The Appeals Chamber of the International Criminal Tribunal for Rwanda, composed of Judge Fausto Pocar, presiding, Judge Carmel Agius, Judge Liu Daqun, Judge Khalida Rachid Khan, and Judge Bakhtiyar Tuzmukhamedov, today delivered its judgement on the appeals lodged by Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphonse Nteziryayo, Joseph Kanyabashi, Élie Ndayambaje, and the Prosecution. This last judgement of the Appeals Chamber brings an end to the Tribunal’s judicial activity.
Nyiramasuhuko served as Minister of Family and Women’s Development under the interim government in 1994. Ntahobali, Nyiramasuhuko’s son, was a student and part‑time manager of Hotel Ihuliro in Butare-ville Sector in April 1994. Nsabimana was appointed prefect of Butare on 19 April 1994 and served in that position until 17 June 1994 when he was replaced by Nteziryayo. Kanyabashi was the bourgmestre of Ngoma Commune during the events at issue. Ndayambaje served as bourgmestre of Muganza Commune from 18 June 1994 until he left Rwanda on 7 July 1994.
Kanyabashi and Ndayambaje were arrested in Belgium on 28 June 1995 and transferred to the custody of the Tribunal on 8 November 1996. Nyiramasuhuko and Nsabimana were arrested in Kenya on 18 July 1997 and Ntahobali was arrested there on 24 July 1997. Nyiramasuhuko, Nsabimana, and Ntahobali were each transferred to the custody of the Tribunal on the day of his or her arrest. Nteziryayo was arrested in Burkina Faso on 26 March 1998 and transferred to the custody of the Tribunal on 21 May 1998.
On 24 June 2011, Trial Chamber II convicted Nyiramasuhuko, Ntahobali, Nsabimana, Kanyabashi, and Ndayambaje of genocide, crimes against humanity, and one or more serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. The Trial Chamber also convicted Nyiramasuhuko of conspiracy to commit genocide and found Nteziryayo, Kanyabashi, and Ndayambaje guilty of direct and public incitement to commit genocide. The Trial Chamber sentenced Nyiramasuhuko, Ntahobali, and Ndayambaje to life imprisonment and imposed sentences of 25, 30, and 35 years of imprisonment on Nsabimana, Nteziryayo, and Kanyabashi, respectively.
When considering overlapping challenges related to the fairness of the proceedings, the Appeals Chamber determined that the Trial Chamber erred in finding that Nyiramasuhuko’s, Ntahobali’s, Nsabimana’s, Nteziryayo’s, Kanyabashi’s, and Ndayambaje’s right to be tried without undue delay had not been violated. It concluded that “delays in the start of the trial due to the Prosecution’s conduct and delays resulting from the Trial Chamber judges’ simultaneous assignment to multiple cases cannot be reasonably explained or justified.” It further found that the delays caused prejudice to each of the six appellants. The Appeals Chamber further determined that the Trial Chamber applied an incorrect legal standard when convicting Nyiramasuhuko, Ntahobali, Nsabimana, Kanyabashi, and Ndayambaje of persecution as a crime against humanity on the basis that they acted with discriminatory intent on ethnic grounds. The Appeals Chamber, by a majority, concluded that none of the Trial Chamber’s findings supports the conclusion that they committed this crime on one of the three discriminatory grounds enumerated in Article 3(h) of the Statute, namely on political, racial, or religious grounds, and reversed their convictions on this basis.
With respect to the individual appeals, the Appeals Chamber affirmed Nyiramasuhuko’s conviction for conspiracy to commit genocide on the basis that she entered into an agreement with members of the Interim Government on or after 9 April 1994 to kill Tutsis within Butare Prefecture. It also upheld findings of her criminal responsibility in relation to attacks at the Butare Prefecture Office in May and June 1994, affirming her convictions on the basis that she ordered the killing of Tutsis who had sought refuge at the prefectoral office and as a superior of Interahamwe who perpetrated rapes there.
The Appeals Chamber, unanimously and, in one instance, by a majority, affirmed Ntahobali’s criminal responsibility for: (i) killing a Tutsi girl he had first raped at the Hotel Ihuliro roadblock in late April 1994; (ii) ordering the killing of a man named Léopold Ruvurajabo at the Hotel Ihuliro roadblock on 21 April 1994, the killing of Tutsis at the Institut de recherche scientifique et technique on 21 April 1994, and the killing of Tutsis who had sought refuge at the Butare Prefecture Office during an attack there in mid-May 1994; and (iii) aiding and abetting the killings of Tutsis abducted from the École évangéliste du Rwanda between mid-May and early June 1994. The Appeals Chamber further affirmed Ntahobali’s criminal responsibility for: (i) raping a Tutsi girl near the Hotel Ihuliro roadblock in late April 1994 as well as Witness TA during two attacks in May 1994 at the prefectoral office; (ii) ordering the rape of Witness TA at the prefectoral office during an attack in the last of half of May 1994; and (iii) aiding and abetting the rapes of Witness TA at the prefectoral office in June 1994.
