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Bisengimana Trial Chamber Judgment

THE PROSECUTOR v. BISENGIMANA
Case No. ICTR-00-60-T
International Criminal Tribunal for Rwanda
Trial Chamber Judgment and Sentence
April 13, 2006

Judges:

Judge Arlette Ramaroson
Judge William H. Sekule
Judge Solomy Balungi Bossa

 

 

Prosecution:
Mr. Charles Adeogun-Phillips
Ms. Memory Maposa
Mr. Peter Tafah
Ms. Florida Kabasinga

Defense:
Ms. Catherine Mabille
Ms. Nathalie Passeron

Gender Keyword(s): Rape

Procedural History: On July 10, 2000, the Prosecution of the International Criminal Tribunal for Rwanda (ICTR) filed an indictment against Paul Bisengimana, former bourgmestre of Gikoro commune in Kigali-Rural préfecture ( 1208). On July 17, 2000, the indictment was confirmed by Judge Pavel Dolenc (id.). The indictment charged Bisengimana with a total of 12 counts, including: genocide, complicity in genocide, conspiracy to commit genocide, and direct and public incitement to commit genocide; the crimes against humanity of murder, extermination, torture, rape, and other inhumane acts; and the war crimes of violence to life, health and physical or mental well-being of persons, in particular murder, cruel treatment such as torture, mutilation or any form of corporal punishment, outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault, and pillage for his alleged role in the massacre of Tutsis at Musha Church and the Ruhanga Complex in Gikoro commune in Rwanda between April 13-15, 1994 ( 1-2, 208-09). It alleged that Bisengimana personally committed many of the charged crimes as well as encouraged, armed, and transported others who took part in the massacres.1 For all counts except complicity in and conspiracy to commit genocide, Bisengimana was charged with superior responsibility for allegedly failing to prevent these acts or punish the perpetrators of these crimes despite his position as bourgmestre.2 With regard to charges involving gender or sexual violence, allegations that Bisengimana ordered interahamwe to rape Tutsi women supported the counts of genocide or alternatively, complicity to commit genocide, and incitement to genocide.3 Allegations that women were raped before being killed under Bisengimana’s orders supported the charges of both individual and superior responsibility for murder and extermination as crimes against humanity, as well.4 The charge of torture as a crime against humanity was supported by allegations that Bisengimana had superior responsibility for failing to prevent or punish the sexual mutilation of a number of women at Musha Church.5 The charge of individual criminal responsibility for rape as a crime against humanity was supported by allegations that Bisengimana ordered the rapes of Tutsi women and also personally raped Victim C;6 he was also charged with this crime under superior responsibility for failing to prevent or punish rapes committed by his subordinates.7 Additionally, allegations of an attempted rape and a rape that resulted in a miscarriage supported the charge of superior responsibility for other inhumane acts as a crime against humanity.8 With regard to the war crimes charges, allegations that Bisengimana ordered the rapes of Tutsi women supported the charge of both individual and superior responsibility for violence to life, health and physical or mental well-being of persons as well as outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault.9 Allegations that Bisengimana ordered Tutsi women to be raped before having their home set on fire or demolished supported the charge of pillage as a war crime as well.10 On August 8, 2001, an international arrest warrant was issued for Bisengimana, and on December 4, 2001, he was arrested in Mali ( 210-11). On March 11, 2002, Bisengimana was transferred to the ICTR’s detention facilities, and on March 18, 2002, he made his initial appearance before the Tribunal, during which he pled not guilty to all of the counts ( 211-12). On October 19, 2005, the parties reached a plea agreement and filed a motion for consideration with the Chamber ( 217). On October 31, 2005, an amended indictment was filed that reduced the charges against Bisengimana to genocide and complicity in genocide and the crimes against humanity of murder, extermination, and rape ( 219). On November 17, 2005, Bisengimana pled guilty to individual criminal responsibility for aiding and abetting murder and extermination as crimes against humanity and not guilty to genocide, complicity in genocide, superior responsibility for murder and extermination as crimes against humanity, and rape as a crime against humanity ( 220). Pursuant to the plea agreement, the Prosecution moved to dismiss the counts to which the accused had pleaded not guilty; however, the Chamber declined to rule on this motion because it noted discrepancies between the factual basis of the plea agreement and the facts alleged in the amended indictment ( 221-23). On November 28, 2005, a second amended indictment was filed and on December 1, 2005, a new motion for consideration of the plea agreement was filed ( 224-25). On December 7, 2005, Bisengimana entered a plea of guilty of individual criminal responsibility for murder and extermination as crimes against humanity and not guilty to genocide, complicity in genocide, and rape as a crime against humanity, and the Prosecution again moved to withdraw, dismiss, and acquit him of the counts to which he had pleaded not guilty ( 228-229). This time, the Chamber entered a finding of guilt for aiding and abetting murder and extermination as crimes against humanity, and dismissed the charges of genocide, complicity in genocide, and rape as a crime against humanity ( 231). It declined the request for acquittal as it determined that the Prosecution had not adequately justified the motion (id.). On January 19, 2006, a Pre-Sentencing hearing was held ( 233). This is the digest of the Trial Chamber’s Judgment and Sentence.

Disposition: Pursuant to a plea agreement, Bisengimana was found guilty of murder and extermination as crimes against humanity, and the charges of genocide, complicity in genocide, and rape as a crime against humanity were dismissed ( 231). The Chamber notes, however, that the charges of extermination and murder are each supported by the same set of facts and allege the same mode of criminal liability ( 102). Therefore, it is of the view that Bisengimana should only be convicted of extermination as a crime against humanity because extermination is “more specific than the crime of murder in light of its large scale[,] which is an additional materially distinct element” ( 103,105). The Chamber sentences Bisengimana to 15 years of imprisonment with credit for time served ( 203-204).

Key Gender-Based Holdings:

RAPE:
• The amended indictment alleged that Bisengimana caused women to be raped in the Gikoro area “as part of a widespread and systematic attack against a civilian population on political, ethnic or racial grounds.”11 Specifically, it alleged that in April 1994, Bisengimana and Laurent Semanza encouraged a crowd of Hutu civilians in Musha to “rape and sexually violate Tutsi women,” and immediately following the incident, several Tutsi women were raped.12 Therefore, the indictment alleged, Bisengimana “directly and substantially contributed to the raping and sexual assaults of Tutsi civilians.”13 These facts supported the charge of rape as a crime against humanity.14 Pursuant to the plea agreement, this charge was dismissed on December 7, 2005 ( 231).

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1 Prosecutor v. Bisengimana, Indictment, July 1, 2000, pp. 15-55.
2 Id. pp. 2, 14-15, 19-22, 29-30, 31-32, 35-38, 39, 40-41, 42, 46-49, 51-53, 55.
3 Id., pp. 28-30.

4 Id. pp. 30-33.
5 Id. pp. 39.
6 Id. pp. 39-40.
7 Id. pp. 40-41
8 Id. pp. 42.
9 Id. pp. 42-49, 50-53.
10 Id. pp. 53-55.

11 Id. 50.
12 Id. 53-54.
13 Id. 54.
14 Id. 50-54.

GENDER JURISPRUDENCE AND
INTERNATIONAL CRIMINAL LAW PROJECT

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