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Gacumbitsi Trial Chamber Judgment

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THE PROSECUTOR V. SYLVESTRE GACUMBITSI
Case No. ICTR-2001-64-T
International Criminal Tribunal for Rwanda
Trial Chamber Judgment
June 17, 2004

 

Judges:

Judge Andresia Vaz
Judge Jai Ram Reddy
Judge Sergei Alekseevich Egorov

 

Prosecution:

Richard Karegyesa
Andra Mobberley
Khaled Ramadan

 

Defense:

Kouengoua
Anne Ngatio Mbattang

Gender Keyword(s): Consent; Corroboration; Credibility or Character of the Victim; Genitalia; Forced Abortion; Genocidal Rape; Rape; Rape with Foreign Objects; Sexual Assault/Attack/Abuse; Sexual Violence; Vagina

 

Procedural History: On June 20, 2001, Judge Lloyd Williams of the International Criminal Tribunal for Rwanda (ICTR) confirmed an indictment against Sylvestre Gacumbitsi ( 8), resulting in his arrest ( 9). The Prosecution alleged that Gacumbitsi – bourgmestre of Rusumo commune during the relevant period of time – organized a campaign against the Tutsi civilians in the Rusumo commune of the Kibungo préfecture that consisted of public incitement of the Hutu population to separate themselves from the Tutsi and kill them.1 The Prosecution further alleged that this resulted in thousands of deaths, including several instances in which Gacumbitsi killed persons, ordered killings, and led attacks under circumstances where he knew, or should have known, that civilians would be killed.2 In addition to killing Tutsi, the indictment alleged that during April, May, and June 1994, there were widespread or systematic rapes and sexual violence committed against Tutsi women in Rusumo commune and that these crimes were often a prelude to murder or resulted in the death of the victim.3 The indictment alleged that Gacumbitsi knew, or should have known, that sexual violence against the civilian Tutsi women was or would be committed as a part of the campaign of extermination in Rusumo commune.4 Based on these allegations, the indictment charged Gacumbitsi with both individual and superior responsibility for committing genocide, or in the alternative, individual criminal responsibility for complicity in genocide, and both individual and superior responsibility for rape, extermination, and murder as crimes against humanity.5 The rape charge specifically alleged that the accused “announc[ed] by megaphone that Tutsi women should be raped and sexually degraded”6 and that he “lured Tutsi women to a certain location by announcing over a megaphone that Tutsi women would be spared” and then these women “were surrounded by several attackers, raped, and then killed.”7 On July 28, 2003, the trial commenced ( 13). On August 6, 2003, the Chamber denied a Defense motion requesting that the Chamber refuse to hear testimony regarding a rape allegedly committed by Gacumbitsi himself because the allegation had just been disclosed to the Defense the day before and charges of direct perpetration of rape were not included in the indictment. Instead, the indictment charged Gacumbitsi with “leading, ordering, and encouraging” and “causing” women to be raped, but not personally committing sexual violence against Tutsi women8 ( 15). The Chamber denied the motion, ruling that in the interest of justice, it must hear the full testimony; however, it reserved the decision as to the admissibility of the allegation (id.). On October 2, 2003, the Chamber dismissed the Defense motion for acquittal on certain counts, but it ruled, on its own motion, that in final deliberations it would not take into account the new allegation of rape made against Gacumbitsi because the Prosecution had never sought leave to amend the indictment to include this charge ( 16). The Prosecution rested on August 28, 2003, and the Defense rested on November 25, 2003 ( 17, 19). This digest concerns the Trial Chamber’s Judgment.

 

Disposition: The Chamber finds Gacumbitsi guilty of individual criminal responsibility for committing genocide ( 293) and therefore dismisses the alternative charge of complicity in genocide ( 294, 295). As discussed below under “Genocidal Rape,” this conviction was supported in part by the Trial Chamber’s finding that the accused instigated rape and therefore “caused serious physical harm to members of the Tutsi ethnic group” ( 292). The Chamber also finds Gacumbitsi guilty of individual criminal responsibility for instigating rape as a crime against humanity and for planning, inciting, ordering, and aiding and abetting extermination as a crime against humanity ( 316, 330, 333). Finally, the Chamber finds Gacumbitsi not guilty of murder as a crime against humanity because the Prosecution did not offer any evidence to prove some of the allegations in support of this charge in the indictment; the evidence the Prosecution did offer related to an incident not alleged in the indictment; and the remaining evidence was insufficient to prove this count beyond a reasonable doubt ( 320). The accused is sentenced to 30 years of imprisonment ( 356).

