Human Rights Brief Volume 12 | Issue 2 Article 10 2005 Updates from the International Criminal Courts Nicolas M. Rouleau American University Washington College of Law Annelies Brock American University Washington College of Law Daisy Yu American University Washington College of Law Anne Heindel American University Washington College of Law Mario Cava American University Washington College of Law See next page for additional authors Follow this and additional works at: http://digitalcommons.wcl.american.edu/hrbrief Part of the Criminal Law Commons, Human Rights Law Commons, and the International Law Commons Recommended Citation Rouleau, Nicolas M., Annelies Brock, Daisy Yu, Anne Heindel, Mario Cava, and Tejal Jesrani. "Updates from the International Criminal Courts." Human Rights Brief 12, no. 2 (2005): 33-38. 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]. Authors Nicolas M. Rouleau, Annelies Brock, Daisy Yu, Anne Heindel, Mario Cava, and Tejal Jesrani This column is available in Human Rights Brief: http://digitalcommons.wcl.american.edu/hrbrief/vol12/iss2/10 Rouleau et al.: Updates from the International Criminal Courts UPDATES FROM THE INTERNATIONAL CRIMINAL COURTS INTERNATIONAL CRIMINAL TRIBUNAL When this requirement is met, the party argu- The Appeals Chamber then examined the FOR RWANDA ing that there has been a miscarriage of justice Prosecution’s contention that the Trial must further establish “that the error was criti- Chamber had committed an error of fact by GEORGES ANDERSON NDERUBUMWE cal to the verdict reached by the Trial failing to find a nexus between the crimes for RUTAGANDA V. THE PROSECUTOR, CASE Chamber” and that “a grossly unfair outcome which Rutaganda was convicted and the armed NO. ICTR-96-3-A has resulted from the error.” conflict. The Appeals Chamber adopted the view of the International Criminal Tribunal for On May 26, 2003, the ICTR Appeals The Appeals Chamber assessed and reject- the Former Yugoslavia (ICTY) in the Kunarac Chamber rendered its judgement in Georges ed Rutaganda’s contention that his right to a Appeal Judgment that “if it can be established Anderson Nderubumwe Rutaganda v. The fair trial was violated due to bias on the part of . that the perpetrator acted in furtherance of Prosecutor. In December 1999, Rutaganda was the Trial Chamber in the treatment of his tes- or under the guise of the armed conflict . it found guilty by the Trial Chamber of partici- timony and during the examination and cross- would be sufficient to conclude that his acts pating in crimes committed during April to examination of witnesses. It also rejected were closely related to the armed conflict.” It June 1994 in the préfectures of Kigali and Rutaganda’s argument that the Trial Chamber explained that “‘under the guise of the armed Gitarama involving his distribution of had erred in finding that, in accordance with conflict’ does not mean simply ‘at the same weapons to members of the Interahamwe, his the test developed in the Akayesu Trial time as the armed conflict’ and/or ‘in any cir- direction of men under his control to detain Judgment, specific intent for genocide could cumstances created in part by the armed con- and then kill ten Tutsis, his direction and par- be inferred in part from the “general context of flict.’” Moreover, it emphasized that the find- ticipation in massacres at the École Technique the perpetration of acts by others.” In uphold- ing of such a nexus will usually require consid- Officielle (ETO school) and the Nyanza gravel ing the Akayesu approach, the Appeals eration of more than one of the factors high- pit, and his killing of Emmanuel Kayitare. For Chamber noted that it did “not imply that lighted in Kunarac, including “the fact that the these acts he was convicted of genocide and guilt of an accused maybe inferred only from perpetrator is a combatant; the fact that the crimes against humanity (murder and extermi- his affiliation with a ‘guilty organision,’” but victim is a non-combatant; the fact that the nation) and sentenced by the Trial Chamber to required a determination of an accused’s intent victim is a member of the opposing party; the a single term of life imprisonment. Rutaganda “on the analysis of his own acts and conduct” fact that the act may be said to serve the ulti- appealed against all his convictions and the at the time the crime was committed. It found mate goal of a military campaign; and the fact Prosecution appealed Rutaganda’s acquittal for that the Trial Chamber had determined that the crime is committed as part of or in the murder as a violation of common Article 3 to Rutaganda’s specific intent on the basis of his context of the perpetrator’s official duties.” the Geneva Conventions. The Appeals direct