THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA CASE NO.: ICTR-00-56-A AUGUSTIN NDINDILIYIMANA APPEALS CHAMBER FRANÇOIS-XAVIER NZUWONEMEYE INNOCENT SAGAHUTU v. THE PROSECUTOR OF THE TRIBUNAL TUESDAY, 11 FEBRUARY 2014 1402H APPEAL JUDGEMENT Before the Judges: Judge Theodor Meron, Presiding Judge Liu Daqun Judge Carmel Agius Judge Khalida Rachid Khan Judge Bakhtiyar Tuzmukhamedov For the Registry: Mr. Douglass Hansen Mr. John Tumati For the Prosecution: Mr. Hassan Bubacar Jallow Mr. James Arguin Mr. Abubacarr Tambadou Ms. Thembile M. Segoete Mr. Takeh Sendze Ms. Christiana Fomenky Ms. Sunkarie Ballah-Conteh Ms. Betty Mbabazi Mr. Deo Mbuto For the Accused Augustin Ndindiliyimana: Mr. Christopher Black Mr. Vincent Lurquin For the Accused François-Xavier Nzuwonemeye: Mr. Charles Taku Ms. Beth Lyons For the Accused Innocent Sagahutu: Mr. Fabien Segatwa Mr. Scott Martin Court Reporter: Deirdre O'Mahony NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014 1 P R O C E E D I N G S 2 3 MR. PRESIDENT: 4 Good afternoon to everybody. 5 6 Registrar, would you please call the case. 7 MR HANSEN: 8 Thank you, Your Honour. 9 10 The Appeals Chamber of the International Criminal Tribunal for Rwanda, composed of Judge Meron, 11 presiding; Judge Liu, Judge Agius, Judge Khan, and Judge Tuzmukhamedov is now sitting in open 12 session today, Tuesday, the 11th of February 2014 for the delivery of the appeal judgement in the 13 matter of Augustin Ndindiliyimana, François-Xavier Nzuwonemeye and Innocent Sagahutu verses the 14 Prosecutor, Case No. ICTR-00-56-A. 15 MR. PRESIDENT: 16 Mr. Ndindiliyimana, can you follow the proceedings in a language you understand? 17 APPELLANT NDINDILIMANA: 18 Yes, sir, I can follow the proceedings in French. 19 MR. PRESIDENT: 20 Thank you. 21 22 Mr. Nzuwonemeye, can you follow the proceedings in a language you understand? 23 MR. TAKU: 24 May it please, Your Honours. Major Nzuwonemeye is not present yet today, but he instructed us to 25 represent him and to receive the judgement on his behalf. 26 MR. PRESIDENT: 27 Yes. Thank you. Indeed, I have just been informed that he will not be attending. His counsel, yourself, 28 is present. 29 30 Counsel, may I take it that your client, Mr. Nzuwonemeye, agrees to the judgement being rendered in 31 his absence? 32 MR. TAKU: 33 This is the instruction he gave us, Your Honour. 34 MR. PRESIDENT: 35 So you have been clearly instructed about this. Thank you. 36 MR TAKU: 37 Yes. He said we should be here to receive the judgement on his behalf. DEIRDRE O'MAHONY - ICTR - APPEALS CHAMBER - page 1 NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014 1 MR. PRESIDENT: 2 Thank you, Counsel. 3 4 Counsel for Mr. Sagahutu, please. 5 6 I'm terribly sorry. Mr. Sagahutu, can you hear the proceedings in a language that you understand? 7 APPELLANT SAGAHUTU: 8 Yes, Your Honour. I get you loud and clear. 9 MR. PRESIDENT: 10 Thank you very much. 11 12 For the Prosecutor, counsel representation. 13 MR. JALLOW: 14 Good afternoon, Mr. President, Your Honours. With me for the Prosecution are James Arguin, 15 chief of appeals; Abubacarr Tambadou; Thembile Segoete; Takeh Sendze, appeals counsel; and also 16 Christiana Fomenky; Sunkarie Ballah-Conteh; Betty Mbabazi and Deo Mbuto, all assistant appeals 17 counsel. As it pleases the Court. 18 MR. PRESIDENT: 19 Thank you, Mr. Jallow. 20 21 Thank you, all. 22 23 As the Registrar has announced a moment ago, the Appeals Chamber is sitting today in accordance 24 with Rule 118 of the Tribunal's Rules of Procedure and Evidence in the case of the 25 Prosecutor v. Augustin Ndindiliyimana, François-Xavier Nzuwonemeye, and Innocent Sagahutu. All 26 parties, including the Prosecution, appealed against the trial judgement rendered in this case by 27 Trial Chamber II of the Tribunal on 17 May 2011 and issued in writing on 17 June 2011. In accordance 28 with the scheduling order of 15 November 2013, the Appeals Chamber will presently deliver the 29 judgement in this case. 30 31 I recall that on 7 February 2014, the Appeals Chamber issued an order severing the case of 32 Augustin Bizimungu, who had been tried with Ndindiliyimana, Nzuwonemeye, and Sagahutu, and 33 whose appeal was heard with theirs. The Appeals Chamber will deliver its judgement on Bizimungu's 34 appeal and the Prosecution appeal related to his case in due course after considering the further 35 submissions ordered. 36 37 Following the practice of the Tribunal, I will summarise the findings of the Appeals Chamber. Not every DEIRDRE O'MAHONY - ICTR - APPEALS CHAMBER - page 2 NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014 1 point addressed in the judgement will be mentioned in this summary, which focuses only on central 2 issues. This summary does not constitute any part of the authoritative written judgement of the 3 Appeals Chamber, which will be filed in writing in due course. 