Criminal Courts and Tribunals

International Criminal Court integrity or political independence of Along with the ideas promulgated another State, or in any other manner at Nuremburg, the UN Charter, adopted Fourth State Party to the Rome inconsistent with the Charter of the United in 1945, prohibited the use of armed Statute Ratifies Crime Nations.” Notably, this definition refers force against another state in Article 2(4). of Aggression Amendment back to the UN Charter throughout the Although international law had customarily text, reflecting compromises made to limit protected the sovereignty of states, including Luxembourg recently became the fourth the scope of the definition. their right to use armed force against another, State Party of the International Criminal the UN Charter, along with Nuremburg, Court (ICC, Court) to ratify amendments The adopted amendments also include suggest an evolving intent to limit the to the Rome Statute that were adopted in Article 15 bis and 15 ter, the conditions for legitimate use of armed forces to situations a historic consensus at the 2010 Review the Court’s exercise of jurisdiction over the of self-defense, although international Conference of the International Criminal crime of aggression. According to Article humanitarian law has yet to place such Court in Kampala, Uganda. The January 15 bis, for the crime of aggression, the strict limits in all cases. The new amend- 15, 2013 ratification brings the contro- prosecutor could only open an investigation ments to the Rome Statue would take steps versial amendments another step closer to proprio motu or one based on a state toward reinforcing these limitations on the entering into force. If the requisite number referral of a situation, after ascertaining use of armed force and can be seen as an of states ratify the proposed amendments, whether the UN Security Council has made attempt to further the principles endorsed the ICC’s jurisdiction would dramatically a determination of an act of aggression by Nuremburg—the end to global conflicts increase in scope, likely having profound committed by the state concerned. If the that result in mass casualties and the ability global implications for current armed Security Council has made such a deter- to hold individuals accountable for their conflicts. mination, then the prosecutor may initiate actions in these atrocities. the investigation. If the Security Council Although the Rome Statute included has not made such a determination within the crime of aggression within the Court’s six months of the date of notification, ICC Withdraws Charges Against jurisdiction at its inception, the Court has then the prosecutor may commence the Former Kenyan Official been unable to exercise its jurisdiction investigation only if the Pre-Trial Chamber as the original Statute failed to define The International Criminal Court’s has authorized it and the Security Council the crime or its jurisdictional boundaries. (ICC) Prosecutor, Fatou Bensouda, filed a has not decided against recognition of an The inclusion of the crime of aggression motion in March 2013 to drop all charges act of aggression. in Article 5, while lacking a functional against Francis Kirimi Muthaura, the former definition and jurisdictional details, was The idea of a crime of aggression, Head of the Public Service and Secretary part of a compromise reached during the while treated as a novel idea by many to the Cabinet of the Republic of Kenya, negotiation of the Rome Statute in 1998. States Parties to the Rome Statute, is not a co-accused of Kenya’s recently elected However, on June 11, 2010, the delegates at all a new concept within international President, Uhuru Kenyatta. Muthaura and of the Review Conference of the Rome law. Article 1 of the 1928 Kellogg-Briand Kenyatta were jointly accused of five Statute adopted amendments that included Pact, known as the General Treaty for counts of crimes against humanity for a definition of the crime of aggression the Renunciation of War, declared, “The their alleged involvement in authorizing and established conditions for the Court’s High Contracting Parties solemnly declare and organizing the wave of violence that jurisdiction. in the names of their respective peoples swept through Kenya following contested that they condemn recourse to war for presidential elections in late 2007. All The amendments adopted in Kampala the solution of international controversies, five counts are included in Article 7(1) include Article 8 which defines the crime and renounce it, as an instrument of of the Rome Statute of the ICC, which of aggression for the purpose of the Rome national policy in their relations with one defines crimes against humanity as certain Statute. The text of Article 8(1) states that another.” With the commencement of the acts “committed as part of a