VIII.    SENTENCE

547.      In Section II.A.1. above, the Appeals Chamber has upheld a number of Gérard Ntakirutimana’s grounds of appeal that he and Elizaphan Ntakirutimana were given insufficient notice of the material facts of the Prosecution’s case and that the Trial Chamber erred in basing a conviction on those material facts. In Sections VI.B. and VII., the Appeals Chamber has also upheld the Prosecution’s appeal in relation to the elements of extermination as a crime against humanity and confirmed that the mens rea for aiding and abetting genocide is knowledge of the perpetrator’s genocidal intent. The Appeals Chamber now considers how those errors impact upon the criminal responsibility and sentences of Elizaphan Ntakirutimana and Gérard Ntakirutimana. The Appeals Chamber will also assess the merits of the Prosecution’s sixth ground of appeal against the Trial Chamber’s determination of the sentence to be applied to Elizaphan Ntakirutimana and Gérard Ntakirutimana.

548.      Pursuant to Article 23 of the Statute, in determining the terms of imprisonment, the Trial Chamber shall have recourse to the general practice regarding prison sentences in the courts of Rwanda. The Prosecution argues that, although the Trial Chamber did refer to the relevant Rwandan legislation on sentencing practices, it did so not for the purpose of determining the general sentencing practices in Rwanda, but rather in support of a principle of gradation discussed in the Trial Judgement. The Prosecution submits that under the general sentencing practice in Rwanda both Elizaphan Ntakirutimana and Gérard Ntakirutimana would have received more severe terms of imprisonment, namely mandatory life sentences. [939]

549.      It is established jurisprudence that the imposition of a sentence is a decision which falls to the Trial Chamber. A Trial Chamber has considerable discretion when determining a sentence and the Appeals Chamber will not intervene unless there has been a discernible error in the exercise of the Trial Chamber’s discretion. [940]

550.      In its discussion, the Trial Chamber did indeed refer to the principle of gradation of sentences, noting that harsher penalties may be imposed on individuals who committed crimes with “especial zeal or sadism” and that the sentences “consequently stigmatize those crimes at a level that corresponds to their overall magnitude and reflects the extent of the suffering inflicted upon the victims.” [941] It also noted that this principle could be found in the relevant dispositions of the Rwandan Criminal Code and the practices of Rwandan courts in respect of sentencing. [942] However, it cannot be said, as the Prosecution suggests, that by invoking such a principle, the Trial Chamber minimised the crimes committed and the conduct of the Accused. Quite the reverse.

551.      The Trial Chamber concluded that this principle would allow for imposition of “the highest sentence if the circumstances of the case, after assessment of any individual and mitigating factors, are deemed to require it.” [943] The Trial Chamber added that by the same token not all persons convicted of genocide must be given the highest sentence. [944] The Appeals Chamber understands this to mean that the Trial Chamber could likewise impose a lesser sentence if justified after an assessment of any individual and mitigating factors. The Trial Chamber was therefore positing that the appropriate sentence to be applied to the Accused depended largely on the circumstances of the case, including consideration of mitigating and aggravating factors. This approach is in conformity with Rule 101(A) of the Rules, and within the discretion of the Trial Chamber.

552.      The Trial Chamber reached its decision on sentence only after having discussed relevant mitigating and aggravating factors, and after having noted the Prosecution’s submission that both Accused would have received death sentences in Rwanda as they fell under Category I of Rwanda’s Organic Law. [945] The Appeals Chambers is therefore not persuaded by the Prosecution’s argument that by recalling the principle of gradation of sentence, the Trial Chamber committed a discernible error.

553.      The Prosecution also submits that the sentences given to Gérard and Elizaphan Ntakirutimana are in disparity with the Tribunal’s sentencing practice in genocide cases and are manifestly disproportionate to the crimes. The Prosecution requests that the Appeals Chamber increase the sentence of Elizaphan Ntakirutimana to 20 years’ imprisonment, and that of Gérard Ntakirutimana to life imprisonment. [946] Given that the Appeals Chamber has quashed a number of convictions for each Accused, the submissions of the Prosecution in this regard are now moot.

