Prosecutor v. Bagilishema, Case No. ICTR-95-1A, Judgment (June 7, 2001).
CASE NO: ICTR-95-1A
ORIGINAL: ENGLISH
TRIAL CHAMBER I
Before:
Judge Erik Møse, Presiding
Judge Asoka de Zoysa Gunawardana
Judge Mehmet Güney
Registry: Mr Adama Dieng
Decision of: 7 June 2001
THE PROSECUTOR
Versus
IGNACE BAGILISHEMA
ICTR-95-1A-T
JUDGEMENT
The Office of Prosecutor:
Ms Jane Anywar Adong
Mr Charles Adeogun-Phillips
Mr Wallace Kapaya
Ms Boi-Tia Stevens
Counsel for the Defence:
Mr François Roux
Mr Maroufa Diabira
Ms Héleyn Uñac
Mr Wayne Jordash
TABLE OF CONTENTS
CHAPTER I. INTRODUCTION | |||
1. | The International Criminal Tribunal for Rwanda | ||
2. | Indictment | ||
3. | Jurisdiction of the Tribunal | ||
4. | The Accused | ||
CHAPTER II. PROCEEDINGS | |||
1. | Procedural Background | ||
2. | Evidentiary Matters | ||
CHAPTER III. APPLICABLE LAW | |||
1. | Individual Criminal Responsibility | ||
1.1 | Responsibility under Article 6(1) of the Statute | ||
1.2 | Responsibility under Article 6(3) of the Statute | ||
1.2.1 | Superior-Subordinate Relationship | ||
1.2.2 | Knowing or Having Reason to Know | ||
1.2.3 | Failing to Prevent or Punish | ||
2. | The Crime of Genocide (Article 2 of the Statute) | ||
2.1 | Genocide | ||
2.1.1 | Underlying Acts | ||
2.1.2 | Dolus Specialis | ||
2.2 | Complicity to Commit Genocide | ||
3. | Crimes against Humanity (Article 3 of the Statute) | ||
3.1 | The Broader Attack | ||
3.1.1 | Widespread or Systematic | ||
3.1.2 | Against any Civilian Population | ||
3.1.3 | On Discriminatory Grounds | ||
3.2 | Underlying Acts | ||
3.3 | Mental Element | ||
4. | Violations of the Geneva Conventions and Additional Protocol II | ||
4.1 | Applicability | ||
4.2 | Material Requirements | ||
5. | Cumulative Charging | ||
CHAPTER IV. GENERAL ISSUES | |||
1. | Introductory Remarks | ||
2. | Character of the Accused prior to the Events in 1994 | ||
3. | Decision of the Accused to remain in his Post of Bourgmestre | ||
3.1 | Introduction | ||
3.2 | Significance of the Decision | ||
3.3 | Conclusion | ||
4. | Possible Subordinates of the Accused | ||
4.1 | Introduction | ||
4.2 | Communal Staff | ||
4.3 | Communal Police | ||
4.4 | Gendarmerie Nationale | ||
4.5 | Reservists | ||
4.6 | Interahamwe | ||
4.7 | Abakiga. | ||
5. | Measures taken by the Accused to Prevent Crimes | ||
5.1 | Introduction | ||
5.2 |
Powers and Resources of the Accused |
||
5.3 | Prevention of Crimes by the Accused | ||
5.4 | Meetings | ||
6. | The Accused’s Relationship with Célestin Semanza | ||
7. | |||
8. | Conclusions | ||
CHAPTER V. FACTUAL AND LEGAL FINDINGS SPECIFIC EVENTS | |||
1. | Introduction | ||
2. | Events between 6 and 12 April 1994 | ||
2.1 |
Attacks in Mabanza Commune |
||
2.2 | Attacks at Nyububare Hill | ||
2.3 | Night Patrols | ||
2.4 | Security Meeting on 9 April 1994 | ||
2.5 | Refugees fleeing to Mabanza Communal Office | ||
2.6 | Meeting between the Accused and the Prefect on 12 April 1994 | ||
3. | Events in Kibuye Town from 13 to 19 April 1994 | ||
3.1 | Movement of Refugees from Mabanza Communal Office to Kibuye Town | ||
3.2 | Detention and Maltreatment of Refugees at Gatwaro Stadium, Kibuye Town, April 1994 | ||
