Written by Merve Stolzman; edited by Katherine Cleary Thompson, Assistant Director of the War Crimes Research Office
Case Name: Prosecutor v. Bizimungu
Reference Number: Case No. ICTR-00-56B-A
Date: June 30, 2014
Alleged Violations: Genocide, Crimes against Humanity
Facts and Procedural History
On June 30, 2014, the Appeals Chamber at the International Criminal Tribunal for Rwanda (ICTR) issued its judgment against Augustin Bizimungu, commander and, after April 19, 1994, Chief of Staff of the Rwandan army. Trial Chamber II had convicted Bizimungu on May 17, 2011 of genocide, crimes against humanity, and serious violations of Common Article 3 (CA3) and Additional Protocol II (APII). He was sentenced to thirty years of imprisonment. Both the Prosecution and Bizimungu filed appeals against the trial decision. Bizimungu appealed the decision on twenty different grounds, arguing that he should be acquitted of all charges and immediately released, or, in the alternative, that he should be retried or have his sentence reduced. The Prosecution set out five grounds for appeal, calling on the Appeals Chamber to reverse several acquittals and to increase Bizimungu’s thirty-year sentence to life imprisonment.
Conclusions of the Court
Granting certain grounds of appeal by the Defense, the Appeals Chamber reversed eleven of Bizimungu’s convictions: aiding and abetting genocide at the Rwankeri Sector; command responsibility for genocide, the crimes against humanity of murder and rape, and serious violations of CA3 and APII at the Musambira Commune Office; command responsibility for murder and rape as crimes against humanity, and rape as a serious violation of CA3 and APII, at the Butare Prefecture Office and Episcopal Church of Rwanda; and command responsibility for rape as a crime against humanity and serious violation of CA3 and APII at the Musambira Commune Dispensary. By contrast, the Appeals Chamber affirmed Bizimungu’s convictions as a superior for the following crimes: genocide and extermination at the Josephite Brothers Compound; genocide and murder as a crime against humanity and serious violation of CA3 and APII at the École des sciences infirmières de Kabgayi (ESI), in an area referred to as TRAFIPRO Centre, and at the Musambira Commune Dispensary; murder and rape as a crime against humanity and rape as a serious violation of CA3 and APII at Cyangugu Prefecture stadium; and rape as a crime against humanity and serious violation of CA3 and APII at the ESI and TRAFIPRO Centre. Notably, however, the Appeals Chamber upheld these convictions only to the extent they were based on Bizimungu’s responsibility for actions of the Rwandan army, as opposed to members of the Interahamwe. The Chamber dismissed each of the Prosecution’s five grounds of appeal and, ultimately, affirmed Bizimungu’s thirty-year sentence.
Reasoning of the Court
In its judgment, the Appeals Chamber first addressed Bizimungu’s allegations that the Trial Chamber had failed to make relevant legal findings on his convictions in relation to the Rwankeri Sector, Josephite Brothers Compound, ESI, Musambira Commune Office and Dispensary, and TRAFIPRO Centre. Noting that, under Article 22(2) of the ICTR Statute and Rule 88(C) of its Rules, the Trial Chamber is required to provide a “reasoned opinion,” the Appeals Chamber explained that this means the Chamber must “set out in a clear and articulate manner the factual and legal findings on the basis of which it reached the decision to convict or acquit an accused” (emphasis added). It then agreed with the Defense that, in relation to the actus reus and mens rea for Bizimungu’s convictions of genocide, the Trial Chamber’s judgment “constitute[d] a manifest failure to provide a reasoned opinion.” The Appeals Chamber went on to hold that “the magnitude of this error [was] unprecedented in the history of the Tribunal.”
Rather than simply setting aside the convictions in relation to these incidents, the Chamber found that the interests of justice required it to assess the Trial Chamber’s factual findings and evidence to determine whether the elements of genocide and crimes against humanity were in fact established. After conducting this analysis, the Appeals Chamber held that, despite its failure to provide legal reasoning, the Trial Chamber did not err in convicting Bizimungu of genocide and/or crimes against humanity at the Josephite Brothers Compound, the ESI, the Musambira Commune Dispensary, and TRAFIPRO Centre. With regard to the crimes for which Bizimungu was convicted at Musambira Commune Office, the Appeals Chamber reversed the convictions on the ground that the rapes and killings that occurred there were carried out by soldiers between April 14 and 16, 1994, which predated Bizimungu’s promotion to commander of the Rwandan army, meaning he could not have been held responsible as a superior for these crimes.