4 5 I will begin with the appeal of Ndindiliyimana. Ndindiliyimana is the former chief of staff of the Rwandan 6 gendarmerie. The Trial Chamber convicted Ndindiliyimana as a superior for genocide and 7 extermination as a crime against humanity based on the participation of gendarmes in an attack on 8 Kansi Parish. It also found him guilty as a superior for genocide and murder as a serious violation of 9 Article 3 common to the Geneva Conventions and of Additional Protocol II in relation to crimes 10 committed by gendarmes at Saint André College. The Trial Chamber also convicted Ndindiliyimana of 11 murder as a crime against humanity. The Trial Chamber sentenced Ndindiliyimana to a single 12 sentence of time served and ordered his immediate release on 17 May 2011. 13 14 I will first address Ndindiliyimana's challenges to the fairness of the proceedings 15 16 Ndindiliyimana submits that the Trial Chamber failed to provide sufficient remedies in light of the 17 Prosecution's violation of its disclosure obligations pursuant to Rule 68 of the Rules; that the Tribunal's 18 decisions concerning alleged prosecutorial misconduct were in error; and that the proceedings were 19 unduly delayed. The Appeals Chamber finds that Ndindiliyimana has failed to demonstrate any error 20 that rendered his trial unfair. Accordingly, it dismisses these arguments. 21 22 I will now address Ndindiliyimana's challenges to his convictions in relation to the attack at 23 Kansi Parish. The Trial Chamber found that, on 21 April 1994, gendarmes assigned to guard 24 Ndindiliyimana's residence in Nyaruhengeri provided weapons to and assisted Interahamwe in the 25 attack at the nearby parish. The Trial Chamber further held that the gendarmes stationed at 26 Ndindiliyimana's residence were his subordinates acting under his control, and that Ndindiliyimana 27 knew or had reason to know that they had committed crimes at Kansi Parish, but failed to punish them. 28 29 The Trial Chamber found that, after 7 April 1994, the operational command over the majority of 30 gendarme units was transferred to the Rwandan army and that Ndindiliyimana therefore no longer 31 exercised effective control over gendarmes who had been deployed to assist the army in combat 32 against the RPF. The Trial Chamber held, however, that Ndindiliyimana retained full de jure authority 33 over approximately 200 gendarmes not deployed to assist the army in combat. With respect to these 34 gendarmes, the Trial Chamber acknowledged that: Ndindiliyimana suffered from a lack of resources 35 and faced difficulties in communicating with gendarmerie units on the ground; his force was infiltrated 36 by extremists and rogue elements; and his material ability to control the gendarmes under his 37 operational command decreased as the war progressed. For these reasons, the Trial Chamber DEIRDRE O'MAHONY - ICTR - APPEALS CHAMBER - page 3 NDINDILIYIMANA ET AL TUESDAY, 11 FEBRUARY 2014 1 considered that Ndindiliyimana did not exercise effective control over all gendarmes under his 2 operational command and that his "material ability to prevent and/or punish crimes [...] varied 3 considerably between different gendarmerie units." 4 5 At the time of the attack at Kansi Parish on 21 April 1994, Ndindiliyimana's residence in Nyaruhengeri 6 was guarded by a number of gendarmes who had been deployed by the commander of the Butare 7 gendarmerie unit based on a personal request for protection by Ndindiliyimana's wife. 8 The Trial Chamber concluded that Ndindiliyimana exercised "de facto authority" over these gendarmes 9 because they had been "gathered" by his wife and Ndindiliyimana had "admitted" at trial that he would 10 have known had they participated in the attack at Kansi Parish. It also stated that the gendarmes 11 belonged to units under the operational command of the gendarmerie and that their operation at 12 Kansi Parish entailed a degree of organisation and therefore found that: "[i]t follows from 13 Ndindiliyimana's position as chief of staff of the gendarmerie that the gendarmes in question were his 14 subordinates under his effective control." 15 16 The Appeals Chamber finds that the Trial Chamber failed to explain the basis of its finding that the 17 gendarmes guarding Ndindiliyimana's house came from a unit under his operational command. 18 Furthermore, the Appeals Chamber finds that, based on the evidence referred to in the trial judgement 19 and on the record, no reasonable trier of fact could have concluded that Ndindiliyimana had effective 20 control over these gendarmes. 21 22 Even if the gendarmes stationed at Ndindiliyimana's residence could have been considered his 23 subordinates, the Trial Chamber did not address any possible impact on this relationship flowing from 24 the fact that a separate unit either of gendarmes or the Presidential Guard collected the group of 25 gendarmes from Ndindiliyimana's home shortly before the attack at Kansi Parish on 21 April 1994.