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Bikindi Trial Chamber Judgment

THE PROSECUTOR v. BIKINDI
Case No. ICTR-01-72-T
International Criminal Tribunal for Rwanda
Trial Chamber Judgment
December 2, 2008

Judges:
Judge Inés Mónica Weinberg de Roca
Judge Florence Rita Arrey
Judge Robert Fremr

 

Prosecution:
William T. Egbe
Veronic Wright
Patrick Gabaake
Peter Tafah
Iain Morley
Sulaiman Khan
Amina Ibrahim
Disengi Mugeyo

 

Defense:
Andreas O’Shea
Jean de Dieu Momo

 

Gender Keyword(s): Rape, Sexual Violence

 

Procedural History: On July 5, 2001, Judge Pavel Dolenc of the International Criminal Tribunal for Rwanda (ICTR) confirmed an indictment against Simon Bikindi,1 and issued a Warrant of Arrest and Order for Transfer and Detention of the accused (Annex A, 1). In the initial indictment, the Prosecution included allegations of sexual violence in support of the charges of conspiracy to commit genocide, genocide, and alternatively, complicity in genocide.2 Bikindi was arrested in Leiden, The Netherlands, on July 12, 2001, and transferred to the ICTR on March 27, 2002 (Annex A, 3). The accused entered a plea of not guilty during his initial appearance on April 4, 2002, and on August 7, 2003, the Prosecution filed a motion that sought leave to file an amended indictment to add back in an alternative charge of complicity in genocide that Judge Dolenc had dismissed earlier (Annex A, 4). On September 22, 2003, the Trial Chamber disagreed with Judge Dolenc’s decision with regard to the complicity in genocide charge, granting the Prosecution leave to amend the indictment, and also ordering the Prosecution to add more specificity to the allegations in response to Defense objections regarding vagueness.3 With regard to allegations of sexual violence submitted by the Prosecution in support of the genocide or complicity in genocide charges, the Trial Chamber specifically stated that “the averment is vague as to the basis for liability alleged; if there is a further factual basis for the allegations against the Accused of a state of knowledge of the extent of sexual violence or the identity of the perpetrators, then it should be explicitly stated.”4 On October 22, 2003 (Annex A, 4), the Prosecution submitted another amended indictment, charging the accused with individual criminal responsibility under Article 6(1) of the ICTR Statute for conspiracy to commit genocide; both individual and superior responsibility under Articles 6(1) and 6(3) of the Statute, respectively, for genocide, or in the alternative, individual criminal responsibility for complicity to commit genocide; incitement to genocide; and murder and persecution as crimes against humanity.5 Bikindi appeared before Judge Lloyd G. Williams on March 8, 2004, and pleaded not guilty to the six counts in the amended indictment (Annex A, 5). The indictment was then amended again pursuant to an order by the Trial Chamber made on May 11, 2005, which stated that the Prosecution had erred in submitting a Bill of Particulars in response to the previous order to add specificity to its allegations when they should have incorporated the added specifics to the amended indictment.6 In response, the second amended indictment–in effect at the time of trial–was filed on June 15, 2005 (Annex A, 8). This June 2005 indictment contained all of the same charges and modes of liability as the previous indictments, including sexual violence alleged in support of the genocide and complicity in genocide charges, but included additional factual support for these allegations.7 Notably, rape was specifically alleged for the first time in the June 15, 2005 indictment. Specifically, the Indictment alleged that “In the course of executing Simon Bikindi’s orders, the Interahamwe under his effective control also committed rapes of Tutsi women, of which Simon Bikindi was aware, or ought to have been aware by his presence and effective supervision of the killing and rape operations of the Interahamwe.”8 Appearing before Judge Dennis Byron on August 11, 2005, Bikindi pleaded not guilty to the six counts of the second amended indictment (Annex A, 9). The trial commenced on September 18, 2006; closing briefs of both parties were filed on April 25, 2008 with closing arguments heard on May 26, 2008 (Annex A, 16, 33). This is a digest of the Trial Chamber judgment of December 2, 2008.

 

Disposition: The Trial Chamber convicts Bikindi of direct and public incitement to commit genocide ( 441), finding that Bikindi used his position as a well-known composer and singer and his role as an “authoritative figure for the Interahamwe and a man perceived as an influential member of the [Mouvement républicain national pour la démocratie et le développement, or MRND]” to help incite the genocide in Rwanda by calling on the population to kill Tutsis using loudspeakers on a vehicle as he drove with the Interahamwe ( 422-426). The Trial Chamber does not convict Bikindi on any of the other five counts, including genocide, conspiracy to commit genocide, complicity in genocide, and murder and persecution as crimes against humanity ( 441). The only allegations of sexual or gender-based violence were in support of the genocide and complicity in genocide charges; these allegations included the rape and killing of a woman named Ancilla and the killing of her four-year-old daughter. The Trial Chamber does not find beyond a reasonable doubt that “Bikindi, Noël or anyone under Bikindi’s command participated in the killing or rape of Ancilla or the killing of her daughter as alleged by the Prosecution”( 350). The Trial Chamber also finds that the prosecution failed to demonstrate any evidence to support the allegation of sexual violence committed against Tutsi women in the Rubavu area, which was also alleged in support of the genocide and complicity in genocide charges and thereby also dismisses that allegation ( 365-366). Additionally, the Trial Chamber acquits Bikindi of allegations in support of the genocide and murder as a crime against humanity based on allegations that he drove three women to the Commune Rouge where they were killed, concluding that the Prosecution did not prove beyond a reasonable doubt that Bikindi was involved in the driving and killing of the three women ( 363, 364). On the basis of his conviction for one count of incitement to genocide (Count 4), the accused is sentenced to fifteen years of imprisonment ( 460).

