Kanyarukiga - JUDGEMENT AND SENTENCE - Refworld

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Judgement and Sentence 1 November 2010 instigating, ordering or aiding and abetting the commission of genocide by one or more other persons, the Prosecutor must establish that the accused’s acts or omissions substantially contributed to the commission of acts of genocide. 1748 636. In the absence of direct evidence demonstrating the perpetrator’s specific intent to commit genocide, such intent may be inferred from his statements or other circumstantial evidence. 1749 Factors that may enable a Trial Chamber to infer the perpetrator’s genocidal intent include the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership in a particular group or the repetition of destructive and discriminatory acts. 1750 The perpetrator need not be motivated solely by a genocidal intent and having a personal motive will not preclude such a specific intent. 1751 637. The Amended Indictment charges Kanyarukiga with genocide for killing and/or causing serious bodily or mental harm to members of the Tutsi ethnic group. Trial Chambers have defined “killing members of the group” as requiring a showing that the principal perpetrator intentionally killed one or more members of the group. 1752 “Serious bodily or mental harm” is not defined in the Statute and has not been squarely addressed by the Appeals Chamber. 1753 The Trial Chambers, however, have largely adopted the following definition from Kayishema and Ruzindana: “‘causing serious bodily harm’ … could be construed to mean harm that seriously injures the health, causes disfigurement, or causes any serious injury to the external, internal organs or senses.” 1754 Typical examples of serious bodily harm include torture and rape. 1755 With respect to “serious mental harm,” several Trial Chambers have said that it refers to “more than minor or temporary impairment of mental faculties.” 1756 However, there does not appear to be any jurisprudential foundation for this Judgement and Sentence (TC), 13 December 2005, para. 412; Prosecutor v. Seromba, Case No. ICTR-2001-66-I, Judgement (TC), 13 December 2006, para. 319. 1748 Nahimana et al., Judgement (AC), para. 492. 1749 Kayishema and Ruzindana, Judgement (AC), paras. 158, 159. See also Seromba, Judgement (AC), para. 176; Gacumbitsi Judgement (AC), paras. 40-41; Rutaganda Judgement (AC), paras. 525, 528; Krstić, Judgement (AC), para. 34; Semanza, Judgement (AC), para. 262, quoting Jelisić, Judgement (AC), para. 47. 1750 Semanza, Judgement (AC), para. 262, quoting Jelisić, Judgement (AC), para. 47. See also Rutaganda, Judgement (AC), para. 525. 1751 Simba, Judgement (AC), para. 269; Jelisić, Judgement (AC), para. 49. Accord Niyitegeka, Judgement (AC), para. 53. 1752 See, e.g., Ntawukulilyayo, Judgement (TC), para. 452; Bagosora et al., Judgement (TC), para. 2117; Simba, Judgement (TC), para. 414; Semanza, Judgement (TC), para. 319. See also Kayishema and Ruzindana, Judgement (AC), para. 151 (“[I]f the word “virtually” is interpreted in a manner that suggests a difference, though minimal, between the two terms, it would construe them both as referring to intentional but not necessarily premeditated murder, this being, in its view, the meaning to be assigned to the word “meurtre.”). 1753 See Seromba, Judgement (AC), para. 46. 1754 Kayishema and Ruzindana, Judgement (TC), para. 109. See Ntawukulilyayo, Judgement (TC), para. 452; Bagosora et al., Judgement (TC), para. 2117; Prosecutor v. Ntagerura et al., Case No. ICTR-99-46-T, Judgement and Sentence (TC), 25 February 2004, para. 664; Semanza, Judgement (TC), para. 320. 1755 Seromba, Judgement (AC), para. 46. 1756 See, e.g., Ntawukulilyayo, Judgement (TC), para. 452; Rukundo, Judgement (TC), para. 260; Bagosora et al., Judgement (TC), para. 2117; Ntagerura et al., Judgement (TC), para. 664; Prosecutor v. Kajelijeli, Case No. ICTR-98- 44A-T, Judgment and Sentence (TC), 1 December 2003, para. 815; Semanza, Judgement (TC), para. 321. The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 157
