Guilty Plea Negotiations for Serious Crimes: Lessons Learnt from the ICTR
Plea negotiations are a common practice in international criminal prosecutions. The practice is also common in many national jurisdictions. Accused person may choose to plead guilty, in many cases, agree as well, to testify against co-perpetrators or co-conspirators as prosecution witnesses. The use of this process at the international level is not a new innovation. The Prosecutors of the International Criminal Tribunal for the former Yugoslavia (ICTR) and the International Criminal Tribunal for Rwanda (ICTR) have conducted plea negotiations. The focus in this paper is on the plea negotiations at the ICTR.
The history of the Rwanda genocide is now available in scholarly publications and in the decisions and judgements of the ICTR since Akayesu. However, during the early period of the ICTR, not much was authoritatively known about the modus operandi of the Interim Government of Rwanda, the Rwanda Armed Forces (FAR), the Interhamwe, Civil Defence Force, the media and the Akazu.
There were as well no substantive or credible statements from senior members of the Interim Government and FAR to support the theory that the top political and military leadership in Rwanda in 1994 planned, organized, instigated or were otherwise complicit in genocide, crimes against humanity and war crimes.
Relevant documents and other materials that could assist in proving that the top political and military leadership in the Interim Government planned, organized and executed the Rwanda genocide in 1994 were not available during the early period of the ICTR. When in early June 1994 it became clear that the FAR was losing the war, the Interim Government decided to identify, select and destroy many documents that would have assisted the Prosecutor in proving that genocide was planned, organized and executed by the top leadership in government and military in Rwanda in 1994. As the Rwanda Patriotic Army (RPA) was poised to take over Kigali on the 4 July 1994, the Interim Government is believed to have moved incriminating documents to Gitarama (the seat of the Interim Government after fleeing from Kigali), and later to Goma in Zaire (now Democratic Republic of the Congo). After the defeat of the Interim Government by the Rwanda Patriotic Front (RPF) and its armed wing, the RPA, recovering documents and other materials moved by the Interim Government to Gitarama and Goma, studying and evaluating other captured documents, and handing them over to the Prosecutor by the RPF government was not the priority of the new government in Kigali.
Additional challenges to conducting early investigations are that when the RPF assumed the responsibility of governing the country on 17 July 1994, Rwanda had very limited functional infrastructures. On the other hand, the RPF Government had the enormous responsibility of providing security and welfare to the victims and survivors of genocide and re-settling returning refugees, some of whom were descendants of refugees who had fled Rwanda in 1959. Furthermore, many buildings in major towns in Rwanda, including Kigali city, were either destroyed or looted. Communications within Kigali city and throughout Rwanda was difficult. In many cases, military escorts were necessary to enable OTP members of staff to move from one town to the next.
Under this difficult situation, the OTP investigators were faced with many challenges that included identifying and locating witnesses in different parts of Rwanda, and in neighbouring States, and travelling to those places to interview these witnesses. At the same time, the RPF government was identifying and arresting many individuals who were either perpetrators or accomplices in the genocide. With these competing interests, the OTP did not have immediate access to individuals detained by the RPA, as the new Rwanda Government was still de-briefing many of the suspects arrested and detained since the defeat of the FAR in early July 1994. Considering the logistical and communications challenges, including lack of understanding of Rwandan culture and language, obtaining accurate and credible information from witnesses by the OTP, it was therefore not surprising that the ICTR did not complete its first case until 2 September 1998 when Jean Paul Akayesu was convicted notwithstanding that the ICTR was established on 8 November 1994.
Under the circumstances prevailing at the time, the Prosecutor’s decision to conduct guilty pleas’ negotiations with senior members of the Interim Government was a viable and attractive option and had advantages in that the negotiations could and did save valuable time, money, resources and had a positive impact on judicial economy. Investigating and prosecuting a senior person at the level of a minister or Prime Minister would have taken a lot of man-hours, with the Prosecutor flying in witnesses from Europe, North America and other parts of Africa, at enormous expense to the ICTR. Members of the Prosecution team would have spent many hours studying millions of pages of documents, interviewing hundreds of witnesses, searching for and identifying expert witnesses, and most traumatic, interviewing witnesses who are also victims, particularly rape victims. Defence counsels would have spent several months cross-examining prosecution witnesses and during the defence phase of the proceedings probably called many defence witnesses as well. Further, the Prosecutor would have spent time and resources investigating the background of the defence witnesses in preparation for cross-examination.
A guilty plea does not only eliminate some of the trial process identified above but as well provides an opportunity for the perpetrator to acknowledge, first, that the crime of genocide did occur in Rwanda in 1994, and second, that the accused was one of the perpetrators. Hopefully, these admissions and acknowledgement by the accused will assist in creating conditions for discussions within Rwanda and by the Rwandan community, of possible reconciliation between and within the different ethnic groups.
Jean Kambanda’s case is the first guilty plea negotiated by the Prosecution. Prime Minister Kambanda provided detailed and substantial information to the OTP. What became known within the OTP as the ‘Kambanda tapes’, comprise a series of interviews conducted over several months and provide background information and relevant leads that the investigators in the OTP later followed, with substantial success.
As of May 31, 2006, the Prosecutor has successfully negotiated five guilty pleas. In the process, substantial jurisprudence has been established. The negotiation process and the judgements have enabled the OTP to address the challenges of international criminal prosecutions in the context of United Nations Security Council Resolutions 1503(2003) and 1534(2004).
The paper examines the five cases and evaluates their impact on the judicial process before the ICTR. The paper further examines the relevance of aggravating circumstances and the impact of mitigating factors on the Tribunal’s sentencing practices.
The law applicable
The ICTR Statute has no specific provision regulating the conduct of guilty plea negotiations. However, pursuant to Article 15 of the ICTR Statute, the Prosecutor has authority to conduct plea negotiations within the context of his responsibility to investigate and prosecute persons responsible for serious violations of international humanitarian law in Rwanda.
Article14 of the ICTR Statute permits Judges of the ICTR to make rules for the efficient conduct of cases before it. Pursuant to Article 14 of the ICTR Statute, the Judges adopted the Rules of Procedures and Evidence (the Rule) regulating the conduct of guilty plea negotiations. Rule 62(B) of the Rules provides benchmarks that must be met when an accused decides to plead guilty to one or more counts in an indictment. Further, Rule 62 bis of the Rules regulates the conduct of a guilty plea hearing.
In determining sentence, a Trial Chamber has recourse to the general practice regarding sentencing in the courts of Rwanda. However, while Rwanda courts are permitted by law to impose a death sentence, the maximum sentence the Tribunal may impose on a convict is life imprisonment.
ICTR Guilty Plea Negotiations
There are five completed guilty pleas negotiated by the OTP with the accused and their respective lawyers. Currently there are other negotiations in progress. The first case the OTP successfully negotiated is Jean Kambanda. He was arrested by the Kenyan Government, on the basis of a formal request submitted to the Kenya Government by the Prosecutor on 9 July 1997 pursuant to Article 28 of the ICTR Statute. Later, on 16 October 1997, an indictment against Kambanda was submitted to a Judge of the Trial Chamber who confirmed it and issued a warrant of arrest against Kambanda and ordered his detention. On 1 May 1998, during his initial appearance before a Trial Chamber, Kambanda pleaded guilty to six counts contained in the indictment, namely: genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, complicity in genocide, crimes against humanity (murder and extermination).
After verifying the validity of the guilty plea, particularly in light of an agreement concluded between the Prosecutor, on the one hand, and the accused and his lawyer, on the other hand, an agreement signed by all the parties, the Chamber entered a plea of guilty against the accused on all counts in the indictment. During a status conference held immediately after the initial appearance, the date for the pre-sentencing hearing, provided for under Rule 100 of the Rules, was set for 31 August 1998. Later, at the request of the Prosecutor, this date was postponed to 3 September 1998. During that same status conference, the parties agreed to submit their respective briefs in advance of the above-mentioned pre-sentencing hearing. The submission date was set for 15 August 1998. The pre-sentencing hearing was held on 3 September 1998 and judgement was delivered on 4 September 1998.
Between July 1997 and August 1998, the OTP spent several hours de-briefing Kambanda. The information obtained formed the basis of the guilty plea agreement between the Prosecutor, on the one hand, and the accused and his lawyer, on the other. In the Plea Agreement, Kambanda stated, inter alia, that there was in Rwanda in 1994, a widespread and systematic attack against the Tutsi civilian population, the purpose of which was to exterminate the Tutsis; that as Prime Minister of the Interim Government of Rwanda from 8 April 1994 to 17 July 1994, he was head of the 20 member Council of Ministers and exercised de jure authority and control over the members of his government. The government determined and controlled national policy and had the administration and armed forces at its disposal. As Prime Minister, Kambanda informed the OTP that he also exercised de jure and de facto authority over senior civil servants and senior officers in the military.
