Written by Lemlem F. Minale, LLM at WCL, and edited by Katherine Cleary Thompson, Assistant Director of the War Crimes Research Office
On September 29, 2014, the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) issued its judgment against Callixte Nzabonimana. Nzabonimana was Rwanda’s Minister of Youth and Associative Movements and the Chairman of the Mouvement républicain national pour la démocratie et le développement in Gitarama prefecture during the 1994 Rwandan genocide. Trial Chamber III convicted and sentenced Nzabonimana to a single term of life imprisonment on May 31, 2012 for genocide, extermination as a crime against humanity, conspiracy to commit genocide, and direct and public incitement to commit genocide. The convictions stemmed from proclamations made by Nzabonimana at meetings held at the Butare Trading Centre, Cyayi Centre, and in Murambi on April 12, 14, and 18, 1994, respectively, as well as certain activities in Tambwe Commune.Overview
Both Nzabonimana and the Prosecution appealed against the trial judgment. Nzabonimana contested the judgment on eight grounds, seeking the reversal of his convictions or, alternatively, a reduction of his sentence. For its part, the Prosecutor challenged the Trial Chamber’s decision to acquit Nzabonimana for aiding and abetting genocide at the Rutwobe Commune and instigation of genocide at Nyabikenke Commune Office. The Appeals Chamber granted two of the Defense’s grounds of appeal, reversing Nzabonimana’s conviction for direct and public incitement to commit genocide in relation to his meeting in Murambi and his conviction for conspiracy to commit genocide in Tambwe Commune. The Chamber rejected both of the Prosecution’s grounds of appeal.
Finally, given that it affirmed Nzabonimana’s convictions for genocide and extermination as a crime against humanity, as well as his convictions for direct and public incitement in relation to events at the Butare Trading Centre and the Cyayi Centre and for conspiracy to commit genocide in relation to the meeting in Murambi, the Appeals Chamber affirmed the Trial Chamber’s sentence of life imprisonment.
Appeals Chamber’s Findings on Direct and Public Incitement to Genocide
The Trial Chamber convicted Nzabonimana for direct and public incitement in connection with proclamations he made at meetings at the Cyayi Centre, the Butare Trading Centre, and in Murambi in April 1994. Nzabonimana challenged each of these convictions on the ground that the Trial Chamber erred in determining that the alleged incitement was “public,” claiming that the evidence demonstrated instead that the relevant language was delivered during private conversations between the accused and particular individuals. In analyzing the first of these claims, relating to events at the Cyayi Centre, the Appeals Chamber began by noting that, to date, all convictions by the ICTR for direct and public incitement to commit genocide had involved “speeches made to large, fully public assemblies, messages disseminated by the media, and communications made through a public address system over a broad public area.” It also recalled that the travaux preparatoires of the Genocide Convention demonstrated that “public” incitement to genocide “pertains to mass communications.” Lastly, it noted that a Trial Chamber “may consider the surrounding circumstances, such as the place where the incitement occurred and whether the audience was selective or limited,” explaining that incitement is “public” when “conducted through speeches, shouting or threats uttered in public places or at public gatherings.” In line with this, the Appeals Chamber explained that, while there is no minimum number of persons to which a speech must be addressed to constitute “public” incitement, the number of audience members and the medium through which the message is conveyed may be relevant in assessing whether the audience was selected or limited.
Secondly, the Appeals Chamber found no error in the Trial Chamber’s finding that Nzabonimana publicly incited genocide at Cyayi Centre. The Appeals Chamber noted that the Trial Chamber “relied on the public location, a crowd of approximately [thirty] people, and an audience that was not exclusive or limited to find that the incitement was public.” It made a similar finding with respect to the speech delivered by the accused at Butare Trading Centre, where Nzabonimana addressed about twenty people gathered at an “undeniably public location.”
