Kanyarukiga - JUDGEMENT AND SENTENCE - Refworld

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Judgement and Sentence 1 November 2010 629. While the Indictment fails to plead the specific form of JCE with which the Accused is charged, the Prosecution indicated in its Pre-Trial Brief that it relies only on the first category of JCE in this case. 1738 Paragraph 23 of the Pre-Trial Brief also states that, “[t]he Accused must … share the intent of the other members of the JCE, to commit a particular crime”, which further suggests that the Prosecution is relying on the first form of JCE. 630. For these reasons, the Chamber finds that the theory of joint criminal enterprise was pleaded with sufficient specificity in the Indictment and that the Accused was provided with adequate notice that he was charged with individual criminal responsibility pursuant to the basic form of JCE. Planning 631. Chapeau paragraphs 6, 7 and 19 of the Amended Indictment charge the Accused with planning genocide and extermination as a crime against humanity pursuant to Article 6(1) of the Statute. In the concise statement of the facts, however, only paragraphs 16 and 18 explicitly mention planning as a mode of liability. The Prosecution alleges in paragraph 16 that, during a meeting at the CODEKOKI on 16 April 1994, the Accused and others “planned to kill all the Tutsi refugees in the church by destroying it.” The Chamber recalls that the Prosecution did not adduce any evidence of a meeting at the CODEKOKI on 16 April 1994 and that the Chamber has disregarded evidence of a meeting at the pharmacy on that day for lack of notice. The Chamber therefore must consider whether “planning” was adequately pleaded as a mode of liability for the acts charged in the other paragraphs of the Indictment. 1739 632. The Chamber notes that, even if an individual count in the indictment does not indicate precisely the form of responsibility pleaded, an accused might still have received clear and timely notice of the form of responsibility, for instance in other paragraphs of the indictment. 1740 The Appeals Chamber has held that, in considering whether an accused received clear and timely notice, the indictment must be read as whole. 1741 In this case, the Chamber notes that, in addition to the references to planning in the chapeau paragraphs, paragraph 18 of the Amended Indictment states that, “[b]y reason of the facts alleged in paragraphs 14 through 18 herein Gaspard Kanyarukiga is individually responsible for planning … the killing of Tutsi civilians at Nyange Parish”; the language suggests that the Accused is charged with planning all of the events pleaded in paragraphs 14 through 18. Moreover, the Chamber notes that the factual allegations in this case all relate to a single course of conduct, which resulted in the demolition of the Nyange Church on 16 April 1994. Finally, the Chamber notes that in paragraph 36 of its Pre-Trial Brief, the Prosecution alleged that Kanyarukiga attended meetings at Seromba’s home and elsewhere between 10 and 16 April 1994 “to plan the killing of Tutsis.” 1742 Through this paragraph, the Prosecution indicated that all of the meetings charged in the Amended Indictment were being charged as “planning”. Thus, in view of the overarching allegation of planning in the chapeau paragraphs, the allegations that Kanyarukiga attended four meetings between 10 and 16 April 1994 and the allegation in paragraph 16 that the Accused participated in planning the demolition of the church, the Chamber is satisfied that the Accused had sufficient notice that he was accused of planning the criminal conduct in question. 1738 The Prosecutor’s Pre-Trial Brief, para. 23. 1739 See Rukundo v. Prosecutor, Case No. ICTR-2001-70-A, Judgement (AC), 20 October 2010, paras. 33, 35, 37. 1740 Semanza, Judgement (AC), para. 259. 1741 Gacumbitsi, Judgement (AC), para. 123. 1742 The Prosecutor’s Pre-Trial Brief, para. 36 (“It is the Prosecution case that the Accused and other members of the [j]oint [c]riminal [e]nterprise attended meetings at Seromba’s home and elsewhere to plan the killing of Tutsis. The Prosecution will adduce evidence to show that these meetings were held from 10 April 1994 before the killings started at Nyange Church and continued throughout the following days up to and including 16 April 1994 … the meetings were for the purpose of planning the destruction of the Tutsi ethnic group in whole or in part.”). The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 155
