Citation
International Criminal Tribunal for Rwanda
Tribunal p h a l international pour le Rwanda
OR: English
I CTe- 00-600s
-
13
04-200
a433
TRIAL
1 3CHA
86
-
Before:
Judge Arlette Ramaroson, Presiding
Judge William H. Sekule
Judge Solomy Balungi Bossa
Registrar:
Mr Adama Dieng
Date:
13 April 2006
m,
The PROSECUTOR
v.
Paul BISENGIMANA
Case No. ICTR-00-60-T
JUDGEMENT AND SENTENCE
-
The Prosecution
The Defence
Mr Charles Adeogun-Phillips
Ms Memory Maposa
Mr Peter Tafah
Ms Florida Kabasinga
Ms Catherine Mabille
Ms Nathalie Passeron
......................................................................................................
Introduction .....................
.
4
4
A . Overview of the Case ............................................................................................................
B . The Indictment .................................................................................................................. 4
.................................................
5
C . Summary of the Procedure
D . The Tribunal and Its Juris
.......................
.......
................5
I1. The Guilty Plea ..................................................................................................................... 6
A . Applicable Law .....................................................................................................................
6
B . The Guilty Plea of 7 December 2005 ....................................................................................
6
Case on Merits .................................... .. ..............................................................................
7
I11.
A . The Accused ..........................................................................................................................
7
. .
B . Factual and Legal F ~ n d ~ n ................................................................................................
gs
8
1. Individual Criminal Responsibility for Aiding and Abetting Pursuant to Article 6 (1) of
.......................................................................................................
the Statute .................... .
.
8
a . The Indictment ...................
.
.
.
.............................................................................. 8
b . Applicable Law ........................................................................................................... 8
c . The Plea Agreement ......................................................................................................
9
.....................
...................10
2 . Crimes Against Humanity (Article 3 of the Statute) ...........
......
................................................
10
a . General Elements of the Crime ....................
10
i . The Attack .............................................................................................................
..
The
Attack
Must
Be
Directed
Against
a
Civilian
Population
.................................
11
11.
...
The Attack Must Be Committed on Discriminatory Grounds ............................12
111.
..................... 12
The Mental Element of Crimes Against Humanity ..................
.
iv .
13
b. Findings .......................................................................................................................
......
......................................................
3. Crimes Against
Humanity
Extermination
.
.
.
13
.
Indictment ....................
.
.
............. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
13
The Plea Agreement ....................................................................................................
14
Events at Musha Church .................................................................
Events at Ruhanga Protestant Church and School ..................................... . ....... 15
15
Applicable Law ...............................................................................
16
Findings .......................................................................................................................
Musha Church Massacres ....................
..........
. . . . . . . . . . . . . . . . . . . . . .16
Ruhanea Protestant Church and School Massacres ...................... .
.
.
.
. . . . . . . 16
...
. .
General
F
~
n
d
~
n
...........................................................................................
g
s
17
111.
4 . Crimes Against Humanity - Murder ...............................................................................
17
a . Indictment .................................................................................................................17
....................... .
.
...................... 17
b . The Plea Agreement
c . Applicable Law ..........................................................................................................
17
18
d . Findings .......................................................................................................................
. .
19
e . Cumulative Convlct~ons..............................................................................................
Applicable
Law
.......................................................................................................
19
i.
..
11.
Findings ...................................................................................................................
I9
IV .
Issues Relating to the Sentenc
................................ 20
.
........
............................................................
20
A. Applicable Texts and Principles ..........
.
.
.......................................................................
21
B . Aggravating Circumstances ....................
1. Prosecution's Submissions on the Gravity of the Offence and the Official Position of the
Accused .....................
.
.
.
.....................................................................................................
21
2 . Findings ...........................................................................................................................
22
..................................... 22
C . Mitigating Circumstances ....
.....
...................................................................
22
1. Parties' General Submissions. ........
.
.................................................................................23
2 . Applicable Law .....................
I.
.
.
The Prosecutor v. Paul Bisengimana Case No . ICTR 00-60-T
Judgement. 13 April 2006
.
The Guilty Plea with Publicly Expressed Regrets ....................
.
.
.............................
23
. .
............................................................... 23
a . Prosecution Submlss~ons......................
.
. .
.
.
...............................................................24
b . Defence Submissions ..........................
.
..................................................................................................... 24
c . Findings ............
25
4 . Personal and Family Situation ........................................................................................
. .
a. Defence Submiss~ons.............................................................................................. 25
b . Findings .............
.
................................................................................................. 26
5 . Character of the Accused ................................................................................................
26
. . ....................
Prosecution
Submiss~ons
.
.
.................................................................
26
a.
. .
b . Defence Submiss~ons.................................................................................................
26
. . ................... .
Find~ngs
.
.
.........................................................................................
26
c.
..............................................
6. Assistance Given to Certain Victims .........................
.
.
27
. .
............................................................
a. Defence Subm~ssions...............................
.
.
.
27
. .
.
...............................................................................................27
b . Fmdlngs ..............
28
7 . Lack of Prior Criminal Convictions and Good Conduct in Detention ........................
. .
............................
................................................................
a . Defence Subm~ss~ons
.
28
28
b . Findings .......................................................................................................................
Age
and
Ill-Health
.....................................................................................................
29
8.
.
.
.
.................................................................29
a . Defence Submiss~ons...........................
b . Findings .................................................................................................................
29
9 . Lack of Personal Participation in the Offences ................... .........................................
30
. . ....................
Defence
Submlss~ons
.
........................................................................
30
a.
b . Findings .......................................................................................................................
30
D . Findings on Aggravating and Mitigating Circumstances ................................................. 31
...............................
E . Sentencing Recommendations by the Parties .............................
.
.
31
............................................................................
1. The Prosecution ...........................
.
.
32
.....................................................................................
2 . The Defence .........................
.
32
.
...................................................................................................
32
F . Findings ..................... .
I . The General Sentencing Practice in the Courts of Rwanda ............................................32
33
2 . Credit for Time Served in Custody .................................................................................
3 . Conclusion ................................................................................................................. 33
V . Verdict .............
.
.
.................................................................................................................
34
VI .
Annexes .............
.
.......
.
.
................................................................................................
36
A . The Procedure ................................................................................................................... 36
B . Jurisprudence and Defined Terms .....................
.
.
......................................................... 40
I . ICTR ...............................................................................................................................
40
2 . ICTY .............................................................................................................................41
42
3 . Defined Terms ................................................................................................................
C . Indictment ........................................................................................................................ 42
3.
Tllr Prosecutor v. Paul Bisengimana, Case No. ICTR 00-60-T
I.
Judgement, 13 April 2006
Introduction
A.
Overview of the Case
1.
Paul Bisengimana (the "Accused"), former bourgmestre of Gikoro commune in KigaliRural prr'fecture, has pleaded guilty to aiding and abetting the murder and extermination of Tutsi
civilians at Musha Church and Ruhanga Protestant Church and School (the "Ruhanga Complex")
in Gikoro commune between 13 and 15 April 1994.
2.
From 7 April 1994, massacres of Tutsis and murders of political opponents were
perpetrated throughout the territory of Rwanda by militiamen, military personnel and gendarmes.
In every region of the country, Tutsis fled from the massacres and sought refuge in places they
thought to be safe. In many of these places, the refugees were attacked and killed, often with the
complicity of the authorities.
3.
The massacres in Gikoro commune started on 7 April 1994. Thousands of Tutsi
civilians, fleeing from the on-going attacks in Kigali-rural prr'fecture, sought refuge in Musha
Church in Gikoro commune between 8 and 13 April 1994. On or about 12 April 1994, with the
knowledge of the Accused, members of the Rwandan Army distributed weapons to Interahamwe
militiamen and civilians at Musha Church to be used to attack the refugees.
4.
On or about 13 April 1994, in the presence of the Accused, Rwandan Army soldiers,
Iuterahamwe, armed civilians and communal policemen launched an attack against the Tutsi
civilians at Musha Church using guns, grenades, machetes and pangas. A civilian militiaman set
fire to the Church during the attack. More than a thousand Tutsis were killed as a result of the
attack. The Accused was present when a Tutsi civilian named Rusanganwa was murdered at that
location.
Many Tutsi civilians had also sought refuge at the Ruhanga Protestant Church and
School in Gikoro commune between 8 and 10 April 1994. Between 10 and 15 April 1994, an
attack was launched on the Ruhanga Complex by a brigadier, soldiers from the Presidential
Guard, civilian militiamen and communal policemen. The attackers used guns, grenades,
machetes and pangas. Many Tutsi civilians were killed. Paul Bisengimana knew of the previous
attack at Musha Church and, despite his position as bourgmestre of Gikoro commune, did not take
any steps to protect the Tutsis refugees.
5.
On 7 December 2005, Trial Chamber I1 (the "Chamber") accepted the guilty plea of the
6.
Accused and found him guilty of having aided and abetted the commission of murder and
extermination as crimes against humanity.
B.
The Indictment
Under the Amended Indictment of 1 December 2005 (the "Indictment"), the Prosecution
7.
charged Paul Bisengimana for his individual responsibility on five counts: genocide (Art. 6 ( 1 )
and 6 (3) of the statute'), complicity in genocide (Art. 6 (I)), and murder (Art. 6 (1))
extermination (Art. 6 (1)) and rape (Art. 6 (1) and 6 (3)) as crimes against humanity. At the
second further appearance of the Accused on 7 December 2005, the Prosecution withdrew the
'-1
I
Statute of the Tribunal (the "Statute")
g
'L-
The Prosecutor v. Paul Bisengimana, Case No. lCTR 00-60-T
Judgement, 13 April 2006
1429
counts of genocide, complicity in genocide and rape as crimes against humanity. The Indictment
is annexed to this judgement (Annex C)
C.
Summary of the Procedure
8.
On 4 December 2001, Paul Bisengimana was arrested in Mali. On 11 March 2002, the
Accused was transferred to the United Nations Detention Facility in Arusha (the "UNDF"). On 18
March 2002, the Accused made his initial appearance and pleaded not guilty to all counts.
On 19 October 2005, the Parties filed a joint motion for consideration of a guilty plea
9.
agreement between Paul Bisengimana and the Office of the rosec cut or.^
On 17 November 2005, during his further appearance, the Accused pleaded guilty to
10.
murder and extermination as crimes against humanity pursuant to Article 6 (1) of the statute.' The
Chamber dismissed the joint motion for consideration of a guilty plea agreement for not being
unequivocal. On behalf of the Accused, the Chamber entered a plea of not guilty regarding the
counts of murder and extermination and duly noted the plea of not guilty for all the other counts."
11.
The Indictment was filed on 1 December 2005.
12.
On 7 December 2005, during his second further appearance, the Accused pleaded guilty
to the counts of murder and extermination as crimes against humanity pursuant to Article 6 (1) of
the ~ t a t u t e The
. ~ Chamber found the Accused guilty of having aided and abetted the commission
of murder (Count 3) and extermination (Count 4) as crimes against humanity pursuant to Article 6
(1) of the ~ t a t u t eThe
. ~ Chamber granted the Prosecution motion for withdrawal and dismissal of
the remaining counts but denied the Prosecution request for acquittal on these counts because the
Prosecution had failed to justify its motion on this point.7
13.
A Pre-Sentencing Hearing was held on 19 January 2006.
14.
A full review of the procedural history is annexed to this judgement (Annex A).
D.
The Tribunal and Its Jurisdiction
15.
The Judgement in the case of Prosecutor v. Paul Bisengimana is rendered by Trial
Chamber I1 of the International Criminal Tribunal for Rwanda (the "Tribunal"), composed of
Judge Arlette Ramaroson, presiding, Judge William H. Sekule, and Judge Solomy B. Bossa.
16.
The Tribunal is governed by the Statute annexed to Security Council Resolution 955 and
by the Rules of Procedure and Evidence of the Tribunal (the " ~ u l e s " ) . ~
17.
The Tribunal was established to prosecute persons responsible for serious violations of
international humanitarian law committed in the territory of Rwanda and Rwandan citizens
responsible for such violations committed in the territory of neighbouring States. The Tribunal
has jurisdiction over acts of genocide, crimes against humanity, and serious violations of Article 3
Requete conjointe visant ir l'examen d'un accord entre Paul Bisengimana et le Bureau du Procureur auxfins d'un
p l a i d q w de culpabiliti, filed on 19 October 2005.
T. 17 November 2005 p. 14.
'
' T. 17 November 2005 p. 26.
' T. 7 December 2005 pp 12-13.
6
T. 7 December 2005 p. 17.
T. 7 December 2005 p. 18.
8
Originally adopted by the Judges of the Tribunal on 5 July 1995, the Rules were last amended on 7 June 2005
during the Fifteenth Plenary Session.
7
The Prosecutur v. Paul Bisengimana, Case No. ICTR 00-60-T
Judgement, 13 April 2006
common to the Geneva Conventions and of Additional Protocol I1 thereto, committed befween 1
January 1994 and 31 December 1994.
The Guilty Plea
11.
A.
Applicable Law
The Chamber notes that there is no specific provision in the Statute regarding guilty
18.
pleas and plea agreements. The relevant provisions of the Rules regarding the procedure relating
to guilty pleas and plea agreements are Rule 62 (B) and Rule 62 b i ~ . ~
B.
The Guilty Plea of 7 December 2005
On 7 December 2005, after Paul Bisengimana pleaded guilty to murder (Count 3) and
19.
extermination (Count 4) as crimes against humanity pursuant to Article 6 (1) of the Statute, the
Chamber proceeded to verify the validity of the plea.
The Chamber summarised the consequences of the plea. It indicated that when an
20.
accused pleads not guilty, he is presumed innocent until his guilt is established beyond reasonable
doubt. In consequence, an accused pleading not guilty has a right to a fair trial; to cross-examine
Prosecution witnesses, to call Defence witnesses, and to testify in his defence. The Chamber
asked the Accused if he understood that by pleading guilty, he was renouncing these rights. The
Accused responded that he understood and that he consciously waived these rights."
21.
Pursuant to Rule 62 (B)(i), (ii), and (iii) of the Rules, the Chamber first asked if the
guilty plea was made freely and voluntarily; in other words, if the Accused was fully aware of
what he was doing and was not threatened or pressured to so plea. The Accused answered that he
was aware of what he was doing, that there were no threats against him, and that he pleaded guilty
of his own will."
4'
Rule 62: Initial Appearance of Accused and Plea
If an accused pleads guilty in accordance with Rule 62 (A)(v), or requests to change his plea to guilty, the
(B)
Trial Chamber shall satisfy itself that the guilty plea:
is made freely and voluntarily;
(1)
(ii)
is an informed plea;
(iii)
is unequivocal; and
is based on sufficient facts for the crime and accused's participation in it, either on the basis of objective
(iv)
indicia or of lack of any material disagreement between the parties about the facts of the case.
Thereafter the Trial Chamber may enter a finding of guilt and instruct the Registrar to set a date for the
sentencing hearing.
Rule 62 bis: Plea Agreement Procedure
The Prosecutor and the Defence may agree that, upon the accused entering a plea of guilty lo the indictment
(A)
or to one or more counts of the indictment, the Prosecutor shall do one or more of the following before the Trial
Chamber:
apply to amend the indictment accordingly;
(i)
submit that a specific sentence or sentencing range is appropriate;
(ii)
not oppose a request by the accused for a particular sentence or sentencing range.
(iii)
The Trial Chamber shall not be bound by any agreement specified in paragraph (A)
(6)
If a plea agreement has been reached by the parties, the Trial Chamber shall require the disclosure of the
(C)
agreement in open session or, on a showing of good cause, in closed session, at the time the accused pleads guilty i n
accordance with Rule 62 (A) (v), or requests to change his or her plea to guilty.
;
T. 7 December 2005 p. 14.
II
T. 7 December 2005, p. 14.
7
"'
/
L
The Prosecutor v. Paul Bismgimana. Case No. ICTR 00-60-T
Judgement, 13 April 2006
22.
Secondly, the Chamber asked the Accused if the plea was informed: that is if the
Accused clearly understood the nature of the charges brought against him and the consequences
of the plea for each of the counts.12 The Accused answered that he pleaded "advisedly.""
23.
Thirdly, the Chamber asked the Accused if his plea was unequivocal: that is whether the
Accused knew that the plea was not compatible with any defence that would contradict it. The
Accused answered that there was absolutely no incompatibility. 14
24.
Further, the Chamber notes the following elements of the Plea Agreement: the Accused
elected freely, "with full knowledge of the facts," to plead guilty;15the Accused decided to plead
guilty after a long reflection during which he became fully aware of the scope and consequences
of the offences he had ~ o m m i t t e d ; ~the
' Accused decided to change his plea after being fully
briefed on the legal consequences of so changing and having accepted these ~ o n s e ~ u e n c e sthe
;~'
Accused's decision to plead guilty was voluntary, informed and ~ n e ~ u i v o c a l . ' ~
25.
In its oral ruling of 7 December 2005, the Chamber was satisfied that, on account of the
absence of any disagreement on the part of the Prosecutor and the Accused about the facts of the
case, the plea was based on sufficient facts to establish the crimes and the participation of the
Accused in their commission. The Chamber stated that the requirements of Rule 62 (B) were met
and it therefore declared the Accused guilty of having aided and abetted the commission of the
crimes of murder and extermination as crimes against humanity pursuant to Article 6 (1) of the
statute.19 The Chamber granted the Prosecution motion for withdrawal and dismissal of the
counts to which the Accused had pleaded not guilty.2" However, the Chamber denied the
Prosecution motion for acquittal on those counts because the Prosecution had failed to justify its
motion on this point.21
Case on Merits
111.
