7. SENTENCE

  1. The Chamber will now summarize the legal texts relating to sentences and penalties and their enforcement, before going on to specify the applicable scale of sentences, on the one hand, and the general principles governing the determination of penalties, on the other.

A. Applicable texts

  1. The Chamber will apply the statutory and regulatory provisions hereafter. Article 22 of the Statute on judgement, Articles 23 and 26 dealing respectively with penalties and enforcement of sentences, Rules 101, 102, 103 and 104 of the Rules which cover respectively sentencing procedure on penalties, status of the convicted person, place and supervision of imprisonment.

B. Scale of sentences applicable to the Accused found guilty of one of the crimes listed in Articles 2, 3 or 4 of the Statute of the Tribunal

  1. The Tribunal may impose on an accused who pleads guilty or is convicted as such, penalties ranging from prison terms up to and including life imprisonment. The Statute of the Tribunal excludes other forms of punishment such as the death sentence, penal servitude or a fine.
  2. Whereas in most national systems the scale of penalties is determined in accordance with the gravity of the offence, the Chamber notes that the Statute does not rank the various crimes falling under the jurisdiction of the Tribunal and, thereby, the sentence to be handed down. In theory, the sentences are the same for each of the three crimes, namely a maximum term of life imprisonment.
  3. It should be noted, however, that in imposing the sentence, the Trial Chamber should take into account, in accordance with Article 23 (2) of the Statute, such factors as the gravity of the offence. In the opinion of the Chamber, it is difficult to rank genocide and crimes against humanity as one being the lesser of the other in terms of their respective gravity. The Chamber holds that both crimes against humanity, already punished by the Nuremberg and Tokyo Tribunals, and genocide, a concept defined later, are crimes which are particularly shocking to the collective conscience.
  4. Regarding the crime of genocide, in particular, the preamble to the Genocide Convention recognizes that at all periods of history, genocide has inflicted great losses on humanity and reiterates the need for international cooperation to liberate humanity from such an odious scourge. The crime of genocide is unique because of its element of dolus specialis, (special intent) which requires that the crime be committed with the intent 'to destroy in whole or in part, a national, ethnic, racial or religious group as such', as stipulated in Article 2 of the Statute; hence the Chamber is of the opinion that genocide constitutes the "crime of crimes", which must be taken into account when deciding the sentence.
  5. There is no argument that, precisely on account of their extreme gravity, crimes against humanity and genocide must be punished appropriately. Article 27 of the Charter of the Nuremberg Tribunal empowered that Tribunal, pursuant to Article 6(c) of the said Charter, to sentence any accused found guilty of crimes against humanity to death or such other punishment as shall be determined by it to be just.
  6. Rwanda, like all the States which have incorporated crimes against humanity or genocide in their domestic legislation, provides the most severe penalties for such crimes under its criminal legislation. To this end, the Rwandan Organic Law on the Organization of Prosecutions for Offences constituting Genocide or Crimes against Humanity, committed since 1 October 1990, (1), groups accused persons into four categories, according to their acts of criminal participation. Included in the first category are the masterminds of the crimes (planners, organizers), persons in positions of authority, and persons who have exhibited excessive cruelty and perpetrators of sexual violence. All such persons are punishable by the death penalty. The second category covers perpetrators, conspirators or accomplices in criminal acts, for whom the prescribed penalty is life imprisonment. Included in the third category are persons who, in addition to committing a substantive offence, are guilty of other serious assaults against the person. Such persons face a short-term imprisonment. The fourth category is that of persons who have committed offences against property.
  7. Reference to the practice of sentencing in Rwanda and to the Organic law is for purposes of guidance. While referring as much as practicable to such practice of sentencing, the Chamber maintains its unfettered discretion to pass sentence on persons found guilty of crimes falling within its jurisdiction, taking into account the circumstances of the case and the individual circumstances of the accused persons.