 

Key Gender-Based Holdings:

RAPE:
• In support of the charges of genocide or alternatively, complicity in genocide, the Prosecution alleged that Bikindi ordered Interahamwe militants to kill a Tutsi woman and her daughter in Murara, Rubavu ( 337). It also alleged that this woman, Ancilla, was raped by the Interahamwe before she was killed and that, because the accused ordered the Interahamwe to commit these acts of violence and then stayed by the side of the road to ensure his orders were followed, Bikindi was aware or ought to have been aware of the acts of rape and sexual violence committed against Ancilla ( 338). In its analysis of this charge, the Chamber considers witness testimony from two eyewitnesses:

o Witness AJZ testified: that an Interahamwe militant, Kabulimbo, informed Bikindi that Ancilla had been caught hiding in the ceiling of her home and that Kabulimbo brought her to Bikindi ( 340); that Bikindi stated, “There is no other solution, you must go and kill her” id.); and that Bikindi, along with another Interahamwe militant, Noel, removed Ancilla and her 4-year-old daughter from hiding and relocated them to a nearby field where they were killed with sharp objects and clubs (id.).
o Witness AJY testified about the same events but with several differences: that Kabulimbo told Bikindi that Ancilla was observed leaving her hiding place and returning to her home ( 341); that Bikindi and the Interahamwe went to Ancilla’s house, raping her before taking her outside (id.); that an Interahamwe militant, Sendegeya, said that he had finally accomplished his dream of “sleeping with a Tutsi woman” (id.); and that Ancilla and her daughter were killed shortly afterwards (id.).

• The Chamber finds both testimonies raise doubt ( 342). The Chamber notes that AJZ’s testimony does not address rape at all, while AJY’s testimony details the rape ( 345). It also finds AJZ’s testimony is inconsistent regarding the date of the alleged incident ( 342), and determines that the discrepancies between the testimonies add to their unreliability ( 345). Based on these findings, the Chamber finds that “while it has no doubt that Ancilla was killed during the genocide,” the Prosecution failed to prove beyond a reasonable doubt that Bikindi participated in or ordered participants to rape or kill Ancilla ( 350).

SEXUAL VIOLENCE:
• In discussing the charges of genocide and complicity in genocide, the Chamber briefly uses this term when addressing the allegation that Bikindi was responsible for the acts of sexual violence committed by Interahamwe against Tutsi women in the course of the execution of his orders to kill all Tutsi in Rubavu area. Bikindi was charged with leading a group of Interahamwe to Rubavu where he allegedly led, ordered, and encouraged a “campaign of extermination.” According to the Prosecution, Bikindi’s role in this campaign meant that he “knew or should have known, that sexual violence against civilian Tutsi was, or would be, widespread or systematic, and that the perpetrators would include his subordinates or those that committed such acts in response to his generalized orders and instructions to exterminate the Tutsi.” However, the Chamber observes that, except for the specific incident concerning Ancilla, discussed above in the section on “Rape,” the Prosecution failed to adduce evidence in support of its allegations of sexual violence; thus, the Chamber dismisses this allegation without further discussion ( 365-366). As discussed above in the section on “Rape,” the Trial Chamber also uses the term sexual violence in its description of the allegations regarding the rape and killing of Ancilla, stating that the Prosecution alleged that because Bikindi “ordered the Interahamwe to commit these acts of violence and then stayed by the side of the road to ensure his orders were followed, Bikindi was aware or ought to have been aware of the acts of rape and sexual violence committed against Ancilla” ( 338).

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1 The Prosecutor v. Simon Bikindi, “Confirmation of the Indictment,” July 5, 2001, 8.

2 In support of the Conspiracy to Commit Genocide charge, all versions of the indictment include the general allegation that “Over the course of April, May, June and the first few days of July of 1994, hundreds of thousands of civilian Tutsi men, women, children and the elderly, were persecuted, attacked, sexually assaulted, tortured, sequestered, and killed in Kigali-ville and Gisenyi préfectures and all across Rwanda” ( 15). In support of the genocide, or alternatively, complicity in genocide charges, the allegations include that “Sexual violence against Tutsi women was systematically incorporated in the generalized attacks against the Tutsi. In leading, ordering and encouraging the campaign of extermination in Gisenyi préfecture, Simon Bikindi knew, or should have known, that sexual violence against civilian Tutsi was, or would be, widespread or systematic, and that the perpetrators would include his subordinates or those that committed such acts in response to his generalized orders and instructions to exterminate the Tutsis” (Indictment of June 27, 2001, 26; Indictment of June 15, 2005, 29).

3 Decision on the Defence Motion Challenging the Temporal Jurisdiction of the Tribunal and Objecting to the Form of the Indictment and on the Prosecutor’s Motion Seeking Leave to File an Amended Indictment, September 22, 2003, at 24-25, 38.

4 Id., 38(xxxi).

5 The Prosecutor v. Simon Bikindi, Amended Indictment of October 22, 2003.

6 The Prosecutor v. Simon Bikindi, Decision on the Amended Indictment and the Taking of a Plea Based on the Said Indictment, May 11, 2005, at 7-8.

7 The Prosecutor v. Simon Bikindi, Amended Indictment Pursuant to Decision of Trial Chamber II of 11 May 2005 and 10 June 2005,  28-29.

8 Id. at 29.

9 The Prosecutor v. Simon Bikindi, Case No. ICTR-2001-72-1, Amended Indictment Pursuant to Decisions of 11 May 2005 and 10 June 2005, June 15, 2005, 29.

10 Id.

GENDER JURISPRUDENCE AND
INTERNATIONAL CRIMINAL LAW PROJECT

American University Washington College of Law
4300 Nebraska Ave NW - Washington, DC 20016