In the course of further de-briefing by the OTP, Kambanda acknowledged that he chaired meetings of the Council of Ministers and cabinet, and participated in meetings of prefects where the course of massacres were actively followed, but as head of government he took no action to stop the massacres of the civilian population. Kambanda stated that he was involved in the decision of the government for visits by designated ministers to prefectures as part of the government’s security efforts and in order to call on the civilian population to be vigilant in detecting the enemy and its accomplices. Kambanda further acknowledged his participation in the dismissal of the prefect of Butare because the latter had opposed the massacres and the appointment of a new prefect to ensure the spread of massacre of Tutsi in Butare. In light of the admissions by Jean Kambanda, the Trial Chamber, on 1 May, 1998, accepted his guilty plea on all six counts.
At the sentencing hearing, the Trial Chamber considered submissions relating to mitigating factors by Defence Council. The central theme of the Defence submission was that the fact of pleading guilty in itself is evidence of remorse and therefore a mitigating factor. The Defence Counsel urged the Trial Chamber to place great weight on the fact that Kambanda expressed his intention to plead guilty immediately upon his arrest and transfer to the Tribunal on 18 July 1997.
In the Plea Agreement, Kambanda stated that he had resolved to plead guilty even before his arrest in Kenya and that his prime motivation for pleading guilty was the profound desire to tell the truth, as the truth was the only way to restoring national unity and reconciliation in Rwanda. Jean Kambanda condemned the massacres that occurred in Rwanda and considered his confession as a contribution towards the restoration of peace in Rwanda. The Defence Counsel urged the Trial Chamber to take into account, and in favour of Kambanda, the fact that his guilty plea had occasioned judicial economy, saved victims the trauma and emotions of trial and enhanced the administration of justice.
The Prosecutor confirmed that Jean Kambanda extended substantial cooperation and invaluable information to the OTP. The Prosecutor requested the Trial Chamber to regard as a significant mitigating factor, not only the substantial cooperation so far extended, but also future cooperation when Jean Kambanda will testify for the Prosecution in the trials of other accused. The Prosecutor further informed the Trial Chamber that Kambanda’s cooperation had been recognised by the significant protection measures that the Prosecutor, in collaboration with the Registry, had put in place to alleviate any concerns that Kambanda may have about the security of his family. However, the Plea Agreement signed by the parties or the subsequent pre-sentencing briefs filed by the Prosecutor and the Defence Counsel did not recommend a specific sentence or a range of sentence for the consideration of the Trial Chamber. The parties agreed that in matters of sentencing, the Trial Chamber has the discretion, they nonetheless urged the Trial Chamber to interpret Jean Kambanda’s guilty plea as evidence of his remorse, repentance and acceptance of responsibility for his actions.
In sentencing Jean Kambanda, the Trial Chamber noted that remorse is not the only reasonable inference that can be drawn from a guilty plea; nevertheless, the Trial Chamber accepted that most national jurisdictions consider admission of guilt as matters properly to be considered in mitigation of punishment. The Trial Chamber opined that a finding of mitigating circumstances relates to assessment of sentence and in no way derogates from the gravity of the crime. Further, the Trial Chamber stated that a sentence must reflect the predominant standard of proportionality between the gravity of the offence and the degree of responsibility of the offender. The Trial Chamber opined that just sentences contribute to respect for the law and the maintenance of a just, peaceful and safe society.
The Trial Chamber, having examined all the submissions presented by the Parties pertaining to the determination of sentence, and on the basis of the totality of the Defence and Prosecution’s submission, concluded that the aggravating circumstances surrounding the crimes committed by Jean Kambanda negate the mitigating circumstances, especially since Jean Kambanda occupied a high ministerial post, at the time he committed the said crimes. The Trial Chamber sentenced Jean Kambanda to life imprisonment. Kambanda’s appeal against conviction and sentence was dismissed by the ICTR Appeals Chamber. As at the time of writing, Kambanda is now serving the life sentence at Bamako Prison in Mali. He is angry and believes he was tricked to plead guilty. He has since refused to cooperate with the Prosecutor.
A second guilty plea is that of Omar Serushago, an interahamwe leader in Gisengi, who voluntarily surrendered himself to the Government of the Cote d’Ivore in Abidjan. On 24 September 1998, an indictment against Omar Serushago was filed by the Prosecutor and on 28 September 1998 the indictment was confirmed by a Judge of a Trial Chamber. On 14 December 1998, during his initial appearance before the Trial Chamber, the accused pleaded guilty to four of the five counts, in the amended indictment. The counts in the indictment were genocide, crime against humanity (murder, extermination and torture) and rape as a crime against humanity. Following a plea of not guilty by the accused to count 5 of the indictment, a crime against humanity (rape), the Prosecutor was authorized by the Trial Chamber, on the basis of Rules 51 and 73 of the Rules, to withdraw the said count.
After verifying the validity of his guilty plea, particularly in light of an agreement concluded between the Prosecutor, on the one hand, and the accused and his lawyer, on the other hand, an agreement which was signed by all the parties, the Trial Chamber entered a plea of guilty against the accused on counts one to four in the indictment. Furthermore, it was decided, as provided for in Rule 100(A) of the Rules, that any relevant information that may assist the Trial Chamber in determining an appropriate sentence which the Prosecutor and Defence may wish to submit should be filed by the latest Friday 22 January 1999. In accordance with Rule 62(v) of the Rules, the Registrar was instructed to set the date of the pre-sentencing hearing for Friday 29 January 1999, on which day it was held.
During the de-briefing of Omar Serushago by the OTP, the accused described the modus operandi of the interahamwe and its close collaboration with the government, political and military leadership in the Interim Government in planning, organizing and executing the crimes of genocide and crimes against humanity. Serushago acknowledged that there was in Rwanda between 7 April to 17 July 1994 a widespread or systematic attack against a civilian population, notably on civilian Tutsi and moderate Hutu, on political, ethnic or racial grounds, and which resulted in the death of thousands of persons throughout Rwanda. Omar Serushago disclosed that on the night of 6 to 7 April 1994, in Gisenyi prefecture, the military commander, Lt. Col. Anatole Nsengiyumva (now indicted in the Military I case) ordered a number of political leaders, local authorities and militiamen to assemble at the Gisenyi military camp. During the assembly, Nsengiyumva ordered the participants to kill all the RPF ‘accomplices’ and all the Tutsi. Nsengiyumva ordered Lt. Bizumurenyi (believed to be dead) to distribute weapons and grenades to the militiamen for the purpose of killing Tutsi. The orders issued by Nsengiyumva were followed and many Tutsi civilians were killed. Omar Serushago provided details of, inter alia, his personal participation, together with other members of the interahamwe and militiamen in exterminating the Tutsi civilian population. Omar Serushago admitted that several victims were executed on his orders while he was manning a roadblock erected near the border between Rwanda and the Democratic Republic of the Congo.
At the sentencing phase of the proceedings, the Prosecutor submitted, and the Defence concurred, that the crimes with which the accused is charged are, irrefutably, of extreme gravity, and described genocide as “the crime of crimes”. Omar Serushago personally murdered four Tutsi civilians, while thirty-three other Tutsis were killed by the militiamen under his authority and on his direct orders. The Prosecutor submitted and the Trial Chamber concurred that, according to Serushago’s own admission, he was the de facto leader of the interahamwe in the Gisenyi prefecture, he gave orders and the interahamwe acted on his orders.
Omar Serushago’s extensive cooperation with the Prosecutor was noted. Even before his formal arrest, Serushago’s cooperation enabled the Prosecutor to organize, and above all, to successfully carry out the “NAKI” (Nairobi-Kigali) operation which resulted in the arrest of several high ranking persons suspected of being responsible for the crimes committed in Rwanda in 1994. Furthermore, Omar Serushago agreed to testify as a Prosecution witness in other trials before the ICTR.
The Defence urged the Trial Chamber to consider, as mitigating factors, the fact that Serushago, during the period of the commission of the crimes with which he is charged, helped several Tutsi, including four Tutsi sisters whom he reportedly helped to cross the border between Rwanda and the Democratic Republic of the Congo. Serushago also hid a moderate Hutu and allowed many people who feared for their lives to cross this same border. The Trial Chamber accepted the Defence submission as the Prosecutor did not contradict or adduce evidence to refute it.
During the pre-sentencing hearing, Omar Serushago expressed his remorse at length and openly. He asked for forgiveness from the victims of his crimes and the entire people of Rwanda. In addition to this act of contrition, Serushago appealed for national reconciliation in Rwanda.
