On 6 April 1994 a plane carrying the president of Rwanda was shot down on its approach into his country's capital, Kigali. The president, Juvenal Habyarimana, was a member of the Hutu ethnic group, one of three principle ethinic groups residing in Rwanda. At that time, approximately 85 percent of the Rwandan population were Hutu, 10 to 15 percent were Tutsi, while less than 1 percent were members of the Twa ethnicity. Whenhis plane was shot down, President Habyarimana was returning from an international conference designed to ensure the implementation of a power sharing agreement among various political parties, some of which were primarily divided along ethnic lines. Immediately following the plane crash an interim government that was predominantly Hutu took control and massacres commenced throughout the country. Thousands of men, women, and children were violently killed in these massacres, which were designed to exterminate the Tutsis and eliminate moderate Hutus who supported power sharing among the political parties. The vicitms were killed primarily by state-sponsered militia and Hutu civilians, incited by local and national authorities who publicly blamed the minority Tutsis for the death of the president and labeled them as the enemy. Many of the Tutsi victims were killed in places such as schools, stadiums, and churches where they had gathered en masse for protection. Their killers used traditional weapons such as machetes to murder them.
To the dismay of many, the international community did not adequately respond to the crisis while the massacres ensued. Once the massacres had stopped, however, the United Nations Security Council created the International Criminal Tribunal for Rwanda (ICTR). The objective of the ICTR, centered in Arusha, Tanzania, is to prosecute individuals responsible for the crimes that occured in Rwanda in 1994. Under the tribunal's statutem the Office of the Procecutor has jurisdiction to prosecute the following crimes: genocide, crimes against humanity and serious violations of Common Article 3 and Additional Protocol II of the Geneva Conventions. Funtionally, the statute of the ICTR creates three organs enabling it to carry out its task: the Registry, the Trial Chambers and the Office of the Prosecutor (hereinafter Prosecutor).
As of this writing, five trials have commenced before the ICTR, and two are scheduled to begin in early 1999. This report provides a brief summary of the tribunal's first five cases.
1. Teh Prosecutor v. Clement Kayishema & Obed Ruzindana (ICTR-95-1-T)
The tribunal issued its first indictment on 28 November 1995. The Prosecutor indicted eight individuals due to their alleged criminal responsibility for crimes committed at four massacre sites in Kibuye Prefecture. Teh individuals included the prefect of Kibuye, three bourgmestres, two councillors and two prominent businessmen.
The Republic of Zambia arrested Dr. Clement Kayishema, the prefect of Kibuye from April to June 1994, and transferred him to the Detention Unit of the tribunal in May 1996. Kayishema was initially charged with 25 counts due to his alleged criminal responsibility for various crimes committed at all four of the massacre sites. The Prosecutor alleged that he was responsible for the crimes due to his personal participation in the crimes and due to his responsiblity for crimes committed by subordinates over shich he had control. The Kenyan government arrested another one of the accused, Obed Ruzindana, and transferred him to the Detention Unit of the tribunal in September 1996. Ruzindana was a prominent businessman in Rwanda. He was charged with seven counts due to his alleged criminal responsibility for crimes he committed at one of the massacre sites.
The joint trial of these two individuals commenced on 11 April 1997 and due to scheduling the Prosecutor presented her case in three segments. Fifty-one witnesses testified for the Prosecutor, including Rwandese survivors of the massacres, investigators fo the ICTR, two journalists, three non-Rwandans who were in Kibuye during 1994 and six expert witnesses. These expert witnesses included a jurist, a historian, a former United Nations Special Rapporteur for Rwanda, a forensic handwriting expert, a forensic anthropologist and forensic pathologist. The forensic anthropologist and forensic pathologist presented the results of a mass exhumation and resulting autopsies undertaken at one of the mass grave sites in Kibuye.
The defense for Kayishema presented a total of 14 witnesses: 12 Rwandese and two expert witnesses, a psychiatrist and a legal expert. Kayishema testified on his own behalf. Ruzindana's defense presented 21 witnesses: 20 Rwandese and one expert witness, a psychiatrist. Some of the Rwandans and the psychiatrist were joint witnesses testifying for both accused. Closing arguements by both prosection and defense were concluded in November 1998. The Trial Chamber is in deliberations on this case and is expected to issue its judgement in the near future.
