Rwanda. Finally, they summary for the Human Rights Brief. Karemera and Ngirumpatse guilty of willingly took the risk that Tutsi women genocide and the crime against human- and girls would be raped and sexually ity of rape based on acts of rape and The Prosecutor v. Karemera assaulted, as evidenced by the fact that other sexual assaults committed by mem- and Ngirumpatse, Case No. they continued to participate in the JCE bers of the Interahamwe, employing the ICTR-98-44-T despite the widespread occurrence of joint criminal enterprise (JCE) theory rapes and sexual assaults on Tutsi women On February 2, 2012, Trial Chamber of liability. The Prosecution had pleaded and girls. III of the International Criminal Tribunal these acts under two different theories for Rwanda (ICTR) issued its judgment of JCE liability, the “basic” form of JCE Another interesting aspect of the in the case against Edouard Karemera and and the “extended” form. Under both Chamber’s judgment is its findings Matthieu Ngirumpatse, often referred to theories, the Prosecution must prove: (i) regarding the crime of direct and public as the “Government I” case. The accused a plurality of persons, (ii) the existence incitement to genocide. As the ICTR were convicted of direct and public of a common purpose that amounts to has held in prior cases, a person may be incitement to commit genocide, geno- or involves the commission of a crime guilty of direct and public incitement cide, the crimes against humanity of rape under the Tribunal’s statute, and (iii) a to genocide regardless of whether the and extermination, and serious violations contribution on the part of the accused incitement leads to the commission of of Article 3 Common to the Geneva to the execution of the common criminal any genocidal acts; it is sufficient that Conventions and of Additional Protocol purpose. The theories differ in terms of the audience understood the incitement II. The Chamber also found both accused the required mens rea. For the basic form as a call to genocide and the accused guilty of conspiracy to commit genocide of JCE, the Prosecution must establish acted with the requisite intent. Here, the but did not enter a conviction for that that each member of the JCE acted Chamber determined that acts amounting count, finding it would be cumulative to with intent to commit the charged crime. to direct and public incitement to geno- convict for that charge as well as geno- Under the extended form of JCE, by con- cide were carried out in furtherance of cide. Karemera and Ngirumpatse were trast, the Prosecution must only establish the JCE to which the accused belonged both sentenced to life in prison. Initially, that it was natural and foreseeable that on two separate occasions. First, it cited a the case included two additional accused, the charged crime would be committed meeting that took place on May 3, 1994, Joseph Nzirorera and André Rwamakuba. in the course of pursuing the enterprise’s at the Kibuye prefectural office, which However, proceedings against Nzirorera common purpose and that the accused was attended by several high-ranking were terminated because of his death and willingly assumed the risk that the crime members of the Interim Government, the charges against Rwamakuba were would be committed. In the present case, including Prime Minister Kambanda and severed into a separate case. the Trial Chamber determined that the the two accused, and which was broad- Both Karemera and Ngirumpatse accused participated in a JCE, the com- cast over the radio. At the meeting, which played critical roles in the Mouvement mon purpose of which was the destruction took place shortly after a massacre of Revolutionaire National pour le of the Tutsi population in Rwanda, and more than 2,000 Tutsis in Kibuye, both Developpement (MRND), the ruling that each accused contributed to the exe- Kambanda and Karemera praised the party of Rwanda from 1975 to 1994, cution of the common plan. Furthermore, work of the Interahamwe and called and the Interim Government of Rwanda. while the Chamber found insufficient for the population to continue fight- Specifically, Karemera served as both evidence that the accused intended for ing the enemy. The Chamber determined the National Secretary and the First Vice acts of rape and sexual violence to occur that, through their speeches and due President of the MRND and was a mem- as part of the common plan, it con- to their failure to condemn the recent ber of the party’s Executive Bureau. cluded that during a genocidal campaign, massacre of Tutsis, Karemera and oth- Following the assassination of President a natural and foreseeable consequence of ers intended to incite the population to Habyarimana, he became the Minister of that campaign will be that soldiers and continue killing Tutsis for the purpose the Interior and Communal Development militias who participate in the destruc- of destroying the ethnic group. Thus, the for the Interim Government. Ngirumpatse tion of the targeted group will resort to accused both committed direct and public also served at one point as the National rapes and sexual assaults unless restricted incitement to genocide at the meeting:

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Karemera directly in his role as speaker call to genocide and, because President the fact that there were no mitigating cir- and Ngirumpatse under a theory of JCE Sindikubwabo was a member of the JCE cumstances significant enough to justify liability. The second occasion cited by the to which the accused belonged, both mitigation of the sentence. Chamber was a May 16, 1994, meeting, Karemera and Ngirumpatse were con- Alli Assiter, a J.D. candidate at the which was also held in Kibuye and also victed of direct and public incitement to American University Washington College broadcast over the radio. At this meeting, genocide based on JCE liability on the of Law, wrote this judgment summary for Interim President Sindikubwabo thanked basis of the speech delivered at the May the Human Rights Brief. Chante Lasco, the army and the people of Kibuye for 16 meeting. Jurisprudence Collections Coordinator “restoring” peace, despite the recent mas- Finally, in determining that the accused at the War Crimes Research Office, and sacre of Tutsis described directly above. should be sentenced to life imprison- Katherine Clearly Thompson, Assistant Given the context of the recent massacre, ment, the Chamber cited the gravity of Director of the War Crimes Research the Chamber again found that the speech the accused’s crimes, their positions of Office, edited this summary for the was understood by the audience as a authority in the Interim Government, and Human Rights Brief.

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