Judgement and Sentence 1 November 2010 definition. 1757 Rather, the judgement upon which this line of jurisprudence rests states that “causing serious mental harm” should be interpreted on a case-by-case basis. 1758 To support a conviction for genocide, the bodily or mental harm inflicted on members of a protected group must be of such a serious nature as to threaten the destruction of the group in whole or in part. 1759 3.2. Application 638. The Trial Chamber has taken judicial notice of the facts that, between 6 April and 17 July 1994, Rwandan citizens were ethnically classified as Hutu, Tutsi and Twa and that a genocide was carried out against the Tutsi ethnic group. 1760 It is well established that the Tutsi ethnicity is a protected group under Article 2 of the Statute. 1761 639. Based on the evidence presented at trial, the Chamber has found that, following the death of President Habyarimana on 6 April 1994, Tutsi civilians were attacked by Hutu assailants in Kivumu commune and sought refuge in the Nyange Parish Church. More than 2000 civilians, of whom at least the vast majority were Tutsi, took refuge at the Nyange Parish prior to 16 April 1994. The Chamber has found that, from approximately 12 April 1994, gendarmes were posted to the Nyange Parish, ostensibly to “ensure the security” of the Tutsi who had taken refuge there. The Tutsi civilians were also surrounded by armed assailants, including interahamwe. 640. Further, the Chamber has found that, between 13 and 16 April 1994, Hutu assailants attacked the Tutsi at the Nyange Parish and demolished the church, killing approximately 2000 Tutsi men, women and children. It is undisputed that these attacks were ethnically motivated. The Chamber has found that members of the Hutu population were asked to go to Nyange to attack the Tutsi who had taken refuge at the parish and that Hutu assailants referred to their victims as “inyenzi” and chanted slogans such as, “let us exterminate them” and “let no-one escape”. In attempting to annihilate the Tutsi civilians who had taken refuge at the parish, the assailants attacked their victims with traditional weapons, stones, firearms and at least one grenade and attempted to destroy the church with dynamite and by using fuel to set it ablaze. When these attempts failed, the assailants took the extreme step of demolishing the Nyange Parish Church with at least one bulldozer, crushing those inside. The Chamber has found that thousands of Hutu assailants armed with traditional weapons surrounded the Nyange Church on 16 April 1994 and attacked anyone who tried to escape the demolition. 641. Given the manner in which the attacks were conducted, the Chamber finds that the assailants intentionally targeted and killed members of a protected group. Having considered the number of 1757 The Trial Chambers that have adopted this definition rely on paragraph 110 of the Trial Chamber’s judgement in Kayishema and Ruzindana to support their finding. See, e.g., Ntawukulilyayo, Judgement (TC), para. 452; Rukundo, Judgement (TC), para. 260; Bagosora et al., Judgement (TC), para. 2117; Kajelijeli, Judgement (TC), para. 815; Semanza, Judgement (TC), para. 321. According to Semanza, for example, the Trial Chamber in Kayishema and Ruzindana held that serious mental harm meant more than minor or temporary impairment of mental faculties. Semanza, Judgement (TC), para. 321. However, paragraph 110 of the Kayishema and Ruzindana judgement does not include any findings or conclusions by the Trial Chamber. Rather, it merely summarises the argument made by the Prosecution. In contrast, paragraph 113 of the Kayishema and Ruzindana Trial Judgement, in which the Trial Chamber actually sets forth its findings on this issue, states that, “[t]he Chamber opines that ‘causing serious mental harm’ should be interpreted on a case-by-case basis in light of the relevant jurisprudence.” Kayishema and Ruzindana, Judgement (TC), paras. 110, 113. 1758 See Kayishema and Ruzindana, Judgement (TC), para. 113. 1759 Seromba, Judgement (AC), para. 46. 1760 Decision on the Prosecution Motion for Judicial Notice (TC), 14 May 2009, paras. 12, 14. 1761 See Bagosora et al., Judgement (TC), para. 2117, fn. 2338 (“Furthermore, every judgement rendered by this Tribunal concerning genocide has recognised that the Tutsi ethnicity is a protected group.”). See also Karemera et al., Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice (AC), para. 25. The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 158
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