Key Gender-Based Holdings:

CONSENT:
• In its discussion of rape as a crime against humanity, the Chamber finds that Gacumbitsi ordered members of the communal police to rape a number of women and girls ( 324), and that he made statements that “in case of resistance the victims should be killed in an atrocious manner” ( 325). The Chamber also finds that rape victims “were attacked by those they were fleeing from” after Gacumbitsi made these statements (id.). The Chamber finds these facts “adequately establish the lack of the victims’ consent to the rapes” committed throughout Rusumo commune by those attackers who were under Gacumbitsi’s authority (id.). See the section below on “Rape” for more information on Gacumbitsi’s convictions for genocidal rape and rape as a crime against humanity.

CORROBORATION:
• The Chamber discusses the testimony provided by Witness TAO regarding two different incidents during which his wife was raped. Regarding the first instance, the Chamber finds that, contrary to Defense arguments, Witness TAO’s testimony regarding the rape of his wife at Conseiller Isaie Karmage’s house was in fact corroborated by other witnesses that testified to similar events happening in the house ( 217). Regarding the rape and subsequent killing of TAO’s wife at the home of his grandfather, the Trial Chamber holds that even though that evidence was uncorroborated, it was still credible because TAO was an eyewitness to this event ( 218).
• Drawing a distinction between uncorroborated eyewitness testimony and uncorroborated hearsay testimony, the Chamber finds that the uncorroborated hearsay evidence by Prosecution Witness TAS regarding the accused’s alleged orders to rape Tutsi women insufficient to prove the involvement of the accused in the relevant rapes ( 327).

CREDIBILITY OR CHARACTER OF THE VICTIM:
• In support of the charge for rape as a crime against humanity, Witness TAP testified she and her mother were attacked by a group of 30 unidentified men ( 207). They attacked her mother first, driving a stick into her genitals and up through her head (id.). The witness concluded that her mother died on the spot (id.). The group then attacked her, with several men raping her and then taking a branch slightly longer than a meter and driving it into her genitals, wounding her and causing her to bleed profusely ( 208). This testimony during trial was the first time that Witness TAP had alleged that Gacumbitsi raped her, and as a result, the Defense alleged that this testimony was not credible ( 219). The Chamber finds that the witness’s account of events “seems to be plausible because of the peculiar circumstances of the events, a situation of extreme crisis in which the survival of certain victims may seem extraordinary” (id.). Therefore, the Chamber finds that Witness TAP is credible as to her account of the sexual violence committed against her and her mother (id.).
• Prosecution Witness TAQ, a pregnant Tutsi woman who knew Gacumbitsi personally, testified about multiple acts of sexual violence and rape committed against her and other Tutsi women and girls in Rusumo commune ( 109, 200-04). The Defense argued that this witness was not credible because there were many contradictions between her prior statements and oral testimony ( 211). However, the Chamber disagrees, finding Witness TAQ credible and that “the discrepancies can be explained by the time that has elapsed… and the considerable stress [she was] subjected to” ( 145, 212, 214).
• The Defense also made a general allegation that no Prosecution witness who testified to the allegations of rape was credible because “they alone knew of the rapes, whereas none of the Defence witnesses called heard of rape, witnessed it or was a victim thereof” ( 223). The Chamber dismisses this argument, finding that the credibility of Prosecution witnesses, who themselves were raped or witnessed rape, “cannot be impeached by the fact that Defence witnesses were not raped or did not witness rape” (id.).

FORCED ABORTION:
• While the Trial Chamber does not explicitly use the term “forced abortion,” in support of the charge of rape as a crime against humanity, testimony was offered regarding threats to kill the unborn children of a pregnant rape victim while she was being raped ( 203).
• In its analysis of the evidence offered to support the charge of murder as a crime against humanity, the Trial Chamber acknowledges that “[i]n the Indictment, the Prosecutor alleges that Sylvestre Gacumbitsi stabbed to death a pregnant Tutsi woman and her mother-in-law, and disembowelled the pregnant woman to extract two foetuses.” ( 318). However, having noted that no evidence was offered to support this and other allegations of murders at trial, the Trial Chamber finds the Defendant not guilty of murder as a crime against humanity ( 319-320).

GENITALIA:
• The Chamber uses this term or “genitals” when discussing the various acts of sexual violence and rape for which Gacumbitsi is charged and convicted (see, e.g., 198, 201, 204, 207-208, 215, 224, 261, 321).

