Kanyarukiga - JUDGEMENT AND SENTENCE - Refworld

Judgement and Sentence 1 November 2010
2.2. Notice
626. The Chamber recalls that the Prosecution is required to plead in the indictment the specific
mode or modes of liability under which the accused is charged. 1729 The Appeals Chamber has
routinely discouraged the Prosecution from merely restating the language of Article 6(1) unless it
intends to rely on all modes of liability contained therein. 1730 If the Prosecution intends to rely on all
modes of responsibility contained in Article 6(1), it must plead the material facts for each mode in
the Indictment. 1731 The Trial Chamber shall consider here whether certain modes of liability
charged by the Prosecution in this case were properly pleaded.
Joint Criminal Enterprise
627. When the accused is charged with “committing” pursuant to Article 6(1) of the Statute, the
indictment must specify whether the term is to be understood as physical commission, participation
in a joint criminal enterprise or both. 1732 If the Prosecution relies on a theory of JCE, the purpose of
the enterprise, the identity of the participants, the nature of the accused’s participation in the
enterprise and the period of the enterprise must be pleaded in the indictment. 1733 The indictment
should also clearly indicate which form of JCE is being alleged. 1734 Failure to plead these elements
will result in a defective indictment. As explained above, a defect can only be cured in exceptional
circumstances. 1735
628. In this case, Paragraphs 4 to 6 of the Amended Indictment make explicit reference to JCE.
According to these paragraphs, the purpose of the JCE in this case was the commission of genocide
and crimes against humanity targeting the Tutsi racial or ethnic group and the destruction, in whole
or in part, of the Tutsi racial or ethnic group in Kivumu commune, Kibuye préfecture, respectively.
The alleged timeframe for the joint criminal enterprise is from 6 to 16 April 1994. 1736 It is clear
from the concise statement of facts in the Indictment (“Factual Basis for counts 1-3”) and the
Prosecutor’s Pre-Trial Brief that the alleged common criminal purpose comprised the killing of
Tutsi civilians hiding in the Nyange Parish Church on 15 and 16 April 1994. 1737 Paragraph 4 of the
Amended Indictment names nine officials and mentions gendarmes, the interahamwe militia and
communal policemen, with whom, according to the Prosecution, Gaspard Kanyarukiga acted in
concert as part of a joint criminal enterprise. Paragraphs 11 to 18 identify the alleged contribution of
these participants to the JCE. The specific nature of the Accused’s participation in the JCE is also
mentioned in paragraphs 11 to 18 of the Indictment. Paragraph 18, in particular, states that the
Accused, “is individually responsible for planning, ordering, instigating, committing or otherwise
aiding and abetting the killing of Tutsi civilians at Nyange Parish on 15 and 16 April 1994 in
furtherance of the joint criminal enterprise.” (Emphasis added)
1729 Simić, Judgement (AC), para. 21; Kvočka et al., Judgement (AC), para. 29. Accord Ntakirutimana and
Ntakirutimana, Judgement (AC), para. 473.
1730 Simić, Judgement (AC), para. 21 (referring to Article 7(1) of the ICTY Statute); Semanza, Judgement (AC), para
357; Ntakirutimana and Ntakirutimana, Judgement (AC), para. 473.
1731 Simic, Judgement (AC), para. 21; Kvočka et al., Judgement (AC), para. 29 (referring to Article 7(1) of the ICTY
Statute).
1732 Krnojelac, Judgement (AC), para. 138; Ntakirutimana and Ntakirutimana, Judgement (AC), para. 475.
1733 Kvočka et al., Judgement (AC), para. 28; Ntagerura et al., Judgement (AC), para. 24; Simba Judgement (AC), para.
63; Simić, Judgement (AC), para. 22. See also Gacumbitsi, Judgement (AC), para. 162.
1734 Simba Judgement (AC), para. 63; Simić, Judgement (AC), para. 22; Ntagerura et al., Judgement (AC), para. 24.
1735 See paragraphs 36 to 38.
1736 Amended Indictment, para. 4 (“During the period covered by this indictment …”).
1737 Amended Indictment, para. 6 (“The crimes enumerated within this Indictment were within the object of the joint
criminal enterprise.”); The Prosecutor’s Pre-Trial Brief, paras. 36-45.
The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 154