In passing the sentence, the Trial Chamber took into account that the accused surrendered voluntarily, confessed, pleaded guilty, showed sincere and genuine remorse or contrition and stated his willingness to provide evidence against other individuals for crimes falling within the jurisdiction of the Tribunal, if this manner of proceeding is beneficial to the administration of justice, fosters the cooperation of future witnesses, and is consistent with the requirements of fair trial. Having reviewed all the circumstances of the case, the Trial Chamber opined that exceptional circumstances surrounding the crimes committed by Omar Serushago may afford him clemency. The Trial Chamber sentenced Serushago to a single term of fifteen (15) years of imprisonment for all the crimes of which he was convicted. Omar Serushago has since his conviction and sentence, testified, and continues to testify, as a prosecution witness, against other accused persons.
Georges Ruggiu is the third accused to plead guilty. He was a social worker who worked for the Belgian Social Security Administration in Brussels. He is a citizen of Belgium and Italy. On a voluntary basis, Ruggiu assisted people in need. He became interested in Rwanda and the Rwandan people in 1990 when he met Rwandan students, who were his neighbours in Belgium. His interest in Rwandan politics developed progressively, and from the middle of 1992, he established further contacts with Rwandan nationals living in Belgium, including students, political figures, officers, diplomats and government officials.
Georges Ruggiu was one of the founders and an active member of the Groupe de reflexion Rwanda-belge which published several articles about the Arusha Accord and the Rwandan political situation. Ruggiu progressively became one of the key players in the Rwandan community in Belgium and participated in major political debates. In early 1993, Ruggiu became radically opposed to the RPF and more supportive of the political regime in Rwanda. In May 1993, Ruggiu met President Habyarimana several times on personal invitation. At one meeting, the President solicited his opinion about means of improving the image of Rwanda and his regime. In November 1993, Ruggiu left Belgium to settle in Rwanda, start a family and work for the National Revolutionary Movement for Development (MRND), President Habyarimana’s political party. His employment at the Radio Television Libre des Milles Collines (RTLM) was facilitated by President Habyarimana who used his influence with Ferdinand Nahimana (since tried and convicted. At the time of writing, his appeal is pending before ICTR Appeals Chamber), the Director of RTLM, the government radio station. While in Rwanda, Ruggiu worked as a journalist and broadcaster for RTLM radio from 6 January 1994 to 14 July 1994.
On 9 July 1997, the Prosecutor addressed a formal request to the authorities of the Republic of Kenya pursuant to Rule 40 of the Rules for the arrest and provisional custody of Ruggiu. By Order of 16 July 1997, Judge Laity Kama, pursuant to a request made by the Prosecutor under Rule 40 bis of the Rules ordered the transfer and provisional detention of the accused at the United Nations Detention Facility (UNDF) in Arusha. On 23 July 1997, officers of the Kenya Police Criminal Investigation Department arrested the accused during the NAKI operation in Mombasa. He was immediately transferred to the UNDF on the basis of the Order issued by Judge Kama on 16 July 1997. The indictment against the accused of 30 September 1997 was confirmed by Judge Lennart Aspegren on 9 October 1997. On 24 October 1997, at his initial appearance before a Trial Chamber, the accused pleaded not guilty to the two counts against him, namely direct and public incitement to commit genocide and crimes against humanity (persecution).
Soon after his not guilty plea of 24 October 1997, the accused indicated to the Prosecutor his willingness to consider changing his not guilty plea to that of guilty. However, he was concerned about threats to his security within the UNDF coming from other accused persons. Following complaints from the accused of several incidents at the UNDF, the Prosecutor, by request dated 5 June 1998, sought orders under Rule 64 for the modification of the conditions of detention of the accused. On 12 June 1998, Judge Kama, then President of the Tribunal, authorised the Registrar to take appropriate measures to ensure the separation of the accused from other detainees at the UNDF. On 28 June 1999, the accused filed an application requesting further modification of the conditions of his detention, on the ground, inter alia, that threats to his personal security had been further aggravated by several new developments. On 14 July 1999, Judge Erik Mose, Acting president of the Tribunal, authorized the transfer of the accused to a separate detention facility in Arusha. On 11 April 2000, the Defence applied for leave to change the plea to guilty and filed a Plea Agreement, with the Prosecutor, in support of the Motion.
On 15 May 2000, having been authorized to change his plea, the accused pleaded guilty to the two counts set forth in the indictment. The accused confirmed that he had signed a plea agreement which was also signed by his Counsel and the Prosecutor, in which he voluntarily and freely admitted having committed all the acts to which he pleaded guilty, as charged by the Prosecutor.
In the Plea Agreement, the accused admitted, inter alia, that he was a journalist broadcaster for RTLM, and that his radio broadcasts were directed towards rallying the population against the “enemy”, the RPF and all persons considered to be allies of the RPF, regardless of their ethnic background. The Accused admitted that RTLM broadcasts generally referred to those considered being RPF allies as “RPF accomplices”. The accused explained that the meaning of this term gradually expanded to include the Tutsi civilian population and Hutu politicians opposed to the Interim Government.
In the Plea Agreement the accused acknowledged that the widespread use of the term Inyenzi conferred the de facto meaning of “persons to be killed”. Within the context of the civil war in 1994, the term Inyenzi became synonymous with the term Tutsi. The Accused further acknowledged that the word Inyenzi as used in a socio-political context, came to designate the Tutsis “as persons to be killed.” The Accused further admitted that during one broadcast he said that the 1959 revolution ought to be completed in order to preserve its achievements.
In the Plea Agreement the accused admitted that as part of the move to appeal for, or encourage, “civil defence”, he made a public broadcast to the population on several occasions to “go to work”. The phrase “go to work” is a literal translation of the Rwandan expression that Phocas Habimana (believed to be dead), Manager of the RTLM expressly instructed the accused to use during his broadcasts. With time, this expression came to clearly signify “go fight against members of the RPF and their accomplices.” With the passage of time, the expression came to mean, “go kill the Tutsi and Hutu political opponents of the Interim Government.” The accused admitted that he did broadcast discriminatory and threatening remarks over the radio against the political stance adopted by the Belgian government in Rwanda and the behaviour of UNAMIR, especially the Belgian contingent. The accused admitted that he waged a media war against the Belgians over the RTLM to attack the international policy adopted by the Belgian government towards Rwanda.
During the sentencing phase of the trial, the Chamber examined the role of the accused in the commission of the offences. The Trial Chamber noted that the media, particularly RTLM Radio, was a key tool used by extremists within the political parties to mobilize and incite the population to commit the massacres. RTLM had a large audience in Rwanda and became an effective propaganda instrument. The accused, who was a journalist and broadcaster with RTLM, played a crucial role in the incitement of ethnic hatred and violence, which RTLM vigorously pursued. In his broadcasts at the RTLM, the accused encouraged setting up roadblocks and congratulated perpetrators of massacres of Tutsis at these roadblocks. In his broadcasts, the accused continued to call upon the population, particularly the military and the interahamwe to finish off the 1959 revolution. The Trial Chamber concluded that Ruggiu’s broadcasts incited massacres of the Tutsis population. The Trial Chamber further noted that following a tour of Kigali city after 12 April 1994, organized by FAR, the accused became aware that the broadcasts from the RTLM radio station were contributing to the massacres perpetrated against Tutsis. Yet the accused made a deliberate choice to remain in Rwanda and to continue his employment with the RTLM. The Trial Chamber concluded that the accused’s radio programmes incited hatred against Tutsis, Hutu political opponents and Belgians.
The Trial Chamber considered as a mitigating factor, the fact that Ruggiu pleaded guilty because such a plea facilitated the administration of justice by expediting proceedings and saving resources. The accused’s guilty plea, the Trial Chamber observed, spared the Tribunal a lengthy investigation and trial, thus economising time, effort and resources. The Trial Chamber further noted that accused’s guilty plea reflected his genuine awareness of his guilt, especially since he changed his not guilty plea to guilty after much reflection. The Trial Chamber noted that the accused revealed a desire to assume responsibility for his acts. The accused was fully aware of the real and direct threat to his personal safety that a guilty plea would cause. As a result of the accused’s change of plea, the Trial Chamber observed, he had to be separated from the other detainees.
The Trial Chamber opined that although not all legal systems recognise that a guilty plea constitutes a mitigating factor or may be considered advantageous to the accused, in the instant case, there is need to note the striking significance of the plea. The accused’s acknowledgement of his mistakes and crimes is a healthy application of reason and sentiment, which illustrates the beginning of repentance. The Trial Chamber cited with approval, the ICTY judgement in Erdemovic in which the Judges stated that “an acknowledgement of guilt constitutes proof of the honesty of the perpetrator.”