GENOCIDAL RAPE:
• The Trial Chamber analyzes the elements of genocide, including the requisite intent to destroy, in whole or in part, an ethnic group, in this case the Tutsi people ( 257-60). In addition to killing members of the group, the Trial Chamber recognizes that genocide can be committed by causing serious bodily or mental harm to members of the relevant ethnic group and, citing the Akayesu and Kayishema and Ruzindana judgments, holds that: “Serious bodily harm means any form of physical harm or act that causes serious bodily injury to the victim, such as torture and sexual violence. Serious bodily harm does not necessarily mean that the harm is irremediable. Similarly, serious mental harm can be construed as some type of impairment of mental faculties, or harm that causes serious injury to the mental state of the victim” ( 291).
• In support of the charges against Gacumbitsi for genocide, the Prosecution alleged that “in leading, ordering and encouraging the campaign of extermination in Rusumo commune, Sylvestre Gacumbitsi 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” ( 198). The Prosecution also alleged that Gacumbitsi himself drove around Rusumo commune announcing on a megaphone that Tutsi women should be raped and sexually degraded, and that “[a]ttacks and rapes of Tutsi women immediately followed” (id., citing 21 of the indictment). Witness TAQ testified to this allegation, stating that she recognized Gacumbitsi’s voice as one of those “saying that Tutsi girls who had refused to get married to the Hutu should be looked for, raped, and if they resisted, killed” ( 200). She testified that she also heard him “giving the same orders that Tutsi girls who resisted should be killed in an ‘atrocious manner,’ that is, by inserting sticks into their genitals” ( 201). Furthermore, she testified that immediately after this incident, a group of more than ten attackers discovered her and seven other women and girls hiding – including an old woman and a twelve-year-old girl – and raped them ( 202). Witness TAQ testified that she then saw one of the women “quartered, with a stick inserted into her genitals,” and that she died as a result of the sexual violence ( 204). In considering this evidence, the Chamber finds that “[p]laced in context, and considering the attendant audience, such an utterance from the Accused constituted an incitement, directed at this group of attackers on which [he] had influence, to rape Tutsi women,” which is why a group of attackers attacked Witness TAQ and seven other Tutsi women and girls and raped them ( 215). The Chamber finds that it is established beyond a reasonable doubt that Gacumbitsi publicly instigated the rape of Tutsi girls, by specifying that sticks be inserted into their genitals in case they resisted ( 224). The Chamber finds specifically that the rapes committed against Witness TAQ and other women and girls, which are described in more detail below in the “Rape” section, were a direct consequence of Gacumbitsi’s instigation ( 227). The Chamber finds that at the time of the events in Rusumo commune, Gacumbitsi had the intent to destroy, in whole or in part, the Tutsi ethnic group ( 259). Furthermore, the Chamber finds that the rapes that Gacumbitsi instigated caused serious physical harm to members of the Tutsi ethnic group; therefore, “as to the specific crime of serious bodily harm, Sylvestre Gacumbitsi incurs responsibility for the crime of genocide by instigating the rape of Tutsi women and girls” ( 292). These rapes support the conviction of the accused for genocide ( 293). However, with regard to other rape allegations against Gacumbitsi (see, e.g., 209), the Chamber “is unpersuaded that there is a sufficient nexus between such instigation” and the rapes, finding, for example, that “Witness TAS testified that an attacker told her that he was acting in accordance with the Accused’s instructions [but] the Chamber has not found any evidence that this part of her account is reliable” ( 227).
• In its sentencing, the Trial Chamber finds that”[t]he seriousness of the crimes committed, particularly genocide, but also the particularly atrocious rapes that some victims suffered, … constitute aggravating circumstances” ( 345).