3.2.1 | Introduction | ||
3.2.2 | A Preconceived Plan? | ||
3.2.3 | Description of Gatwaro Stadium | ||
3.2.4 | Conditions at the Stadium – Deliberations | ||
3.2.5 | Conditions at the Stadium – General Findings | ||
(i)
|
Were the Refugees detained at the Stadium? | ||
(ii)
|
The Treatment of the Refugees | ||
(iii)
|
Was the Maltreatment Inflicted upon the Refugees such as to Reach the Legal Threshold of “Inhumane Acts”? | ||
3.2.6 | Was the Accused Present at the Stadium 13-17 April 1994? - Deliberations | ||
Wednesday 13 April 1994 | |||
Thursday 14 April 1994 | |||
Friday 15 April 1994 | |||
Saturday 16 April 1994 | |||
Sunday 17 April 1994 | |||
3.2.7 | Findings on the Accused’s Responsibility | ||
(i)
|
General Observations | ||
(ii)
|
Presence of the Accused on Wednesday 13 April 1994 | ||
(iii)
|
Presence of the Accused on Thursday 14 April 1994 | ||
(iv)
|
Conclusion | ||
3.3 | Attack on Refugees at Home St. Jean Complex, Kibuye Town, 17 April 1994 | ||
3.3.1 | Introduction | ||
3.3.2 | Deliberations | ||
3.3.3 | Findings | ||
3.4 | Attack on Refugees at Gatwaro Stadium, Kibuye Town, 18-19 April 1994 | ||
3.4.1 | Introduction | ||
3.4.2 | Deliberations | ||
3.4.3 | Findings on the Accused’s Responsibility | ||
(i)
|
General observations | ||
(ii)
|
Presence of Accused at the Stadium on 18 April 1994 | ||
Witness AA | |||
Witness A | |||
Witness G | |||
(iii)
|
Conclusion | ||
3.4.4 | Conclusions | ||
(i)
|
Cumulative effect of evidence | ||
(ii)
|
Summary of findings in relation to Paragraphs 4.21-4 of the Indictment | ||
(iii)
|
Further grounds of liability | ||
4. | Events in Mabanza Commune from 13 April to July 1994 | ||
4.1 | Killing of Karungu | ||
4.2 | Killing of Pastor Muganga | ||
4.3 | Killing of Refugees at Communal Office; Burial in Mass Grave | ||
4.4 | Attacks at Bisesero | ||
4.5 | Killing of Kanyabugosi | ||
4.6 | Killing of the Sons of Witness B | ||
4.7 | Killing of Tutsi concealed at the House of Habayo | ||
4.8 | The Detention and Fate of Habayo | ||
5. | Roadblocks in Mabanza Commune | ||
5.1 | Introduction | ||
5.2 | General Observations on Roadblocks | ||
5.2.1 | Roadblocks and the Civil Defence Program | ||
5.2.2 | Roadblocks Sighted in Mabanza Commune | ||
5.3 | Liability for Roadblock-Related Crimes | ||
5.3.1 | Liability under Articles 6(1) and 6(3) of the Statute | ||
5.3.2 | Distinction between “Official” and “Unofficial” Roadblocks | ||
5.4 | Trafipro Roadblock – Establishment and Purpose | ||
5.4.1 | Setting up and Staffing of Trafipro Roadblock | ||
5.4.2 | Purpose of Trafipro Roadblock | ||
5.5 | Trafipro Roadblock – Accused’s Complicity in Killing of Bigirimana | ||
5.6 |
Trafipro Roadblock – Accused’s Complicity in Killing of Judith |
||
5.7 | Killings of Bigirimana and Judith – Accused’s Responsibility as Superior | ||
5.8 | Gitikinini Roadblock | ||
5.9 | Gacaca Roadblock | ||
5.10 | Roadblocks Generally – Accused’s Responsibility in Negligence | ||
5.11 | Conclusions | ||
VI. VERDICT | |||
SEPARATE OPINION OF JUDGE ASOKA DE Z. GUNAWARDANA | |||
SEPARATE AND DISSENTING OPINION OF JUDGE MEHMET GÜNEY | |||
ANNEX A | INDICTMENT | ||
ANNEX B | GLOSSARY |