Another mitigating factor considered by the Trial Chamber is accused’s cooperation with the Prosecutor. The Trial Chamber noted that despite Ruggiu’s initial decision to plead not guilty, the accused informed the Prosecutor of his desire to cooperate in search for the truth. In keeping with his desire, the accused instructed his counsel making it known that he was not denying that genocide had been committed against the Tutsi community in Rwanda. Furthermore, the accused was the first ICTR detainee to accept to submit to questioning under a rogatory commission. The Trial Chamber duly noted the substantial cooperation between the accused and the OTP and acknowledged that such cooperation shall continue after sentencing.
The other mitigating factors considered by the Trial Chamber was accused’s absence of criminal record, good character, regret and remorse, assistance to victims, position within RTLM and in political life, and no personal participation in the killings.
The Defence did not propose a sentence or a sentence range. However, the Prosecutor recommended a single concurrent sentence of twenty years for each of the counts. The Trial Chamber, having noted the closing briefs earlier submitted by the parties and having heard the closing statements of the Prosecutor and Defence Counsel, sentenced the accused to twelve (12) years imprisonment for each of the two counts and ordered that the accused serve his two sentences concurrently. Under Rule 101(D) of the Rules, the Trial Chamber is required to give credit to the convicted person for the period, if any, during which he was detained in custody pending his surrender to the ICTR, or pending trial or appeal. In the instant case, the accused was arrested on 23 July 1997. The accused therefore obtained a reduction in sentence imposed by the Trial Chamber.
The fourth accused to plead guilty is Vincent Rutaganira. He was born in 1944 in Mubuga, Gishyita commune, Kibuye prefecture, Rwanda. He is married and has ten children. Rutaganira was elected Conseiller for the Mubuga Secteur in 1985, and acted as Conseiller until 1994. Rutaganira thus held that post at the time of the events that underlie the crimes charged against him.
On 22 November 1995, the Prosecutor submitted an Indictment to a Judge of the Trial Chamber for confirmation. On 28 November, Judge Pillay confirmed the indictment. On 12 December 1995 an arrest warrant and transfer request were sent to the Minister of Justice of Zaire (now Democratic Republic of Congo) where Rutaganira was presumed to be residing. On 6 May 1996, the Chamber granted the Prosecutor’s request for leave to amend the Indictment. The Prosecutor charged the accused with seven counts, namely: Conspiracy to commit genocide, Genocide, Crimes against humanity (murder and extermination) and war crimes (violations of Common Article 3 of the Geneva Conventions and its Additional Protocol II). On 18 February 2002, a new warrant for the arrest of the accused was sent to all United Nations Member States. On 4 March 2002, the accused voluntarily surrendered to the ICTR and on the same day transferred to the UNDF.
On 26 March 2002, at his initial appearance, the accused pleaded not guilty to all seven counts in the indictment. At the status conference held on 8 December 2004, the Prosecutor and the accused informed the Chamber that the parties had concluded a Plea Agreement on 7 December 2004. At a hearing held later on the same day, the Prosecutor requested the Trial Chamber to accept the guilty plea, find the accused guilty on one count of extermination as a crime against humanity and also to dismiss all the remaining counts for lack of evidence and acquit the accused of the said counts. On his part, the accused pleaded guilty to extermination as a crime against humanity and not guilty to all the remaining counts. The Trial Chamber found the accused’s guilty plea to be sincere and valid and, taking formal note of the Prosecutor’s request, directed the Registrar to set a date for a pre-sentencing hearing. The Trial Chamber also granted the Defence’s request to call three witnesses to testify on the accused’s good character.
At the hearing of 17 January 2005, the Prosecutor made an application to sever the accused from the other accused jointly charged in the Indictment of 6 May 1996, and renewed his request that the Trial Chamber dismiss and acquit the accused on all counts except the count on extermination as a crime against humanity. On the other hand, the Defence submitted that the Trial Chamber make correction of certain words in the Plea Agreement so as to maintain the word omissions whenever it appears and to delete the word act. The Defence forcefully submitted that the accused is pleading guilty to complicity by omission in a crime against humanity (extermination), in that the accused aided and abetted the perpetrators of the crime by failing to stop them from committing the crimes.
The Trial Chamber ordered the severance of Vincent Rutaganira from the other accused included in the 6 May 1996 Indictment and ordered the Registry to issue a new case number accordingly. The Trial Chamber ordered the disclosure of the Plea Agreement in closed session, except Parts V and VI, for security reasons, pursuant to Rule 62 bis of the Rules. The Defence then read out Parts V and VI of the Plea Agreement in open court. The Trial Chamber also admitted in evidence the written statements of the three witnesses for the Defence, and granted the Defence request that the medical doctor of the UNDF examine the accused and thereafter issues a confidential medical certificate concerning the accused.
Upon reviewing the Plea Agreement, the Trial Chamber noted that the accused, in his capacity as a Conseiller for Mubuga secteur, Gishyita commune, Kibuye prefecture, was responsible for economic, social and cultural development in the region. As an important figure in the Mubuga secteur, Rutaganira was, by virtue of the duties conferred on him, acted as a channel between the local population and the local political structure. The Trial Chamber concluded that the accused knew that during the disturbances that occurred earlier in Kibuye prefecture, Tutsi civilians used to seek refuge in churches, and especially between 8 and 15 April 1994, thousands of Tutsi civilians took refuge in the Mubuga Church. Moreover, the accused admitted that between 14 April and about 17 April 1994, the Tutsi that congregated in the said church were attacked and that the attacks resulted in thousands of deaths and numerous injuries to the men, women and children within the church. Before the attacks, the accused saw the attackers assembling; the said attackers included armed Hutu civilians, members of the communal police and national gendarmerie. In spite of his position and knowledge of the above-mentioned facts, the Trial Chamber held, the accused took no measures to protect the Tutsi.
The Trial Chamber further held that the attacks on Mubuga church between 14 and 17 April 1994 resulted in the massacre of a predominantly Tutsi civilian population. The Trial Chamber further held that the attacks were part of a widespread and systematic attacked that occurred in Kibuye prefecture during the April 1994 events in Rwanda which resulted in massive killings, and many injuries; the massacre was directed against members of the Tutsi civilian population on ethnic ground and further that the massacre was part of a widespread and systematic attack. The Trial Chamber found the accused guilty of complicity in a crime against humanity (extermination) for aiding and abetting its commission by omission and dismissed all the counts to which Rutaganira pleaded not guilty.
In sentencing, the Trial Chamber opined that it had examined the goals of sentencing in the light of its mandate and considered punishment, deterrence and rehabilitation to be the most important in that regards. In imposing the sentence, the Trial Chamber stated that it had taken into account the gravity of the offence, on the one hand, and the mitigating circumstances in favour of the accused, on the other hand. The Trial Chamber stated that it was persuaded of the gravity of the crime in respect of which the accused was an accomplice by omission and stressed that the accused did not actively participate in the massacre at the Mubuga church on 14 and 17 April 1994, but aided and abetted its commission by omission.
The Trial Chamber further stated that among the factors it considered in imposing sentence were the accused’s individual and family circumstances, his advanced age, ill health, his personality and behaviour in general and, in particular, the fact that he had no previous criminal record, and his good behaviour whilst in custody. All these factors, the Trial Chamber concluded, augur in favour of accused’s chances of rehabilitation. The Trial Chamber found in favour of the accused the following mitigating circumstances: his voluntary surrender, his plea of guilty, assistance given to some victims in Mubuga secteur during the events of April 1994, his expression of remorse, absence of active participation in the killings and, lastly restraint. The Trial Chamber sentenced the accused to six (6) years imprisonment with credit for pre-trial time served at the UNDF since his arrest on 4 March 2002.
The last person, so far, to plead guilty is Paul Bisengimana. His is a former bourgmestre (mayor) of Gikoro commune in Kigali Rural prefecture. He is married and is the father of ten children. He had seven children with his first wife who died in 1991. He later married and had two children; and adopted the child of his second wife. The accused was arrested on 4 December 2001 in Mali. On 11 March 2002, the accused was transferred to the UNDF in Arusha. On 18 March 2002, the accused made his initial appearance and pleaded not guilty to all counts in the indictment. However, on 19 October 2005, the Prosecutor and the Defence filed a joint motion for consideration of a guilty plea agreement. On 17 November 2005, during his further appearance, the accused pleaded guilty to murder and extermination as crimes against humanity. The accused admitted his responsibility under Article 6(1) of the ICTR Statute. However, the Trial Chamber dismissed the joint motion for consideration of a guilty plea agreement on the ground that the plea was equivocal. On behalf of the accused, the Trial Chamber entered a plea of not guilty regarding the counts of murder and extermination as crimes against humanity and duly entered the plea of not guilty for all the other counts.