By contrast, the Appeals Chamber agreed with the Defense that the lower court erred in finding that utterances made by the accused to a meeting of members of the Interim Government in Murambi on April 18, 1994 constituted “public” incitement to genocide. The Trial Chamber had based its holding on the fact that a journalist was present at the meeting and its conclusion that the meeting of the Interim Government itself was “intended to be broadcast to the public at large,” which in turn “evince[d] that Nzabonimana had the requisite mens rea to incite genocide publicly.” However, as the Appeals Chamber noted, the Trial Chamber did not make a separate finding that the purported incitement was in fact public, only that the accused intended for it to be so. Thus, the Appeals Chamber held that the lower court erred in law by failing to assess one of the elements of the crime. Furthermore, conducting its own review of the relevant facts, the Appeals Chamber determined that the alleged incitement was not public, as “the attendance at the Murambi meeting appeared to be limited and selected as it only involved a group of public officials,” there was “no evidence on the record showing that members of the public were invited or attended the meeting,” and the meeting did not occur at a public place. The Chamber further noted that “the mere presence of a journalist does not automatically render the meeting public,” stressing that the relevant message spoken by the accused at the meeting was not in fact disseminated to the public.
Appeals Chamber’s Findings on Conspiracy to Commit Genocide
The Trial Chamber convicted Nzabonimana of two counts of conspiracy to commit genocide. The first related to the April 18, 1994 meeting in Murambi, at which Nzabonimana entered into agreement with other members of the Interim Government to facilitate the destruction of the Tutsi population in Gitarama préfecture. The Defense appealed this holding, arguing that “the inference drawn by the Trial Chamber from the circumstantial evidence was not the only reasonable one.” According to the Defense, other equally reasonable inferences should have been considered, including: “(i) the objective of the meeting was to deal with the war and security issues, without a pre-conceived plan to eliminate Tutsis; and (ii) since the second meeting was ‘impromptu,’ the ministers’ statements reflected ‘conscious parallelism’ rather than ‘concerted’ actions.” The Appeals Chamber rejected both of these alternatives, stressing that conspiracy to commit genocide does not require premeditation or the existence of a pre-existing agreement. It further found that “the fact that the state of war was also discussed is insufficient to demonstrate an error from the Trial Chamber in finding that the only reasonable inference was that an agreement materialised on 18 April 1994 to encourage the killing of Tutsis.” Lastly, the Appeals Chamber held that, “[i]rrespective of the impromptu or planned nature of the meeting,” the Trial Chamber found that an agreement to facilitate the destruction of Tutsis in fact materialized on April 18, 1994. Accordingly, the Appeals Chamber found no error in the lower court’s findings with regard to the accused’s participation in a conspiracy to commit genocide formed in Murambi.
Conversely, the Appeals Chamber granted the Defense’s challenge to the Trial Chamber’s finding that Nzabonimana entered into an agreement with an individual named Jean-Damascene Ukirikyeyezu to destroy the Rwandan Tutsi population in Tambwe Commune. The Trial Chamber had based its holding on two findings: (i) the two men formed an agreement to create a “Crisis Committee” for the purpose of covering up killings of Tutsis from the international community; and (ii) on another occasion, they distributed weapons in the area for the purpose of encouraging the elimination of Tutsis. Again, the Defense claimed that the Trial Chamber erred in determining that the only reasonable inference to be drawn from these findings was that the two men had entered into a conspiracy to commit genocide. This time, the Appeals Chamber agreed, as the relevant evidence did not establish beyond a reasonable doubt that Ukirikyeyezu acted as Nzabonimana’s co-conspirator with regard to either the formation of the Crisis Committee or the distribution of weapons. Given the absence of credible evidence regarding these points, the Appeals Chamber held that the Trial Chamber erred in determining that the only reasonable inference to be drawn from the facts was that Nzabonimana conspired to kill Tutsis in Tambwe Commune, and it therefore reversed his conviction for conspiracy to commit genocide on this count.
The Appeals Chamber dismissed all the other grounds of appeal raised by the Defense, as well as the two grounds raised by the Prosecution. Ultimately, although it reversed two of the Trial Chamber’s convictions, it held that the affirmed convictions justified maintaining the Trial Chamber’s sentence of life imprisonment.
 Judgment, ¶ 122.
 Id. (emphasis in original).
 Id. ¶ 123.
 Id. ¶ 132.
 Id. ¶ 232.
 Id. ¶ 382.
 Id. ¶ 385.
 Id. ¶ 390.
 Id. ¶ 403.
 Id. ¶405.
 Id. ¶ 406.