554.      Gérard Ntakirutimana was sentenced to 25 years’ imprisonment. He was arrested on 29 October 1996 in the Ivory Coast and transferred to the Tribunal on 30 November 1996. He has since his transfer been detained in the United Nations Detention Facilities in Arusha, Tanzania.

555.      As a result of the errors committed by the Trial Chamber, the following Trial Chamber findings supporting Gérard Ntakirutimana’s convictions under the Bisesero Indictment have been quashed:

(i) “on or about 18 April 1994 Gérard Ntakirutimana was with Interahamwe in Murambi Hill pursuing and attacking Tutsi refugees” and “in the last part of April or possibly in May, Gérard Ntakirutimana was with attackers in Gitwe Hill where he shot at refugees;” [947]

(ii) “sometime between April and June 1994, Gérard Ntakirutimana was in Kidashya Hill transporting armed attackers, and he participated in chasing and shooting at Tutsi refugees in the hills;” [948]

(iii) “Gérard Ntakirutimana participated in an attack at Mutiti Hill, where he shot at refugees;” [949]

(iv) “one day in June 1994, Gérard Ntakirutimana headed a group of armed attackers at Muyira Hill. He carried a gun and shot at refugees;” [950]

(v) “sometime in mid-May 1994, at Muyira Hill, Gérard Ntakirutimana took part in an attack on Tutsi refugees;” [951]

(vi) “Gérard Ntakirutimana participated in the attack against Tutsi refugees at Muyira Hill on 13 May 1994 and [ ] he shot and killed the wife of one Nzamwita, a Tutsi civilian;” [952]

(vii) “Gérard Ntakirutimana killed a person named “Esdras” during an attack at Gitwe Hill at the end of April or the beginning of May 1994.” [953]

556.      The following factual findings made by the Trial Chamber concerning Gérard Ntakirutimana in relation to two separate events under the Bisesero Indictment are upheld:

(i) Gérard Ntakirutimana participated in an attack at Gitwe Hill, near Gitwe Primary School, at the end of April or the beginning of May 1994 where he pursued and shot at Tutsi refugees; [954]

(ii) Gérard Ntakirutimana participated in an attack at Mubuga Primary School in June 1994 and shot at Tutsi refugees. [955]

557.      Additionally, the Trial Chamber’s factual finding concerning Gérard Ntakirutimana’s involvement in relation to two separate events under the Mugonero Indictment are upheld, namely:

(i) Gérard Ntakirutimana killed Charles Ukobizaba by shooting him in the chest, from a short distance, in Mugonero Hospital courtyard around midday on 16 April 1994; [956]

(ii) Gérard Ntakirutimana attended a meeting with the commander of the Kibuye gendarmerie camp and Obed Ruzindana in Kibuye town on the afternoon of 15 April 1994 and he procured gendarmes and ammunition for the attack on Mugonero Complex on 16 April 1994. [957]

558.      Also as found above, the Trial Chamber erred in law in considering that an element of the crime of extermination is that the victims must be “named or described persons”. Considering the impact of the error in question on the verdict, the Appeals Chamber found that in carrying out the acts supporting his conviction for genocide and aiding and abetting genocide, Gérard Ntakirutimana knew that the intention of the other participants was the extermination of the Tutsi refugees and that by his acts and conducts he was making a substantial contribution to the acts of mass killing of the Tutsi victims that occurred at Gitwe Hill, Mubuga Hill and at the Mugonero Complex. Therefore, Gérard Ntakirutimana incurs individual criminal responsibility for aiding and abetting extermination of the Tutsi as a crime against humanity.