A.
The Accused
26.
Paul Bisengimana was born in 1948~'in Duha secteur, Gikoro commune, Kigali-rural
j~rtfecture'~and is the son of Verdiana Nyirabatera and Gervais ~ ~ i r u m ~ a tboth
s e ,of~ whom
~
are
decea~ed.'~
He spent most of his adult life in Gikoro cornrn~ne.'~
27.
Paul Bisengimana is married and is the father of ten children. He had seven children
with his first wife, Dorca Kantarama, who died in 1991. He later mamed Marie Hirondine
Mukandagijimana, with whom he had two children. He adopted his second wife's
''T. 7 December 2005 p. 14.
T. 7 December 2005 p. 15.
T. 7 December 2005 p. 15.
Plea Agreement, para. 5.
I h Plea Agreement, para. 6.
I' Plea Agreement, para. 8.
LX
Plea Agreement, para. 9.
IyT. 7 December 2005 p. 17.
"'T. 7 December 2005 p. 17-18,
T. 7 December 2005 p. 18.
" Plea Agreement, para. 24; T.17 November 2005 p. I I ; T. 7 December 2005 p. l l
" Plea Agreement, para. 24; Indictment, para. 2.
" T. 17 November 2005 p. I I ; T. 7 December 2005 p. l I .
" T. 17 November 2005 p. 11.
"'Plea
Agreement, pare. 24.
li
"
Thr Prr~secutorv. Paul Bisengimana, Case No. ICTR 00-60-T
Judgement, 13 April 2006
28.
Paul Bisengimana
went to primary school in Gikoro commune. He completed the
"premier cycle" of his secondary education in Rwamagana in three years. He then went to
Byumba e'cole normale, which he left in 1970 with a teacher's D 5 certificate."
29.
From 1970 to 1974, Paul Bisengimana worked in his native commune as a teacher. From
1974 to 1978. he was headmaster of a secondary school in Nyanza. From 1978 to 1981, he was
In May 1981, he was
Presiding Judge of the Cantonal Court of Nyamata, Kigali pr~fecture.29
appointed bourgmestre of Gikoro commune, a position he h d d until 1994, when he went into
exile."'
B.
Factual and Legal Findings
Individual Criminal Responsibility for Aiding and Abetting Pursuant to
Article 6 (1) of the Statute
1.
a.
The Indictment
30.
In support of the counts of murder and extermination, the Indictment alleges that during
April 1994, in the Bugesera region of Kigali-Rural prbfecture, Paul Bisengimana acting
individually andlor in concert with others, was responsible for killing or causing persons to be
killed during mass killing events in Gikoro commune and its environs, as part of a widespread and
systematic attack against a civilian population on political, ethnic or racial grounds.3' For all the
acts adduced in support of this charge, the Prosecutor alleges that the Accused either planned, or
otherwise aided and abetted in the planning, preparation or execution of the said offence pursuant
to Article 6 (1) of the statute.''
b.
Applicable Law
31.
Article 6 (1) reflects the principle that criminal responsibility for any crime in the Statute
is incurred not only by individuals who physically commit the crime, but also by individuals who
participate in and contribute to the commission of the crime in other ways, such as by aiding and
abetting.33
32.
"Aiding" means assisting another to commit a crime.34 "Abetting" means facilitating,
encouraging, advising or instigating the commission of a crime.35In legal usage, including that of
the Statute and of the case law of the Tribunal and the International Criminal Tribunal for the
Former Yugoslavia (the "ICTY"), the two terms are so often used conjunctively that they are
treated as a single broad legal concept.36
~~p
?'
T. 17 November 2005 p. I I; T.7 December 2005 p. 12.
'VT.
17 November 2005 p. 11; T. 7 December 2005 p. 12.
" T. 17 November 2005 p. 11; T. 7 dicembre 2005 p. 13.
"' Plea Agreement, paras. 24-25; T. 17 November 2005 p. 11; Indictment, para. 3; T. 7 December 2005 p. 12.
" Indictment. paras. 35 and 40.
'' Indictment, paras. 36 and 41.
33
Kajelijeli, Judgement (TC), para. 757; Semanzu, Judgement (TC), para. 377; Kayishema and Ruzindana, Judgement
(AC) para. 185; Musema, Judgement (TC), para. 114; Ruraganda. Judgement (TC), para. 33; Kayishema and
Ruzinduna, Judgement (TC) paras. 196-197; Akayesu. Judgement (TC), para. 473.
id
Kojelijeli. Judgement (TC), para. 765, Semanza, Judgement (TC), para. 384; Ntakirutimana, Judgement (TC), para.
787; Aknyesu, Judgement (TC), para. 484.
35
Id
16
Knjelijeli, Judgement (TC), para. 765; Semanza, Judgement (TC), para. 384, referring to Mewett & Manning,
Criminal Luw (3rd ed. 1994) p. 272 (noting that aiding and abetting are "almost universally used conjunctively")
(7
The Prosecutor v. Paul Bisengimana. Case No. ICTR 00-60-7
Judgement, 13 April 2006
142s
Aiding and abetting is a form of accessory liability. The actus reus of the crime is not
33.
performed by the accused but by another person referred to as the principal offender." The
accused's participation may take place at the planning, preparation or execution stage of the crime
and may take the form of a positive act or omission, occumng before or after thc act of the
principal offender." The Prosecution is required to demonstrate that the accused carried out an act
of substantial practical assistance, encouragement, or moral support to the principal offender,
culminating in the latter's actual commission of the crime." While the assistance need not be
indispensable to the crime,40 it must have a substantial effect on the commission of the rime.^'
Mere presence at the crime scene may constitute aiding and abetting where it is
34.
demonstrated to have a significant encouraging effect on the principal offender, particularly if the
individual standing by was the superior of the principal offender or was otherwise in a position of
authority.42 In those circumstances, an omission may constitute the actus reus of aiding and
abetting, provided that this failure to act had a decisive effect on the commission of the c r i ~ n e . ~ '
However, it is not necessary that the person aiding and abetting the principal offender be
35.
present during the commission of the crime.44
36.
The mens rea of aiding and abetting is demonstrated by proof that the aider and abettor
is aware that his act is assisting the commission of the crime by the principal offender.45The aider
and abettor must have known the intent of the principal offender, and although he need not know
the precise offence being committed by the principal offender, he must be aware of the essential
elements of the crime.46With respect to an aider and abettor who is in a position of authority vis21-vis the principal offender, his mens rea may be deduced from the fact that he knew that his
presence would be interpreted by the principal offender as a sign of support or e n ~ o u r a ~ e m e n t . ~ '
c.
The Plea Agreement
37.
Paul Bisengimana was appointed bourgmestre of Gikoro commune by the President of
the Republic of ~ w a n d a ~upon
'
the recommendation of the Minister of the Interior. He
acknowledges that as bourgmestre, he represented executive power at the communal ~ e v e l . ~ '
Further, he had administrative authority over the entire comnzune and was responsible for
ensuring peace, public order and the safety of persons and property, and for the implementation of
ii
KunaraC et al., Judgement (TC), para. 391.
Kajelijeli. Judgement (TC), para.766; Semnnza, Judgement (TC), para. 386; Rutaganira, Judgement (TC) para. 64.
9'
Kayishema and Ruzindann, Judgement (AC), para. 186; Kajelijeli, Judgement (TC), paras. 763.766; Kamuhanda,
Judgement (TC), para. 597; Akayesu, Judgement (TC), paras. 473-475; Rutaganda, Judgement (TC), para. 43.
'"lbid.
41
Bngilishema, Judgement (TC), para. 33, Kamuhanda, Judgement (AC), para.70.
1?
Akayesu, Judgement (TC), para. 693: Kajelijeli, Judgement (TC), para. 769; Furundiija, Judgement (TC), paras.
34, 35.
i
BluSkic, Judgement (TC), para. 284; Tadid, Judgement ( T o , pard. 686, Mucii el al. , Judgement (TC), para. 842 :
Akayem, Judgement (TC), para. 705.
44
Musema, Judgement (TC). para. 125.
IS
Bla.?kic, Judgement (AC), para. 49, Kayishemu and Ruzindma (AC), para.186.
26
Kajelijeli, Judgement (TC), para. 768; Kayishema ar~dRuzindana,Judgement (AC), paras. 186-187; Semanza.
Judgement (TC), para. 387; Bagilishema, Judgement (TC), para. 32; Kayishema andRuzindana, Judgement (TC),
para. 201, Kayishema and Ruzindana, Judgement (AC), para. 186.
47
Kayishema and Ruzindana, Judgement (TC), paras. 200, 201; Bagilishema. Judgement (TC), paras. 34-36;
Knmuhnnda, Judgement (TC), para. 600, Kamuhanda. Judgement (AC), paras. 70, 71.
48
Plea Agreement, para. 25, Indictment, para. 3.
4,)
Plea Agreement, para. 25; Indictment, para. 4.
The Prosecuror v. Paul Bisengimana, Case No. ICTR 00-60-T
Judgement, 13 April 2006
local laws and regulations, as well as government
The Accused admits that he had a duty
to protect the population, prevent or punish the illegal acts of the perpetrators of attacks against
persons or property.5' Further, he was responsible for informing the central government of any
situation worthy of interest in Gikoro commune.52
By his own account, the Accused's position as bourgmestre meant that he exercised both
38.
de jure and de facto authority over all public servants and other holders of public office within
Gikoro commune,53 including, but not limited to, the consei1ler.c de ~ e c t e u r . 'The
~ conseillecr de
secteur represented executive power at the secteur level and were responsible for maintaining law
and order in their respective ~ e c t e u r s . ~ '
Paul Bisengimana acknowledges that he had a duty to protect the population, prevent or
39.
punish the illegal acts of the perpetrators of the attacks at Musha Church and Ruhanga Complex
but that he failed to do so.56 He admits that he had the means to oppose the killings of Tutsi
civilians in Gikoro commune, but that he remained indifferent to the attacks." With respect to the
Musha Church massacres, Paul Bisengimana acknowledges that his presence during the attack
would have had an encouraging effect on the perpetrators and given them the impression that he
endorsed the killing.5"
40.
In the following sections, the Chamber will consider the individual criminal
responsibility of the Accused under Article 6 (1) of the Statute in relation to the counts to which
he has pleaded guilty.
2.
Crimes Against Humanity (Article 3 of the Statute)
a.
General Elements of the Crime
41.
For an enumerated act under Article 3 of the Statute to qualify as a crime against
humanity, it must be proved that the crime was committed as part of a widespread or systematic
attack against any civilian population on national, political, ethnic, racial or religious grounds.
I.
The Attack
42.
The Chamber recalls that 'attack' has been defined as "an unlawful act, event, or series
of events of the kind listed in Article 3 (a) through (i) of the ~tatute."'~
43.
The Chamber notes that, based on the practice of this Tribunal and the ICTY, the
applicable standard is "widespread or systematic" and not "widespread and systematic."6"
30
Plea Agreement, paras. 26, 29; Indictment, para. 7.
Plea Agreement, para. 29; Indictment, para. 7.
" Plea Agreement, para. 26.
"Plea Agreement, para. 27; Indictment, para. 5.
51
Plea Agreement. para. 27.
35
Plea Agreement, para. 28.
"' Plea Agreement, para. 29; Indictment, para.7.
37
Plea Agreement, para. 32; Indictment, para. 8.
58
Plea Agreement, para. 36.
59
Kajefijeli, Judgement (TC), para. 867; Semanza, Judgement (TC), para. 327.
60
The French version of the Statute requires that the attack be widespread and systematic, whereas the English
version requires that the attack be widespread or systematic. In the practice of both the ICTR and the ICTY, the
English version has been accepted, accepted as being consonant with customary international law, Kunarac el al.,
Judgement (AC), para. 93.
5'
The Prosecutor v. Paul Bisengimana, Case No. ICTR 00-60-T
Judgement, 13 April 2006
44.
The "widespread" element of the attack has been given slightly different meanings in the
Tribunal's judgemenk6' The Chamber notes, however, that this element is always taken to refer
to the scale of the attack, and sometimes to the number of victims. The Chamber adopts the
Kajelijeli Judgement definition, which is "large scale, involving many victims."62
45.
The Chamber, agreeing with the Kajelijeli Judgement, finds that "systematic" describes
the organised nature of the attack.63
46.
In the Plea agreement, the Accused admits that from 7 April 1994, massacres of the
Tutsi population and the murder of numerous political opponents were perpetrated throughout the
territory of Rwanda, including Gikoro commune. These crimes were carried out by militiamen,
military personnel, and
47.
Based on the facts contained in the Plea Agreement, the Chamber is convinced that
widespread attacks were committed in Gikoro commune in April 1994 because the attacks
resulted in a lager number of victims.
ii.
The Attack Must Be Directed Against a Civilian Population
48.
The Akayesu Judgement definition of 'civilian population' has been consistently
followed in the jurisprudence of the ~ribunal:"
[. ..] people who are not taking any active part in the hostilities, including members of the armed
forces who laid down their arms and those persons placed hors de combat by sickness, wounds,
detention or any other cause. Where there are certain individuals within the civilian population
who do not come within the definition of civilians, this does not deprive the population of its
civilian character."
49.
As noted in BlaSkic Judgement, "the specific situation of the victim at the moment the
crimes were committed, rather than his status, must be taken into account in determining his
standing as a ~ivilian."~'
50.
Moreover, the term "population" does not require that crimes against humanity be
directed against the entire population of a geographical territory or area.@ The Trial Chamber in
Semanza Judgement further clarified that:
The victim(s) of the enumerated act need not necessarily share geographic or other defining
features with the civilian population that forms the primary target of the underlying attack, but
such characteristics may be used to demonstrate that the enumerated act forms part of the attack."
51.
The Chamber agrees with this jurisprudence.
Judgement (TC), para. 871.
Kajelijeli, Judgement (TC) para. 87 1.
63
Kajelijeli, Judgement (TC) para. 872.
" Kajelijeli,
62
Plea Agreement, para. 30.
Kajelijeli, Judgement (TC), pard. 873; Rutaganda, Judgement (TC) pard. 72; Musema, Judgement (TC), para. 207;
Srmanza, Judgement (TC),para. 330.
66
Akayesu, Judgement (TC), para. 582, cited in Kajelijeli, Judgement (TC) para. 873.
67
Blu.?kic Judgement (TC) para. 2 14, cited in Bngilishema, Judgement (TC) para. 79 and Kajelijeli, Judgement (TC)
pard. 874.
(rX
Kajrlijeli, Judgement (TC) para. 875; Bagilishema, Judgement (TC) para. 80; Tad;?, Judgement (TC), para. 644.
69
Sernanza, Judgement (TC), pard. 330, cited in Kajelijeli, Judgement (TC), para. 875.
~4
(15
T l ~ Pro5ecutor
r
v. Paul Bisengimana, Case No. ICTR 00-60-T
Judgement, 13 April 2006
3-42?
52.
In the Plea Agreement, the Accused admits that massacres of the Tutsi population and
the murder of numerous political opponents were perpetrated.70 He further admits that the attacks
against Tutsi civilians gathered at Musha Church and at Ruhanga Protestant Church and School in
Gikoro commune were part of the ongoing attacks against Tutsi civilians occurring in most parts
of Rwanda during April 1994.~'
53.
Based on the facts contained in the Plea Agreement, the Chamber is convinced that the
widespread attacks in Gikoro commune were committed against a civilian population.
iii.
The Attack Must Be Committed on Discriminatory Grounds
54.
The Chamber recalls the Akayesu Judgement where the "discriminatory grounds"
element was considered to he jurisdictional in nature, limiting the jurisdiction of the Tribunal to
crimes committed on "national, political, ethnic, racial or religious grounds."72 Nonetheless, in the
Kajelijeli Judgement the Chamber noted that:
such acts committed against persons outside the discriminatory categories need not necessarily fall
out with the jurisdiction of the Tribunal, if the perpetrator's intention in committing these acts is to
support or further the attack on the group discriminated against on one of the enumerated
grounds.73
In the Plea Agreement, Paul Bisengimana acknowledges that massacres of the Tutsi
55.
population and the murder of numerous political opponents were perpetrated.74 He acknowledges
that from 7 April 1994, in all regions of the country, Tutsis fleeing from massacres sought refuge
in locations that they considered to be safe. In many of these places, the refugees were attacked,
abducted, and massacred, often with the complicity of some of the a ~ t h o r i t i e s . ~ ~
Based on the Plea Agreement, the Chamber finds that the widespread attacks against the
56.
civilian population were committed on discriminatory grounds because most of the victims were
Tutsis.
iv.
The Mental Element of Crimes Against Humanity
57.
The Chamber agrees with the reasoning in the Kajelijeli Judgement that "the accused
must have acted with knowledge of the broader context of the attack and knowledge that his act
formed part of the attack on the civilian population."76
58.
In the Plea Agreement, the Accused admits that from 7 April 1994, massacres of the
Tutsi population and the murder of numerous political opponents were perpetrated in Gikoro
commune.77 He acknowledges that the attacks against the Tutsi civilians gathered at Musha
711
Plea Agreement, para. 30.
Plea Agreement, paras. 39.42.
" Aknyesu, Judgement (AC), paras. 464-465, also cited in Kajelijrli, Judgement (TC), para. 877.