participation in specific crimes against Because the Trial Chamber had made factual Chamber set aside Rutaganda’s conviction for Tutsis and that this intent had been demon- findings recognizing a link between the ETO murder as crime against humanity for the strated beyond a reasonable doubt. school and Nyanza massacres and the armed killing of Emmanuel Kayitare, reversed his Except in regard to Rutaganda’s responsi- conflict, and had determined that Rutaganda acquittal for two counts of murder as violation bility for killing Emmanuel Kayitare, the Ap- had participated in these attacks, the Appeals of Article 3 common to the Geneva peals Chamber determined that all of his alle- Chamber held that no reasonable trier of fact Conventions, and affirmed the single sentence gations of errors of law and fact relating to the would have failed to make the “inferential of life imprisonment. assessment and treatment of evidence were un- leap” between Rutaganda’s acts and the armed In discussing the standard for appellate founded. As to the Kayitare killing, the Ap- conflict. It therefore overturned Rutaganda’s review, the Appeals Chamber affirmed that an peals Chamber rejected the Trial Chamber’s acquittal on two counts of violations of com- appeal was “not an opportunity for the parties finding that the testimonies of two witnesses mon Article 3 to the Geneva Conventions. to reargue their case,” but must be based on were corroborative of each other as to the cir- The Appeals Chamber did not re-evaluate “an error on a question of law invalidating the cumstances of the crime when they differed on the Trial Chamber’s sentence of life imprison- decision” or on “an error of fact that has occa- most material facts. Although corroboration of ment due to its determination that the revision sioned a miscarriage of justice.” Regarding an witness testimony is not a requirement under of the verdict did not affect the overall gravity of error of law, the party raising the allegation ICTR practice, the Appeals Chamber deter- the crimes or the factual basis of the sentence. must identify the alleged error, present support mined that, because it was required to “assess for the contention, and explain how the error the evidence presented at trial as an indivisible invalidates the decision. Regarding errors of whole” and could not substitute its own view PROSECUTOR V. ELIZAPHAN & GÉRARD fact, the Appeals Chamber must show a high of the evidence for that of the Trial Chamber, NTAKIRUTIMANA, CASE NOS. ICTR-96- level of deference to the Trial Chamber’s find- it “must enter a judgment of acquittal ‘if an ap- 10, ICTR-96-17-T. ings. Only when the Trial Chamber’s findings pellant is able to establish that no reasonable The Mugonero indictment addressed the of fact “could not have been accepted by any tribunal of fact could have reached a conclu- April 16th attack on Tutsis gathered in the reasonable person,” or when the evaluation of sion upon the evidence before it.’” Conse- Mugonero Complex in Kibuye Préfecture. the evidence is “wholly erroneous” may the quently, it overturned Rutaganda’s conviction The Complex was run by the Seventh Day Appeals Chamber substitute its own findings. for murder as a crime against humanity. Adventist Association and contained a nursing Published by Digital Commons @ American University Washington College33 of Law, 2005 1 Human Rights Brief, Vol. 12, Iss. 2 [2005], Art. 10 school, a chapel, and a hospital, as well as The Chamber consequently found it unneces- findings that Gérard participated in many other office and residential buildings. sary to consider the alternative charge of com- attacks, was associated with attackers, and pro- Elizaphan was a senior pastor at the Complex, plicity in genocide. cured munitions and other support for the and Gérard worked as a doctor at the attackers, the Chamber found that he knew the In requiring the same level of intent for Complex hospital. Most of the hundreds killings were part of a widespread and system- both aiding and abetting genocide and com- killed during the attack were unarmed Tutsi atic attack. mitting genocide, the Trial Chamber applied a patients and civilians who had sought shelter higher standard for aiding and abetting than Although the Trial Chamber had previous- during the recent violence in the area. The that required by the International Criminal ly determined that “many hundreds” of people Bisesero indictment addressed numerous Tribunal for Yugoslavia (ICTY) Appeals died in the attacks, neither Elizaphan nor attacks in the Bisesero area of Kibuye Chamber in the subsequent Krnojelac case and Gérard was found guilty of the crime against Prefecture over a period of several months, upheld by it again last year in Krstic.