widespread the crime of aggression must be conducted Nuremburg Tribunal in 1950, an interna- or systematic attack directed against any by a person effectively controlling the tional court actually applied its jurisdiction civilian population, with knowledge of political or military action of a state and to the crime of aggression though it used the the attack.” Specifically, Muthaura and is “the planning, preparation, initiation term “crimes against peace.” The definition Kenyatta were charged with murder, or execution […] of an act of aggression of crimes against peace adopted in deportation or forcible transfer, rape, which, by its character, gravity and scale, the Nuremburg principles comprises persecution, and other inhumane acts constitutes a manifest violation of the “planning, preparation, initiation or waging resulting in the death of more than 1,000 Charter of the United Nations.” The term of a war of aggression or a war in violation civilians and the displacement of more “act of aggression” is defined in Article of international treaties, agreements or than 600,000 more. In Bensouda’s state- 8(2) bis as the “use of armed force by a assurances.” ment on the notice to withdraw charges State against the sovereignty, territorial against Muthaura, she stressed that it was

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118568_AU_HRB.indd 69 7/17/13 9:05 AM her duty to do so when there is no longer returned to the Pre-Trial Chamber because article titled The STL Witness List: Why a reasonable prospect of conviction at trial. the prosecution’s case has changed drasti- We Published, justified the release of the cally in the past year as certain evidence names and photographs, saying that the In the wake of the worst unrest in no longer exists and a high percentage of public has a right to know the identities Kenya since its independence in 1963, new evidence and undisclosed witnesses of those testifying against the accused. Muthaura has been accused of authorizing have been offered. Lawyers representing Concerns about witness intimidation fur- police to use excessive force against pro- victims of the violence fear that if Kenyatta ther complicate public opinion regarding testers, protected members of the Party of does take power, there could be wide- the already-controversial trial, which will National Unity’s youth militia, and also spread retaliation for cooperating with try the four accused in abstentia. of attending meetings in which attacks the prosecution and serious danger for on civilians were planned. On March 31, In April 2013, the Pre-Trial Judge witnesses against him. 2010, the Pre-Trial Chamber II granted the determined that these leaks likely con- prosecution’s request to initiate an investi- The democratic election of an alleged stituted contempt of court and asked the gation into crimes of humanity committed criminal accused of grave human rights President of the tribunal to refer the matter by Muthaura and Kenyatta. Subsequently, abuses presents a seemingly monumental to a Contempt Judge. In accordance with the case was referred to Trial Chamber V problem for the International Criminal a March 2013 calendar assigning one on March 29, 2012. Under Article 61(9) Court, which has had a shaky history since Contempt Judge and one Appeals Panel of the Rome Statute, “after commence- its inception ten years ago. Many have for each month of the year, the President ment of the trial, the Prosecutor may, criticized the Court as being too African- of the STL, Judge David Baragwanath, with the permission of the Trial Chamber, focused, not effective enough, and an was designated as the Contempt Judge withdraw the charges” against the accused. enduring symbol of western colonialism in this matter. After the April 25, 2013, There is no further guidance within the —criticisms Kenyatta capitalized on in hearing on the contempt allegations, Judge Statute itself on what conditions must the election by using his indictment as Baragwanath issued a decision ordering be met for the withdrawal of charges or a way to gather popular support. The the appointment of an independent amicus how charges are withdrawn procedurally. decision of the Prosecutor to withdraw the curiae to investigate the source of the leaks On March 11, 2013, Bensouda issued charges against Muthaura due to lack of and those who published the confidential a statement on her notice to withdraw evidence could be seen as an example of information. Rule 60 bis allows the STL charges against Muthaura, in which she the inefficiencies of the Court. However it to hold individuals found in contempt of cited several reasons for the withdrawal, could also serve as an important reminder court, meaning those who “knowingly and including witnesses’ death or refusal to about the rule of law and the protections of willingly interfere