71
Kajdijeli, Judgement (TC),para. 878; Rutaganda, Judgement (TC), para. 74; Musema, Judgement (TC), para. 209;
S m u n r a . Judgement (TC),para. 331.
'"lea
Agreement, para. 30.
71
Plea Agreement, para. 3 1.
11,
Kajrlijrli, Judgement (TC), para. 880, Semanza, Judgement (TC.), para. 332; Musema, Judgement (TC), para. 206:
Nrakirrrtirnana and Ntakirutimana, Judgement (TC),para. 803; Bagilishrma, Judgement (TC), para. 94; Kayishema
and Kuzindana, Judgement (TC), para. 134, KunaraC et ul., Judgement (AC), para. 102.
71
Plea Agreement, para. 30.
71
The Prosecutor v. Paul Bisengimana,Case No. ICTR 00-60-1
Judgement. 13 Aoril2006
Church and at Ruhanga Protestant Church and School were part of the ongoing attacks against
Tutsi civilians which were occurring in most parts of ~ w a n d a . "
59.
Based on the Plea Agreement, the Chamber is convinced that the Accused knew the
broader context of the attacks occurring in Rwanda in April 1994 and knew that his acts formed
part of widespread attacks committed against Tutsi civilians.
b.
Findings
The Chamber finds that the attacks at Musha Church and at Ruhanga Protestant Church
60.
and School in Gikoro commune in April 1994 were launched against Tutsi civilians on
discriminatory grounds and were of a widespread nature because they resulted in a large number
of victims.
-
3.
Crimes Against Humanity Extermination
a.
Indictment
Count 4 of the Indictment charges the Accused with extermination as a crime against
61.
humanity under Article 3(b) of the Statute and states that:
During the month of April 1994, in the Bugesera region of Kigali-Rural prefecture, Republic of
Rwanda, Paul Bisengimana acting individually and in concert with others, was responsible for
killing or causing persons to be killed, during mass killing events in Gikoro commune and its
environs, as part of a widespread and systematic attack against a civilian population on political,
ethnic or racial grounds.7"
Between 6 and 21 April 1994, there existed widespread or systematic attacks occuring throughout
Rwanda, directed against a civilian population on political, ethnic or racial grounds.80
Paul Bisengimana aided and abetted in the planning, preparation, or execution of the killing of
Tutsi civilians and by his acts or through persons he assisted with his knowledge and consent."
As a direct consequence of his conduct including the provision of moral support to the attackers by
Paul Bisengimana, thousands of civilian men, women and children were killed.82
Paul Bisengimana's affirmative acts during the month of April 1994, viz: aiding and abetting in the
killing of Tutsi civilians in Musha church in Gikoro commune and at the Ruhanga Protestant
Church, Ruhanga cellule, Gicaca secteur, Gikoro commune are specified at paragraphs 17 - 20 and
24 - 28 above, and are hereby reiterated and incorporated herein by reference."
b.
The Plea Agreement
62.
Paul Bisengimana acknowledges his guilt for having aided and abetted the commission
of extermination as a crime against humanity.84
'' Plea Agreement, paras. 39,42
79
Indictment, para. 40.
'"ndictment, para. 42.
'' Indictment, para. 43.
Indictment, para. 44.
83
Indictment, para. 45.
84
Plea Agreement, para. 5
The Pri~.serurorv. Paul Bisengimana, Case No, ICTR 00-60-T
I.
Judgement, 13 April 2006
Events at Musha Church
63.
The Accused acknowledges that between 8 and 13 April 1994, more than a thousand
Tutsi civilians sought refuge at Musha Church, situated in Rutoma secteur, Gikoro commune,
Kigali-Rural prifectrur~.having fled from attacks against Tutsi civilians occurring throughout the
pr&mre.'5
64.
The Chamber notes that whereas the Indictment mentions that Juvknal Rugambarara was
among the persons present during the attack on Musha ~ h u r c h , 'his
~ name is not mentioned in the
Plea ~ ~ r e e m e n t .The
" Chamber has noted this difference but is of the opinion that it does not
affect the validity of the Accused's plea, nor his responsibility for the commission of the offence.
65.
The Accused acknowledges that:
a) On or about 12 April 1994, weapons such as guns and grenades were distributed to
Interahamwe militiamen and other armed civilians at Musha Church by members of
the Rwandan ~ r m ~ . ' ~
b) He was aware of this and the fact that these weapons would be used to attack Tutsi
civilians seeking refuge at Musha Church."
c) On or about 13 April 1994, an attack was launched against the Tutsi civilians seeking
refuge at Musha Church. The attackers used guns, grenades, machetes, pangas and
other traditional weapons.90
d) This attack resulted in the killing of more than a thousand Tutsi civi~ians.~'
e) During the attack, a civilian militiaman named Manda set fire to the Church, causing
the death of many refugees.92
f) The Accused was present during the attack, along with Laurent Semanza, soldiers
from the Rwandan Army, Interahamwe militiamen, armed civilians and communal
policemen. 93
g) His presence at Musha Church during the attack would have had an encouraging effect
on the perpetrators and iven them the impression that he endorsed the killing of Tutsi
civilians gathered there. %4
66.
Paul Bisengimana acknowledges that he had the means to oppose the killings of Tutsi
civilians in Gikoro commune, but that he remained indifferent to the attack.95
85
Plea Agreement, para. 33; Indictment, para. 17
Indictment, para. 19.
87
Plea Agreement, para. 35.
88
Plea Agreement, para. 34.
8')
Plea Agreement, para. 34.
00
Plea Agreement, para. 35.
'1 I
Plea Agreement, para. 35.
4?
Plea Agreement, para. 35.
43
Plea Agreement, para. 35.
V1
Plea Agreement, para. 36.
U5
Plea Agreement, para. 32.
86
The Prosecutor v. Paul Bisengimana. Case No. lCTR 00-60-T
ii.
Judgement, 13 April 2006
Events at Ruhanga Protestant Church and School
The Accused acknowledges that between 8 and 10 April 1994, many Tutsi civilians
67.
sought refuge at Ruhanga Protestant Church and School, situated in Ruhanga cellule, Gicaca
secteur, Gikoro commune, Kigali-Rural prifecture, having fled from attacks against Tutsi
civilians occurring throughout the prfecture.'6
68.
The Accused acknowledges that
a) Between 10 and 15 April 1994, Brigadier Rwabukumba, along with soldiers from the
Presidential Guard, civilian militiamen, and communal policemen, launched an attack
against the Tutsi civilians seeking refuge in Ruhanga ~ o m ~ l e x . ~ '
b) During this attack, the attackers used guns, grenades, machetes, pangas and other
traditional weapons, killing many of the Tutsi refugee^.^'
c) Despite his position as baurgmesrre, and his knowledge of the facts that the refugees at
Musha church had been attacked on 13 April 1994, he took no active steps to protect
the Tutsi refugees who sought refuge at Ruhanga Complex between 10 and 15 April
1994.~~
Paul Bisengimana acknowledges that he had the means to oppose the killings of Tusti
69.
civilians in Gikoro commune, but that he remained indifferent to the said attack^.'^'
c.
Applicable Law
The Chamber recalls that extermination consists of an act or a combination of acts,
70.
which contributes to the killing of a large number of individual^.'^' It is irrelevant that the
accused's participation in the act is remote or indirect. It is the large number of killings that
distinguishes the crime of extermination from the crime of murder.'oZ
To establish the mens rea of extermination, the Prosecution must prove that the accused
71.
intended the killings, or was reckless or grossly negligent as to whether the killings would result
and was aware that his acts or omissions formed part of a mass killing e ~ e n t . "The
~ accused must
also be shown to have known of the vast scheme of collective murders directed against a civilian
population on discriminatory grounds and to have been willing to take part in that scheme.'04 As
an aider or abettor of extermination as a crime against humanity, the Chamber should consider
96
Plea Agreement, para. 40, Indictment, para. 24.
Plea Agreement, para. 41.
98
Plea Agreement, para. 41; Indictment, para. 25.
'19
Plea Agreement, para. 42.
IlKI
Plea Agreement, para. 32.
101
Kayishenlu and Ruzindana, Judgement ( T C ) ,paras. 144- 147 ; Rutaganda Judgement ( T C ) ,paras. 82-83; Muscma,
Judgement ( T C ) ,para. 217; Kamuhunda, Judgement ( T C ) ,paras. 691, 692, Ndindabahizi, Judgement ( T C ) ,para. 479.
I"' Kujdijeli. Judgement ( T C ) ,para. 893.
ilii
Kajelijeli, Judgement ( T C ) , para. 894, 895; Kayirhema and Ruzindanu, Judgement ( T C ) ,paras. 144, 146;
Bagilishema, Judgement ( T C ) ,para. 89; Semanza Judgement ( T C ) ,para. 341.
IIU
Kayishema and Ruzindrma, Judgement ( T C ) ,paras. 144,145; Rutaganda, Judgement ( T C ) , paras. 83,84; Musema,
Judgement ( T C ) ,para. 218; Bagilishema, Judgement ( T C ) ,para. 94; Semanza, Judgement ( T C ) ,para. 341;
Kamuhanda, Judgement ( T C ) ,para. 696; Kajelijeli, Judgement ( T C ) ,para. 894.
91
0
Tltr Prosecutor v. Paul Bisengimana. Case No. ICTR 00-60-T
Judgement, 13 April 2006
1418
whether the Accused knew of the criminal intent of the principal perpetrator and knew that his
actions assisted in the commission of the crime.
72.
Therefore, in order to be convicted of extermination as a crime against humanity, an
accused must have (i) participated in the mass killing of others, or in the creation of conditions of
life leading to the mass killing of others; (ii) intended the killings, or been reckless or grossly
negligent as to whether the killings would result; and (iii) been aware that his acts or omissions
formed part of a mass killing event.lU5
d.
Findings
i.
Musha Church Massacres
73.
Based on the facts admitted by the Accused and recalling the Chamber's findings that
the attack on Musha Church in Gikoro commune was launched against Tutsi civilians on
discriminatory grounds, was widespread and resulted in a large number of victims, the Chamber
finds that this attack amounts to extermination.
The Chamber finds that the Accused participated in the attack against Musha Church by
74.
being present and that he was aware that his presence would have encouraged the criminal
conduct of the perpetrators of the attack.
The Chamber is convinced that the Accused knew of the criminal intent of the principal
75.
perpetrators because of his admission that he was aware that arms had been distributed to
I t z t e r a h a m w e militiamen and other armed civilians at Musha Church and that these weapons
would be used to attack the Tutsi population who had sought refuge there.
76.
Accordingly, the Chamber is satisfied that Paul Bisengimana's presence at Musha
Church on or about 13 April 1994 aided and abetted the extermination of Tutsi civilians there.
ii.
Ruhanga Protestant Church and School Massacres
Based on the facts admitted by the Accused and recalling the Chamber's findings that
77.
the attack on Ruhanga Protestant Church and School in Gikoro commune which occurred after the
attack on Musha Church was launched against Tutsi civilians on discriminatory grounds, was
widespread and resulted in a large number of victims, the Chamber finds that this attack amounts
to extermination.
78.
The Chamber finds that although the Accused may not have been present during the
attack, he had reason to know that an attack would be launched against the Tutsi civilians
gathered there because of the earlier attack on Musha Church. Moreover, the Chamber finds that
despite the Accused's position as bourgmestre of Gikoro commune, he did not take any active
steps to protect these Tutsi civilians. Although the Accused acknowledges that he had a duty to
protect these civilians, the Chamber considers that the Accused failed protect the refugees.
79.
The Chamber is convinced that, as a person of authority, the Accused's omission to act
to prevent the attack amounts to gross negligence. The Chamber finds that the Accused must have
known that his omission to act would allow the massacres to take place.
In light of these circumstances, the Chamber is satisfied that the Accused knew the
criminal intent of the perpetrators of the attack on the Ruhanga Complex.
80.
105
Kayishema and Ruzindana, Judgement (TC), para. 144; Bagilishema, Judgement (TC), para. 89.
The Prosecutor v. Paul Bisengimana, Case No. ICTR 00-60-T
Judgement, 13 April 2006
UL?-
Therefore, the Chamber considers that the Accused's omission to act aided and abetted
81.
the commission of the extermination of Tutsi civilian refugees at Ruhanga Protestant Church and
School.
...
111.
General Findings
The Chamber finds that the Accused is individually criminally responsible pursuant to
82.
Article 6 (1) of the Statute for aiding and abetting the extermination of members of the Tutsi
population at Musha Church and Ruhanga Church and School in Gikoro commune in April 1994.
The Chamber finds the Accused guilty of extermination as a crime against humanity under Article
3 (b) of the Statute and convicts him accordingly.
4.
Crimes Against Humanity - Murder
a.
Indictment
Count 3 of the Indictment charges the Accused with murder as a crime against humanity
83.
under Article 3 (a) of the Statute and states that:
During the month of April 1994, in the Bugesera region of Kigali-Rural prefecture, Republic of
Rwanda, Paul Bisengimana acting individually was responsible for killing or causing persons to be
killed in Gikoro commune and its environs, as pan of a widespread and systematic attack against a
civilian population on political, ethnic or racial grounds.1oh
Paul Bisengimana aided and abetted in the planning, preparation, or execution of the killing of
Tutsi civilians, by his acts or through persons he assisted, with his knowledge and c~nsent.'~'
Among the Tutsi civilians killed as a consequence of Paul Bisengimana's conduct are a Tutsi man
called Rusanganwa. In that regard, Paul Bisengimana was present during the attack at Musha
church in Rutoma secteur, Gikoro commune, on 13 April 1994, when Rusanganwa, who had
sought refuge at the said location, was murdered.lo8
b.
The Plea Agreement
The Accused acknowledges his guilt for having aided and abetted the commission of
84.
murder as a crime against humanity.''9
The Accused acknowledges that during the attack at Musha Church on 13 April 1994, he
85.
was present when a Tutsi man called Rusanganwa, who had sought refuge there, was murdered."'
The Accused acknowledges that he had the means to oppose the killings of Tutsi
86.
civilians in Gikoro commune, but that he remained indifferent to the attack."'
c.
Applicable Law
The Chamber recalls that murder is the intentional killing of a person, or the intentional
87.
infliction of grievous bodily harm knowing that such harm is likely to cause the victim's death o r
being reckless as to whether death will result, without lawful justification or e ~ c u s e . "Murder
~
is
106
Indictment, para. 35.
Indictment, para. 38.
"" Indictment, para. 39.
Iin
Plea Agreement para. 5
"" Plea Agreement, para. 37.
"' Plea Agreement, para. 32.
' I 2 Akayesu Judgement (TC), para. 586 : Ndindabahizi Judgement, (TC), para. 487
lo'
Thr Prosecutor v. Paul Bisengimana, Case No. ICTR 00-60-T
Judgement, 13 April 2006
14%
punishable as a crime against
humanity when committed as part of a widespread or systematic
attack against a civilian population on discriminatory grounds. The Chamber recalls that it is the
scale of the killings that distinguishes extermination from murder as a crime against humanity.'"
88.
With respect to the Accused's mens rea as an aider or abettor of murder as a crime
against humanity, the Chamber should consider whether the Accused knew of the criminal intent
of the principal perpetrator and knew that his actions assisted in the commission of the crime.
d.
Findings
89.
As a preliminary matter, the Chamber recalls that the French version of the Statute
describes the culpable act in Article 3 (a) of the Statute as 'assassinat', that is premeditated
murder, whereas the English version of the same article describes it as 'murder."14 The Chamber
further recalls that in the original French version of the Plea Agreement, Rusanganwa was
'a~sassinP'"~
that is murdered with premeditation. This fact is not disputed. However, the
Chamber recalls that it is not alleged that the Accused directly committed the murder nor that he
shared the intent of the principal offender, but that he aided and abetted the crime. Therefore, the
Chamber must examine if the mens rea of the Accused was that of an aider and abettor when
Rusanganwa's murder was committed, in other words whether he knew the criminal intent of the
principal perpetrator and he knew that his presence encouraged the commission of the crime.
90.
The Chamber also notes that a reading of the ~ndictment"' suggests that there are
several murder charges against the Accused. However, the Plea Agreement only refers to the
murder of Rusanganwa, committed during the attack at Musha ~hurch."' Accordingly, the
Chamber has only examined the facts in support of the specific murder alleged in the Indictment
and acknowledged by the Accused, where one victim is clearly identified.
91.
The Chamber has already found that the attack at Musha Church was a widespread
attack against a civilian population on discriminatory grounds.
92.
It is not disputed that a Tutsi man named Rusanganwa was murdered with
premeditation. On the basis of the facts admitted by the Accused, the Chamber finds that the
Accused was present when Rusanganwa was murdered during the attack at Musha Church.
The Chamber is convinced that Paul Bisengimana knew that the murder of Rusanganwa
93.
was part of a widespread attack against Tutsis civilians on ethnic grounds. The Chamber is also
convinced, based on the factual circumstances of the case that Paul Bisengimana knew the
criminal intent of the perpetrator of the murder of Rusanganwa. The Chamber recalls its reasoning
at Paragraph 75 in support of this finding.
94.
The Chamber finds that the Accused participated in Rusanganwa's murder by being
present when the crime was committed. The Accused was aware that his presence would
encourage the criminal conduct of the principal perpetrator and give the impression that he
endorsed the murder. Moreover, the Chamber recalls that the Accused acknowledges that he had
113
Kajrlijeli, Judgement (TC), para. 893.
