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Serushago Trial Chamber Judgment

PROSECUTOR v. OMAR SERUSHAGO
Case No. ICTR 98-39-S
International Criminal Tribunal for Rwanda
Trial Chamber Sentencing Judgment
February 5, 1999

Judges:

Presiding Judge Laïty Kama
Judge Lennart Aspegren
Judge Navanethem Pillay

 

Prosecution:

Mr. Bernard Muna
Mr. Mohamed Othman
Ms. Josée D’Aoust

 

Defense:

Mr. Mohamed Ismail

 

Gender Keyword(s):

Forced Nudity; Rape; Sexual Assault/Attack/Abuse

Procedural History: On June 9, 1998, Omar Serushago voluntarily surrendered to the authorities of Côte d’Ivoire in Abidjan, even though he had not yet been indicted by the International Criminal Tribunal for Rwanda (ICTR) and was not included in the list of suspects wanted by Rwandan authorities ( 1, 34). Pursuant to a request of the ICTR Prosecutor, on June 16, 1998, he was transferred to the Detention Facility of the ICTR, where he was to be provisionally detained for a period of 30 days (id.). The provisional detention was twice extended for a total of 50 additional days (id.). On September 29, 1998, the ICTR confirmed an indictment against the accused ( 2, 4), leading to a warrant of arrest and an order for continued detention against Serushago ( 2). On October 14, 1998, the Prosecutor filed a modified indictment,1 charging Serushago with individual criminal responsibility for genocide; both individual and superior responsibility for murder, extermination, and torture as crimes against humanity; and superior responsibility for rape as a crime against humanity ( 2, 4). On December 14, 1998, Serushago plead guilty to genocide and murder, extermination, and torture as crimes against humanity ( 4). However, Serushago pleaded not guilty to rape as a crime against humanity, and the Prosecutor was authorized by the Trial Chamber, on the basis of Rules 51 and 73 of the ICTR Rules, to withdraw this count (id.). The Trial Chamber accepted Serushago’s guilty plea to the rest of the charges of the modified indictment listed above ( 5-6). The pre-sentencing hearing was held on January 29, 1999 ( 5). This is the digest of the Trial Chamber’s Sentencing Judgment.

Disposition: On the strength of Serushago’s affirmation of his guilty plea, the Trial Chamber finds him guilty of counts one through four of the indictment including genocide and murder, extermination, and torture as crimes against humanity ( 9). Serushago acknowledged the accuracy of the facts stipulated in the modified indictment ( 25). Specifically, he admitted he was one of the leaders of the Interahamwe in Gisenyi and that he exercised authority and control over militiamen that committed massacres of the Tutsi Population and Hutu moderates with his knowledge and instigation ( 25). He also conceded that the purpose of the mass killings was to exterminate the population of Tutsi and moderate Hutu, as evidenced by the selective searching and targeting of individuals, the indiscriminate nature of the killings, and the fact that the attacks occurred in locations in which the targeted individuals sought refuge and safety (id.). In determining the appropriate sentence to impose upon Serushago, the Trial Chamber notes that, because the ICTR Statute does not indicate a hierarchy among the various crimes falling under the Tribunal’s jurisdiction, the maximum sentence is the same for each of the crimes, namely, life imprisonment ( 13). However, the Trial Chamber does note that because genocide embodies an element of dolus specialis, or special intent, to destroy, in whole or in part, a national, ethnic, or religious group, genocide constitutes the “crime of crimes,” to which special attention must be paid during sentencing ( 15). In light of various mitigating and aggravating circumstances, the Trial Chamber sentences Serushago to a single term of 15 years of imprisonment for all the crimes to which he pleaded guilty and was convicted (Section V).

Key Gender-Based Holdings:

FORCED NUDITY:
• Serushago admitted that at the end of June 1994, he and his brother Abbas Habyalimana, at the instigation of Félicien Nsengimana, abducted and unlawfully confined a Tutsi man and proceeded to undress, threaten, question, and repeatedly beat him in order to force him to divulge information ( 25(xiii)). After determining that the man was in fact a Hutu, he was freed (id.). This incident supports the charge and conviction for torture as a crime against humanity ( 26(4)).

RAPE:
• The modified indictment alleged, and Serushago admitted, that at the end of April 1994, Serushago and others abducted four Tutsi individuals and brought them to “Commune Rouge,” where they were killed ( 25(xi)). The modified indictment further alleged that one of the Tutsi victims was raped on the orders of Bernard Munyagishari and in the presence of Serushago. Reference to this rape was removed in the Sentencing Judgment. Additionally, the modified indictment alleged that between April and July 1994, Serushago’s subordinates raped or sexually assaulted Tutsi women with his knowledge, and that he did nothing to prevent the crimes or punish the perpetrators. These instances of alleged rape supported the charge of rape as a crime against humanity; however, as noted above, the Prosecutor withdrew this charge when Serushago pleaded guilty to all but this charge and these allegations were thus removed from the facts as incorporated into the Sentencing Judgment ( 4, 9).

SEXUAL ASSAULT/ATTACK/ABUSE:
• Although the Sentencing Judgment does not specifically address charges of rape, as they were withdrawn when Serushago pleaded not guilty to the count of rape, the modified indictment alleges that numerous rapes, sexual assaults, and other crimes of a sexual nature were widely and notoriously committed throughout Rwanda, and that the perpetrators were soldiers, militiamen, gendarmes, and others.

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1 Prosecutor v. Omar Serushago, Modified Indictment, October 14, 1998. Section 6, beginning on page 20, lists the charges including the modes of responsibility.

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