RWANDA TRIBUNAL HANDS DOWN LIFE SENTENCE FOR CRIMES OF GENOCIDE COMMITTED BY FORMER RWANDAN PRIME MINISTER19980904 Despite Defence Plea for Reduced Sentence, Tribunal Decides Gravity of Heinous Crimes Necessitates Life Term
ARUSHA, 4 September (International Criminal Tribunal for Rwanda) -- "Security Council resolution 955 of 8 November 1994 clearly indicates that the aim for the establishment of the Tribunal was to prosecute and punish the perpetrators of the atrocities in Rwanda in such a way as to put an end to impunity and thereby to promote national reconciliation and the restoration of peace."
Again the background of this interpretation of its raison d'être, and following on the heels of its judgement two days ago finding another accused guilty of genocide, the Trial Chamber of the International Criminal Tribunal for Rwanda today sentenced Jean Kambanda, former Prime Minister of Rwanda, to life imprisonment for six counts of genocide and crimes against humanity. Mr. Kambanda pleaded guilty to all six charges at his initial appearance before the Tribunal on 1 May.
In this momentous decision, the judges of the Chamber -- Laity Kama (Senegal), Lennart Aspegren (Sweden) and Navanethem Pillay (South Africa) -- weighed on the scales of justice the aggravating factor represented by the gravity of the heinous crime of genocide, on the one hand, and the mitigating factor of the fact that the accused pleaded guilty, on the other, and decided that, in the case of Jean Kambanda, the former outweighed the latter.
Laying the groundwork for its judgement, the court recalled the preamble to the 1948 Convention for the Prevention and Punishment of the Crime of Genocide, which recognized that at all periods of history, genocide has inflicted great losses on humanity and reiterates the need for international cooperation to liberate humanity from this scourge. The Trial Chamber considered that the crime of genocide is unique because of its element of dolus specialis (special intent), which required that this crime be committed with the intent "to destroy, in whole or in part, a national, ethnic, racial or a religious group as such". In the opinion of the Chamber, "genocide constitutes the crime of crimes", and this must be taken into account in deciding the sentence.
Law and Applicable Principles
The Trial Chamber first considered the legal texts relating to sentences and penalties to be handed down by the Tribunal. It referred to article 23 of the Tribunal's Statute, which states that the penalty imposed by the Tribunal will be limited to imprisonment, and that, in determining the terms of imprisonment, the Trial Chamber will have recourse to the general practice regarding prison sentences in the courts of Rwanda. Article 23 (2) provides that in imposing sentences the Trial Chamber should consider such factors as the gravity of the offence and the individual circumstance of the convicted person. Rule 101 of the Tribunal's rules of procedure and evidence states that a person convicted by the Tribunal may be sentenced to imprisonment "for a term up to and including the remainder of his life". And in determining the sentence, the court should take into account article 23 (2) of the Statute, as well as any aggravating circumstances, any mitigating circumstances, including the substantial cooperation with the Prosecutor by the convicted person before or after conviction, and the general practice regarding prison sentences in Rwandan courts.
Noting that the Charter of the Nuremberg Tribunal, adopted in 1945, empowered that Tribunal to sentence persons found guilty of crimes against humanity to death or other just punishment, and that Rwandan criminal law envisages the most severe penalties for genocide and crimes against humanity, the Chamber argued that these crimes must be punished appropriately because of their gravity. It examined the four categories of accused persons in the 1996 Rwandan Organic Law on the Organization of Prosecutions for Offences Constituting the Crime of Genocide and Crimes against Humanity, committed since 1 October 1990, which was submitted as part of the brief of the Tribunal Prosecutor in the Kambanda case. Persons falling under "Category 1" of this law (persons who were planners, organizers, supervisors and leaders of these crimes) are liable mandatorily to the death penalty if found guilty.
But the Trial Chamber raised the question of whether the scale of sentences applicable in Rwanda was mandatory or only to be used as a reference, and concluded that such reference was only one of the factors the United Nations Tribunal had to consider in determining its sentences. "While referring as much as practicable to the general practice regarding prison sentences in the courts of Rwanda, the Chamber will prefer ... to lean more on its unfettered discretion each time it has to pass sentence on persons found guilty of crimes falling within its jurisdiction, taking into account the circumstances of the case and the standing of the accused persons."
In a subsequent discussion of general principles regarding the determination of sentences, the Chamber provided an indication of its guiding light, stating: "It is clear that the penalties imposed on accused persons found guilty by the Tribunal must be directed, on the one hand, at the
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retribution of the said accused who must see their crimes punished and, over and above that, on the other hand, at deterrence, namely, dissuading for good those who will attempt in future to perpetrate such atrocities by showing them that the international community was not ready to tolerate the serious violations of international humanitarian law and human rights."
Case on Merits
At the time of his guilty plea in May, Mr. Kambanda confirmed that his plea was voluntary, free and informed, without pressure, threats or promises; that he clearly understood the charges against him and the consequences of his plea; and that the plea was unequivocal. At the same time, he submitted a plea agreement between Jean Kambanda and the Office of the Prosecutor. This document contained, among other things, his full admissions of all the relevant facts of his indictment. He admitted his command responsibility as head of Government and his participation in decisions to commit massacres of the Tutsi. It also contained admission of his active participation in the use of the media to mobilize and incite massacres of Tutsi civilians, including using the incendiary phrase which was subsequently repeatedly broadcast: "You refuse to give your blood to your country and the dogs drink it for nothing."