Another important area of the Appeals Chamber’s judgment focuses on Bizimungu’s command responsibility. Bizimungu argued, among other things, that he did not possess the requisite authority and effective control over members of the Rwandan army and Interahamwe who had perpetrated the crimes for which he was convicted. With respect to the soldiers, Bizimungu challenged the Trial Chamber’s finding of a superior-subordinate relationship, which was based on a number of factors. These factors included not only Bizimungu’s de jure authority over the Rwandan army between April 19 and mid-July 1994 as Chief of Staff, but also his de facto authority based on his substantial command experience, the high level of respect the soldiers had for him, his ability to negotiate a ceasefire, the fact that he represented the interim government at diplomatic meetings, his leading role in combat operations, and the fact that the Minister of Defense deferred to his recommendations for discharging soldiers. Bizimungu also challenged the Trial Chamber’s finding that he possessed effective control over the soldiers, arguing that a customary rule provided that high-ranking officers cannot be responsible for the crimes perpetrated by subordinates who are more than two levels below him in the chain of command. The Appeals Chamber rejected these arguments. Instead, it held that a reasonable trier of fact could have relied on the same factors that the Trial Chamber assessed to establish Bizimungu’s authority as a superior. Moreover, the Chamber affirmed that effective control does not, as a matter of law, require that the subordinates be immediate in the command hierarchy to impose responsibility on high-ranking officers.
The Trial Chamber also found a superior-subordinate relationship existed between Bizimungu and the Interahamwe and that Bizimungu exercised de facto authority over members of that group based on his material ability to prevent them from committing crimes. The following factors supported this conclusion: the Rwandan army provided training and arms to the Interahamwe, high-ranking officials in the Rwandan army discussed the possibility of integrating the Interahamwe into its forces, Bizimungu facilitated meetings between the Interahamwe leaders and UNAMIR General Roméo Dallaire, the Rwandan army and Interahamwe coordinated their fighting and manning of roadblocks, and Bizimungu prevented the Interahamwe from attacking refugees at the Hôtel des Mille Collines.
Bizimungu challenged the evidentiary value of these factors in establishing effective control, and the Appeals Chamber agreed, holding that they did not provide a sufficient basis to establish either the superior-subordinate relationship or effective control. In particular, the Appeals Chamber focused on the fact that the training and arming of the Interahamwe by the Rwandan army only occurred in Ruhengeri and Byumba Prefectures, and not in those areas relevant to the crimes that Bizimungu’s alleged subordinates perpetrated, namely Gitarama, Butare, or Cyangugu. The Appeals Chamber also stressed, in relation to the second factor, that the discussions surrounding the integration of the Interahamwe into the Rwandan army took place in 1995, months after the relevant crimes were committed. Finally, the Chamber determined that, while the last three factors could evidence the existence of a superior-subordinate relationship and effective control, they were not sufficient in and of themselves to establish these elements beyond a reasonable doubt. Concluding that Bizimungu lacked authority and effective control over the Interahamwe, the Appeals Chamber reversed the convictions to the extent that they were related to the criminal conduct of the Interahamwe at the ESI, Musambira Commune Office and Dispensary, Butare Prefecture Office and Episcopal Church of Rwanda, and Cyangugu stadium.
As mentioned above, the Appeals Chamber rejected each of the Prosecution’s five grounds of appeal. Among these grounds of appeal was an argument that the Trial Chamber erred in acquitting Bizimungu of command responsibility for crimes that Rwandan soldiers perpetrated at the École technique officielle (ETO) Complex and Nyanza Hill in the Kigali Prefecture. The Trial Chamber had concluded that Bizimungu was not responsible as a superior for those crimes because they took place on April 11, 1994, eight days before he was appointed Chief of Staff. Specifically, citing the judgment of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Hadžihasanović, et al. case, the Trial Chamber had held that when a “temporal coincidence between a superior’s exercise of effective control . . . and the time when the crimes in relation to which he is charged were committed” is lacking, an individual cannot be convicted under command responsibility.
On appeal, the Prosecution argued that the Appeals Chamber was not bound by the ICTY’s Hadžihasanović decision, and even if it were, it should depart from the earlier holding. The Appeals Chamber disagreed; the Appeals Chamber held that legal determinations in earlier appeals decisions should be followed in the interests of certainty and predictability and noted that both the ICTR and ICTY have consistently rejected the successor command responsibility doctrine. Notably, Judge Liu wrote a separate declaration setting forth his view that holding a successor commander liable for the conduct of subordinates that occurred before he assumed effective control could in fact be consistent with the ICTR Statute, as the provision governing command responsibility does not establish a temporal scope. Moreover, Judge Liu emphasized that a failure to recognize successor command responsibility would effectively leave crimes that subordinates perpetrated unpunished in situations where the Tribunal could not prosecute the previous superior. Hence, according to Judge Liu, a successor commander should be held liable for failing to punish subordinates for crimes committed prior to the commander’s assumption of authority over those subordinates, so long as the elements of effective control and knowledge are established. Nevertheless, recognizing that the Hadžihasanović approach had been “consistently followed and applied by chambers of both the ICTY and the ICTR and had become part of both Tribunals’ settled jurisprudence,” Judge Liu did not dissent from the judgment in relation to the Prosecutor’s appeal on that issue.