" ? ~ e m a ~ ~ Judgement
za,
(TC), para. 589; Musema. Judgement (TC), para. 84; Ruraganda, Judgement (TC), para. 80;
Akuyesu, Judgement (TC), para. 585; Bagilishema, Judgement (TC), paras. 84, 85; Kayishema and Ruzindana,
Judgement (TC), para. 140; Nrakirutimana, Judgement (TC), paras. 803,804 and 808.
' I s The French version of the Plea Agreement which is the original states that Rusanganwa was "assassine" during the
attack at paragraph 37.
1 I6
Indictment. para. 39.
Ill
Plea Agreement, para. 37.
0
?
I
The Prosecutor v. Paul Bisengimana, Case No. ICTR 00-60-T
Judgement,
13 April 2006
au
the means to oppose the killings of the Tutsi civilians but that he remained indifferent to the
attacks
95.
The Chamber is satisfied that the Accused is individually criminally responsible
pursuant to Article 6 (1) of the Statute for aiding and abetting the murder of a Tutsi civilian
named Rusanganwa at Musha Church in Gikoro commune in April 1994. Consequently, the
Chamber finds the Accused guilty of murder as a crime against humanity under Article 3 (a) of
the Statute.
e.
Cumulative Convictions
I.
Applicable Law
96.
The Chamber recalls that the general test for cumulative convictions was reaffirmed in
the KrstiC Judgement:
The established jurisprudence of the Tribunal is that multiple convictions entered under
different statutory provisions, but based on the same conduct, are permissible only if each
statutory provision has a materially distinct element not contained within the other. An
element is materially distinct from another if it requires proof of a fact not required by the
other element. Where this test is not met, only the conviction under the more specific
provision will be entered. The more specific offence subsumes the less specific one,
because the commission of the former necessarily entails the commission of the latter.118
The Ce1ebii.i Judgement explains that when facts are regulated by two different
97.
provisions, a conviction should be entered only under the provision that contains an additional
materially distinct element.'19
The Chamber takes note that the distinct elements test for permissible cumulative
98.
convictions should not be applied mechanically or blindly. The ICTY Appeals Chamber has urged
that this test be applied carefully to avoid prejudice to the accused. 12'
ii.
Findings
The Chamber has reflected on the fact that the Plea Agreement was initially based on the
99.
31 October 2005 Indictment which charged the Accused for his direct participation in the murder
of Rusanganwa.12' This Indictment charged the Accused for cutting the arm of Rusanganwa with
a machete, after which Rusanganwa bled to death. In contrast, the 1 December 2005 Indictment
on which the Plea Agreement is now based only refers to the Accused's presence during the
attack at Musha Church when a Tutsi man called Rusanganwa was killed.122
100.
In the instant case, both Rusanganwa's murder the extermination at Musha Church were
planned and prepared by the principal perpetrators. The Chamber considers that the murder of
Rusanganwa is included in the crime of extermination committed at Musha Church because
Rusanganwa was one of the civilian victims killed during this widespread attack on
discriminatory ground.
118
KrsriC, Judgement (AC), para. 218 also cited in Semanza Judgement (AC), para. 315; see also Ntakirutimana
Judgement (AC), para. 542.
119
MuciC et al., Judgement (AC), para. 413.
l lil
KunaroC, Judgement (AC), paras. 168-198.
"I
Indictment, 3 1 October 2005, para. 22.
"'Indictment, para. 39.
i,
F
'I
The Prosecutor v. Paul Bisengimana, Case No. ICTR 00-60-T
Judgement, 13 April 2006
Ut4.14
101.
In the instant case, the Chamber has found that the Accused had the required mens rea of
an aider and abettor: he knew the criminal intent of the principal perpetrators of extermination and
murder, that those crimes were planned and that his presence assisted the commission of the
crime. Upon reflection, the Chamber considers that the same set of facts proves the mental
element of aidirlg and abetting murder and extermination as crimes against humanity at Musha
Church.
The Chamber observes that the charges of extermination and murder at Musha Church
102.
are supported by the same set of facts and that the offences were committed with the same mode
of participation on the part of the Accused. Thus, in that regard, the crimes of aiding and abetting
murder and extermination as crimes against humanity are not materially distinct.
The Chamber considers that the murder of Rusanganwa is best understood as an offence
103.
included in the crime of extermination committed at Musha Church. Consequently, two
convictions on the basis of ideal concurrence of crimes would not be justified in these
circumstances as they would not provide a better or more complete description of the entire
criminal conduct of the Accused. The Chamber considers that the Accused should only he
convicted of extermination as a crime against humanity for the offences committed at Musha
Church, this crime being more specific than the crime of murder in light of its large scale which is
an additional materially distinct element.
104.
The Chamber recalls that on 7 December 2005, the Accused was found guilty of murder
and extermination as crimes against humanity after it accepted the guilty plea of the Accused.
At this stage of the proceedings, the Chamber decides that it is in the interests of justice
105.
and the fairness of the proceedings to enter a conviction only with respect to the count of
extermination as a crime against humanity and not with respect to the count of murder.
Accordingly, the Chamber will sentence the Accused only with respect to the extermination
conviction.
Issues Relating to the Sentence
IV.
A.
Applicable Texts and Principles
The Chamber recalls that the Tribunal was established to contribute to the process of
106.
national reconciliation and to the restoration and maintenance of peace and to ensure that the
violations of international humanitarian law in Rwanda were halted and effectively redressed.lZ3
The Chamber considers that a fair trial and, in the event of a conviction, a just sentence,
contribute towards these goals.
The Chamber will sentence Paul Bisengimana pursuant to the provisions of Articles 22
107.
and 23 of the Statute and Rules 100 and 101 of the Rules. The Chamber notes that the only
penalty the Tribunal can impose is a prison term. Under Rule 101 (A) of the Rules, such a term
shall not exceed life imprisonment.
The Statute and the Rules do not provide for specific penalties for any of the crimes
108.
within the jurisdiction of the Tribunal.
109.
Consequently, the determination of the sentence is left to the discretion of the Chamber.
In exercising that discretion, the Chamber shall, pursuant to Article 23 (2) of the Statute and Rule
"'Security Council Resolution 955, 8 November 1994
The Prosecutor v. Paul Bisengimana, Case No. ICTR 00-60-T
Judgement, 13 April 2006
M 3
101 (B) of the Rules, consider a number of factors including the gravity of the offence, any
aggravating or mitigating circumstances, the personal circumstances of the convicted person and
the general practice regarding prison sentences in the courts of Rwanda.
110.
The Chamber understands its obligation to ensure that the sentence is commensurate
with the individual circumstances of the
The Chamber recalls that aggravating circumstances must be proved beyond reasonable
1 1 1.
doubt, while mitigating circumstances must be proved on a balance of probabilities.'25
B.
Aggravating Circumstances
Prosecution's Submissions on the Gravity of the Offence and the Official
Position of the Accused
1.
112.
The gravity and heinous nature of extermination and murder as crimes against humanity
and their absolute prohibition render their commission inherently aggravating. Further, the
magnitude of the crimes committed in Rwanda in 1994, resulting in the killing of several
thousand civilians within 100 days, shock the collective conscience126 and constitutes an
aggravating factor,''' Paul Bisengimana's actions and omissions directly resulted in the massacre
of many Tutsi civilians.lZ8
1 13.
Paul Bisengimana, as bourgmestre of Gikoro commune, bore special responsibilities: he
had the duty and the authority to protect the population, prevent, or punish illegal acts.lz9 Paul
Bisengimana was under a duty to uphold a higher degree of morality than is usually demanded.""
Paul Bisengimana's education enabled him to know and appreciate the dignity and value of
human life.13' He was enlightened enough to be aware of the need for and value of a peaceful coexistence between c o m m u n i t i e ~ . ' ~ ~
114.
The involvement of the peasant population in the massacres was facilitated by their
misplaced belief in their leadership and an understanding that the encouragement of the
authorities guaranteed that they could kill Tutsi civilians and loot their property with impunity."3
115.
In spite of all these factors, Paul Bisengimana took no active steps to protect Tutsi
refugees, but stood aside and watched.134
116.
The Chamber notes that the Defence did not make any submissions on aggravating
circumstances.
" k u c i C er al., Judgement (AC), paras. 717-719; Muhimana, Judgement (TC), para. 594.
'15 Kajelijeli Judgement (AC), para. 294., see also reference in the Defence Sentencing Brief, para. 19; Prosecution
Sentencing Brief, para. 34, and T. 19 January 2006 pp. 6, 35.
""rosecution
Sentencing Brief, para. 35; T. 19 January 2006 p. 5.
Prosecution Sentencing Brief, para. 35; T. 19 January 2006 p. 6.
'lBProsecution Sentencing Brief, para. 50; T . 19 January 2006 p. 7.
129
Prosecution Sentencing Brief, paras. 36, 40; T. 19 January 2006 p. 6.
1 ill
Prosecution Sentencing Brief, para. 41; T . 19 January 2006 p. 6.
131
Prosecution Sentencing Brief, para. 42; T. 19 January 2006 pp. 6-7.
Prosecution Sentencing Brief, para. 43; T. 19 January 2006 p. 7.
133
Prosecution Sentencing Brief, para. 44; T . 19 January 2006 p. 7.
134
Prosecution Sentencing Brief, paras. 48-49; T. 19 January 2006 p. 7.
"'
"'
The Prosecutor
1,.
Paul Bisengimana, Case No. ICTR 00-60-T
Judgement, 13 April 2006
Findings
2.
117.
The Chamber recalls that the seriousness of the crimes and the extent of the involvement
of the Accused in their commission are factors to be considered in assessing aggravating
circumstances. Crimes against humanity are inherently aggravating offences because they are
heinous in nature and shock the collective conscience of mankind."5
The Chamber recalls that the Accused acknowledges that his crime consisted of direct
118.
and indirect acts leading to physical or mental torture and death as part of a widespread or
systematic attack against a civilian population on ethnic grounds. 136
The Chamber finds that the Accused's participation in aiding and abetting extermination
119.
and murder as crimes against humanity constitute a gross violation of international humanitarian
law and is an aggravating factor.
The Chamber finds that the Accused's position as bourgmestre of Gikoro commune
120.
during the events, and the fact that he was an educated person, are aggravating factors. As
representative of the executive power at the communal level, the Chamber finds that the Accused
had a duty to protect the population in the commune, he did not take any action to prevent the
massacres which occurred there. Instead, he knowingly encouraged the killers at Musha Church
by being present when the attack was launched that resulted in the death of more that a thousand
Tutsi refuges. Further, he failed to prevent the subsequent massacres at Ruhanga Protestant
Church and School, which resulted in many Tutsis being killed. The Chamber finds that Paul
Bisengimana was an educated person who could appreciate the dignity and value of human life
and was aware of the need for and value of a peaceful co-existence between communities.
121.
However, there is no evidence to support the Prosecution's allegation that the
involvement of the peasant population in the massacres was facilitated by their misplaced belief in
their leadership and their understanding that the encouragement of the authorities guaranteed that
they could kill Tutsi civilians and loot their property with impunity.
C.
1.
Mitigating Circumstances
Parties' General Submissions
122.
The Prosecution submits that there are "compelling mitigating circumstances.""' The
Prosecution stresses that a finding that there are mitigating circumstances relates to the assessment
of the sentence and in no way derogates from the gravity of the crime. Such a finding mitigates
the punishment, not the crime.13*
The Defence submits that the Chamber has a large discretionary power with regard to
123.
the mitigating circumstances'" and recalls that many mitigating circumstances have been found
both by this Tribunal and by the ICTY.14"
li s
Ruggiu, Judgement (TC), para. 48.
Plea Agreement, para. 14.
n Prosecution Sentencing Brief, para. 52; T. 19 January 2006 p. 8.
118
Prosecution Sentencing Brief, para. 52, quoting Kambanda, Judgement (TC), paras. 56-57; T. 19 January 2006 p.
131,
X
-.
1 .a',
1.11,
Defence Sentencing Brief, para. 18, quoting NaletiliC e t a / . , Judgement (TC), para. 742; T. 19 January 2006 p. 34.
Defence Sentencmg Brief, para. 18.
The Prosecutor v. Paul Bisengimana, Case No. ICTR 00-60-T
Judgement, 13 April 2006
d&i
124.
The Defence raised eight mitigating circumstances which in its view may assist the
Chamber in determining a fair sentence. The Defence is fully aware that mitigation of punishment
in no way reduces the gravity of the crime or the guilty verdict.14'
2.
Applicable Law
125.
The Chamber recalls that mitigating circumstances may not be directly related to the
offence'42
126.
The Chamber notes that the jurisprudence of the Tribunal and the ICTY has identified
several reasons why the guilty plea may have a mitigating effect: the showing of remorse,143
repentance, 144 the contribution to reconciliati~n,'~~
the establishment of the
the
encouragement of other perpetrators to come forward,I4' the sparing of a lengthy investigation
and trial and thus time, effort and resources'" and the fact that witnesses are relieved from giving
evidence in court.149The timing of the guilty plea is also a factor.lSO
127.
With respect to the issue of substantial cooperation of the Accused with the Prosecutor,
under Rule 101 (B)(ii), the Chamber recalls that the Defence indicated that the Accused did not
cooperate with the rosec cut or.^^^ The Chamber considers at the outset of its deliberations on
mitigating circumstances that the lack of cooperation by the Accused with the Office of the
rosec cut or'^^ can not be considered as an aggravating factor.I5'
3.
The Guilty Plea with Publicly Expressed Regrets
a.
Prosecution Submissions
128.
The Prosecution submits that in most jurisdictions, including Rwanda, a guilty plea is
considered as a mitigating factor.lS4 Paul Bisengimana's guilty plea will assist in the
administration of justice and in the process of national reconciliation in Rwanda. It will also save
the victims of the attacks from the ordeal of coming to testify before the ~ r i b u n a l . ' ~ ~
129.
The Prosecution also states that by pleading guilty, the Accused should be seen as
setting an example that may encourage others to acknowledge their personal involvement in the
massacres committed in Rwanda in 1994.IS6
The Prosecution refers to the Plea Agreement in which Paul Bisengimana has shown
130.
some degree of remorse for the crimes he is charged with, acknowledges full responsibility for his
Defence Sentencing Brief, para. 20, quoting Ruggiu, Judgement (TC), para. 80; T. 19 January 2006 p. 35.
Nikolib, Judgement (TC), para. 145; DeronjiC, Judgement (TC), para. 155.
I" PPlavSiC, Judgement (TC), para. 73.
144
Ruggiu, Judgement (TC), para. 55.
PlavSiC. Judgement, (TC), para.70.
116
NikuliC, Judgement, (TC), para. 248.
147
Erdemovi?, Judgement, (TC) (1998), para. 16; Ruggiu. Judgement (TC), para. 55.
14%
Ruggiu, Judgement (TC), para. 53.
"%rdemoviC, Judgement (TC) (1998), para. 450.
"" Sikirica et al., Judgement (TC), para. l 50.
' 5 ' ~ . lJanuary
g
2006 p.34.
IS' Defence Sentencing Brief, paras.16-17.
IS1
PluvSit. Judgement,(TC). paras. 63-64.
IS4
Prosecution Sentencing Brief, para. 53, quoting Karnbanda, Judgement (TC); T. 19 January 2006 p. 8.
Prosecution Sentencing Brief, para. 53, quoting TodoroviC, Judgement (TC), para. 80; T. 19 January 2006 p. 8.
I50
Prosecution Sentencing Brief, para. 58, quoting Karnbunda, Judgement (TC), para. 53 and Erdemovib, Judgement
(TC) (1998). p. 16: T. 19 January 2006 p. 9.
14'
14'
'"
Tlrr Prri.srcutor v. Paul Bisengimana, Case No. ICTR 00-60-T
Judgement, 13 April 2006
i4-
actions and omissions, and is convinced that it is only the full truth that can restore national unitv
and foster reconciliation in ~ w a n d a . ' ~The
' Accused has also indicated his deep and genuine
desire to tell the whole truth and expressed his profound and heartfelt apologies to all the direct
and indirect victims of the offences he has been charged
13 1.
The Prosecution adds that the guilty plea was timely and saved the Tribunal considerable
expenses.'s' The Prosecution submits that in light of the Tribunal's completion strategy, the
Accused deserves credit.16'
b.
Defence Submissions
132.
The Defence submits that the jurisprudence recognizes that the guilty plea of an accused
constitutes a mitigating factor, provided that it is accompanied by publicly expressed sincere
regrets or remorse.161 According to the Defence, Paul Bisengimana has already expressed his
deepest apologies to the victims of the Rwandan genocide in the Plea Agreement. He also
sincerely regrets not having had the courage to personally oppose the massacres and having
supported them by his presence. He hopes that his expressions of regret will be heard by
Rwandans and the international community, and will help contribute to the process of peace and
national reconciliation in ~ w a n d a . ' ~ The
'
Defence particularly stresses that the Accused
acknowledges that his presence gave the impression that he approved of the massacre at Musha
Church, and encouraged Rusanganwa's murder. Further, the Accused has admitted that he took no
steps to protect the refugees at Ruhanga Protestant Church and School, despite his position as
bourgrnestre and his knowledge of the earlier attack.163
133.
The Defence adds that the sentiments of the Accused must be evaluated in the light of
his statements and conduct.164
134.