2. The Prosecution v. Jean Paul Akayesu (ICTR-96-4-S)
The second indictment of the tribunal was confirmed on 16 February 1996. In that indictment the Prosecutor charged Jean Paul Akayesu- the bourgmestre of Taba Commune in Gitarama Prefecture form April to June 1994- with 12 counts due to his alleged criminal responsibility for crimes committed there. The 12 counts included one count of genocide, one count of direct and public incitement to commit genocide, one count of complicity in genocide, one count of the crime against humanity of murder, one count of the crime against humanity of torture and four counts of serious violations of Common Article 3.
The trial against Akayesu commenced on 9 January 1997. The first phase of the Prosecutor's case lasted until 24 May, during which 22 witnesses were called. On 16 June the Prosecutor sought leave to amend the indictment by adding three counts, all relating to the accused's alleged criminal responsibilty for acts of sexual violence. Those counts included one count for the crime against humanity of rape, one count for the crime against humanity of other inhumane acts and one count for a violation of Common Article 3 and Additional Protocol II. The ammendment was granted and the case was postponed until 23 October 1997. At its resumption, the Prosecutor presented six additional witnesses, all realting to the new charges. The defense called 13 witnesses, one of whom was the accused.
Trial Chamber I issued its judgement in this case on 2 September 1998 finding Akayesu guilty of genocide, direct and public incitement to commit genocide and the crimes against humanity of extermination, murder, rape, torture and other inhumane acts. Akayesy was acquitted of the counts relating to violations of Common Article 3 and Additional Protocol II, with the Chamber finding that although the regimes themselves were applicable, the Prosecutor had failed to prove beyond a reasonable doubt that acts committed by the accused were committed in conjunction with the armed conflict. According to Trial Chamber I, in order to hold Akayesy liable for these violations it was necessary that the Prosecutor show that the accused "was a member of the armed forces, or that he was legitimately mandated and expected, as a public official, or agent or person otherwise holding public authority or de facto representing the Government, to support or fulfill the war efforts."
A sentence hearing was held immediately following Akayesu's conviction. At that hearing, the Prosecutor recommended life sentences for count 1 (genocide), count 3 (crimes against humanity of extermination), count 4 (direct and public incitement to commit genocide) and count 13 (crimes against humanity of rape). The Prosecutor asked that the Trial Chamber issue multiple sentences for each count for which the defendant was convicted, and that Akayesu serve the most severe sentence for each.
At the hearing, Jean Paul Akayesu responded on his own behalf. He spoke passionately before the tribunal, expressing his "sympathy" for all persons affected by the tragedies which touched Rwanda, not only in 1994, but also before the disatrous war, which had already started in October. He noted as a mitigating factor, that he had opposed the killings in his commune, and that at any rate he lacked the resources to stop them, given that he had had only eight communal police, one of whom was killed. He testified that there was chaos and noted that General Daillare, the commander for the U.N. Assistance Mission in Rwanda (UNAMIR), had said that even he had been unable to contain the violence despite 2,500 soldiers under his command. He then asked how could he, un petit bourgmestre, be blamed for not having the power to protect the population when the general himself lacked such influence.
One month later, Trial Chamber I sentenced Akayesu to three separate life imprisonments for counts 1, 3 and 4, three separate 15-year sentences for counts 5, 7, 9 and 13, and two 10-year sentences for counts 11 and 14. The Trial Chamber then noted that the above sentences should be served concurrently, directing Akayesu to serve a single life sentence.
On 2 September, Akayesu filed a notice of appeal on several grounds, including that he had been denied the right to be defended by a competent attorney of his own choosing; that the tribunal was illegal, biased and partisan both in its statute and in the formation and conduct of the Trial Chamber; and that there had been a total absence of the rule of law. In addition, he has filed an appeal of the sentence. As of this writing, no date has yet been set for either appeal.
3. The Prosecutor v. George Anderson Rutaganda (ICTR-96-3-T)
On 16 February 1996 the tribunal confirmed its third indictment against George Anderson Rutaganda. The Prosecutor alleged that Rutaganda was one of two vice presidents of the Interahamwe at the national level. The indictment charged Rutaganda with nine counts relating to his activities in the 1994 massacres: one count of genocide, four counts of crimes against humanity and three counts of violating Common Article 3 of the Geneva Conventions.