Judgement and Sentence 1 November 2010 Other Modes of Liability 633. Having considered its findings of fact in this case, the Chamber finds that the Prosecution has failed to prove beyond reasonable doubt that the Accused ordered, instigated, aided or abetted or physically committed the crimes charged in the Amended Indictment. Thus, the Chamber need not consider whether these modes of liability were properly pleaded in this case. 3. Genocide 3.1. Applicable Law 634. Count 1 of the Indictment charges Gaspard Kanyarukiga with genocide, pursuant to Article 2(3)(a) and Article 6(1) of the Statute. 1743 Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; … 1744 635. A person commits the crime of genocide under Article 2(3)(a) of the Statute if he or she commits one of the acts enumerated in Article 2(2) with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. 1745 The victims must be targeted because of their membership in the protected group. 1746 The jurisprudence also suggests that an accused must have the intent to destroy at least a reasonably substantial number of members in the protected group relative to the total population of the group. 1747 Where a person is accused of planning, 1743 Amended Indictment, para. 7. 1744 Article 2(2) of the Statute. 1745 Nahimana et al., Judgement (AC), para. 492; Prosecutor v. Ntawukulilyayo, Case No. ICTR-05-82-T, Judgement and Sentence (TC), 3 August 2010, para. 450. See also Seromba, Judgement (AC), para. 175; Gacumbitsi, Judgement (AC), para. 39. 1746 Niyitegeka, Judgement (AC), para. 53 (“Thus the Trial Chamber was correct in interpreting ‘as such’ to mean that the proscribed acts were committed against the victims because of their membership in the protected group, but not solely because of such membership.”). See also Seromba, Judgement (AC), para. 176; Rutaganda, Judgement (AC), paras. 524-525; Prosecutor v. Jelisić, Case No. IT-95-10-A, Judgement (AC), 5 July 2001, para. 47. 1747 Prosecutor v. Sikirica et al., Case No. IT-95-8-T, Judgement on Defence Motions to Acquit (TC), 3 September 2001, para. 65. See also Semanza, Judgement (TC), para. 316 (“Although there is no numeric threshold of victims necessary to establish genocide, the Prosecutor must prove beyond reasonable doubt that the perpetrator acted with the intent to destroy the group as such, in whole or in part. The intention to destroy must be, at least, to destroy a substantial part of the group.” (some internal citations omitted)), citing Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T, Judgement (TC), 7 June 2001, para. 64. Compare Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 97 (“The Trial Chamber opines, therefore, that ‘in part’ requires the intention to destroy a considerable number of individuals who are part of the group.”). Accord Gacumbitsi, Judgement (AC), para. 44. Compare Prosecutor v. Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 590 (“The Trial Chamber is therefore of the opinion that the intent to destroy a group, even if only in part, means seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals within it. Although the perpetrators of genocide need not seek to destroy the entire group protected by the Convention, they must view the part of the group they wish to destroy as a distinct entity which must be eliminated as such.”); Prosecutor v. Jelisić, Case No. IT-95-10- T, Judgement (TC), 14 December 1999, para. 82 (“Genocidal intent may therefore be manifest in two forms. It may consist of desiring the extermination of a very large number of the members of the group, in which case it would constitute an intention to destroy a group en masse. However, it may also consist of the desired destruction of a more limited number of persons selected for the impact that their disappearance would have upon the survival of the group as such.”). The Trial Chamber notes that several recent judgements of this Tribunal have adopted the standard articulated in Semanza. See, e.g., Ntawukulilyayo, Judgement (TC), para. 450; Prosecutor v. Bagosora et al., Case No. ICTR-98- 41-T, Judgement and Sentence (TC), 18 December 2008, para. 2115; Prosecutor v. Simba, Case No. ICTR-01-76-T, The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 156
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