The Defence further states that a guilty plea should give rise to a reduction in the
sentence the Accused would have received had he not pleaded guilty.16'
135.
The Defence submits that whilst a guilty plea is always important in establishing the
truth, it can only assist if it is entered before the commencement of trial, when it can save valuable
time and resources. 166 In the present case, Paul Bisengimana decided to plead guilty before the
commencement of his trial and even before a date had been set by the Registry for the hearing of
his case. He has thus assisted the Tribunal and the international community in making substantial
savings in terms of time, human and financial resources.16'
c.
Findings
136.
The Chamber recalls that in the Plea Agreement Paul Bisengimana states that by
pleading guilty he indicates his genuine and deep desire to tell the whole truth and to contribute to
IS1
Prosecution Sentencing Brief, para. 54; T. 19 January 2006 p. 8.
Prosecution Sentencing Brief, para. 55; T. 19 January 2006 p. 8.
I SO
Prosecution Sentencing Brief, para. 57, quoting Kambanda, Judgement (TC), para. 54; T. 19 January 2006 pp. 8-9.
160
Prosecution Sentencing Brief, para. 57; T. 19 January 2006 pp. 9.
161
Defence Sentencing Brief, para. 21; T. 19 January 2006 p. 35.
Defence Sentencing Brief, paras. 27-28; Paul Bisengimana, T. 19 January 2006 pp. 44-45.
I"' T. 19 January 2006 p. 10; Paul Bisengimana, T. 19 January 2006 pp. 45-46.
i ("I
Defence Sentencing Brief, paras. 25-26. quoting Serushago, Judgement (TC), para. 41.
Defence Sentencing Brief, para. 22, quoting Todorovit, Judgement (TC), para. 80.
I66
Defence Sentencing Brief, para. 23, quoting Todorovii., Judgement (TC), para. XI; Rutaganira, Jugeme (TC),
para. 151.
,
I67
Defence Sentencing Brief, para. 24; T. 19 January 2006 p. 37.
IS8
'"'
'"
"1
The Prosecuror v. Paul Bi.rengimana, Case No. lCTR 00-60-T
Judgement, 13 April 2006
the search for the truth by revealing the knowledge and information he possesses.168The &amber
recalls that the Accused hopes to be setting an example that will help others to contribute to the
search for the truth. lh9
137.
The Chamber notes that at the Pre-Sentencing Hearing, the Accused admitted that he had
failed in his duty to protect human life and that he did not show the courage that his citizens
expected from their bourgmestre. He asked for pardon from the families that lost people in his
commune and he publicly expressed remorse for not having been able to save those innocent
people, which was his first duty.I7'
The Chamber finds that both in the Plea Agreement and during the Pre-Sentencing
138.
hearing, the Accused publicly expressed regrets and remorse for the crimes that he committed.
139.
The Chamber observes that an acknowledgement of guilt may constitute proof of the
honesty of the perpetrator. The Chamber concurs with the opinions in Erdemovic and Ruggiu
Judgements that some form of consideration should be given to those who have. confessed their
crimes in order to encourage others to come forward. 171 Moreover, the Chamber is of the view
tkit the guilty plea of the Accused may contribute to the process of national reconciliation in
Rwanda.
The Chamber finds that Paul Bisengimana's change of plea to a guilty plea is a
140.
mitigating circumstance. The plea is accompanied by publicly expressed remorse and a
recognition of his responsibility.172Further, the timely nature of the guilty plea facilitates the
administration of justice and saves the Tribunal's resources.17'
4.
Personal and Family Situation
a.
Defence Submissions
The Defence submits that being married and having children have been deemed to be
141.
mitigating c i r c u r n ~ t a n c e sand
~ ~ that
~ the social, professional and family background of an accused
also has to be taken into account.17' The Defence recalls that Paul Bisengimana is married and has
ten children, and that the youngest two children, who are four and six years old,176live in France
with their mother,177the Accused's wife, and have recently obtained refugee status,'78 which will
allow their mother to resume work as a nurse. This personal and family situation offers real hope
for the Accused's rehabilitation after his re1ea~e.l'~
142.
The Prosecution did not make any submissions on this matter.
168
Plea Agreement, para.7.
Plea Agreement, para. 11.
17ll
T. 19 January 2006 pp. 45-46.
171
ErdemoviC Judgement (TC)(1998), para. I I ; Ruggiu, Judgement (TC), para. 55
17' Ruggiu, Judgement (TC), para. 54.
Ruggiu Judgement (TC), para. 53.
Defence Sentencing Brief, para. 29, quoting KunaraC e f a/.. Judgement (AC), para. 362; Vasiljevib. Judgement
(TC), para. 300; S e r u s h u p , Judgement (TC), para. 39; Rutagunira, Jugemenf (TC), paras. 120-121.
175
Defence Sentencing Brief, para. 30, quoting BlaSkic, Judgement (TC), para. 779.
Defence Sentencing Brief, para. 31. The Chamber notes that the Accused's daughter, Claudine Uwera
Bisengimana, testified that his two youngest children are nine and four years' old, see T . 19 January 2006, Claudine
Uwera Bisengimana. p. 24.
17' Defence Sentencing Brief, para. 32; T. 19 January 2006, Claudine Uwera Bisengimana, p. 24; T. 19 January 2006,
p. 38.
178
Defence Sentencing Brief, para. 32; T. 19 January 2006, Claudine Uwera Bisengimana, p. 24.
17,) Defence Sentencing Brief, paras. 32-33.
I 6'1
"'
'i
The Prosecutor v . Paul Bisengirnana, Case No. ICTR 00-60-T
b.
Judgement, 13 April 2006
Findings
143.
The Chamber notes that the fact that the Accused is married and has children may, in the
circumstances, be considered mitigating.'"?he Chamber agrees that the social, professional and
family background of the Accused also has to be taken into account.lal
144.
Based on the Defence submissions and on the Accused's statement during his Further
Appearance, the personal and family situation of the Accused, a married man with children, lead
the Chamber to believe in his chances of rehabilitation, and the Chamber therefore finds this
situation to be a mitigating circumstance.
5.
Character of the Accused
a.
Prosecution Submissions
The Prosecution notes that as far as is known, Paul Bisengimana was of good character
145.
and had no record of extremism before 1994.1n2
b.
Defence Submissions
146.
The Defence submits that an accused's character should be examined to assess his
possibility of rehabilitationlX3and should be taken into account in the determination of the
sentence. 183
The Defence submits that Paul Bisengimana was a person of good moral conduct before
147.
1994. He was esteemed as a bourgmestre, he brought prosperity and development to Gikoro
commune throughout his term of office and he worked relentlessly to improve the lot of its
population.'85The Accused never discriminated against Tutsis on a personal or professional level
before or during the events of 1994."~The Accused had a high sense of responsibility.'87
The Defence thus submits that Paul Bisengimana's obvious qualities demonstrate his
148.
potential for rehabilitation.ln8
c.
Findings
The Chamber considers that the Accused was an educated person with a high level of
149.
responsibility in Gikoro commune at the time of the events. The Chamber recalls that Witnesses
Gervais Condo and RKV testified that Paul Bisengimana was esteemed as a bourgmestre, that he
brought prosperity and development to Gikoro commune throughout his term of office and that he
worked to improve the life of its population.189These witnesses also testified about development
1811
KunaraC et al.. Judgement (AC), para. 362; Vasiljevii., Judgement (TC), para. 300; Serushago, Judgement (TC),
para. 19: Ruraganira, Jugement (TC), paras. 120-12 1.
I81
Bln.ikic, Judgement (TC), para. 779.
'1"8 1 Prosecutor's Sentencing Brief, para. 56, quoting Bannvid, Judgement (TC), paras. 75-76; T. 19 January 2006, p. 8.
Defence Sentencing Brief, p a n . 34, quoting RlaSkic, Judgement (TC), para. 780; Ruggiu, Judgement (TC), para.
68.
1 X-l
Defence Sentencing Brief, para. 34, quoting Mucid et ul. Judgement (AC)(2001), para. 788: Serushago, Judgement
(TC), para. 18; Ruggiu, Judgement (TC), para. 68; Rutaganirn, Jugemenf (TC), para. 127.
iX i
T. 19 January 2006, Gervais Condo, p. 14; T. 19 January 2006, Witness RKV, p. 21; Paul Bisengimana, T. 19
January 2006 p. 38.45.
180
Defence Sentencing Brief, para. 36.
'nI
Defence Sentencing Brief, para. 37.
')
Defence Sentencing Brief, para. 38.
I89
T. 19 January 2006, Gervais Condo, pp. 13-14; T. 19 January 2006, Witness RKV, p. 21.
,$:
!
The Prosecutor v. Paul Bisengimana, Case No. ICTR 00-60-T
Judgement, 13 April 2006
24*
projects carried out in Gikoro commune by the
Further, according to Witnesses
Gervais Condo and Claudine Uwera Bisengimana, Paul Bisengimana had a strong sense of
responsibility because of his role as a widower, father and bourgmestre."'
The Chamber is satisfied by the witnesses' testimonies that the Accused was a person of
150.
good character before he got involved in the crimes committed in Gikoro commune in April 1994
and that this constitutes a mitigating factor.
6.
Assistance Given to Certain Victims
a.
Dejence Submissions
The Defence states that assistance given to victims has been assessed as a mitigating
151.
192 .
circumstance, smce such assistance indicates that the accused is capable of rehabi1itati0n.l~~
The Defence submits that immediately after President Habyarimana's death, a dozen
152.
Tutsi civilians asked Paul Bisengimana for protection. The Defence states that he gave them
refuge and thus saved their 1 i ~ e s . l ~ ~
153.
b.
The Prosecution did not make any submissions on this matter.
Findings
154.
The Chamber recalls that Witness Claudine Uwera Bisengimana, the second daughter of
the ~ c c u s e d is' ~the
~ only witness who testified that in 1994 about twelve Tutsis took refuge in
her home.196Among them, she remembered Laurent and his four children, his wife, cousin, and
sister, and also Mukambayiza, who was a lady from Duha, and her three children.'" The Witness
stated that the refugees stayed there until the RPF took over the area, at which point the refugees
and her family fled together.lY8The Witness was 14 years old at the time of the events.199
155.
Witness Claudine Uwera Bisengimana stated that "killers" threatened her family and
described them as accomplices because they were hiding Tutsis, and that such threats were
addressed to Paul Bisengimana, their father. However, Claudine Uwera Bisengimana did not
remember any particular incident in that respect.200
When questioned by the Bench, Witness Claudine Uwera Bisengimana testified that
156.
Laurent's wife and her children were still alive. However, Laurent, his sister, and their cousin
were killed. The Witness was not sure if Marie Mukambayiza and her children were still alive.
The Witness stated that some of the refugees survived, whereas others were killed on the way to
~ a b u ~ a , although
'~'
she did not know under what circumstance^.^^^
I ,1U
T. 19 January 2006, Gervais Condo, p. 14; T. 19 January 2006, Witness RKV, p. 21.
T. 19 January 2006, Gervais Condo, p. 18; T. 19 January 2006, Claudine Uwera Bisengimana, p. 25.
192
Defence Sentencing Brief, para. 39, quoting Sikirica et al., Judgement (TC), paras. 195, 229; Serushago,
Judgement (TC), para. 38; Ruggiu. Judgement (TC), paras. 73-74; Rutaganira, Judgement (TC), para. 155; Bla?kic,
Judgement (TC), para. 781.
,Pi
Defence Sentencing Brief, para. 39.
194
Defence Sentencing Brief. para. 40.
145
T. 19 January 2006, Claudine Uwera Bisengimana, p.24.
,'I,,
T. 19 January 2006. Claudine Uwera Bisengimana. pp. 26,27.
I41
T. 19 January 2006, Claudine Uwera Bisengimana, p. 25.
I"' T. 19 January 2006, Claudine Uwera Bisengimana, p. 26.
199
T. 19 January 2006, Claudine Uwera Bisengimana, p. 25.
T. 19 January 2006, Claudine Uwera Bisengimana, p. 26.
'"I T. I9 January 2006, Claudine Uwera Bisengimana, pp. 27-28.
,')I
""
The Prosecutor v. Paul Biseqimana, Case No. ICTR 00-60-T
Judgement, 13 April 2006
157.
Witness Claudine Uwera Bisengimana explained that she, her family and the refugees all
left the house together. She and her family were then dropped off by her father at a school in
Bicumbi. Her father then went back to pick those persons up but the RPF were behind them and
he had to move his family towards Kabuga, so those persons remained behind. When her father
wanted to go back and pick them up, it rained and it was not possible for him to go and collect
them. The Witness added that the family remained in Kabuga and that they subsequently learnt
that those persons had been killed but that she did not know who had killed them.2o3
158.
The Chamber notes that no other witness testified to the fact that the Accused assisted
Tutsi refugees and neither did the Accused. The Chamber notes that the Prosecution did not
challenge this assertion.
159.
The Chamber has carefully considered the testimony of Claudine Uwera Bisengimana
and considers on a balance of probabilities that it is established that some Tutsis civilians were
temporarily sheltered at Paul Bisengimana's house in 1994. However, based on the same
testimony, the Chamber considers that it is also established that Paul Bisengimana fled with his
family and left the refugees behind and that some of the refugees were subsequently killed.
Having considered the totality of this testimony, the Chamber does not find, in the circumstances
and, that it is established that the Accused protected Tutsis refugees and thus saved their lives as
submitted by the Defence. Accordingly, the Chamber rejects this alleged mitigating circumstance.
7.
Lack of Prior Criminal Convictions and Good Conduct in Detention
a.
Defence Submissions
160.
The Defence submits that the Accused's lack of prior criminal convictions204and his
good conduct in detentionzo5can be mitigating circumstances.
The Defence states that the Accused has no criminal convictions, while admitting that
161.
obtaining a copy of his criminal record from the Rwandan authorities has proved difficult.'06
162.
The Defence further submits that Paul Bisengimana's conduct in detention has been
exemplary.'07
163.
b.
The Prosecution did not make any submissions on this matter
Findings
164.
The Chamber recalls that it admitted on 3 February 2006 the Certificate of Good
Conduct signed by the Commander of the UNDF.'"' This Certificate indicates that between the
Accused's transfer to the UNDF on 11 March 2002 and the date of the Certificate (22 December
2005), the Accused was never the subject of any disciplinary action and conducted himself well at
all times.
w,
--
T . 19 January 2006, Claudine Uwera Bisengimana, pp. 27-28.
T. I9 January 2006, Claudine Uwera Bisengimana, p. 28.
1M
Defence Sentencing Brief, para. 41, quoting SimiC. Judgement (TC), para. 108; NikoliC, Judgement (TC), para.
265; R u g ~ i uJudgement
,
(TC), paras. 59-60; Rutagunira, Jugement (TC), paras. 129-130.
205
Defence Sentencing Brief, para. 41, quoting Simii, Judgement (TC), para. 112; Rutaganira, Jugement (TC), para.
13 I: KrrwjelaC Judgement(TC), para. 520, Kr.~tiCJudgement (TC), pard. 7 15.
Defence Sentencing Brief, para. 42; T. 19 January 2006 pp. 39.
'"'
Defence Sentencing Brief, para. 43; T. 19 January 2006 p. 38.
?,,"
Decision on the Motion for the Admission of a Written Statement in Lieu of Oral Testimony in Accordance with
Rule 92hi.s (A) and (B) of the Rules of Procedure and Evidence, 3 February 2006.
203
""
(-1
The Prosecur(~rv. Paul Bisengimana, Case No. TCTR 00-60-T
Judgement, 13 April 2006
165.
The Chamber has considered the Defence submissions and the fact that the Accused had
been bourgrnestre of Gikoro commune from May 1981 until 19 April 1994. The Chamber finds on
a balance of probabilities that the Accused had no previous criminal record. The Chamber
considers that this finding constitutes a mitigating circumstance.209
8.
Age and Ill-Health
a.
Defence Submissions
The Defence submits that significant weight has been attached to the advanced years of
166.
accused persons by this Tribunal and the ICTY,~" and refers particularly to the Rutaganira
~udgement.~"
The Defence states the judges should take the age of the Accused into account, for two
167.
reasons. Firstly, the same sentence is harder for an older accused than for a younger accused
because of the physical deterioration associated with advanced years. Secondly, as observed in the
Holyoak Decision issued by the New South Wales Court of Appeal, an offender of advanced
years may have little worthwhile life left upon re~ease.~"
168.
The Defence submits that Paul Bisengimana is 57 years old.213
169.
The Defence recalls that ill-health has been admitted as a factor in sentencing by both
this ~ r i b u n a land
~ ' ~the ICTY."'
170.
The Defence submits that Paul Bisengimana has been suffering from diabetes and
hepatitis B for several years.216 These two diseases cause the Accused serious physiological
problems, which are inevitably exacerbated by his age and detention.
171.
The Defence also recalls that in 1994, Paul Bisengimana was suffering from an acute
liver ailment as a result of his hepatitis B."' According to the Defence, his fragile health during
the events must be taken into account to determine a fair sentence."*
172.
b.
The Prosecution did not make any submissions on this matter.
Findings
173.
The Chamber has decided to examine the Accused's age and his alleged ill-heath
together.21y he Chamber has noted the content of the confidential Medical Report drafted by
204
Ruggiu, Judgement (TC), paras. 59-60.
Defence Sentencing Brief, para. 44, quoting Banavi?, Judgement (TC), paras. 75-76 and Rutaganira. Jugemenr
(TC). para. 136.