C. General principles regarding the determination of sentences

  1. In determining the sentence, the Chamber shall be mindful of the fact that this Tribunal was established by the Security Council pursuant to Chapter VII of the Charter of the United Nations within the context of measures the Council was empowered to take under Article 39 of the said Charter to ensure that violations of international humanitarian law in Rwanda in 1994 were halted and effectively redressed. The objective was to prosecute and punish the perpetrators of the atrocities in Rwanda in such a way as to put an end to impunity and thereby to promote national reconciliation and the restoration of peace.
  2. That said, it is clear that the penalties imposed on accused persons found guilty by the Tribunal must be directed, on the one hand, at retribution of the said accused, who must see their crimes punished, and over and above that, on other hand, at deterrence, namely to dissuade for ever, others who may be tempted in the future to perpetrate such atrocities by showing them that the international community shall not tolerate the serious violations of international humanitarian law and human rights.
  3. The Chamber also recalls that, in the determination of sentences, it is required under Article 23(2) of the Statute and Rule 101(B) of the Rules to take into account a number of factors including the gravity of the offence, the individual circumstances of the convicted person, the existence of any aggravating or mitigating circumstances, including the substantial co-operation with the Prosecutor by the convicted person before or after his conviction. It is a matter, as it were, of individualizing the penalty.
  4. Clearly, however, as far as the individualization of penalties is concerned, the judges of the Chamber cannot limit themselves to the factors mentioned in the Statute and the Rules. Here again, their unfettered discretion in assessing the facts and attendant circumstances should enable them to take into account any other factor that they deem pertinent.
  5. Similarly, the factors referred to in the Statute and in the Rules cannot be interpreted as having to be applied cumulatively in the determination of the sentence.

D. Submissions of the Parties

Prosecutor's submissions

  1. In her final brief and in her closing argument made in open court on 16 June 1999, the Prosecutor submitted that the crimes committed by Rutaganda, in particular the crime of genocide and crimes against humanity, are of extremely serious offences calling for appropriate punishment. She submitted that the Chamber should take into account the status of Rutaganda in the society, his individual role in the execution of the crimes, his motivation, his mental disposition and his will, the attendant circumstances of his crimes and his behaviour after the criminal acts.
  2. The Prosecutor submitted that the following aggravating circumstances are such as to justify a more severe sentence in this matter:

    (i) Rutaganda was known in society as the second vice-president of the Interahamwe at the national level. He also was a rich businessman;

    (ii) His criminal participation extended to all levels. He acted as a principal authority at Amgar garage, ETO and Nyanza massacres. He incited to kill and he also killed with his own hands. He provided logistical support in distributing weapons;

    (iii) He endorsed the genocidal plan of the interim government. At the same time, he seized the occasion for his personal gain;

    (iv) He played a leading role in the genocide. He killed or ordered his victims to be killed in cold blood;

    (v) He ordered the Interahamwe to kill the victims with various blunt and sharp weapons in complete disregard for the suffering of the individual victim. The victims were placed in a world of total persecution which lasted for 100 days;

    (vi) In his capacity as direct supervisor of the Interahamwe at Amgar garage, he failed to punish the perpetrators. In fact, he was one of the principal offenders.

  3. Furthermore, the Prosecutor submits that there are no mitigating circumstances. The Accused did not cooperate with the Prosecutor. He has shown no remorse for his crimes.
  4. With regard to the issue of multiple sentences which could be imposed on Rutaganda as envisaged by Rule 101(c) of the Rules, the Prosecutor asked for separate sentences for each of the counts on which Rutaganda was found guilty while specifying that the Accused should serve the more severe sentence. The Prosecutor, submitted that the Chamber should impose a sentence for each offence committed in order to fully recognize the seriousness of each crime, and the particular role of the convicted person in its commission.
  5. In conclusion, the Prosecutor recommends life imprisonment for each count for which the accused is convicted.

Defence's submissions

  1. During the final arguments hearing, the Defence submitted that Rutaganda is innocent and asked that he be acquitted of all the eight counts charged. The Accused himself expressed his sorrow to the Rwandan population especially those who live in his native land. He called on the Chamber to consider especially his health condition and though he did not feel he was guilty, he prayed that the Chamber afford him time to live with his children, should it find him guilty.