with its administration testify due to fear, the lack of support from defendant’s rights that are essential to any of justice” or “those who threaten and the government of Kenya in providing fair justice system. intimidate witnesses,” responsible through critical evidence and facilitating access sentences up to seven years in prison and Tracy French, a J.D. candidate at the to witnesses, and most importantly the fines up to 100,000 Euros. American University Washington College fact that the key witness—witness number of Law, is a staff writer for the Human Other international criminal tribu- four—recanted a crucial part of his state- Rights Brief. nals have suffered similar challenges ment and admitted to accepting bribes. to the proper administration of justice. Bensouda stressed that this decision Most notably, the International Criminal Internationalized Criminal has no bearing on the charges against Tribunal for the former Yugoslavia (ICTY) Tribunals President-elect Kenyatta, and stated: “My faced comparable issues involving leaks decision today is based on the specific and publication of witness names and iden- facts of the case against Mr. Muthaura, Witness Identity Leaks in the tifying information. In the Celebici case, and not on any other consideration. While Special Tribunal for Lebanon tried in 1997, the tribunal was adjourned we are all aware of political develop- Lead to Investigation and Possible for over a week while the Office of the ments in Kenya, these have no influence, Contempt Charges Prosecutor investigated leaks. Although at all, on the decisions I make as the The Special Tribunal for Lebanon the prosecutor identified members of the Prosecutor of the International Criminal (STL) came under political scrutiny in defense counsel as the sources of the leak Court.” However, at the hearing in which January for leaking the identities of wit- to the publication Sloboda Herzegovina, Trial Chamber V officially dropped the nesses in the upcoming trials surrounding the President of the Tribunal, Judge charges against Muthaura, Kenyatta’s the 2005 assassination of former Lebanese Antonio Cassese, concluded that there lawyers urged the Chamber to drop the Prime Minister Rafiq Hariri. The source of was not enough evidence to hold defense charges of crimes against humanity against the leak is unknown, although the names, attorneys in contempt of court. However, their client, claiming the charges were photographs, and identifying information Judge Cassese noted that the defendant, based on hearsay and were fundamentally of the witnesses were published in the Zejnil Delalic, may have spoken to the flawed. According to Article 27 of the local Al Akhbar newspaper, known for press himself and, in doing so, may have Rome Statute, should Kenyatta take office being aligned with the Hezbollah move- been in contempt of court. The tribunal while there are still charges against him at ment in Lebanon. The STL quickly issued accepted Judge Cassese’s findings regard- the ICC, he will not receive any type of a statement in which it “denounce[d] in ing the defense counselors but rejected head of state immunity. Kenyatta’s lawyers the strongest possible terms any attempts the implication that Delalic should be have argued that the entire case should be at witness intimidation.” Al Akhbar, in an investigated for contempt of court. In 70

118568_AU_HRB.indd 70 7/17/13 9:05 AM 2012, the Appeals Chamber of the ICTY relocated. Failures to respect or protect cases directly to the International Criminal affirmed former Serbian leader Vojislav confidentiality may result in contempt of Tribunal of Rwanda (ICTR), in 2010 Seselj’s sentence of eighteen months in court, which potentially includes jail time. France created a unit of its Prosecutor- jail for publishing the names of protected General’s Office tasked with investigating Although the trial was set to begin at who testified in his trial before the ICTY. suspects’ involvement in the genocide for the end of March, the STL indicated that The defendant disclosed the names and proceedings within the French judicial sys- these leaks along with delays in disclosure pseudonyms of witnesses on his website tem. Even after the official transfer of the of evidence, required the tribunal to post- and in his 2007 book. The Contempt Trial ICTR’s cases to Rwanda’s domestic courts, pone the hearing, and the case is still in the Chamber found Seselj guilty of contempt France officially indicted Simbikangwa in pre-trial phase. of court in October 2011 and ordered that its own courts. Simbikangwa’s attorneys the defendant remove the names and the have not yet responded to the French book from his website. French Court Invokes trial order, and it is unclear whether they Universal Jurisdiction will attempt to appeal the decision and Witness testimony before international