211
Defence Sentencing Brief, para. 44, quoting Rutaganira, Jugemenr (TC), para. 136.
Defence Sentencing Brief, para. 45, quoting Plav?i?, Judgement (TC), para. 105.
' ' I Defence Sentencing Brief, para. 46; T. 19 January 2006 p. 38.
214
Defence Sentencing Brief, para. 48, quoting Ruraganira, Ju~rrnent(TC), para. 136.
?IS
Defence Sentencing Brief, para. 47, quoting SimiC, Judgement (TC), para. 98.
""efence
Sentencing Brief, para. 49; T. 19 January 2006, Witness RKV, p. 22; T. 19 January 2006, Claudine
Uwera Bisengimana, p. 26; T. 19 January 2006, p. 38.
217
Defence Sentencing Brief, para. 50; T. 19 January 2006, Gervais Condo, p. 17; T. 19 January 2006, Claudine
Uwera Bisengimana, p. 26; T. 19 January 2006, Paul Bisengimana, p. 45.
' I 8 Defence Sentencing Brief, para. 50.
219
Ruraganira, Jugement (TC), para. 136.
?I,,
"'
")
I
The Prosecutor v . Paul Bisengimanu. Case No. ICTR 00-60-T
Judgement, 13 April 2006
-
Doctor Ep6e which was admitted into evidence during the Pre-Sentencing Hearing on 19 January
2006 and which indicates that the Accused is being treated for several illnesses.220
The Chamber finds no merit in the Defence's submission that the Accused's alleged
174.
fragile health at the time of the events should be considered in the determination of a fair
sentence. The Chamber has heard the testimonies of the three Defence character witnesses on this
point but notes that those witnesses are not medical experts. Moreover, even if it was established
that the Accused did suffer from his liver condition at the time of the events, there is no evidence
that this would have had an impact on his participation in the massacres.
Nonetheless, the Chamber considers that the combination of the Accused's age and his
175.
current state of health, as established by the Medical Report, constitutes a mitigating
circumstance.
9.
Lack of Personal Participation in the Offences
a.
Defence Submissions
The Defence submits that indirect participation may be a mitigating circumstance.
176.
Assisting a crime is often considered to be less serious than actually perpetrating a crime and may
warrant a lighter sentence.221While this principle has been admitted by the Tribunal in ~ u g g i u , ~ ~
it was not accepted in Rutaganira because the lack of personal participation was already reflected
in the mode of responsibility, namely omis~ion.~~"heDefence states that it is for this reason that
Paul Bisengimana pleads this mitigating circumstance only in relation to the Musha Church site.
According to the Defence, Paul Bisengimana did nothing more than be present at a given time
during the attack perpetrated against the Tutsis who had taken refuge at Musha Church and during
the murder of Rusanganwa. Further, the fact that he did nothing about the crimes being committed
there served as a motivation to the main perpetrators.224
177.
b.
The Prosecution did not make any submissions on this matter.
Findings
The Chamber is mindful of the need to take into account the particular circumstances of
178.
the case including the form and the degree of the participation of the Accused in the
The
Chamber recalls that Paul Bisengimana did not personally commit any violent act during the
massacres.
However, the Chamber does not agree with the Defence's submissions "that Paul
179.
Bisengimana did nothing more than be present at a given time during the attack perpetrated
against the Tutsis who had taken refuge at Musha Parish Church." The Chamber recalls that the
Accused was aware that an attack would be launched against the refugees at Musha Church using
weapons that had been distributed, and that he had the means to oppose the killings but chose not
to act. Moreover, the Chamber recalls that the Accused was present when the attack was launched
""The Medical Report concerning Paul Bisengimana was admitted under Rule 92 bis of the Rules after Dr Epie had
confirmed that she was its author, see T. 19 January 2006 pp. 43-44.
Defence Sentencing Brief, para. 51, quoting KrstiC. Judgement (TC), para. 714.
-,,
--- Defence Sentencing Brief, para. 52, quoting Ruggiu, Judgement (TC), para. 78; T. 19 January 2006 p. 37.
"' Defence Sentencing Brief, para. 52, quoting Rutaganira, Jugement (TC), paras. 137-138; T. 19 January 2006 p.
37.
Defencc Sentencing Brief, paras. 53-54; T. 19 January 2006, Paul Bisengimana, pp. 37,45-46.
''5 Mucii. el al. Judgement, (AC), pard. 731 quoting KupreskiC, Judgement, (AC) para. 852 cited in Aleksovski,
Jugement (TC), para. 182.
'"
'''
The Prosecutor v. Paul Bisen~imana,Case No. ICTR 00-60-T
Judgement, 13 April 2006
and more than a thousand people were murdered at Musha Church, including Rusanganwa, and
that he knew that his presence would have an encouraging effect on the criminal actions of the
perpetrators. Therefore, recalling that the Accused was a person of authority with an obligation to
protect the refugees, the Chamber does not consider his form of participation in the Musha
Church massacres to be a mitigating circumstance.
D.
Findings on Aggravating and Mitigating Circumstances
180.
The Chamber finds the gravity of the crimes and the official position of the Accused to
be aggravating circumstances but the Chamber also finds the following circumstances to be
mitigating: the Accused's guilty plea with publicly expressed remorse, his family situation, his
good character prior to the events, his lack of prior criminal convictions, his good conduct in
detention and his age and ill-health.
However, after considering the gravity of the crime and the official position of the
Accused, the Chamber finds that limited mitigation is warranted.
181.
182.
The Chamber considers that, in the circumstances of the case, Paul Bisengimana's
official position as bourgmestre is an overwhelmingly aggravating circumstance. The Chamber
considers that the Accused is an educated person who administered Gikoro commune for a period
long enough to gain full knowledge of his duties and responsibilities. The Chamber recalls that
despite knowing that Tutsi civilians had taken refuge at Musha Church and Ruhanga Complex
and that weapons had been distributed to be used to attack them, and despite having the means to
oppose the killings, Paul Bisengimana did nothing to stop the killings.
183.
The Chamber is aware of the reasoning in the Semanza Judgement that a higher sentence
is likely to be imposed on "one who orders rather than merely aids and abets extermination^."^^^
However, the Chamber recalls that in the instant case, it did not accept the Accused's form of
participation as a mitigating circ~mstance.'~'Regarding the Musha Church massacres, the
Chamber does not consider that the Accused omitted to act. The Accused had a duty to act to
protect the population and that he knew that his presence when the attack was launched would
encourage the attackers by giving them the impression that he approved of their criminal actions.
The Chamber considers that the Accused's presence is a very serious form of participation even if
it is not alleged or established that he was a co-perpetrator or that he directly committed a criminal
act during the massacre. The Chamber recalls that more than a thousand Tutsi civilians died as a
result of the massacres at Musha Church and Ruhanga Complex.
E.
Sentencing Recommendations by the Parties
184.
The Plea Agreement signed by the Parties recommends that the Accused be sentenced to
between 12 and 14 years' imprisonment, with credit given for the time already ser~ed.~~"he
Parties indicate that they clearly understand that their sentencing recommendation do not bind the
'X
221
Semanza, Judgement (AC), para. 388.
Judgement. paras. 178. 179.
"'Plea Agreement, para. 48.
22"
Plea Agreement, para. 50.
The Pr<~secufor
v. Paul Bisengimana, Case No, ICTR 00-60-T
1.
Judgement. 13 April 2006
The Prosecution
185.
The Prosecution recalls that the Tribunal was established by the Security Council to
prosecute and punish the perpetrators of the atrocities committed in Rwanda, in order to end
impunity and thereby to promote national reconstruction, the restoration of peace, and
reconciliation. 230
In the Sentencing Brief and at the Pre-Sentencing Hearing, the Prosecution recommends
186.
that the Accused receives a term of imprisonment of not less than 14 years with credit given for
the time already served."'
187.
The Prosecution indicates that in accordance with the Plea Agreement, it would support
any application by the Accused to serve his sentence in a prison facility in ~ u r o ~ e . ~ ~ ~
2.
The Defence
The Defence requests that Paul Bisengimana be sentenced to not more than 12 years'
188.
imprisonment, with credit given for the time spent in
The Defence stresses that when sentencing Paul Bisengimana, the basic question must
189.
be, "What would we have done if we were in his shoes? Would we have stood up in a timely
manner to stop these massacres, even if it meant putting our necks on the line.y 2 3 4
The Defence states that Paul Bisengimana requests that France, where his wife and two
190.
youngest children live, be designated as the State where he will serve his sentence.235In the
alternative, Paul Bisengimana requests that one of the other European states which have indicated
their willingness to accept convicted persons from the Tribunal, be designated.236The Defence
stresses that this would enable him to receive the health care he "so desperately need^."^"
191.
Finally, the Defence reminds the Chamber that pursuant to Article 26 of the Statute,
sentences passed by the Tribunal shall be served in accordance with the applicable law of the
State concerned, subject to the supervision of the ~ r i b u n a l . ~ ~ '
F.
1.
Findings
The General Sentencing Practice in the Courts of Rwanda
The Chamber recalls Article 23 of the Statute and Rule 101 of the Rules, which indicates
192.
that the Tribunal shall take into account the general practice regarding prison sentences in the
courts of Rwanda.
193.
The Chamber notes that for serious offences such as murder, the Rwandan Penal Code
states that the maximum sentence is life imprisonment or the death penalty.239Article 89 of the
T. 19 January 2006 p. 3.
Prosecution Sentencing Brief, para.60; T.19 January 2006, p. 9.
' I 2 Prosecution Sentencing Brief, para. 60; T. I9 January 2006 p. 9.
Defence Sentencing Brief, paras. 56-58; T. 19 January 2006 pp. 40-41.
"'T. 19 January 2006, p. 41.
Defence Sentencing Brief, para. 59; T. 19 January 2006 p. 40.
""efence
Sentencing Brief, para. 59.
T. I9 January 2006 p. 40.
""efence
Sentencing Brief, para. 60.
"" Code Plnal Rwandais, Dicrer-Loi no 21/77, 18 August 1977, modified by Dicret-Loi no 2318 I , 13 October 1981,
Articles 31 1317.
"'I
"'
"'
"'
"'
The Pru~ecutorv. Paul Bisengimuna, Case No. ICTR 00-60-T
Judgement, 13 April 2006
Code specifically provides that accomplices may be subject to the same sentence as the principal
perpetrator.
194.
The Chamber considers that the Rwandan Organic Law setting up "Gacaca
~ u r i s d i c t i o n s "and
~ ~ ~the Organic Law modifying and completing it241are relevant in the instant
case because they address the procedure for persons pleading guilty to crimes against humanity. A
person acting in a position of authority at the municipal
who has encouraged others to
commit a crime against humanity, may, after pleading guilty and under certain conditions,243be
sentenced to a term of imprisonment ranging from 25 years to life.244
195.
The Chamber is also mindful of Article 83 of the Rwandan Penal Code which provides
that where there are mitigating circumstances, sentences shall be amended or reduced as follows:
a death penalty shall be replaced by a sentence of imprisonment of no less than five years; a life
imprisonment sentence shall be replaced by an imprisonment sentence of no less than two years;
and an imprisonment sentence of five to 20 years or more than 20 years may be reduced to an
imprisonment sentence of one year.245
2.
Credit for Time Served in Custody
196.
Pursuant to Rule 101 (D) of the Rules, "credit shall be given to the convicted person for
the period, if any, during which the convicted person was detained in custody pending his
surrender to the Tribunal or pending trial or appeal."
197.
The Chamber regards 4 December 2001 as the starting date of the detention in custody
of the ~ c c u s e d . 'The
~ ~ Chamber recognizes that the Accused is entitled to credit for all the time
since this date, including the additional time he may serve pending the determination of an appeal.
198.
The Chamber bears in mind the need for consistency in sentencing for similar cases but
is also mindful of the Kupreikic Judgement holding that a Chamber is "under no obligation to
expressly compare the case of one accused to that of another."247The Chamber also understands
its obligation to ensure that the sentence is commensurate with the individual circumstances of the
offender.248
3.
Conclusion
199.
On examination of the sentencing practice of this Tribunal and the ICTY, the Chamber
notes that principal perpetrators convicted of crimes against humanity such as murder and
2-10
Organic Law setting up "Gacaca Jurisdictions" and organizing prosecutions for offences constituting the crime of
genocide or crimes against humanity committed between October 1990 and December 31, 1994, N. 4012000 of
261011200l, Official Gazette of the Republic of Rwanda, Year 40, no 6, 15th March 2001 ("Organic Law of 26
January 2001").
24 1
Organic Law modifying and completing Organic Law n 4012000 of January 26, 2001 setting up "Gacaca
Jurisdictions" and organizing prosecutions for offences constituting the crime of genocide or crimes against
humanity, committed between October I, 1990 and December 31, 1994, Official Gazette of the Republic of Rwanda,
Year 40, no 14, 15th July 2001 ("Organic Law Modifying and Completing the Organic Law of 26 January 2001").
Article 5 1 of Organic Law of 26 January 2001 and Article I of the Organic Law Modifying and Completing
Organic Law of 26 January 2001.
"hrticle 56 of the Organic Law of 26 January 2001.
Article 68 of the Organic Law of 26 January 2001.
x5 Code Pinal Rwandais, Dicret-Loi no 21177, 18 August 1977.
2-16
Letter from the Prucureur G~nira1pri.sla Cour d'Appel de Bamako dated 14 January 2002, filed on 15 January
2002 indicating that Paul Bisengimana was detained since 4 December 2001 in Bamako, Mali.
"' Kuprefkic, Judgement (AC), para. 443.
""~ucic er al., Judgement (AC), paras. 717-719; Muhimana, Judgement (TC), para. 594.
'"
'"
R
The Prosecurur v. Paul Bisengimana, Case No. lCTR 00-60-T
Judgement, 13 April 2006
I400
extermination have received sentences ranging from ten years' to life imprisonment.249Persons
convicted of secondary forms of participation have generally received lower sentences.250The
sentence should reflect the totality of the criminal conduct of the accused.251
200.
The Chamber will not enter a sentence for Count 3, murder as a crime against humanity
under Article 3 (a) of the Statute, for the reasons explained above.252
201.
The Chamber reiterates that an acknowledgement of guilt may constitute proof of the
honesty of the perpetrator and that some form of consideration should be given to those who have
confessed their crimes in order to encourage others to come forward. Moreover, the Chamber is of
the view that the guilty plea of the Accused may contribute to the process of national
reconciliation in ~ w a n d a . ~ ~ ~
202.
However, despite the fact that the Chamber is not sentencing Paul Bisengimana for the
count of murder as a crime against humanity, the Chamber is of the view that considering the
official position of the Accused and the number of persons killed- more than a thousand- in his
presence at Musha Church and many others with his knowledge at Ruhanga Complex, a higher
sentence than the range proposed by the Parties is justified for the single count of extermination.
V.
Verdict
203.
Having considered the Statute and the Rules, the general practice regarding prison
sentences in Rwanda, the Parties' submissions and evidence during the Sentencing Hearing and
having weighed the aggravating and mitigating circumstances, the Chamber convicts and
sentences Paul Bisengimana for Count 4, extermination as a crime against humanity pursuant to
Article 3 (b) of the Statute to
15 years' imprisonment
204.
The Chamber finds that Paul Bisengimana is entitled to credit for the time served since
the start of his detention on 4 December 2002 to the date of this judgement.
205.
In accordance with Rule 102 (A) of the Rules, the sentence shall run as of the date of
this judgement.
206.
Pursuant to Rule 103 of the Rules, Paul Bisengimana shall remain in the custody of the
Tribunal pending a decision on where his sentence will be served pursuant to Article 26 of the
Statute and Rule 103 (A). The Chamber has noted the Parties' submissions with respect to the
State in which the sentence will be served, but recalls that the President of the Tribunal, in
consultation with the Chamber, will designate the State. The Government of Rwanda and the
designated State shall be notified of such designation by the Registrar.
24V
Muhimana, Judgement (TC), para. 618; Nrageruru et a / . ,Judgement (TC), paras. 822, 825; Nrakirurimana,
Judgement (TC), paras. 922,924.
2ili
Laurent Semanza was sentenced to eight years' imprisonment for instigating the murder of six persons as a crime
against humanity (Srmanza, Judgement (TC), para. 588) and Vincent Rutaganira to six years' imprisonment for his
complicity by omission in extermination as a crime against humanity (Rutaganira, Jugement (TC), para. 40);.
Eli7aphan Ntakirutimana was sentenced to ten years' imprisonment for aiding and abetting genocide (Niakiruzimana,
Judgement (TC), paras. 790,921) has been upheld by the Appeals Chamher (Nrakirurimana. Judgement (AC), para.
570.)
"' MuciC ef a/., Judgement (AC), para.77 I
"'Judgement. paras. 99-105.
Judgement, para. 139.
"'
The Prosecutur v. Paul Bisengimana, Case No, ICTR 00-60-T
Judgement, 13 April 2006
'207.
Pursuant to Rule 102 (A) of the Rules, if notice of appeal is given, the enforcement of
this judgement shall be stayed until the decision on appeal has been delivered, with the convicted
person meanwhile remaining in detention.
Done in English
Arusha, 13 April 2006
v
Arlette Ramaroson
Presiding Judge
-
William H. Sekule
Judge
[Seal of the Tribunal]
Sotomv B. Bossa
judge
The Prosecutor v. Paul Bisengimana, Case No. ICTR 00-60-T
Judgement, 13 April 2006
207.