On 1 December 2005 the Prosecutor filed a new indictment and on 7 December 2005, during his second further appearance, the accused pleaded guilty to the counts of murder and extermination as crimes against humanity and admitted responsibility under Article 6(1) of the ICTR Statute. The Trial Chamber found the accused guilty of having aided and abetted the commission of murder and extermination as charged in counts 3 and 4 of the indictment. The Trial Chamber granted the Prosecutor’s motion to withdraw, and thereafter dismissed, the remaining counts but denied the Prosecutor’s motion for acquittal on these counts because the Prosecutor failed to justify why the accused must be acquitted on the said counts. A pre-sentencing hearing was held on 19 January 2006.
In his Plea Agreement, the accused acknowledged that as bourgemestre, he represented executive power at the communal level and had administrative authority over the entire commune and was responsible for ensuring peace, public order and the safety of persons and property, and for the implementation of local laws and regulations, as well as government policy. The accused further admitted that he had a duty to protect the population, prevent or punish the illegal acts of perpetrators of attack against persons or property and that he was responsible for informing the central government of any situation in Gikoro commune. By his own account, accused’s position as bourgmestre meant that he exercised both de jure and de facto authority over all public servants and other holders of public office within Gikoro commune, including, but not limited to, conseillers de secetur. The conseillers de secteur represented executive power at the secteur level and were responsible for maintaining law and order in their respective secteur. Further, the accused acknowledged his guilt for having aided and abetted the commission of extermination as a crime against humanity.
The accused acknowledged that he had a duty to protect the population, prevent or punish the illegal acts of the perpetrators of the attacks at Musha church and Ruhunga Complex but he failed to do so. The accused admitted that he had the means to oppose the killings of Tutsi civilians in Gikoro commune, but that he remained indifferent to the attack, With respect to the Mushi Church massacres, the accused acknowledged that his presence during the attack would have had an encouraging effect on the perpetrators and given them the impression that he endorsed the killing. The accused also acknowledged his guilt for having aided and abetted the commission of murder as a crime against humanity.
In sentencing the accused, the Trial Chamber first considered aggravating circumstances. Thereafter mitigating factors were evaluated by the Trial Chamber and the accused was sentenced.
In evaluating the aggravating factors, the Trial Chamber noted that the gravity and heinous nature of extermination and murder as crimes against humanity and their absolute prohibition render their commission inherently aggravating. The magnitude of the crimes committed in Rwanda in 1994, resulting in the killing of several thousand civilians within 100 days, shock the collective conscience of the world and constitute and aggravating factor. The Trial Chamber opined that accused’s actions and omissions directly resulted in the massacre of many Tutsi civilians. The Trial Chamber further opined that the accused was under a duty to uphold a higher degree of morality than is usually demanded because his education enabled him to know and appreciate the dignity and value of human life. The accused was enlightened enough to be aware of the need for, and value of, a peaceful coexistence between communities. This factor, according to the Trial Chamber, constitutes aggravating circumstances.
As regards mitigating circumstances, the Prosecutor submitted that there were compelling mitigating circumstances while simultaneously conceding that mitigating circumstances relate to assessment of sentence only and in no way derogates from the gravity of the crime. Such a finding, the Prosecutor submitted, mitigates the punishment, not the crime. The Prosecutor further submitted that in most jurisdictions, including Rwanda, a guilty plea is considered as a mitigating factor. Accused’s guilty plea, the Prosecutor submitted, will assist in the administration of justice and in the process of national reconciliation in Rwanda; and will further save the victims from the trauma and ordeal of coming to testify before the Tribunal. The Prosecutor argued that the accused has shown some degree of remorse for the crimes he is charged with, acknowledged full responsibility for his actions and omissions, and is convinced that it is only the full truth that can restore national unity and foster reconciliation in Rwanda. The accused, the Prosecutor further argued, had indicated his deep and genuine desire to tell the whole truth and expressed his profound and heartfelt apologies to all the direct and indirect victims of the offences he is charged with. Furthermore, the Prosecutor submitted that the guilty plea was timely and saved the Tribunal considerable expenses in light of the Tribunal’s completion strategy, and to that extent, the accused deserves credit.
The Defence submitted that the Tribunal’s jurisprudence recognizes that the guilty plea of an accused constitutes a mitigating factor, provided it is accompanied by publicly expressed sincere regrets or remorse. According to the Defence, the accused has already expressed his deepest apologies to the victims of the Rwandan genocide in the Plea Agreement. The accused also sincerely regretted not having had the courage to personally oppose the massacres and having supported them by his presence. The Defence further submitted that the accused hopes that his expression of regret will be heard by Rwanda and the international community, and will help contribute to the process of peace and reconciliation in Rwanda. The Defence particularly stressed that the accused acknowledged his presence gave the impression that he approved of the massacre at Musha church, and encouraged Rusanganwa’s murder. Further, the accused admitted that he took no steps to protect refugees at the Ruhanga Protestant church and school, despite his position as bourgmestre and his knowledge of the earlier attack.
The Defence submitted that the sentiments of the accused must be evaluated by the Trial Chamber in the light of his statements and conduct, and that a guilty plea should give rise to a reduction in the sentence the accused would have received had he not pleaded guilty. Finally, the Defence submitted that whilst a guilty plea is always important in establishing the truth, it can only assist if it is entered before the commencement of trial, when it can save valuable time and resources. In the present case, the accused decided to plead guilty before the commencement of his trial and even before a date had been set by the Registry for the hearing of his case. The accused, argued the Defence, has thus assisted the Tribunal and the international community in making substantial savings in terms of time, human and financial resources.
The Defence also argued that being married and having children have been deemed to be mitigating circumstances, and that the social and family background of an accused also has been taken into account. The Defence submitted that the accused is married and has ten children, and that the youngest two children are four and six years old, live in France with their mother, the accused’s wife, and had recently obtained a refugee status which allows his wife to resume work as a nurse. This personal and family situation offers real hope for the accused’s rehabilitation, the Defence submitted.
The Trial Chamber evaluated and assessed the Prosecution and Defence submission on aggravating and mitigating circumstances in determining the sentence the accused shall serve. The Trial Chamber held that the gravity of the crimes and the official position of the accused, as a general principle, constitute a limited mitigation. However, in the circumstances of this case, the accused’s official position as bourgmestre is an overwhelmingly aggravating factor. The Trial Chamber noted the reasoning in the Semanza Judgement that a higher sentence is likely to be imposed on “one who orders rather than merely aids and abets extermination.” However, the Trial Chamber recalled that in the instant case, it did not accept the accused’s form of participation as constituting a mitigating factor. The Trial Chamber reasoned that the accused had a duty to act to protect the population and that he knew that his presence when the attack was launched would encourage the attackers by giving them the impression that he approved of their criminal acts. The Trial Chamber further stated that the accused’s presence was a very serious form of participation even if it is not alleged or established that he was a co-perpetrator or that he directly committed a criminal act during the massacre.
The Trial Chamber noted that the fact that the accused is married and has children may, in the circumstances, be taken to constitute a mitigating factor. The Trial Chamber concurred with the Defence that social, professional and family background of the accused has also been taken into account. The Trial Chamber opined that based on the Defence submission and on the accused’s statement during his further appearance before the Trial Chamber, the personal and family situation of the accused, a married man with children, led the Trial Chamber to believe in his chances of rehabilitation, and the Trial Chamber therefore held that this situation constitutes mitigating factor. The Trial Chamber further observed that the accused was an educated person with high level of responsibility in Gikoro commune at the time of the events, was a respected bourgmestre, and brought prosperity and development to Gikoro commune throughout his term of office and that he worked to improve the life of its population. The Trial Chamber recalled that it admitted on 3 February 2006 the Certificate of Good Conduct signed by the Commander of the UNDF. This certificate indicates that between the times the accused was transferred to the UNDF on 11 March 2002 until the date the certificate was issued (22 December 2005), the accused was never the subject of any disciplinary action and conducted himself well at all times. The Trial Chamber considered the fact that the accused had been bourgmestre of Gikoro commune from May 1981 until 19 April 1994. The Trial Chamber held that on a balance of probabilities, the accused had no previous criminal record and that this fact constitutes a mitigating factor.