in Rwandan Genocide Case challenge France’s jurisdiction. criminal tribunals in cases of war crimes and crimes against humanity is essential to In early April 2013, French prosecutors Although the application of universal the pursuit of the truth and the administra- announced the domestic trial of a former jurisdiction to prosecute genocide sus- tion of justice, but it can also be dangerous captain in the Rwandan army for his pects in domestic courts is not common, and difficult. The individuals on trial may alleged involvement in the 1994 Rwandan similar indictments have been issued in be politically or militarily powerful, and genocide. Citing universal jurisdiction, the past, leading to successful—though witnesses risk being identified when they prosecutors charged Pascal Simbikangwa, controversial—trials, such as those con- agree to testify before an international who was arrested in 2008 by French ducted in Belgium in 2001. The Belgium tribunal. For this reason, the STL’s Rules officials under an international arrest trial marked the first time that a jury was of Procedure and Evidence strictly out- warrant, with the crimes of “complicity asked to make a determination of guilt for line witness protection procedures, which in genocide” and “complicity in crimes violations of international humanitarian become effective as soon as individuals against humanity.” This trial marks the law in another country. However, France’s enter their applications to become wit- first attempt by the French government to choice to try a Rwandan genocide sus- nesses. From this moment onward, the prosecute anyone in connection with the pect in its domestic courts is particularly tribunal incurs a duty to “ensure security, Rwandan genocide. The trial order is a unusual in 2013 because experts within safety and protection of victims and wit- response to a complaint filed by a group the ICTR and the United Nations have nesses, as well as to respect their con- formed by Rwandans living in France determined Rwanda’s domestic courts to fidentiality” and the tribunal becomes called the Collective of Civil Plaintiffs be capable of providing fair and inde- responsible for implementing “protective for Rwanda (CPCR). Simbikangwa was pendent hearings for genocide suspects. measures to ensure witnesses are able a captain and intelligence officer with the The ICTR also transferred its documents to testify in court without fears about Rwandan military under the former Hutu and mandate to an intermediate court their safety, security, and confidentiality.” president Juvenal Habyarimana, whose called the Mechanism for International Rule 133 of STL’s Rules of Procedure assassination triggered the mass atrocities Criminal Tribunals (MICT). The MICT is and Evidence outlines steps to guard the throughout the nation. French prosecutors responsible for concluding the remaining identity of the witnesses, including the use accuse Simbikangwa of being a member cases open regarding crimes committed in of pseudonyms in written accounts of the of Akazu, a Hutu group of extremists Rwanda and in the former Yugoslavia. In trial, facial distortion in public broadcast believed to have planned and executed the November 2012, Emmanuelle Ducos, the of the proceedings, and voice distortion genocide. Simbikangwa is also accused of vice president of the French tribunal deal- in public broadcast. To limit the expo- arming the Interahamwe Hutu militia and ing with Simbikangwa, formally requested sure during the trial, the proceedings are facilitating the massacre of Tutsis. access to all confidential materials the generally closed to the public during the Universal jurisdiction, the doctrine ICTR, and now the MICT, possess con- presentation of evidence, and witnesses are under which certain crimes can be adju- cerning the suspect. The MICT prosecutor permitted to give testimony via video link dicated in states in which the alleged did not object to the request and the judge, instead of being present in the courtroom. crime was not committed, usually only in a ruling on December 20, 2012, permit- In an effort to decrease the opportunity applies if the judicial system that would ted the French tribunal access to some for disclosure, identifying information is have jurisdiction is unable or unwilling documents while requiring witness consent expunged from the public record, includ- to conduct a fair and independent trial. to release others. According to this ruling, ing the court transcript, and the chamber While this was the scenario that led to the Simbikangwa’s case is no longer pending may limit the time each party has access creation of the ICTR, with the tribunal’s before the ICTR or the MICT, meaning to the identities of the witnesses of the mandate coming to an end and the transfer that it is among the cases transferred to opposing party. If counsel for either side of cases to Rwandan domestic courts, this Rwandan domestic courts for prosecution. feels that the witness is at imminent risk is no longer the case. France’s decision to issue the trial order of death or serious harm, he or she may was welcomed by Rwandan advocacy apply to the registrar for entry of the wit- France has repeatedly refused to extra- groups; however, it also triggered calls ness into the tribunal’s protection program, dite genocide suspects to Rwanda based on for further commitment to prosecution. under which the individual would then be the belief that detainees would not receive a fair trial. However, instead of referring Jean de Dieu Mucyo, executive secretary 71