Pursuant to Rule 102 (A) of the Rules, if notice of appeal is given, the enforcement of
this judgement shall be stayed until the decision on appeal has been delivered, with the convicted
person meanwhile remaining in detention.
Done in English
Arusha, 13 April 2006
Arlette Ramaroson
Presiding Judge
6 h u n H. Sekule
Judge
Solomy B. Bossa
Judge
Tlrr Prosecutor v. Paul Bisengimana, Case No. lCTR 00-60-T
Judgement, 13 April 2006
Annexes
VI.
A.
The Procedure
208.
On 10 July 2000, the Prosecution filed an indictment against the Accused dated 1 July
2000, which was confirmed by Judge Pavel Dolenc on 17 July 2000."~
The Prosecution charged the Accused with the following twelve counts: genocide;
209.
complicity in genocide; conspiracy to commit genocide; direct and public incitement to commit
genocide; murder as a crime against humanity; extermination as a crime against humanity; torture
as a crime against humanity; rape as a crime against humanity; other inhumane acts as crimes
against humanity; and violations of Article 3 common to the Geneva Conventions and of
Additional Protocol 11, as provided for by Articles 4 (a), 4 (e) and 4 (f) of the Statute.
On 8 August 2001, at the request of the Prosecution, Judge Pavel Dolenc issued a
210.
warrant for the arrest of the Accused, pursuant to Rules 54, 57 and 64 of the Rules. The warrant
was addressed to all States and included an order for the Accused's transfer to and detention at the
UNDF. and an order for search and seizure.255
On 4 December 2001, the Accused was arrested in Mali. On 11 March 2002, the
21 1.
Accused was transferred to the UNDF.
On 18 March 2002, the Accused made his initial appearance before Judge Lloyd G.
212.
Williams and pleaded not guilty to all twelve counts in the 1 July 2000 ~ n d i c t m e n t . ~ ~ ~
On 17 June 2005, the Prosecution filed a motion for leave to amend the 1 July 2000
213.
~ndictment.~~'
On 23 June 2005, a corrigendum thereof was filed.258
On 19 August 2005, the Prosecution filed a motion to withdraw both its motion for leave
214.
to amend the 1 July 2000 Indictment and its corrigendum thereof.259
On 24 August 2005, Judge Arlette Ramaroson dismissed the Prosecution motion to
215.
withdraw both its motion for leave to amend the I July 2000 Indictment and its corrigendum for
being moot.260
On 21 September 2005, the Prosecution filed a new motion for leave to amend the 1 July
216.
2000 ~ n d i c t m e n t . ~ ~ '
"'Confirmation of the Indictment and Order for Non-Disclosure of the Indictment and for Protection of Victims and
Witnesses, 17 July 2000.
'" Warrant of Arrest and Orders for Transfer and Detention and for Search and Seizure, 9 August 2001.
"9
LR.
March 2002 pp. 24-31
"' prosecutor^^ Request for Leave to Amend an Indictment Pursuant to Rules 73, 50 and 51 of the Rules of Procedure
and Evidence filed on 17 June 2005.
"'Corrigendum to the Prosecutor's Request for Leave to Amend an Indictment Pursuant to Rules 73, 50 and 51 of
the Rules of Procedure and Evidence. filed on 23 June 2005.
Prosecutor's Request to Withdraw Prosecutor's Request for Leave to Amend the Indictment and Corrigendum
Thereof, filed on 19 August 2005.
'"becision on the Prosecutor's Request to Withdraw Prosecutor's Request for Leave to Amend the Indictment and
Corrigendum Thereof issued on 24 August 2005.
"" Prosecutor's Request for Leave to Amend an Indictment Pursuant to Rules 73.50, and 5lof the Rules of Procedure
and Evidence, filed on 21 September 2005.
""
The Prosecufor v. Paul 5i.sen~imana.Case No. lCTR 00-60-T
Judgement, 13 April 2006
217.
On 19 October 2005, the Prosecution and the Defence filed a joint motion for
consideration of a guilty plea agreement between Paul Bisengimana and the Office of the
rosec cut or.^^'
218.
On 27 October 2005, the Chamber granted the Prosecution motion for leave to amend
the I July 2000 ~ndictment.'~'
219.
On 31 October 2005, the Prosecution filed an amended indictment charging the Accused
with the following five counts: genocide; complicity in genocide; murder, extermination and rape
as crimes against humanity.
220.
On 17 November 2005, during his further appearance, the Accused pleaded guilty to
murder and extermination as a crime against humanity,264both pursuant to Article 6 (1) of the
The Accused pleaded not guilty to genocide;266complicity in gen~cide;*~'murder
as a
extermination as a crime against
crime against humanity pursuant to Article 6 (3) of the
humanity pursuant to Article 6 (3) of the ~tatute,'~'and rape as a crime against humanity.270
On the basis of the Plea Agreement reached between the Parties, which had been filed
221.
with the Chamber on 19 October 2005,~" the Prosecution orally moved the Chamber to dismiss
those counts to which the Accused had pleaded not guilty and to enter a verdict of not guilty
regarding those count pursuant to Rules 73, 54 and 51."~ The Chamber declined to rule on this
request at this stage of the proceedings.
The Chamber unsealed the aforementioned Plea Agreement in open session pursuant to
222.
Rule 62 bis. The Chamber listed discrepancies between the facts supporting the counts to which
the Accused had pleaded guilty and the facts in the Plea ~ ~ r e e m e n t .The
~ " Prosecution submitted
that since the Accused had pleaded guilty to Counts 3 and 4 pursuant to Article 6 (1) of the
Statute, it would amend paragraphs 8, 19, 20, 21, 22, 28, 38, 39, and 42 of the Amended
Indictment to avoid the aforementioned discrepancies and would file a revised amended
indictment thereafter. The Defence indicated that it only considered the contents of the Plea
Agreement valid and would therefore support the Prosecution in its intention to file a revised
amended indi~tment."~
223.
The Chamber orally denied the joint motion for consideration of a guilty plea agreement
between Paul Bisengimana and the Office of the Prosecutor for not being unequivocal. Pursuant
to Rule 62 (A)(iii) and on behalf of the Accused, the Chamber entered a plea of not guilty
262
<< Requtte conjointe visant a I'examen d'un accord entre Paul Biengimana et le Bureau du Procureur auxfin.s
d'un plaidoyer de cuIpabilit6 r , filed on 19 October 2005.
Decision on the Prosecutor's Request for Leave to Amend the Indictment. 27 October 2005.
2(3T. 17 November 2005 pp. 13, 14.
265
T. 17 November 2005 pp. 13, 14.
T. 17 November 2005 p. 12.
T. 17 November 2005 p. 12.
'68 T. 17 November 2005 p. 14.
"" T. 17 November 2005 p. 15.
T. 17 November 2005 p. 14.
271
<< Requete conjointe visant ic I'examen d'un accord entre Paul Bisengimana et le Bureau du Procureur auxfins
d'rrn p l a i d o y r de culpabiliti n, filed on 19 October 2005, along with the *Accord de reconnaissance de culpabilitP
cnnclu entre Mr Paul Bisengimana el le Bureuu du Procureur.a
T. 17 November 2005 pp. 15-16.
T. 17 November 2005 pp. 18-21,
"'T. 17 November 2005 pp. 24-25.
'"
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The Prosecutor v. Paul Bisengimana, Case No. ICTR 00-60-T
Judeement, 13 April 2006
regarding Counts 3 and 4 of the Amended Indictment and duly noted the plea of not guilty for all
the other counts.275The Chamber noted the Prosecution's undertaking to revise the Amended
Indictment to make it consistent with the facts on which the Parties had agreed.276
224.
On 28 November 2005, the Prosecution filed a second amended indictment dated 23
November 2005 in English.
225.
On 1 December 2005, the Prosecution and the Defence filed a new joint motion for
consideration of a guilty plea agreement between Paul Bisengimana and the Office of the
Prosecutor dated 30 November 2005, with an attached Plea Agreement between the Accused and
the Prosecutor, signed by the Accused and his counsel on 4 October 2005 and by the Prosecutor
on 17 October 2005. The same day, the Prosecution filed a new amended indictment, dated 23
November 2005, in English and French.
226.
Following an enquiry by the Chamber about a missing portion of the French transcripts
of 17 November 2005, revised transcripts of the Bisengimana hearing of 17 November 2005 were
filed on 16 December 2 0 0 5 . ' ~ ~
On 7 December 2005, during a Status Conference, the Defence made two oral motions:
227.
the first requested that the person in charge of the UNDF provide the Defence with an attestation
concerning the detention of the Accused; the second requested that Dr. Ep6e provide the Defence
with an attestation concerning the medical situation of the Accused. 278
228.
On 7 December 2005, during his second further appearance, the Accused pleaded guilty
to the following counts: murder as a crime against humanity pursuant to Article 6 (1) of the
and extermination as a crime against humanity pursuant to Article 6 (1) of the
~ t a t u t e . 'The
~ ~ Accused pleaded not guilty to the following counts: genocide pursuant to Articles
6 (1) and 6 (3) of the ~ t a t u t e ; ' ~complicity
'
in genocide pursuant to Article 6 (1) of the ~ t a t u t e ; " ~
and rape as a crime against humanity pursuant to Articles 6 (1) and 6 (3) of the
the Prosecution orally
229.
Based on the Plea Agreement reached between the
moved the Chamber to withdraw and to dismiss the counts to which the Accused had pleaded not
guilty and to acquit him on these counts, pursuant to Rules 51.54, and 73 of the ~ u l e s . ~ ~ ~
"'T. 17 November 2005 p. 26.
""277 T. 17 November 2005 p. 26.
On 7 December 2005, at the requests of the Defence, a Status Conference was held in closed session in the
presence of the Accused. Defence Counsel observed that it appeared from the French transcript of 17 November 2005
that the Accused had not been asked to enter a plea in relation to Count 5 of the Amended Indictment. The Chamber
indicated i n open court that there must have been an error in the French transcripts because the Accused had indeed
pleaded to this count, as was reflected in the English transcripts.
'"T. 7 December 2005 p. 3 (Status Conference)(lCS).
"" T. 7 December 2005 p. 12.
""T. 7 December 2005 p. 13.
T. 7 December 2005 p. 12.
'"T. 7 December 2005 p. 12.
T. 7 December 2005 p. 13.
284
The Motion titled .RequQte conjointe visunt d l'eramen d'un accord entre Paul Bisengimana et le Bureau du
Procureur a n ,fins d'un plaidoyer de culpabiliti n was filed on I December 2005 along with the *Accord de
reconnaissance de culpabiliti c o n c h entre Mr Paul Bi.sengimana et le Bureau du Procureum dated 30 November
2005.
T. 7 December 2005 pp. 13-14. Those counts are as follows: Count 1, genocide pursuant to Articles 6(1) and 6(3)
of the Statute, Count 2, complicity in genocide pursuant to Article 6(1) of the Statute and Count 5, rape as a crime
against humanity pursuant to Articles 6(1) and 6(3) of the Statute.
'"
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The Prosecutor v. Paul Bisengimana, Case No. lCTR 00-60-T
Judgement, 13 April 2006
9-39s
230.
Pursuant to Rule 62 bis, the Chamber asked for the unsealing of the Plea Agreement and
for its disclosure to the
The Defence moved the Chamber to make public only chapters
3, 4 and 5 of the Plea Agreement, arguing that it was not necessary to make the remaining
chapters
The Chamber orally denied this motion, having found that the Defence had
failed to show good cause why only portions of the Plea Agreement should be made public.2KK
23 1.
The Chamber granted the joint motion for consideration of the Plea Agreement between
Paul Bisengimana and the Office of the rosec cut or.^^^ The Chamber stated that the requirements
of Rule 62 (B) were met and it therefore declared the Accused guilty of having aided and abetted
the commission of the crimes of murder (Count 3) and extermination (Count 4) as crimes against
~ " Chamber granted the Prosecution motion
humanity pursuant to Article 6 (1) of the ~ t a t u t e . ~The
for withdrawal and dismissal of the counts to which the Accused had pleaded not guilty
(genocide, complicity in genocide, and rape as a crime against humanity).29' However, the
Chamber denied the request for acquittal because the Prosecution had failed to justify its motion
on this point.292As regards the Defence request for issuance of attestations regarding the detention
of the Accused and his medical situation, the Chamber directed the Defence to seize the Registry
on these rnatter~."~Finally, the Chamber ordered that the Accused be detained under conditions
which guaranteed his security. 294
232.
During the same hearing, the Defence indicated that it intended to call character
witnesses. On 16 December 2005, the Defence filed a motion for protective measures for its
character witnesses.295On 20 December 2005, the Chamber granted this motion in part.
233.
The Defence filed its Pre-Sentencing Brief in French on 20 December 2005 and the
Prosecution filed its Pre-Sentencing Brief in English on 16 January 2006. On 19 January 2006, the
Pre-Sentencing Hearing was held. The Chamber heard the Prosecution, the Defence, three
character witnesses for the Defence and the Accused. The medical report concerning the Accused
was admitted under Rule 92 bis after Dr Epie testified that she was its author.296
234.
The attestation of good conduct by the Commander of the UNDF was admitted under
Rule 92 bis on 3 February 2 0 0 6 . ~ ~ ~
T. 7 December 2005 p. 15.
"'T. 7 December 2005 p. 15.
T. 7 December 2005 p. 18.
289
T. 7 December 2005 p. 17.
'"'IT. 7 December 2005 p. 17.
T. 7 December 2005 p. 18.
T. 7 December 2005 p. 18.
T. 7 December 2005 p. 18; T. 7 dicembre 2005, p. 22.
'"I T. 7 December 2005, p. 19.
245
The Motion is entitled a Requgte en extr8me urgence de la d i f e n ~ eauxfins de prescription rle mesures d r
prutectiun des tinloins de moralird >, and was filed on 16 December 2005.
T. 19 January 2006 pp. 43-44.
297
Decision on the Defence Motion for the Admission of a Written Statement in Lieu of Oral Testimony in
Accordance with Rule 92bis (A) and (B) of the Rules of Procedure and Evidence, 3 February 2006.
"(I
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The Pro.wcutor v. Paul Bisengimana, Case No. ICTR 00-60-T
B.
1.
Judgement, 13 April 2006
Jurisprudence and Defined Terms
ICTR
Prosecutor v. Akayesu, Case No-ICTR-96-4-T, Judgement (TC), 2 September 1998
Prosecutor v. Akayesu, Case No-ICTR-96-4-A, Judgement (AC), 1 June 2001
Prosecutor v. Bagilishema, Case No ICTR-95-l A-T, Judgement (TC), 7 June 2001
Prosecutor v. Kambanda, Case No ICTR- 97-23-S, Judgement (TC), 4 September 1998
Prosecutor v. Kamuhanda, Case No ICTR-95-54-T, Judgement (TC), 22 January 2004
Pro.secutor v. Kamuhanda, Case No ICTR-95-54-A, Judgement (AC), 19 September 2005
Prosecutor v. Kajelijeli, Case No-ICTR-99-44-T, Judgement (TC), 1 December 2003.
Prosecutor v. Kajelijeli, Case No-ICTR-99-44-A, Judgement (AC), 23 May 2005
Prosecutor v. Kayishema and Ruzindana, Case No ICTR-95-1-T, Judgement (TC), 21 May 1999.
Prosecutor v. Kayishema and Ruzindana, Case No ICTR-95-1-A, Judgement (AC), 1 June 2001.
Prosecutor v. Kambanda, Case No ICTR-97-23-S, Judgement (TC), 4 September 1998
Prosecutor v. Muhinzana, Case No ICTR-95-lB-T, Judgement (TC), 28 April 2005
Prosecutor v. Musema, Case ICTR-96-13-T, Judgement (TC), 27 January 2000
Prosecutor v. Ndindabahizi, Case No ICTR-2001-71-1, Judgement (TC), 15 July 2004
Prosecutor v. Ntagerura et al., Case No ICTR-99-46-T, Judgement (TC), 25 February 2004
Prosecutor v. Ntakirutimana, Case No-ICTR-96-10-T and ICTR-96-17-T, Judgement (TC), 21
February 2003.
Prosecutor v. Ntakirutimana, Case No ICTR-96-10-A and ICTR-96-17-A, Judgement (AC), 13
December 2004.
Prosecutor v. Ruggiu, Case No ICTR-97-32-T, Judgement (TC), 1 June 2000.
Prosecutor v. Rutaganira, Case No ICTR-95-IC-T, Jugement (TC), 14 mars 2005.
Prosecutor v. Rutaganda, Case No ICTR-96-3-T, Judgement (TC), 6 December 1999.
Prosecutor v. Semanza, Case No ICTR-97-20-T, Judgement (TC), 15 May 2003.
Prosecutor v. Semanza, Case No ICTR-97-20-A, Judgement (AC), 20 May 2005.
Prosecutor v. Serushago, Case No ICTR-98-39-T, Judgement (TC), 5 February 1999.
The Prosecutor v. Paul Bisengimana, Case No, ICTR 00-60-T
Judgement, 13 April 2006
Prosecutor v. Simba, Case No ICTR-01-76-T, Judgement (TC), 13 December 2005.
2.
ICTY
Prosecutor v. Aleksovski, Case IT-95-1411-T, Judgement (TC), 25 June 1999.