Rutaganda's trial commenced on 18 March 1997, and due to scheduling, the Prosecutor presented her case in four segements. Twenty-five witnesses testified for the Prosecutor, including Rwandese witnesses who were present in Rwanda, a Belgian captain who was in Rwanda in 1994, a journalist and two experts. The experts included a jurist and a forensic anthropologist. On 29 May, the Prosecutor closed her case. At that time the defense was granted time to locate and prepare witnesses. The case has since been delayed due to illness of the defense counsel. The case will recommence in early 1999 for the presentation of defense witnesses.
4. The Prosecutor v. Jean Kambanda (ICTR-97-23-I)
The Kenyan government arrested Jean Kambanda, the former prime minister of the government of Rwanda, on the basis of a formal request made by the Prosecutor in July 1997. The tribunal issued an idictment against Mr. Kambanda on 16 October 1997. In that indictment the Prosecutor charged Kambanda with six counts due to his alleged criminal responsibility for the crimes committed throughout Rwanda in 1994. Those counts included one count of genocide, one count of conspiracy to commit genocide, one count of complicity in genocide, one count of the crime against humanity of murder and one court of the crime against humanity of extermination.
On 1 May 1998 Kambanda appeared before Trial Chamber I and pleaded guilty to all six counts alleged against him. This was the first time that an individual had plead guilty to the crime of genocide. In the sentencing hearing, Kambanda's counsel asked for a sentence of no more than two years, arguing that he was only "a puppet controlled by authorities" and that several factors should favor mitigation of his sentence, including the fact that he had cooperated substantially with the Office of the Prosecutor and would continue to do so.
The Prosecutor asked for a life sentence, noting that life imprisonment "is the only appropriate sentence for the grave offenses to which the accused had pled guilty" and "that these are heinous and intolerable crimes, whose condemnation by the International Community is most categoric." The Prosecutor did note, however, that there had been substantial cooperation by the accused and that this cooperation should be considered in any future application or consideration of a pardon or commutation of sentence(s).
On 3 September 1998 Trial Chamber I sentenced Kambanda to life imprisonment for his crimes. In arriving at his sentence Trial Chamber I imployed a weighing process, balancing the aggravating factors against the mitigating factors. Ultimately Trial Chamber I found that the aggravating factors outweighed any mitigating factors, stessing as an aggravating circumstance the fact that Kambanda occupied a high ministerial post when he committed the crimes.
Four days later, Kambanda's counsel filed a Notice of Appeal against Trial Chamber I's sentencing. The appeal elucidated a number of complaints, including that the sentence was excessive and that the court erred in not mitigating the sentence to coincide with Kambanda'a level of cooperation and personal circumstances. As of this writing, there has been no date set for the appeal.
5. The Prosectutor v. Omar Serushago (ICTR-98-39-I)
Prior to the massacres in 1994 the prefecture of Gisenyi was a stronghold for the National Revolutionary Movement for Development (MRND) and Coalition for the Defense of the Republic (CDR) parties. After the presidential plane was shot down, Gisenyi was rocked with violence and massacres commenced. The prosecutor charged Omar Serushago, a businessman and one of the alleged five leaders of the MRND Interahamwe in Gisenyi, for five counts due to his alleged criminal responsibility for various crimes committed there: one count of genocide, one count of the crime against humanity of murder, one count of the crime against humanity of extermination, one count of the crime against humanity of torture and one count of the crime against humanity of rape. Teh indictment alleged, among other things, that Omar Serushago was a key leader behind the violence in Gisenyi, and that he and/or subordinates under his control personally participated jin committing the various crimes delineated in the indictment.
On 14 December 1998 Serushago made his initial appearance before Trial Chamber 1 and pleaded guilty to all counts, except for the rape charge. After ensuring that the accused's pleas of guilty were unequivocal, and after satisfying itself that the accused understood the consequences of his admission of guilt, Trial Chamber I accepted the guilty pleas. This was the second time that an ICTR defendant had pled guilty, and only the second time in history that an individual has pled guilty to the crime of genocide. As a result of this plea, the Prosecutor requested that the count of the crime against humanity of rape be withdrawn without prejudice. Both parties were ordered to submit petitions on sentencing by no later than 22 January 1999. The sentencing hearing was scheduled for 29 January.