559.      The Appeals Chamber therefore upholds the Trial Chamber’s conviction of Gérard Ntakirutimana for Genocide, for his participation to the attack at the Mugonero Complex during which he killed Charles Ukobizaba, as charged in Count 1A of the Mugonero Indictment, and the conviction for murder as a crime against humanity under Count 3 of the Mugonero Indictment. For reasons explained in Section VI of the present Judgement, for his procurement of gendarmes and ammunition for the attack on the Mugonero Complex on 16 April 1994, the Appeals Chamber enters a conviction of aiding and abetting extermination under Count 4 of the Mugonero Indictment. Furthermore, the Appeals Chamber enters a conviction for aiding an abetting genocide on the basis of his procurement of gendarmes and ammunition for the attack on Mugonero Complex on 16 April 1994, as charged under Count 1A of the Mugonero Indictment. [958]

560.      In relation to the Bisesero Indictment, there are no remaining findings that Gérard Ntakirutimana killed or injured individuals during the attacks at Gitwe Hill and Mubuga Primary School. In light of the fact that the Appeals Chamber found that the Prosecution could not rely on the doctrine of joint criminal enterprise in this case, a conviction for genocide cannot be entered for Gérard Ntakirutimana’s participation in the abovementioned attacks. However, convictions for aiding and abetting genocide, as charged under Count 1 of the Bisesero Indictment, and aiding and abetting extermination as a crime against humanity, as charged under Count 5 of the Bisesero Indictment, are warranted here. [959] Accordingly, in addition to the convictions upheld above, Gérard Ntakirutimana is also guilty of the following:

(i) aiding and abetting genocide for his participation in the attack at Gitwe Hill, near Gitwe Primary School, at the end of April or beginning of May 1994, and in the attack at Mubuga Primary School in June 1994;

(ii) aiding and abetting a crime against humanity (extermination) for his participation in the attack at Gitwe Hill, near Gitwe Primary School, at the end of April or beginning of May 1994, and in the attack at Mubuga Primary School in June 1994.

561.      Gérard Ntakirutimana’s conviction for murder as a crime against humanity under Count 4 of the Bisesero Indictment is quashed.

562.      The Appeals Chamber recalls that a penalty must reflect the totality of the crimes committed by a person and be proportionate to both the seriousness of the crimes committed and the degree of participation of the person convicted. [960] In the view of the Appeals Chamber, Gérard Ntakirutimana’s convictions for his participation in attacks at Gitwe Hill, near Gitwe Primary School, at the end of April or the beginning of May 1994 and at Mubuga Primary School in June 1994, where he pursued and shot at Tutsi refugees, his killing of Charles Ukobizaba by shooting him in the chest, from a short distance, in Mugonero Hospital courtyard around midday on 16 April 1994, and his procurement of gendarmes and ammunition for the attack on the Mugonero Complex, are, taken as a whole, extremely grave. The Trial Chamber’s finding that Gérard Ntakirutimana committed these crimes with the intent to destroy in whole or in part the Tutsi group is still applicable. [961] So is the Trial Chamber’s finding that these acts were committed with the knowledge that they were part of a widespread and systematic attack against the civilian Tutsi population. [962]

563.      The Appeals Chamber has also considered the mitigating and aggravating factors discussed by the Trial Chamber, and concurs with the Trial Chamber that the aggravating factors outweigh the mitigating factors in Gérard Ntakirutimana’s case. [963] In particular, the Appeals Chamber has considered the following aggravating factors, namely that Gérard Ntakirutimana (i) abused his personal position in the community to commit the crimes, (ii) personally shot at Tutsi refugees, including Charles Ukobizaba, and (iii) participated in attacks at the Mugonero Complex, where he was a doctor, as well as in other safe havens in which refugees had sought shelter.

564.      The Appeals Chamber finds that the revision of the verdict in respect of both the acquittals and the new convictions does not affect the validity of the elements which form the basis of the sentence of 25 years’ imprisonment imposed by the Trial Chamber. Accordingly, the Appeals Chamber maintains the sentence of 25 years’ imprisonment handed down by the Trial Chamber.