However, the Appeals Chamber, having found errors in the Trial Chamber’s reasoning, reversed Ntahobali’s criminal responsibility for: (i) killing numerous Tutsis, other than a Tutsi girl, at the Hotel Ihuliro roadblock in late April 1994; (ii) aiding and abetting the killing of Rwamukwaya and his family around 29 or 30 April 1994; (iii) raping Tutsi women, other than Witness TA, at the Butare Prefecture Office; and (iv) ordering the rapes of six Tutsi women, other than Witness TA, at the Butare Prefecture Office during an attack in the last half of May 1994.
The Appeals Chamber affirmed Nsabimana’s convictions on the basis of aiding and abetting by omission the killing of Tutsis who had sought refuge at the Butare Prefecture Office by failing to discharge his duty to provide assistance to people in danger and to protect civilians against acts of violence. It also affirmed Nteziryayo’s convictions for direct and public incitement to commit genocide on the basis that he made speeches that constituted direct appeals to the population to kill Tutsis at public meetings held in Muyaga and Kibayi Communes in mid to late June 1994 and at the 22 June 1994 swearing-in ceremony of Ndayambaje as the new bourgmestre of Muganza Commune.
The Appeals Chamber, by a majority, affirmed Kanyabashi’s convictions for committing direct and public incitement to commit genocide by making megaphone announcements on two occasions in late May and mid-June 1994 calling on the population to kill Tutsis. However, the Appeals Chamber reversed Kanyabashi’s convictions based on his superior responsibility for the killings of Tutsis perpetrated by Ngoma commune policemen at Kabakobwa Hill on 22 April 1994, finding that he lacked notice of the material facts upon which the Trial Chamber convicted him. It further reversed Kanyabashi’s convictions based on his superior responsibility for the killings of Tutsis at Matyazo Clinic in late April 1994 perpetrated by soldiers, concluding that “no reasonable trier of fact could have found that a single order from a civilian authority which was followed by soldiers demonstrated a pre-existing superior‑subordinate relationship, which, in turn, imposed a duty on that civilian authority to prevent the soldiers from committing crimes or to punish them for the crimes committed.”
The Appeals Chamber affirmed Ndayambaje’s conviction for committing direct and public incitement to commit genocide by making a speech containing inciting statements to commit genocide at his swearing-in ceremony as the new bourgmestre of Muganza Commune on 22 June 1994. It also affirmed his convictions for aiding and abetting the killings of Tutsis at Mugombwa Church on 20 and 21 April 1994 and at Kabuye Hill from 23 to 24 April 1994. It also upheld his convictions on the basis of instigating the killings of Tutsi women and girls, other than one named Nambaje, abducted from Mugombwa Sector based on his utterances at the Virgin Mary Statute after his swearing-in ceremony on 22 June 1994. However, the Appeals Chamber reversed Ndayambaje’s conviction for committing direct and public incitement to commit genocide by directly inciting a crowd outside Mugombwa Church to kill the Tutsis who were taking refuge in the church on 20 and 21 April 1994. The Appeals Chamber found that Ndayambaje’s indictment was defective in this respect and concluded that the Prosecution had not proved that Ndayambaje’s defence was not materially impaired by the defect. The Appeals Chamber also reversed his convictions for aiding and abetting the killings perpetrated at Kabuye Hill on 22 April 1994 and instigating the killing of a Tutsi girl named Nambaje, finding errors in the Trial Chamber’s assessment of the relevant evidence.
The Appeals Chamber dismissed the Prosecution’s appeal alleging that the Trial Chamber erred in acquitting Kanyabashi of genocide and direct and public incitement to commit genocide in relation to the speech he gave at the 19 April 1994 swearing-in ceremony of Nsabimana as prefect of Butare.
Having considered the impact of its findings on appeal, in particular that the six appellants’ right to be tried without undue delay had been violated, the Appeals Chamber reduced the life sentences imposed by the Trial Chamber on Nyiramasuhuko, Ntahobali, and Ndayambaje, to 47 years of imprisonment for each of them. With respect to Nsabimana, Nteziryayo, and Kanyabashi, the Appeals Chamber further found certain errors in the Trial Chamber’s determination of their respective sentences, and considering the impact of all its findings, reduced Nsabimana’s sentence to 18 years of imprisonment, Nteziryayo’s sentence to 25 years of imprisonment, and Kanyabashi’s sentence to 20 years of imprisonment. Considering time already served, the Appeals Chamber ordered Nsabimana’s and Kanyabashi’s immediate release.
Judge Pocar, Judge Agius, Judge Liu, and Judge Khan appended partly dissenting opinions to the appeal judgement. Judge Agius appended a separate opinion and Judge Khan appended a declaration. This, the final judgement issued by the Tribunal, brings the total number of appeal judgements issued to 45, disposing of appeals concerning 61 persons.