RAPE (AS A CRIME AGAINST HUMANITY):
• The Trial Chamber discusses the chapeau elements of crimes against humanity and then the specific charges of rape as a crime against humanity, stating: “The Chamber is of the opinion that any penetration of the victim’s vagina by the rapist with his genitals or with any object constitutes rape, although the definition of rape under Article 3(g) of the Statute is not limited to such acts alone” ( 321).
• In support of the charge against Gacumbitsi for rape as a crime against humanity, the Prosecution alleged that during April, May, and June 1994, there were widespread or systematic rapes of and sexual violence committed against Tutsi women, which were often a prelude to murder, and were sometimes the cause of death of a number of civilian Tutsi ( 198). The Prosecution further alleged that the sexual violence “was so widespread, and conducted so openly, and was so integrally incorporated in widespread attacks against civilian Tutsi, that Sylvestre Gacumbitsi must have known, or should have known, that it was occurring, and that the perpetrators were his subordinates, subject to his authority and control, and acting under his orders” (id.). As noted above, the Prosecution also alleged that Gacumbitsi traveled throughout Rusumo commune with a megaphone, instigating rapes and sexual violence. For instance, in support of the rape charge, the prosecution alleged that on one occasion, Gacumbitsi announced with a megaphone that “Tutsi girls that have always refused to sleep with Hutu should be raped and sticks placed in their genitals” (id.). Prosecution Witness TAQ testified that she heard Gacumbitsi make these statements, and immediately thereafter, she and seven other Tutsi women were raped ( 200-04). Furthermore, one of them had a stick inserted into her genitals, and she died as a result of this act of sexual violence (id.). The Trial Chamber considers this evidence in support of both the genocide and rape as a crime against humanity charges ( 292, 328). As discussed above in the section “Credibility or Character of the Victim,” the Chamber finds that Gacumbitsi raped Witness TAP and committed sexual violence against her mother ( 207, 219). The Trial Chamber also heard testimony from Prosecution Witness TAS, who testified that two Hutu men raped her and that she thought that she was raped because she was married to a Tutsi ( 209).
• Finally, Witness TAO testified that his wife informed him that she had been arrested and taken to Conseiller Isaie Karamage’s house, where she had been raped by Karamage every night until he gave her travel documents that he told her would allow her to travel safely as a Tutsi ( 205). The witness also testified that he met his wife several times at the ruins of his grandfather’s house after she had left Karamage’s house until one day he saw attackers enter the house and hid, but from his hiding spot, he saw attackers rape and kill his wife with a machete ( 206).
• The Chamber finds that acts of sexual violence were part of a systematic and widespread attack against Tutsi civilians in Rusumo commune from April to June 1994 and that “the Accused knew or had reason to know that such rapes were being committed because he instigated the attack against Tutsi civilians” ( 228). The Chamber also finds that the victims were civilians, that they were targeted in a discriminatory manner due to their ethnicity or their relationship to Tutsis, and that they did not consent to the rapes ( 321-25).
• Finding the requisite elements of crimes against humanity have been met and several of the alleged rapes proven beyond a reasonable doubt, the Trial Chamber finds the accused guilty of rape as a crime against humanity for instigating the rape of TAQ and seven other Tutsi women and girls ( 321-333). However, the Trial Chamber finds “no evidence establishing a link between” the rapes of Prosecution Witness TAS, the wife of Prosecution Witness TAO or the mother of Prosecution TAP and the “possible utterances of the Accused and therefore the Accused cannot incur responsibility in that respect” ( 329). Despite this, there was adequate evidence about the rape of TAQ and seven other Tutsi women to support the Trial Chamber’s finding of guilt for rape as a crime against humanity.

RAPE WITH FOREIGN OBJECTS:
• As noted above in the sections on “Genocidal Rape” and “Rape,” rapes were carried out at the instigation of Gacumbitsi, including several in which the perpetrator inserted sticks in the victims’ genitals ( 204, 207-08). The Trial Chamber finds that such penetration constitutes rape ( 321).

SEXUAL ASSAULT/ATTACK/ABUSE:
• The Chamber uses this term in describing the acts of sexual violence and rape for which Gacumbitsi is charged and convicted ( 198).

SEXUAL VIOLENCE:
• The Chamber uses this term in describing the acts of sexual violence and rape for which Gacumbitsi is charged and convicted (see, e.g., 198 (citing 20, 33, and 40 of the indictment), 219, 228).

VAGINA:
• In its findings regarding the charge of rape as a crime against humanity, the Trial Chamber provides that “[t]he Chamber is of the opinion that any penetration of the victim’s vagina by the rapist with his genitals or with any object constitutes rape, although the definition of rape under Article 3(g) of the [ICTR] Statute is not limited to such acts alone. In the case at bench, the Chamber has already found that Witness TAQ was raped at the same time as seven other Tutsi women and girls; that the rapists either penetrated each victim’s vagina with their genitals or inserted sticks into them; that Witness TAO’s wife was raped, with the rapist penetrating the victim’s vagina with his genitals; that Witness TAS was raped in a similar manner, as well as Witness TAP and her mother. The Chamber finds that all these acts fall within the definition of rape” ( 321).

 

Other Issues:

SENTENCING:
• In its sentencing, the Trial Chamber finds that “[t]he seriousness of the crimes committed, particularly genocide, but also the particularly atrocious rapes that some victims suffered, … constitute aggravating circumstances” ( 345).

______________________________

1 The Prosecutor v. Sylvestre Gacumbitsi, Indictment, June 20, 2001, 4.

2 Id.

3 Id. at 37.

4 Id. at 20, 40.

5 Id.

6 Id. at 21.

7 Id. at 38.

8 Id. at 20-21.

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INTERNATIONAL CRIMINAL LAW PROJECT

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