118568_AU_HRB.indd 71 7/18/13 2:24 PM of the National Commission Against the used her economic and political influ- the success of any potential proceedings Genocide, pointed to France’s refusal to ence to encourage the killing of Tutsis. against Simbikangwa in Rwandan domes- arrest and prosecute other genocide sus- Last year, France granted her permanent tic courts. pects in the state. In particular, Rwandan residency. As Simbikangwa’s trial moves Megan Wakefield, a J.D. candidate groups have tried to put pressure on forward, Rwandan anti-genocide organiza- at the American University Washington France to arrest and prosecute Agathe tions, as well as Rwandan citizens through- College of Law, is a staff writer for the Habyarimana, the wife of former Rwandan out Europe, will assess this prosecution’s Human Rights Brief. president Juvenal Habyarimana. She is implications for the future relationship believed to have chaired the Akazu and between France and Rwanda as well as

Judgment Summaries: court’s sense of justice, due to pre-trial “planning” conversation that took place International Criminal impropriety or misconduct.” The Appeals the following day, there was sufficient Tribunal for Rwanda Chamber agreed, concluding that the basis for the Trial Chamber’s holding that lower court had not abused its discretion Kanyarukiga was responsible for plan- Gaspard Kanyarukiga v. The by not ordering the requested stay and ning the destruction of the church. Thus, Prosecutor, Appeals Judgment, noting that the burden was on the defense the lower court’s judgment was affirmed. to show that the accused had suffered an Case No. ICTR 02-78-A The defense’s challenges based abuse of process that damaged his fair On May 8, 2012, the Appeals on alleged alibi error failed due to trial rights. The Appeals Chamber simi- Chamber for the International Criminal the broad discretion afforded to the larly rejected claims from the defense Tribunal for Rwanda (ICTR) affirmed Trial Chamber in evaluating factual that his fair trial rights were damaged Trial Chamber II’s conviction of Gaspard information presented at trial, with the by the Trial Chamber’s alleged setting Kanyarukiga for planning genocide and Appeals Chamber stressing that a “Trial of arbitrary time limits on the defense’s extermination as a crime against humanity Chamber need not explain every step cross-examinations or by the failure to based on his role in the destruction of of its reasoning.” Lastly, the Appeals issue timely rulings on challenges to the the Nyange church on April 16, 1994, Chamber dismissed the allegations that admissibility of prosecution evidence. which resulted in the deaths of approxi- the Trial Chamber improperly evaluated Again, the Appeals Chamber found that mately 2,000 Tutsi civilians. The Appeals the evidence, a claim that largely rested these grounds were insufficient because Chamber also affirmed his thirty-year on challenges to the lower court’s deci- the defense failed to show that the Trial sentence of imprisonment. sions regarding witness credibility and Chamber erred in exercising its discre- treatment of corroborating statements. Notably, Kanyarukiga asserted a total tion and that the defense was prejudiced On this subject, the Appeals Chamber of 72 grounds of appeal. Challenges were as a result. stressed that that the Trial Chamber is best grouped into four categories: alleged Concerning the alleged errors relating placed to observe a witness’s demeanor violations of Kanyarukiga’s fair trial to the indictment, the Appeals Chamber during testimony and to resolve any rights, alleged errors relating to the dismissed all but one of the defense’s inconsistencies that may arise within indictment, alleged errors related to challenges. Specifically, the Appeals or amongst witnesses’ testimonies, par- the rejection of the accused’s alibi, and Chamber upheld Kanyarukiga’s claim that ticularly given that the Trial Chamber claims that the Trial Chamber engaged the prosecution erred by failing to allege can consider whether the evidence taken in faulty assessments of the evidence. in the indictment that Kanyarukiga had as a