E. Personal circumstances of Georges Rutaganda

  1. Rutaganda was born on 28 November 1958. His father was a prominent person in Rwanda. Rutaganda is married and has three children. He was a rich businessman. He was a member of MRND at the national and prefectural levels. He served as the second vice- president of the Interahamwe at the national level.
  2. The Chamber has scrupulously examined all the submissions presented by the parties in determination of sentence; from which it derives the following:

F. Aggravating circumstances

(i) Gravity of the Offences:

  1. The offences with which the accused Georges Rutaganda is charged are, indisputably, extremely serious, as the Trial Chamber already pointed out when it described genocide as the "crime of crimes".

    (ii) The position of authority of Georges Rutaganda in the Interahamwe

  2. Rutaganda was the second vice- president of the Interahamwe at the national level. The Chamber finds that the fact that a person in a high position abused his authority and committed crimes is to be viewed as an aggravating factor.

    (iii) The role played by Rutaganda in the execution of the crimes

  3. The Chamber finds that Rutaganda played an important leading role in the execution of the crimes. He distributed weapons to the Interahamwe for the purpose of killling Tutsis. He positioned the Interahamwe at Nyanza and incited and ordered the killing of Tutsis on several occasions. As a second vice president of the Interahamwe,. He killed Emmanuel Kayitare, alias Rujindiri, a Tutsi, by stricking him on the head with a machete.

G. Mitigating circumstances

(i) Assistance given by Georges Rutaganda to certain people

  1. The Defence alleges that Georges Rutaganda, during the period of the commission of the crimes with which he is charged, helped people to evacuate to various destinations at various times and by various means. The Chamber accepts, as mitigating factors, the fact that Rutaganda had evacuated the families of witnesses DEE and DS and that he had used exceptional means to save witness DEE, the Tutsi wife of one of his friends and that he provided food and shelter to some refugees.

    (ii) Rutaganda's health condition

  2. Rutaganda requested that the Chamber consider his present health condition. The Chamber notes that Rutaganda is in poor health and has had to seek medical help continously.
  3. Having reviewed all the circumstances of the case, the Chamber is of the opinion that the aggravating factors outweigh the mitigating factors, especially as Rutaganda occupied a high position in the Interahamwe at the time the crimes were committed. He knowingly and consciously participated in the commission of such crimes and never showed remorse for what he inflicted upon the victims.

TRIAL CHAMBER I

FOR THE FOREGOING REASONS,

DELIVERING its decision in public, inter partes and in the first instance;

PURSUANT to Articles 23, 26 and 27 of the Statute of the Tribunal and Rules 101, 102, 103 and 104 of the Rules of Procedure and Evidence;

Noting the general practice regarding sentencing in Rwanda;

Noting that Rutaganda has been found guilty of:

Genocide - Count 1

Crime Against Humanity (extermination) - Count 2

Crime Against Humanity (murder) - Count 7

Noting the brief submitted by the Prosecutor;

Having heard the Prosecutor and the Defence;

IN PUNISHMENT OF THE ABOVE MENTIONED CRIMES,

SENTENCES Georges Rutaganda to:

A SINGLE SENTENCE OF LIFE IMPRISONMENT

FOR ALL THE COUNTS ON WHICH HE HAS BEEN FOUND GUILTY

RULES that imprisonment shall be served in a State designated by the President of the Tribunal, in consultation with the Trial Chamber, the Government of Rwanda and the designated State shall be notified of such designation by the Registrar;

RULES that this judgement shall be enforced immediately, and that, however:

(i) Until his transfer to the designated place of imprisonment, Georges Rutaganda shall be kept in detention under the present conditions;

(ii) Upon notice of appeal, if any, the enforcement of the sentence shall be stayed until a decision has been rendered on the appeal, with the convicted person nevertheless remaining in detention.

Arusha, 6 December 1999,


Laïty Kama Lennart Aspegren Navanethem Pillay
Presiding Judge Judge Judge

 

(Seal of the Tribunal)


1. Organic Law No. 8/96 of 30 August 1996, published in the Gazette of the Republic of Rwanda, 35th year. No. 17, 1 September 1996.


1. Introduction | 2. The Applicable Law | 3. The Defence Case | 4. Factual Findings | 5. Legal Findings | 6. Verdict | 7. Sentencing