The Trial Chamber considered accused’s age and his alleged ill-heath together. The Trial Chamber noted the content of the confidential Medical Report drafted by Dr. Epee, the United Nations’ Doctor at the ICTR which was admitted into evidence during the Pre-Sentencing hearing on 19 January 2006 and which indicated that the accused is being treated for several illnesses. The Trial Chamber found no merit in the Defence submission that the accused’ alleged fragile health at the time of the events in 1994 should be considered in the determination of a fair sentence. Even if it was established that the accused did suffer from liver condition at the time of the events, a point the Defence failed to establish, there is no evidence that this would have had an impact on his participation in the massacre. However, the Trial Chamber considered that the combination of the accused’s age and his current state of health as established by the Medical Report constitutes a mitigating factor.
In sentencing, the Trial Chamber noted that the Plea Agreement signed by the Parties recommended that the accused be sentenced to between 12 and 14 years imprisonment, with credit given for the time served. The Parties indicated that they understand that their sentencing recommendation do not bind the Trial Chamber. On examining the sentencing practice of the ICTR and ICTY, the Trial Chamber noted that principal perpetrators convicted of crimes against humanity such as murder and extermination have received sentences ranging from ten years’ to life imprisonment. Persons convicted of secondary forms of participation have generally received lower sentences. The sentence should reflect the totality of the criminal conduct of the accused. The Trial Chamber reiterated that an acknowledgement of guilt may constitute proof of the honesty of the perpetrator and that some form of consideration should be given to those who have confessed their crimes in order to encourage others to come forward. Moreover, the Trial Chamber is of the view that guilty plea of the accused may contribute to the process of national reconciliation in Rwanda. However, the Trial Chamber is of the view that considering the official position of the accused and the number of persons killed – more than a thousand – in his presence at Musha Church and many others with his knowledge at Ruhaga Complex, a higher sentence than the range proposed by the Parties is justified for the single count of extermination. The Trial Chamber sentenced the accused to 15 years imprisonment with credit for time served since the start of his detention on 4 December 2002 to the date of judgement.
An assessment of the jurisprudence
No two cases are the same, notwithstanding the many similarities they may have in common. The emerging ICTR jurisprudence on guilty plea underscores these differences. Of the five accused who pleaded guilty, one was sentenced to life imprisonment (Kambanda), two convicts to fifteen years (Serushago and Bisengimana), one convict to twelve years (Ruggiu) and another one to six years (Rutaganira).
In each case, the Trial Chamber first considered whether there are aggravating circumstances and evaluated the extent to which it should impact on sentencing. Thereafter, the Trial Chamber evaluated the mitigating factors and compared and contrasted the two factors prior to sentencing.
The Kambanda Trial Chamber commenced its deliberation by noting that remorse is not the only reasonable inference of a guilty plea notwithstanding that most national jurisdictions acknowledge guilty plea as a mitigating factor. To that extend, the fact that an accused pleads guilty does not necessarily mean that the guilty plea in itself constitutes a mitigating factor. The circumstances surrounding each guilty plea are considered, on a case-by-case basis, by a Trial Chamber in determining whether a given guilty plea should be considered as constituting a mitigating factor.
The Kambanda Trial Chamber stated that mitigating factors are relevant in the assessment of sentence but do not reduce the gravity of the crime, especially if the crime is committed by a senior official. The status, official or leadership position of an accused at the time the crime was committed, the Trial Chamber opined, may constitute an aggravating factor, for the purposes of sentencing. Aggravating and mitigating factors are considered by a Trial Chamber for the purposes of sentencing.
Because of the status of Jean Kambanda, as Prime Minister, having been the most senior official in Rwanda in 1994, and the fact that genocide is a grave offence and is considered the crime of crimes, the Trial Chamber imposed life imprisonment. These two factors, the seniority of Kambanda and the gravity of the offence, probably influenced the Trial Chamber in passing a life imprisonment, notwithstanding the fact that a guilty plea constitutes a mitigating factor.
The Riggiu Trial Chamber endorsed the Kambanda judgement when it observed that not all legal systems recognise that a guilty plea constitutes a mitigating factor or may be considered advantageous to the accused. To that extent, a Trial Chamber has the discretion to determine, on a case-by-case basis, whether a given guilty plea constitutes a mitigating factor. The Riggiu Trial Chamber further observed that an acknowledgement of guilt constitutes proof of honesty of the perpetrator. However, the Ruggiu Trial Chamber did not expressly state whether an honest acknowledgement of guilt by the perpetrator constituted a mitigating factor. Presumably a Trial Chamber has first to determine whether the acknowledgement of guilt by the perpetrator is ‘honest’. If the acknowledgement of guilt is not honest, it would not probably constitute a mitigating factor. However, the Trial Chamber did not articulate the criteria for determining the ‘honesty’ of the accused.
Georges Ruggiu pleaded guilty to two counts of direct and public incitement to commit genocide and for persecution as crimes against humanity. He was sentenced to twelve years imprisonment. Did Ruggiu’s guilty plea and the ‘honest’ acknowledgement of his guilt constitute a mitigating factor? If so, could this provide an explanation of his relatively minor twelve year sentence?
The Bisengimana Trial Chamber considered, as aggravating factors, the magnitude of the crimes committed by the accused, the direct participation of the accused and the level of education of the accused. The Bisengimana Trial Chamber, relying on Semamza, observed that a higher sentence shall be imposed on an accused who orders the commission of a crime than one who aids and abets. While there were no direct evidence that the accused, unlike Serushago, personally killed any persons, the Trial Chamber concluded that the actions of the accused in aiding and abetting extermination as a crimes against humanity was a result of direct participation. This is perhaps one reason why despite the Prosecutor’s unprecedented submission in favour of the accused that there are “compelling mitigating circumstances” and jointly with the Defence recommended that accused be sentenced to between ten and twelve years, the Trial Chamber decided to sentence Bisengimana to fifteen years imprisonment.
Based on the discussion of aggravating factors by the different Trial Chambers, it is submitted that the ICTR jurisprudence does not clearly define aggravating circumstances. The demeanour of the accused and the honesty of acknowledgement of guilt may at times assist the Trial Chamber in determining whether those facts may constitute aggravating circumstances. However, these are isolated propositions.
Unlike the relatively vague definition of aggravating factors, the Trial Chambers have provided more details on what acts may constitute mitigating factors. The Kambanda Trial Chamber, for example, considered early intention of an accused to plead guilty, the guilty plea itself, profound desire to tell the truth, national reconciliation, condemnation of massacres, judicial economy, substantial cooperation with the Prosecutor and, sincere and genuine remorse as acts that constitute mitigating factors. Notwithstanding all the mitigating circumstances accepted by the Trial Chamber, Kambanda was still given the maximum possible penalty under the ICTR Statute.
Based on the Kambanda’s life sentence, the relevance of mitigating factors as, for example, guilty plea may be rightly raised. When a Trial Chamber determines that there are mitigating circumstances, should the Trial Chamber take these mitigating factors into account and in proportion to the mitigating factors reduce the sentence to reflect the degree of the mitigation? Would the Trial Chamber’s failure to give effect to mitigating circumstances in sentencing the accused constitute an error of law, fact or both? If it does constitute an error of law, fact or both, would the convict be entitled to a remedy? Or does the gravity of the crimes committed by the accused negate all the mitigating factors?
Prima facie, based on the mitigating factors admitted in evidence by the Trial Chamber, it appears that, based on the ICTR jurisprudence, Kambanda ought to have been entitled to a reduction in sentence for a term of imprisonment less than life.
The Serushago Trial Chamber held that the following acts constitute mitigating circumstances: voluntary surrender, guilty plea, confession, national reconciliation, substantial cooperation with the Prosecutor, cooperation with the Prosecutor to testify as a prosecution witness in future trials, assistance to victims, and asking the victims for forgiveness. These mitigating circumstances appear to have been appreciated by the Trial Chamber when viewed against the backdrop of a fifteen years sentence imposed on Serushago for the commission of the crime of genocide, particularly when contrasted to Kambanda’s life imprisonment when both pleaded guilty to the crime of genocide, with Serushago personally killing four persons.
While reflecting on the fifteen years sentence imposed on Serushago, it is relevant to recall that in the guilty plea agreement, Serushago acknowledged that he personally killed four persons and thirty-three others were killed on his direct orders. Further, it may be recalled that, though a later judgement, the Bisengimana Trial Chamber did hold that direct participation of an accused in the commission of a crime under the ICTR Statute is an aggravating factor. It is therefore relevant to inquire whether the Serushago Trial Chamber should have considered the personal killing of four people by Serushago, and Serushago’s orders to his subordinates to kill, (and the order was followed by Serushago’s subordinates), thirty-three persons as aggravating factors and therefore were sufficiently serious criminal acts to warrant a sentence greater than the fifteen years.
