Chamber rules Prosecution failed to prove its case beyond reasonable doubt

In the first verdict of an acquittal by the International Criminal Tribunal for Rwanda, Trial Chamber I found accused Ignace Bagilishema not guilty on all seven counts of Genocide, Crimes against Humanity and Serious Violations of Article 3 common to the Geneva Conventions on which he was charged by the Prosecutor.

The Trial Chamber (Judges Erik Møse, presiding, Asoka de Z. Gunawardana, and Mehmet Güney) was unanimous in finding Bagilishema, former Bourgmestre of Mabanza Commune in Rwanda’s Kibuye Prefecture, not guilty of Genocide and Serious Violations of the Geneva Conventions. By a majority, with Judge Güney dissenting, it found the accused not guilty of one count of Complicity in Genocide and three counts of Crimes against Humanity (Murder, Extermination and Other Inhumane Acts). Judge Gunawardana appended a Separate Opinion to the judgement.

After reviewing all testimonial and documentary evidence presented during the trial, the Tribunal ruled that the testimonies of the witnesses for the Prosecution were riddled with inconsistencies and contradictions. The Tribunal found that the Prosecution had failed to prove its case beyond a reasonable doubt.

In the indictment against Bagilishema, the Prosecutor alleged, amongst others, that the accused held meetings in which he encouraged the local population to kill Tutsis in early April 1994. It was alleged that Bagilishema personally attacked and killed Tutsi men, women and children residing and seeking refuge in Mabanza Commune, ordered Interahamwe militiamen to dig a mass grave in the commune office in Mabanza and directed massacres of Tutsi refugees in various areas of Kibuye Prefecture. He was accused of meeting with Clement Kayishema, the former Prefect of Kibuye on 12 April 1994 in furtherance of the massacres. [Kayishema was convicted of genocide and sentenced to imprisonment for the remainder of his life by the Tribunal].

However, the Defence contended that Bagilishema actually held “pacification” meetings during the genocide in an attempt to restore security harmony in Mabanza. The Trial Chamber found that the evidence supported Bagilishema’s contention that he acted to prevent killings of Tutsis and re-establish law and order. Several witnesses who testified for the Prosecution could not recall the personal presence of the accused at the scenes of the massacres gave conflicting accounts, and could not prove that a meeting occurred between Kayishema and Bagilishema. The credibility of the Prosecution witnesses on this allegation was questioned, and one of the witnesses gave differing accounts of where the meetings allegedly took place.

Bagilishema’s individual criminal responsibility for the crimes could thus not be established. “The Chamber finds that the Prosecution’s charge of genocide must fail because the Chamber cannot find that the accused was present when the Tutsi detained during the attack were killed”, the judges ruled on one of the allegations against Bagilishema.

Ignace Bagilishema, 46, was arrested on 9 February 1999 in the Republic of South Africa under an arrest warrant issued by the Tribunal. His trial opened on 27 October 1999 and ended a year later in October 2000. The Prosecution called 18 witnesses, while the defence presented 15 witnesses. All three Judges of the Trial Chamber visited Kibuye Prefecture to inspect the locations of certain events alleged in the indictment and to better appreciate the evidence presented at trial. This was the first such visit by a Trial Chamber of the ICTR in connection with a trial.

In his dissenting opinion judge Guney held inter-alia that he was “thoroughly convinced “ that Bagilishema was guilty of complicity in Genocide and Crime Against Humanity on the basis of evidence that established the individual criminal responsibility of the accused.

In his separate opinion acquitting the accused, Judge Asoka de Z. Gunawardana considered Bagilishema’s plea that he lacked the means and resources to prevent the alleged commission of the atrocities in Mabanza Commune, and that he maintained law and order, to the best of his ability, with the resources that were available to him. Judge Gunawardana also referred to the evidence given by the Prosecution as well as the Defence, which supported the plea and showed that Bagilishema acted in good faith to protect the Tutsis before and after the massacres in April 1994.

At the close of today’s judgement hearing, the Prosecution advised the Trial Chamber in open court of its intention to file an appeal against the judgement. It requested the Chamber to issue a warrant of arrest to keep Mr Bagilishema in detention under Rule 99(B) of the Tribunal’s Rules of Procedure and Evidence. The Trial Chamber ruled that, pending its decision on the Prosecution’s request the Registrar should not implement its Order in the judgement for immediate release of the acquitted accused.

Defence Counsel François Roux (France) assisted by Maroufa Diabira (Mauritania) defended Mr. Bagilishema in his trial.