whole is reliable and credible. The With regard to the challenges based on engaged in a conversation with another Appeals Chamber further held that the alleged violations of the accused’s fair ICTR accused, Clément Kayishema, testimony of two witnesses may be found trial rights, Kanyarukiga claimed, inter concerning the destruction of the Nyange to corroborate one another if the two alia, that the Trial Chamber improp- church. According to the Appeals testimonies are “compatible” regarding erly denied his request for a stay of Chamber, this conversation constituted a fact or sequence of facts, and that it proceedings, which had been based on a material fact that, along with others, is not necessary that the testimonies be the argument that three laissez-passers underpinned Kanyarukiga’s conviction identical in all aspects. seized from the accused at the time of his for planning genocide and extermination. arrest had disappeared, making it impos- In addition to rejecting the vast The Appeals Chamber then recalled that sible for the accused to establish his majority of the defense’s various the prosecution is required to identify alibi defense. In response, the Appeals grounds of appeal, the Appeals Chamber in the indictment the “particular acts” Chamber noted that the Trial Chamber rejected the prosecution’s appeal that or the “particular course of conduct” was not convinced that the evidence had the Trial Chamber erred in failing to on the part of the accused that formed in fact been seized from the accused sentence the accused to life in prison. the basis for the charge in question. The and that, in any event, the accused could The Appeals Chamber found that a absence of this information rendered the establish his alibi defense through other “sentence of [thirty] years’ imprison- indictment faulty. However, the Appeals evidence, meaning that there was no ment may be considered among the most Chamber concluded that, because the abuse of process such that proceeding severe sentences,” and that it was not prosecution did properly include in the with the trial would “contravene the “so unreasonable or plainly unjust” to indictment allegations relating to another

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118568_AU_HRB.indd 72 7/17/13 9:05 AM require the Appeals Chamber’s interven- contribution of the other members of Appeals Chamber unanimously reversed tion. The prosecution also appealed the the group is often vital in facilitating Ntabakuze’s conviction for other inhu- Trial Chamber’s finding that the evidence the commission of the offence in ques- mane acts as a crime against humanity proving that Kanyarukiga planned the tion.” Indeed, according to Judge Pocar, based on the events at Nyanza Hill, and destruction of the Nyange church was planning a crime involves “designing the a majority of the Chamber reversed his insufficient to establish that he “signifi- criminal conduct” constituting the statu- convictions for genocide, crimes against cantly contributed” to the destruction of tory crimes “that are later perpetrated.” humanity, and war crimes in relation to the church, which led the Trial Chamber Thus, in his opinion, planning a crime the killings in Kabeza. Based on these to conclude that it could not convict may amount to a significant contribution holdings, the Appeals Chamber vacated the accused for participating in a joint to the execution of a common purpose. Ntabakuze’s life sentence, replacing it criminal enterprise aimed at destroying with a term of 35 years’ imprisonment. Ultimately, having rejected the the church. The majority of the Appeals majority of appeals from both the pros- Ntabakuze appealed his conviction on Chamber declined to rule on this ground ecution and the defense, the Appeals 37 grounds. Notably, Ntabakuze claimed of appeal, noting that the prosecution did Chamber affirmed Trial Chamber II’s that his rights to a fair trial had been not seek to invalidate the lower court’s conviction of Kanyarukiga for planning violated in a number of ways, including verdict but simply sought “clarification genocide and extermination as a crime the prosecution’s failure to properly on an issue of general importance to against humanity, as well as his thirty- inform him of the charges against him the development of the Tribunal’s case year sentence of imprisonment. until the end of trial and the prosecution’s law.” However, Judge Pocar did write failure to observe disclosure obligations. a Separate Opinion, offering the clari- Martha Branigan-Sutton, an L.L.M. He also claims that in convicting him, fication sought by the prosecution. He candidate at the American University the Trial Chamber “relied solely on noted that the Appeals Chamber has the Washington College of Law, wrote this unreasonable and hypothetical inferences discretion to “hear appeals where a party