As a result of these admissions by Jean Kambanda in amplification of his plea, the Trial Chamber accepted his plea and found him guilty on all the counts of his indictment.
In assessing the factors relating to sentencing, the Chamber, in accordance with its rules of procedure, took account of aggravating factors, the individual circumstances of the accused and mitigating factors. It recalled that the Prosecution, in its brief, had stressed the gravity of the crimes for which Mr. Kambanda was charged. In this connection, "the heinous nature of the crime of genocide and its absolute prohibition made its commission inherently aggravating", the court said. The magnitude of the crimes -- an estimated 500,000 civilians were killed in Rwanda in the span of 100 days -- constituted an aggravating factor. Furthermore, these crimes were committed when Jean Kambanda was Prime Minister, and he and his government were responsible for the maintenance of peace and security. The Chamber found that Mr. Kambanda abused his authority by his personal participation in the crimes, and his failure to take necessary and reasonable measures to prevent his subordinates from committing crimes against the population was an abuse of authority and the trust of the civilian population, and it considered this an aggravating factor.
Following an examination of Mr. Kambanda's personal circumstances, the Tribunal then turned its attention to the mitigating factors. It noted that the Defence had offered three of the factors: Kambanda's plea of guilty; his remorse, which counsel claimed was evident from the plea of guilt; and
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previous, present and future cooperation with the Prosecutor's office in terms of Kambanda's intention to testify for the Prosecution in future trials of other accused.
In his plea agreement, Kambanda declared that he had resolved to plead guilty even before his arrest in Kenya, and that he was motivated by a "profound desire" to tell the truth, as the truth was the only way to restore national unity and reconciliation in Rwanda. He condemned the massacres and considered his confession as a contribution towards restoring peace in Rwanda. The Chamber noted, however, that Jean Kambanda offered no explanation for his voluntary participation on the genocide, nor had he expressed contrition, regret or sympathy for the victims in Rwanda, even when given the opportunity to do so during the pre-sentencing hearing of 3 September. Although it accepted that in most national jurisdictions, admissions of guilt were appropriately considered in mitigation of punishment. The Trial Chamber nevertheless felt that remorse was not the only reasonable inference that can be drawn from a guilty plea.
Further, the court stated its view that a sentence must reflect the predominant standard of "proportionality between the gravity of the crime and the degree of responsibility of the offender. Just sentences contribute to respect for the rule of law and the maintenance of a just, peaceful and safe society".
Having examined all the submissions by the parties to the case, the Chamber inferred that: Mr. Kambanda had cooperated and was still willing to cooperate with the Office of the Prosecutor; his guilty plea was likely to encourage others to recognize their responsibilities during the tragic events which occurred in Rwanda in 1994; and a guilty plea is generally considered as a mitigating circumstance in most jurisdictions. However, the court found that Mr. Kambanda's crimes carried an intrinsic gravity and their widespread, atrocious and systematic character was particularly shocking to the human conscience. The Chamber also found he committed the crimes knowingly and with premeditation; and, moreover, Jean Kambanda, as Prime Minister of Rwanda, was entrusted with the duty and authority to protect the population, and he abused this trust.
On the basis of all the above, the Chamber was of the opinion 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".
Thus, the Trial Chamber, in its verdict, sentenced Mr. Kambanda to life imprisonment.
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In accordance with rule 100 of the rules of procedure, a pre-sentencing hearing in the Mr. Kambanda case was held on 3 September, at which both the Prosecution and the Defence presented oral arguments to amplify the written pre-sentencing briefs they had earlier submitted to the Trial Chamber. The Deputy Prosecutor, Bernard Muna (Cameroon), requested a life sentence for Kambanda, although he acknowledged the latter's cooperation and the significance of the former Rwandan leader's acceptance of responsibility by pleading guilty.
The Defence Counsel, Oliver Michael Ingliss (Saint Lucia), argued that his client was a "mere puppet" who was not the master of his circumstances, but had been trapped in a situation from which "he could not stand apart and breathe word of dissent" without serious risk to his life and safety. The Defence told the Chamber that Mr. Kambanda had no political ambitions, and had been preparing to attend a meeting in Senegal, when he was picked up by soldiers on 8 April 1994, taken to the Military Academy in Kigali and informed by "top military brass" that he had been appointed Prime Minister. "Without being able to catch his breath, he was sworn into office the next day", Mr. Ingliss said. He asked the Trial Chamber to give Mr. Kambanda a sentence of two years in prison because he had "diminished responsibility" and had pleaded guilty.
Jean Kambanda was born on 10 October 1955 in the prefecture of Butare. He holds a Diploma d'ingénieur. From May 1989 to April 1994, he worked in the Union des banques populaires du Rwanda, rising to the position of Director in those banks. He was Vice-President of the Mouvement démocratique républicain (MDR) and member of its political bureau. He became Prime Minister of the Interim Government in Rwanda on 9 April 1994, following the plane crash that killed Rwandan President Juvenal Habyarimana on 6 April. Kambanda is married and has two children.
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