The Ruggiu Trial Chamber held that the following acts constitute mitigating circumstances: guilty plea, cooperation with the Prosecutor, assistance to victims, his good character, sincere and genuine remorse, desire to assume responsibility for criminal acts, awareness of the real and direct threat to his personal safety a guilty plea would cause, absence of a criminal record and no personal participation in the killings.
Georges Ruggiu pleaded guilty to direct and public incitement to commit genocide and persecution as a crime against humanity. He was sentenced to twelve years imprisonment. It is perhaps significant that Ruggiu submitted a much more extensive list of mitigating circumstances compared to Kambanda and Serushago, the two persons who pleaded guilty before him. Ruggiu’s emphasis that he did not personally participate in any killings and that he accepted personal responsibility for his acts appears to have had positive effect on the Trial Chamber. On the other hand, many of the mitigating circumstances were similar to those submitted by Kambanda and Serushago
The Rutaganira Trial Chamber held that the following acts constitute mitigating circumstances: voluntary surrender, guilty plea, assistance to victims, no participation in the killings, accused’s individual and family circumstances, good personality, his advanced age, ill-health, the fact that he is married and has ten children, and good behaviour while in custody. It is interesting to note that Rutaganira incorporated nearly all the mitigating circumstances submitted by the previous three persons, particularly Ruggiu’s submissions, and thereafter added the following new mitigating factors: advanced age, ill-health, personality and good behaviour, married with ten children, good chances of rehabilitation and good behaviour while in UNDF custody. Rutaganira is also the first accused to plead guilty for complicity in a criminal act by omission and thereby significantly minimized his role in the commission of the crimes. The Trial Chamber appears to have fully accepted Rutaganira’s submission and as a result he was sentenced to six years imprisonment.
The Bisengimana Trial Chamber held that the following acts constituted mitigating circumstances: guilty plea, national reconciliation, absence of criminal record, advanced age, ill-health, professional and family background, married with ten children one of whom is an adopted child, and a certificate of good conduct.
Paul Bisengimana appears to have adopted and incorporated all the mitigating factors earlier submitted by Rutaganira, including the fact that he is married with ten children. Further, Bisengimana appears to have adopted, in toto, Rutaganira’s style of pleading in that Bisengimana pleaded guilty to murder and extermination as a crime against humanity by aiding and abetting the commission of the crimes by omission. Unlike the Rutaganira Trial Chamber however, the Bisengimana Trial Chamber noted that Bisengimana was a highly educated person, held a high public position in the Rwanda Government in 1994, and that good education plus the holding of a leadership position in Rwanda in 1994, put him in a better position to appreciate the consequences of his acts or omissions. The Trial Chamber therefore held that holding a senior position (a factor also considered aggravating in Kambanda) is an aggravating factor. The Trial Chamber further noted the magnitude of the crime (more than one thousand persons were killed in one crime scene), and the fact of direct participation of the accused in the commission of the crimes, and concluded that these were aggravating factors.
It appears that, in the view of the Trial Chamber, Bisengimana’s aggravating circumstances far exceeded the mitigating circumstances and as a result, the accused was sentenced to fifteen years imprisonment, outside the range of sentence jointly recommended by the Prosecutor and the Defence, and against the Prosecutor’s unprecedented submission that there were “compelling mitigating circumstances”.
In understanding the tragic events in Rwanda in 1994, Kambanda’s confession is perhaps the single most important document that provides context. However, Kambanda’s guilty plea process could have been handled better. On further reflection, the Prosecutor ought not to have proposed a guilty plea in which Kambanda was required to plead guilty to the crimes of genocide and complicity in genocide in the same indictment. The practice of the OTP is to charge the two crimes in the alternative; and if the accused is found guilty on either of the crime of genocide or complicity in genocide, the accused ought to have been convicted for one or the other crimes and not for both. If the Prosecutor charged the accused with the counts of genocide and complicity in genocide but not in the alternative, the Defence ought to have objected to a guilty plea on both counts, or the Trial Chamber, in exercise of its discretion, ought to have convicted the accused for committing one of the two counts, and not both.
Second, while it is legally correct to convict an accused of the crimes of genocide and conspiracy to commit genocide, best practice in criminal prosecutions would require that an accused who is convicted of the crime of genocide need not be convicted of the crime of conspiracy to commit genocide, particularly where all the facts that may be used to sustain the conviction for the crime of conspiracy to commit genocide are the same set of facts relied on by the Prosecutor to convict an accused for the crime of genocide. It is best practice to convict an accused only for the crime of genocide but ensure that the sentence for the crime of genocide captured the totality of the evidenced adduced against an accused and the extent of his participation in the commission of the crime, including evidence that could have been relied on by the Prosecutor to prove the crime of conspiracy to commit genocide. A further conviction for conspiracy to commit genocide after a conviction for genocide have been entered by a Trial Chamber, in a legal sense, serves no further useful purpose. It is conceded that this is a contentious issue and there are some prosecutors who would probably argue for a conviction for both crimes of genocide and conspiracy to commit genocide.
Apart from the legal difficulties identified above, the Trial Chamber imposed a maximum sentence on Kambanda. Yet, in sentencing Kambanda, the Trial Chamber admitted that there were mitigating factors in favour of Kambanda and therefore necessitated a reduction in sentence. It is submitted that the Trial Chamber, and on appeal, the Appeals Chamber, erred in law in not giving a reduction in sentence to Kambanda, on account of mitigating factors as admitted in evidence by the Trial Chamber. A life imprisonment does not capture the totality of the mitigating factors adduced by the Defence in favour of the accused. It is further submitted that Kambanda ought to have been sentenced to a specific number of years, for example, fifty years imprisonment, instead of life imprisonment. It is therefore not surprising that Kambanda withdrew his cooperation with the Prosecutor after the sentence was pronounced, and other accused persons, after the Kambanda sentence, were reluctant to engage the Prosecutor in guilty plea negotiations.
Omar Serushago and Georges Ruggiu provided extensively cooperation with the Prosecutor. Serushago was particularly helpful in providing information on the Interahamwe, civil defence and FAR. Serushago also testified, as a prosecution witness, in other trials. On the other hand, Ruggiu was particularly helpful in providing relevant information on RTLM, Radio Rwanda and newspapers, particularly, Kangura. Similarly, Ruggiu as well testified, as a prosecution witness, against other accused. The guilty pleas in the two cases were therefore very beneficial in serving the course of international criminal justice.
Rutaganira was a very junior person in the context of the Rwanda Government administration structure, with no useful information to provide to the Prosecutor. The Prosecutor did not ask the accused to appear as prosecution witness in future trials. If he had not pleaded guilty, he would have probably been transferred to a national jurisdiction for prosecution. The ICTR prosecution policy is to prosecute the most senior leaders at Arusha and to transfer mid and low level perpetrators to national jurisdiction. As a councillor at the commune level, Rutaganira is a low level perpetrator. However, to the extent that Rutaganira’s guilty plea is in line with the principle of judicial economy, saved the victims and prosecution witnesses from the trauma of testifying and generally reduced the workload of the OTP; the guilty plea was of benefit to the OTP and the ICTR.
Bisengimana’s case is a first in which a guilty plea as agreed between the Prosecutor, on the one hand, and the accused and his lawyer, on the other hand, was dismissed by a Trial Chamber on the ground that the plea was equivocal. The Trial Chamber’s dismissal of the guilty plea was justified in law as the agreed facts did not support the count of complicity in extermination as a crime against humanity, by omission.
The Prosecutor reviewed the plea agreement and thereafter re-filed the motion. During the second hearing of the guilty plea, the Trial Chamber accepted the plea and sentenced the accused for complicity in extermination as a crime against humanity, by omission. However, the Trial Chamber denied the Prosecutor’s motion for acquittal on the other counts because the Prosecutor failed to justify why the accused must be acquitted on the said counts. Again, the Trial Chamber made the right decision on this point because an acquittal cannot be made in a case where the trial had not started and the Prosecutor had not even called his first witness to testify.
During sentencing, the Prosecutor submitted that the guilty plea was timely and saved the Tribunal considerable expenses in light of the Tribunal’s completion strategy, and to that extent, the accused deserves credit. While it is correct that a timely guilty plea saves the Tribunal considerable expenses, and may as well facilitate the process of completion strategy, it is submitted that facilitating the completion strategy is not a mitigating factor and therefore not a relevant factor in determining the range of sentence a convict should serve. It is appreciated that the Trial Chamber made no reference to the Prosecutor’s submission with respect to completion strategy in its judgement.