summary for the Human Rights Brief. in violation of the principle of inno- has raised a legal issue that would not Katherine Cleary Thompson, Assistant cence.” However, the Appeals Chamber invalidate the judgment,” and explained Director of the War Crimes Research dismissed each of these claims, finding that “the clarification of [the] issue will Office, edited this summary for the that the defense was not able to substanti- avoid uncertainty and confusion in future Human Rights Brief. ate any of them. cases.” Judge Pocar began his Separate Opinion by recalling that all three catego- Ntabakuze also claimed that his right Aloys Ntabakuze v. The ries of joint criminal-enterprise liability to be tried without undue delay had Prosecutor, Appeals Judgment, share the following constitutive elements: been violated, stressing that he had been Case No. ICTR-98-41A-A (i) a plurality of persons; (ii) the existence detained twelve years by the time he filed of a common plan, design or purpose that On May 8, 2012, the Appeals Chamber his Notice of Appeal. In response, the amounts to or involves the commission of the International Criminal Tribunal Appeals Chamber recognized the “sub- of a crime provided for in the ICTR for Rwanda (ICTR) issued a decision stantial length of the proceedings in the Statute; and (iii) the participation of the on the appeal of Aloys Ntabakuze, the case,” but noted that the Trial Chamber accused in the common purpose. He then Commander of the Para-Commando had already rejected the defense’s claim explained that the last element, participa- Battalion of the Rwandan Army. Trial that his right to a speedy trial had been tion, does not require the commission “of Chamber I had convicted Ntabakuze violated in light of the “size and com- a specific crime” but rather “may take the based on its findings that he bore plexity of the trial.” According to the form of assistance in, or contribution to, superior responsibility for a number of Appeals Chamber, the mere length of the execution of the common purpose.” crimes and sentenced him to life impris- the accused’s detention did not show that In this case, as Judge Pocar recalled, onment. Specifically, the lower court the Trial Chamber erred in reaching this the Trial Chamber determined that “the convicted the accused of genocide; the conclusion. requisite contribution would have been crimes against humanity of extermination, Another set of challenges brought met if Kanyarukiga had ‘ordered, insti- persecution, murder, and other inhumane by the defense involved challenges to gated, encouraged or provided material acts; and violence to life as a serious the indictment. Specifically, Ntabakuze assistance to the attackers’” at the church, violation of the Geneva Convention and alleged that the prosecution erred in not but that his role in planning the attack was its Additional Protocol II, as incorporated putting him on notice regarding material insufficient. Judge Pocar disagreed with into the ICTR statute. The convictions facts underpinning the charges against this conclusion, noting that the Appeals were based on three different incidents him or regarding the mode of liability Chamber for the International Criminal that occurred in April 1994: (i) the killing upon which the prosecution based its Tribunal for Yugoslavia held in the Tadi of Tutsis in the Kabeza area of Kigali on ć case. Before turning to the particulars case that “[a]lthough only some members April 7–8; (ii) the killing of Tutsis on of these claims, the Appeals Chamber of the group may physically perpetrate Nyanza Hill on April 11; and (iii) the recalled that “the charges against an the criminal act (murder, extermination, killing of Tutsis at the Institut Africain et accused and the material facts supporting wanton destruction of cities, towns or Mauricien de Statistiques et d’Économie those charges must be pleaded with suf- villages, etc.), the participation and Appliquée (IAMSEA) in the Remera area of Kigali on April 15. On appeal, the ficient precision in an indictment so as to

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118568_AU_HRB.indd 73 7/17/13 9:05 AM provide notice to the accused,” and that Thus, the Appeals Chamber reversed the convictions for the same acts; (ii) by whether a fact is “material” depends “on Trial Chamber’s findings to the extent “double-counting” the accused’s role the nature of the [p]rosecution’s case.” they relied on the actions of militiamen, as a superior both in determining his The Chamber also noted that a defective although this holding did not wholly responsibility for the crimes and as an indictment may be “cured” if “the [p]ros- vacate any of the convictions because aggravating factor, as well as the number ecution provides the accused with timely, each of the charges for which the accused of victims at Nyanza Hill in