Prosecutor v. BanoviC, Case No IT-02-65/IS, Judgement (TC), 28 October 2003.
Prosecutor v. BlaSkiC, Case No IT-94-14-S, Judgement (TC), 3 March 2000.
Prosecutor v. BlaSkiC, Case No IT-94-14-A, Judgement (AC), 29 July 2004.
Prosecutor v. DeronjiC, Case No IT-02-61-S, Judgement (TC), 30 March 2004.
Prosecutor v. Erdemovid, Case No IT-96-22-Tbis, Judgement (TC), 5 March 1998.
Prosecutor v. Furundiija, Case No IT-95-1711-T, Judgement (TC), 10 December 1998.
Prosecutor v. KrstiC, Case No IT-98-33-T, Judgement (TC), 2 August 2001.
Prosecutor v. KrstiC, Case No IT-98-33-A, Judgement (AC), 19 April 2004.
Prosecutor v. KunaraC et al., Case No IT-96-23-T & 96-2311-T, Judgement (TC), 22 February
2001.
Prosecutor v. KunaraC et al., Case No IT-96-23-A & 96-2311-A, Judgement (AC), 12 June 2002.
Prosecutor v. KupreSkiC, Case No IT-95-16-A, Judgement (AC), 23 October 2001.
Prosecutor v. Mucid et al. ("&lebidi2'), Case No IT-96-21-A, Judgement (AC), 20 February
2001.
Prosecutor v. Naletilid et al., Case No IT- 98-34-T, Judgement (TC), 31 March 2003.
Prosecutor v. Nikolid, Case No IT-02-6011-S, Judgement (TC), 18 December 2003.
Prosecutor v. PlavSiC, Case No IT-00-39 & 4011-S, Judgement (TC), 27 February 2003.
Prosecutor v. Sikirica et al., Case No IT-95-8-T, Judgement (TC), 13 November 2001.
Prosecutor v. SimiC, Case No IT-95-912-S, Judgement (TC), 17 October 2002.
Prosecutor v. Strugar, Case No IT-01-42-T, Judgement (TC), 31 January 2005.
Prosecutor v. TadiC, Case No IT-94-1, Judgement (TC), 15 July 1999.
Prosecutor v. TodoruviC, Case No IT-95-911-S, Judgement (TC), 31 July 2001.
Prosecutor v. VasiljeviC, Case No IT-98-32-S, Judgement (TC), 29 November 2002.
The Prosecuror v. Paul Bisengimana, Case No, lCTR 00-60-T
3.
Judgement, 13 April 2006
Defined Terms
Chamber
Trial Chamber I1
Indictment
Prosecutor v. Bisengimana, Case No.ICTR-2000-60-1. Amended Indictment, signed on 23
November 2005 and filed on 1 December 2005 in English and French.
Plea Agreement
Prosecutor v. Bisengimana, Case No.ICTR-2000-60-1, Plea agreement between Paul Bisengimana
and the Office of the Prosecutor, filed on 1 December 2005.
Defence Closing Brief
Prosecutor v. Bisengimana, Case No.ICTR-2000-60-1, Me'moire de la dr'fense pre'alable au
prononck de la sentence (Defence Pre-Sentencing Brief), filed on 20 December 2005.
Judgement
Prosecutor v. Bisengimana, Case No.ICTR-2000-60-T, Judgement and Sentence, 13 April 2006.
Prosecution Closing Brief
Prosecutor v. Bisengimana, Case No.ICTR-2000-60-1, Prosecutor's Sentencing Brief, filed on 16
January 2006.
RPF
Rwandan Patriotic Front
T.
Official transcripts of the proceedings in English unless otherwise indicated.
C.
Indictment
International Criminal Tribunal for Rwanda
Tribunal Penal International pour le Rwanda
THE PROSECUTOR
versus
PAUL BISENGIMANA
AMENDED INDICTMENT
Case no. ICTR-2000-60-1
The Prosecutor of the Intemational Criminal Tribunal for Rwanda, pursuant to the
authority stipulated under Article 17 of the Statute of the Intemational Criminal
Tribunal for Rwanda (the "Statute of the Tribunal") charges:
PAUL BISENGIMANA
with GENOCIDE pursuant to Article 2(3)(a) of the Statute of the Tribunal; or in the
alternative with, COMPLICITY IN GENOCIDE pursuant to Article 2(3) (e) o f t h e
Statute of the Tribunal; MURDER as a CRIME AGAINST HUMANITYpursuant to
Article 3(a) of the Statute of the Tribunal; EXTERMINATION as a CRIME
AGAINST HUMANITY pursuant to Article 3(b) of the Statute of the TribunaI and
RAPE as a CRIME AGAINST HUMANITYpursuant to Article 3 (g) of the Statute
of the Tribunal.
1. The events set out hereinafter occurred in the Republic of Rwanda between 1 January
1994 and 3 1 July 1994.
THE ACCUSED
2. Paul Bisengimana was born in Rugarama in Duha secteur, Gikoro commune,
Kigali-Rural prefecture and was at all times referred to in this Indictment
bourgmestre of Gikoro commune, Kigali-Rural prefecture.
3. Paul Bisengimaua was appointed Bourgmestre of Gikoro commune, Kigali-Rural
prefecture by the President of Rwanda on 27th May 1981 and remained in that
position until the fall of Gikoro Commune to the Rwanda Patriotic Front between
1 9 ' ~and 21" April 1994.
4. As bourgmestre of Gikoro commune, Paul Bisengimana was the representative of
the central government at the communal level and thus the embodiment of communal
authority.
5. In his capacity as bourgmestre of Gikoro commune, Paul Bisengimana had
hierarchical authority over all civil servants and all persons holding public office
within the boundaries of Gikoro commune.
6. In particular, in his capacity as bourgmestre of Gikoro commune, Paul Bisengimana
had de jure responsibility for the actions of all conseillers, communal policemen,
other local government officials and all persons holding public office within the
boundaries of Gikoro commune.
7. As bourgmestre of Gikoro commune, Paul Bisengimana was responsible for,
amongst other things, the enforcement of local laws and regulations. In that regard,
as bourgmestre of Gikoro commune Paul Bisengimana was responsible for ensuring
peace, public order and the safety of people and property. To that end, Paul
Bisengimana had a duty to protect, prevent or punish the illegal acts of his
subordinates as described in the indictment. but failed to do so.
8. As bourgmestre of Gikoro commune, Paul Bisengimana had the capacity to oppose
the killings of Tutsi civilians in and around the said commune, but took no active
steps to protect Tutsi refugees in Gikoro commune.
THE CHARGES
Count 1 - GENOClDEpursuant to Article 2(3)(a) of the Statute of the Tribunal.
9. During the month of April 1994, in the Bugesera region of Kigali-Rural prefecture,
Republic of Rwanda, Paul Bisengimana acting individually and in concert with
others, was responsible for the killing or causing serious bodily or mental harm to
members of the civilian population identified as Tutsi, with intent to destroy, in
whole or in part, members of the said ethnic group.
10. For all of the acts adduced in support of this charge, the Prosecutor alleges that Paul
Bisengimana either, planned, ordered, instigated, committed, or otherwise aided and
abetted in the planning, preparation or execution of the said offence pursuant to
Article 6(1) of the Statute.
11. In addition, the Prosecutor alleges, that Paul Bisengimana knew, or had reason to
know, that his subordinates were preparing to commit or had committed one or more
of the acts referred to in Article 2(3) (a) of the Statute of the Tribunal and failed to
take the necessary and reasonable measures to prevent the said acts from being
committed or to punish those who were responsible pursuant to Article 6(3) of the
Statute.
Alternatively,
Count 2 -COMPLICITY 1N GENOCIDE pursuant to Article 2(3) (e) of the
Statute of the Tribunal
12. During the month of April 1994, in the Bugesera region of Kigali-Rural prefecture,
Republic of Rwanda, Paul Bisengimana was an accomplice to killing or causing
serious bodily or mental harm to members of the civilian population idenitifed as
Tutsi.
13. For all of the acts adduced in support of this charge, the Prosecutor alleges that Paul
Bisengimana either, planned, ordered, instigated, committed, or otherwise aided and
abetted in the planning, preparation or execution of the said offence pursuant to
Article 6(1) of the Statute.
Particulars of the offence
14. At all times referred to in this indictment, there existed in Rwanda a minority ethnic
group known as Tutsi, officially identified as such by the government. In addition,
the majority population was comprised of an ethnic group known as Hutu, also
officially identified as such by the government.
15. The victims referred to in this indictment were civilians identified as Tutsi and
politically moderate Hutu from the Bugesera region of Kigali-Rural Prefecture, as
well as other civilians that sought refuge in the Bugesera region of Kigali-Rural
Prefecture.
16. Paul Bisengimana spearheaded a campaign of the destruction of Tutsi homes and the
killing of Tutsi civilians in his home commune of Gikoro in Kigali-Rural prefecture
and its environs. The said campaign consisted of encouraging and ordering soldiers,
Hutu militiamen, communal policemen, gendarmes to attack Tutsi refugees in places
where they had sought refuge, such as churches, schools and public offices, resulting
in thousands of death. Paul Bisengimana personally committed and ordered his
subordinates to attack and kill Tutsi civilians under circumstances where he knew or
ought to have known, that the Tutsi civilians were, or would be killed by persons
acting under his authority.
Events in Musha cellule, Rutoma Secteur, Gikoro commune
17. Between 8 and 13 April 1994, several thousand Tutsi civilians sought refuge at Musha
Church, in Rutoma secteur, Gikoro commune of Kigali-Rural prefecture having fled
from attacks on Tutsi civilians which were occumng throughout the Prefecture of
Kigali-Rural.
18. On or about 12 April 1994, Paul Bisengimana was aware that weapons such as guns
and grenades were distributed to Interahamwe militiamen and other armed civilians at
Musha church by members of the Rwanda army. The Accused was aware that the said
weapons would be used to attack Tutsi civilians who sought refuge at the aforesaid
Musha church.
19. On or about 13 April 1994, Paul Bisengimana was present along with Laurent
Semanza, Juvenal Rugambarara, soldiers from the Rwandan army, Interahamwe
militiamen, armed civilians and communal policemen when an attack was launched
on Tutsi civilians seeking refuge in Musha church. The attackers used guns, grenades,
machetes, pangas and other traditional weapons. The said attack resulted in the killing
of thousands of Tutsi civilians who sought refuge at Musha church. During the said
attack, a civilian militiaman named Manda, set fire to the church causing the death of
numerous refugees.
20. Paul Bisengimaua's presence at Musha church during the said attack would have had
an encouraging effect on the perpetrators and given them the impression that the
killing of Tutsi civilians gathered at the said church was endorsed by him.
Events in Ruhita cellule, Rwamashyongoshyo secteur, Gikoro commune
21. At the beginning of April 1994, Paul Bisengimana participated in a meeting where
he publicly instigated those present at the said meeting to kill Tutsi by stating that he
did not want any Tutsi alive in the area.
22. In the middle of April 1994, Paul Bisengimana publicly incited Interahamwe
militiamen to kill all Tutsi civilians in Rwamashyongoshyo secteur. When the said
militiamen responded that they had killed all the Tutsi civilians save for Witness VV,
he ordered them to kill Witness W, a Tutsi woman, on the pretext that people like
her could later reveal the criminal atrocities that had been carried out by various
perpetrators in Rwamashyongoshyo secteur.
23. At the beginning of April 1994, Paul Bisengimana participated in an attack on Tutsi
civilians, who had sought refuge at the Gikoro commune office, by shouting at the
refugees and ordering policemen to disarm the refugees that had gathered at the
commune office.
Events at Ruhanga Protestant Church, Ruhanga cellule, Gicaca secteur, Gikoro
commune.
24. Between 8 and 10 April 1994, having fled from attacks on Tutsi civilians occurring
thoughout the Prefecture of Kigali-Rural, several Tutsi civilians sought refuge at the
Ruhanga Protestant church and school in Gicaca secteur Gikoro commune.
25. Between 10 and 15 April 1994, Brigadier Rwabukumba along with soldiers from the
Presidential Guard, civilian militiamen, and communal policemen launched an attack
on Tutsi civilians seeking refuge in Ruhanga School and Ruhanga Protestant Church.
During the said attack, the attackers used guns, grenades, machetes, pangas and other
traditional weapons, killing numerous Tutsi civilians who had sought refuge at
Ruhanga church and school.
26. Despite his position as Bourgmestre of Gikoro commune, and his knowledge of the
fact that the refugees at Musha church had been attacked on 13 April 1994, Paul
Bisengimana took no active steps to protect Tutsi refugees who sought refuge at the
Ruhanga Protestant church and school in Ruhanga cellule, Gicaca sector, Gikoro
commune between I0 and 15 April 1994.
27. The attack on Tutsi civilians gathered at the Ruhanga Protestant church and school
was perpetrated as part ongoing attacks on Tutsi civilians, which was occurring in
most parts of Rwanda throughout April 1994.
28. As a direct consequence of his conduct, including the provision of moral support to
the attackers by Paul Bisengimana, thousands of civilian men, women and children
were killed.
Events in Ruhanga cellule, Gicaca secteur, Gikoro commune
29. Between January and March 1994, Paul Bisengimana, Laurent Semanza and Juvenal
Rugambarara participated in a meeting at Rutoma primary school, Gikoro commune
where they urged the population to kill all Tutsi and to throw them in Lake Muhazi.
30. On 71hof April 1994, Paul Bisengimana distributing boxes of grenades in Gicaca
secteur, Gikoro commune to an Interahamwe named Rutayisire for purposes of
attacking Tutsi civilians.
31. During the month of April 1994, near the ISUMO centre located between
Rwamashyongoshyo and Gicaca secteurs in Gikoro commune, Paul Bisengimana
acting in concert with several civilian militiamen participated in several attacks on
Tutsi civilians. The said attacks resulted in the killing of a certain Domitilla, wife of
Nicolas, her grandson and their domestic worker called Shyirakera. The trio were tied
to a mattress and burnt alive.
32. On or about 10 April 1994, Paul Bisengimana addressed the civilian population in
Gicaca secteur. During the said speech, he instigated Hutu civilians to kill their Tutsi
counterparts.
33. In April 1994, on Gicaca hill, near Ruhanga church, Paul Bisengimana acting in
concert with two Hutu men, namely; Kamana and Habimana and other civilian
militiamen, participated in an attack on Tutsi civilians. During the said attack, Paul
Bisengimana was seen shooting at the said Tutsi refugees.
34. Between January and April 1994, Paul Bisengimana supervised the training of
Interahamwe militiamen and the distribution of weapons in the region of Gikoro
commune for purposes of attacking Tutsi civilians.
Count 111: MURDER, as a CRIME AGAINST HUMANITY pursuant to Article 3(a)
ofthe Statute of the Tribunal
35. During the month of April 1994, in the Bugesera region of Kigali-Rural prefecture,
Republic of Rwanda, Paul Bisengimana acting individually was responsible for
killing or causing persons to be killed in Gikoro commune and its environs, as part of
a widespread and systematic attack against a civilian population on political, ethnic or
racial grounds.
36. For all of the acts adduced in support of this charge, the Prosecutor alleges that Paul
Bisengimana, either, planned, or otherwise aided and abetted in the planning,
preparation or execution of the said offence pursuant to Article 6(1) of the Statute.
Particulars of the offence
37. Between 6 and 21 April 1994, there existed widespread or systematic attacks
occumng in the Kigali-Rural prefecture in the territory of Rwanda, directed against a
civilian population on political, ethnic or racial grounds.
38. Paul Bisengimana aided and abetted in the planning, preparation, or execution of the
killing of Tutsi civilians, by his acts or through persons he assisted, with his
knowledge and consent.
39. Among the Tutsi civilians killed as a consequence of Paul Bisengimana's conduct
are a Tutsi man called Rusanganwa. In that regard, Paul Bisengimana was present
during the attack at Musha church in Rutoma secteur, Gikoro commune, on 13 April
1994, when Rusanganwa, who had sought refuge at the said location, was murdered.
Count IV: EXTERMINATION, as CRIME AGAINST HUMANITY pursuant to
Article 3(b) of the Statute of the Tribunal
40. During the month of April 1994, in the Bugesera region of Kigali-Rural prefecture,
Republic of Rwanda, Paul Bisengimana acting individually and in concert with
others, was responsible for killing or causing persons to be killed, during mass killing
events in Gikoro commune and its environs, as part of a widespread and systematic
attack against a civilian population on political, ethnic or racial grounds.
41. For all of the acts adduced in support of this charge, the Prosecutor alleges that Paul
Bisengimana, either, planned, or otherwise aided and abetted in the planning,
preparation or execution of the said offence pursuant to Article 6(1) of the Statute.
Particulars of the offence
42. Between 6 and 21 April 1994, there existed widespread or systematic attacks
occurring throughout Rwanda, directed against a civilian population on political,
ethnic or racial grounds.
43. Paul Bisengimana aided and abetted in the planning, preparation, or execution of the
killing of Tutsi civilians and by his acts or through persons he assisted with his
knowledge and consent.
44. As a direct consequence of his conduct including the provision of moral support to the
attackers by Paul Bisengimana, thousands of civilian men, women and children were
killed.
45. Paul Bisengimana's affirmative acts during the month of April 1994, VIZ: aiding
and abetting in the killing of Tutsi civilians Musha church in Gikoro commune and at
the Ruhanga Protestant Church, Ruhanga cellule, Gicaca secteur, Gikoro commune