565.      Elizaphan Ntakirutimana was sentenced to ten years’ imprisonment. He was arrested at the request of the Tribunal on 29 September 1996 and initially detained in Texas, USA. Having petitioned against his arrest and transfer to the International Tribunal, he was released on 17 December 1997 by a US Magistrate on constitutional grounds. [964] The US State Department petitioned against that decision, and he was ultimately re-arrested on 26 February 1998 and transferred to the United Nations Detention Facilities in Arusha on 24 March 2000.

566.      As a result of the errors committed by the Trial Chamber in basing convictions on unpleaded material facts, Elizaphan Ntakirutimana’s conviction under the Mugonero Indictment, for conveying attackers to the Mugonero Complex is quashed, [965] and under the Bisesero Indictment, his convictions for his participation in a convoy of vehicles carrying attackers to Kabatwa Hill, where he pointed out Tutsi Refugees at Gitwa Hill, and for transporting attackers to and being present at an attack at Mubuga Primary School in mid-May, under the Bisesero Indictment are quashed. Elizaphan Ntakirutimana remains guilty in relation to four separate events under the Bisesero Indictment, namely:

(i) “one day in May or June 1994, he transported armed attackers who were chasing Tutsi survivors at Murambi Hill;” [966]

(ii) “one day in the middle of May 1994, he brought armed attackers in the rear hold of his vehicle to Nyarutovu Hill, and the group was searching for Tutsi refugees and chasing them. Elizaphan Ntakirutimana pointed out the fleeing refugees to the attackers who then chased these refugees singing: ‘Exterminate them; look for them everywhere; kill them; and get it over with, in all the forests’;” [967]

(iii) “one day in May or June 1994, he arrived at Ku Cyapa in a vehicle followed by two buses of attackers and he was part of a convoy, which included attackers;” [968] and

(iv) “sometime between 17 April and early May 1994, he conveyed attackers to Murambi Church and ordered the removal of the church roof so that it could no longer be used as a hiding place for the Tutsi, and in so doing, he facilitated the hunting down and the killing of the Tutsi refugees hiding in Murambi Church in Bisesero.” [969]

567.      The Appeals Chamber finds that the Trial Chamber’s conviction of Elizaphan Ntakirutimana for genocide for having aided and abetted in the killing and causing serious bodily or mental harm to Tutsi in Bisesero stands in relation to these remaining findings. The Trial Chamber’s finding that Elizaphan Ntakirutimana had the requisite intent to commit genocide is undisturbed despite the quashing of a number of convictions. [970]

568.      Also as found above, the Trial Chamber erred in law in considering that an element of the crime of extermination is that the victims must be “named or described persons”. In carrying out the acts supporting his conviction for aiding and abetting genocide, Elizaphan Ntakirutimana knew that the intent of the actual perpetrators was the extermination of the Tutsi refugees and that he was making a substantial contribution to the acts of mass killing of the Tutsi victims that occurred at Murambi Hill and Nyarutovu Hill. Elizaphan Ntakirutimana also incurs individual criminal responsibility for aiding and abetting the extermination of the Tutsi as a crime against humanity.

569.      In the view of the Appeals Chamber, the remaining convictions against Elizaphan Ntakirutimana are of a serious nature. By these acts, in particular transporting and encouraging attackers, Elizaphan Ntakirutimana knowingly participated in the massacres of Tutsis in Bisesero. Although his convictions under the Mugonero Indictment have been quashed, the remaining proven facts establish that Elizaphan Ntakirutimana also had the intent to commit genocide. Despite the seriousness of these acts, the Appeals Chamber agrees that special consideration should be given to his individual and mitigating circumstances, notably his age and his state of health, as discussed by the Trial Chamber. [971]

570.      Consequently, the Appeals Chamber finds that the revision of the verdict in respect of both the acquittals and the new convictions does not affect the validity of the elements which form the basis of the sentence of ten years’ imprisonment imposed by the Trial Chamber. This sentence is maintained.