considering clear, and consistent information detail- was convicted were supported by mul- the gravity of the accused’s crimes and ing the factual basis underpinning the tiple allegations. as an aggravating factor; and (iii) by charge.” Turning to the defense’s specific abusing its discretion by imposing a In addition to successfully challenging claims, the Chamber found that although life sentence. With regard to the first certain aspects of the prosecution’s charg- the indictment was in fact defective with claim, the Appeals Chamber stressed ing strategy, the defense convinced a respect to the charge that the accused that the “primary goal in sentencing majority of the Appeals Chamber that the bore superior responsibility for kill- is to ensure that the final or aggregate Trial Chamber erred in concluding that ings committed in the town of Kabeza, sentence reflects the totality of the crimi- Ntabakuze bore superior responsibility the prosecution had cured the defect nal conduct and overall culpability of for the killings carried out by soldiers at through information submitted in its Pre- the offender,” and it held that there was Kabeza. Specifically, while the major- Trial Brief and the Supplement thereto. nothing suggesting that the Trial Chamber ity found that the Trial Chamber acted However, the Appeals Chamber also had not adduced its sentence according to within its discretion in concluding that found that the indictment failed to inform these principles. In relation to the second the killings were carried out by mem- Ntabakuze that the prosecutor was charg- claim, the Appeals Chamber disagreed bers of the Para-Commando Battalion, ing him as a superior for the crime against with the defense’s assessment that the it was not satisfied that the lower court humanity of other inhumane acts based Trial Chamber had “double-counted” the adequately addressed evidence put on his role of preventing refugees who relevant factors, noting that the mere forward by the defense suggesting that were killed at Nyanza Hill from seeking discussion of these factors in its assess- certain members of the Battalion were sanctuary before being taken to the hill. ment of the sentence does not mean they serving under a commander other than Furthermore, it found that the prosecu- were relied upon by the Chamber more Ntabakuze. Because it was not clear from tion did not cure this defect by presenting than once. Lastly, the Appeals Chamber the evidence which company of the bat- appropriate information regarding this held that, based on its holdings at trial, talion carried out the relevant attacks, the charge in subsequent filings, and that the the lower court acted within its discretion majority of the Appeals Chamber vacated prosecution failed to prove that this lack to impose a life sentence, despite the the Trial Chamber’s convictions to the of information did not prevent Ntabakuze fact that the defense offered a number extent they were based on actions carried from preparing an adequate defense to of mitigating factors and even though out at Kabeza. In a dissenting opinion, the charge. Accordingly, the Appeals Ntabakuze was convicted on the basis of Judges Pocar and Liu explained that they Chamber vacated the lower court’s superior responsibility rather than direct were satisfied with the Trial Chamber’s conviction of Ntabakuze for the crime perpetration. Nevertheless, given the fact assessment of the evidence that led it against humanity of other inhumane that the majority of the Appeals Chamber to conclude Ntabakuze exercised effec- acts. The Appeals Chamber also found vacated a number of the Trial Chamber’s tive control over the perpetrators of the that, although the prosecution gener- convictions, as discussed above, it attacks in Kabeza, that the defendant ally provided the accused with sufficient reduced Ntabakuze’s sentence from life knew that the attacks would be taking notice that he was being charged under imprisonment to a term of 35 years. place, and that he failed to prevent them. a theory of superior responsibility for Jacilyn Fortini, a J.D. candidate at the the actions of Para-Commando soldiers Finally, the Appeals Chamber American University Washington College who belonged to the battalion led by dismissed each of the defense’s chal- of Law, wrote this summary for the Ntabakuze, the prosecution failed to suf- lenges to the Trial Chamber’s approach Human Rights Brief. Katherine Cleary ficiently allege that he was responsible to sentencing, a claim which had asserted Thompson, Assistant Director of the War for the acts of certain militiamen who that the lower court erred (i) by choosing Crimes Research Office, edited this sum- committed acts alongside these soldiers. a single sentence based upon multiple mary for the Human Rights Brief.

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