7. SENTENCE
- 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
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- In conclusion, the Prosecutor recommends life imprisonment for each count
for which the accused is convicted.
Defence's submissions
- 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
- 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.
- 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:
- 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
- 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
- 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
- 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
- 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.
- 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