It is relevant to note that a bourgmestre is a senior and an important civil servant in the Rwanda administrative system of 1994. If Bisengimana had not pleaded guilty, he would have been prosecuted by the OTP in Arusha, or transferred under Rule 11 bis of the ICTR Rules to a national jurisdiction for prosecution. After de-briefing Bisengimana, it became clear to the OTP that the accused had no new or useful information to provide to the Prosecutor. He was therefore not requested to testify, as a prosecution witness, in future trials. Like Rutaganira’s guilty plea, Bisengimana’s guilty plea is in line with the principle of judicial economy, it saved the victims and prosecution witnesses from the trauma of testifying and generally reduced the workload of the OTP; and, to that extent, and the guilty plea was of some benefit to the OTP and the ICTR.
In a period of eleven years, the OTP has succeeded in concluding five guilty pleas’ negotiations. It is important that the success of guilty pleas’ negotiations not be measured against the numbers of accused persons who pleaded guilty but on the information the Prosecutor obtained, the scope and extent of cooperation the accused persons extended to the Prosecutor, and the willingness of the accused to testify, as prosecution witnesses, against other accused persons in future trials.
Judged against the above benchmarks, and considering extensive and substantial information provided to the Prosecutor by Kambanda, Serushago and Ruggiu, and further considering full cooperation extended to the Prosecutor by Serushago and Ruggiu, I submit that the process of guilty pleas’ negotiations at the ICTR, exercised within the mandate of the ICTR Statute, is a positive contribution to procedural law in international criminal prosecutions.
- Obote Odora, LLM, LLD, Advocate, Office of the Prosecutor, International Criminal Tribunal for Rwanda. The views expressed are personal and do not reflect that of the Prosecutor or the OTP.
 See, Prunier, G, The Rwanda Crisis 1959-1994: history of genocide, Hurst, London, 1995; De Forges, A, Leave None To Tell The Story, Human Rights Watch, New York and International Federation of Human Rights, Paris, March 1999; Omar R, Rwanda: Death Despair and Defiance, Africa Rights, Revised 1995 Edition.
 Prosecutor v Jean Paul Akayesu, Case No.ICTR-96-4-I Judgement of 2 September 1998.
 Akazu is a group of persons linked to President Habyarimana through marriage, family, politics and business, but all dedicated to the preservation of Hutu Power.
 Prosecutor v Jean Kambanda, Case No. ICTR-97-23-S.
 Prosecutor v Jean Kambanda, ICTR-97-23-S, Judgement 4 September 1998; Prosecutor v Omar Serushago, Case No. ICTR-98-39-S, Judgement 5 February 1999; Prosecutor v Georges Ruggiu, Case No. ICTR-97-32-I, Judgement, 1 June 2000; Prosecutor v Vincent Rutaganira, Case No. ICTR-95-IC-I, Judgement, 14 March, 2005; Prosecutor v. Paul Bisengimana, Case No. ICTR-00-60-T, Judgement, 13 April 2006.
 See, United Nations Security Council Resolutions 1503(2003) and 1534(2004). The two Security Council Resolutions resolved that the ICTR shall conclude all trial activities by 2008 and all appeals by 2010.
 See, the ICTR Statute annexed to the United Nations Security Council Resolution 955 of 1994 adopted on 8 November 1994.
 Article 15: The Prosecutor
- The Prosecutor shall be responsible for the investigation and prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwanda citizens responsible for such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994.
- The Prosecutor shall act independently as a separate organ of the International Tribunal for Rwanda. He or she shall not seek or receive instructions from any government or from any source.
 Article 14: Rules of Procedure
The Judges of the International Tribunal for Rwanda shall adopt, for the purpose of proceedings before the International Tribunal for Rwanda, the Rules of Procedure and Evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters of the International Tribunal for the former Yugoslavia with such changes as they deem necessary.
 Rule 62: Initial Appearance of Accused and Plea
- If an accused pleads guilty in accordance with Rule 62(A)(v), or requests to change his plea to guilty, the Trial Chamber shall satisfy itself that the guilty plea:
- is made freely and voluntarily;
- is an informed plea;
- is unequivocal; and
- is based on sufficient facts for the crime and accused’s participation in it, either on the basis of objective indicia or lack of any material disagreement between the parties about the facts of the case.
Thereafter the Trial Chamber may enter a finding of guilt and instruct the Registrar to set a date for sentencing hearing.
 Rule 62 bis: Plea Agreement Procedure
- The Prosecutor and the Defence may agree that, upon the accused entering a plea of guilty to the indictment or to one or more counts of the indictment, the Prosecutor shall do one or more of the following before the Trial Chamber:
- apply to amend the indictment accordingly;
- submit that a specific sentence or sentencing range is appropriate
- not oppose a request by the accused for a particular sentence or sentencing range.
- The Trial Chamber shall not be bound by any agreement specified in paragraph (A)
- If a plea agreement has been reached by the parties, the Trial Chamber shall require the disclosure of the agreement in open session or, on a showing of good cause, in closed session, at the time the accused pleads guilty in accordance with Rule 62(A) (v), or requests to change his or her plea to guilty.
 Article 23: Penalties
- The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of Rwanda.
- In imposing sentences, the Trial Chamber should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.
- In addition to imprisonment, the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners.
 See, Prosecutor v Kambanda, supra, note 4. Kambanda’s admission to participation in planning, organizing and executing genocide is detailed in para.39
 It is interesting to note that Kambanda was found guilty of both the crimes of genocide and complicity in genocide notwithstanding the practice of the ICTR in charging the two crimes in the alternative. An accused may not be guilty of genocide and complicity in genocide simultaneously as the two crimes are alternate.
 Prosecutor v Jean Kambanda, supra note 4, para.52.
 Id, para.56.
 Id, para.58.
 Id, para.62.
 Prosecutor v Jean Kambanda, Case No. ICTR-97-23-A.
 Prosecutor v Omar Serushago, Case No. ICTR-98-39-S.
 Id, para.25.
 Id, para.28.
 Id, para.27.
 Id, para.32.
 Id, 38.
 Id, paras. 41 and 42.
 Prosecutor v Georges Ruggiu, Case No. ICTR-97-32-I, Judgement, 1 June 2000, para.38.
 Id, paras.40-41.
 Id, paras. 42-43.
 Id, paras. 1-4.
 Id, paras. 5-8.
 Id, para.44(i).
 Id, para. 44(iii).
 Id, para.44 (IV).
 Id, para. 44(vii). See also para. 44(v) which provides a list broadcasts that were considered as constituting incitement to commit genocide, including allegations that the Belgian missiles shot down President Habyarimana’s plane, that Belgium is supporting RPF and is responsible for the oppression of Hutuis by Tutsis, the UN peacekeepers (UNAMIR) were supporting and collaborating with the RPF, and that Gen. Dallaire, the UNAMIR Commander is the advisor for the RPF; condemned the attitude of Prime Minister Agathe Uwilingimana and congratulated “combatants” who killed Inyenzi.
 Id, para.50.
 Id, para.51.
 Id, para.53.
 Id, para.54.
 Id, para.55.
 Id, para.57.
 Id, para.58.
 Id, para.59.
 Id, paras.61-68.
 Id, paras 69-72.
 Id, para.73-74.
 Id, para.75-76.
 Id, paras 77-80.
 Prosecutor v Vincent Rutaganira, Case No. ICTR-95-1C-I.
 Id, para.21 of the Summary of Judgement as delivered in court on 14 March 2005. As at the time of writing, the full judgement has not yet been released.
 Id, para.24.
 Id, para.38.
 Id, para.39-40.
 Id, para.41.
 Id, para.42.
 Prosecutor v Paul Bisengimana, Case No. ICTR-00-60-T.
 Article 6(1) of the ICTR Statute reads: “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Article 2 to 4 of the present Statute shall be individually responsible for the crimes.”
 See, id, note 57, Trial transcript of 17 November 2006, p.26.
 Id, Trial Transcript of 7 December 2005, pp.12-13.
 Id, Trial Transcript of 7 December 2005, pp.7-8.
 Prosecutor v Paul Bisengimana, supra note 57, para.37.
 Id. Para.38.
 Plea Agreement, para.5.
 Prosecutor v Paul Bisengimana, supra note 57, para.39.
 Id, para.83.
 Id, para.112.
 Id, para.113.
 Id, para.122.
 Id, para.128.
 Id, para. 130.
 Id, para.131.
 Id, para.132.
 Id, para.133.
 Id, para.134.
 Id, para.135.
 Id, para.141.
 Id, paras 180-181.
 Id, para.182.
 Id, para.183.
 Id, para.143.
 Id, para.144.
 Id, para.149.
 Id, para.164.
 Id, para.165.
 Id, para.173.
 Id, para 174-175.
 Id, para.199.
 Id, paras 201-202.