ECCC Reparations

This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Sunday, August 12, 2007

Bagilishema Judgment Summary by War Crimes Research Office

Trial Chamber


On June 7, 2001, the ICTR Trial Chamber delivered its Judgement in The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T. The amended indictment charged Bagilishema with seven counts of genocide, complicity in genocide, crimes against humanity and serious violations of Common Article 3 of the Geneva Conventions and of Additional Protocol II. He was charged with individual and superior responsibility under Articles 6(1) and 6(3) of the ICTR Statute. In a landmark decision, the Trial Chamber unanimously acquitted Bagilishema of three counts, including genocide. The Chamber's majority found him also not guilty of the remaining four charges which included complicity in genocide, with Judge Mehmet Güney dissenting (Separate and Dissenting Opinion). Thus, Bagilishema was acquitted of all charges.

During the Rwanda genocide, Bagilishema was the "bourgmestre" (mayor) of Mabanza commune, which belonged to the Kibuye Prefecture headed by Prefect Clément Kayishema (Kayishema lost his appeal before the ICTR on June 1, 2001, and is currently serving a prison sentence for the remainder of his life for genocide). Following the downing of the plane of the Rwandan president on April 6, 1994, and the start of hostilities, people began to seek refuge at the bureau communal (communal office) in Mabanza. Due to security problems in Mabanza, on April 13, 1994, the refugees moved to two sites in Kibuye: the ­Stadium and the Home St. Jean Complex (Complex). Thousands of refugees were detained in harsh conditions at the Kibuye Stadium, without food, water, or sanitation. A few days after their arrival, many of those held at the Stadium and the Complex were massacred.

The Trial Chamber did not hold Bagilishema directly responsible for the mistreatment of the refugees in the Stadium or for the massacres because the Prosecution had failed to prove beyond a reasonable doubt that he incurred responsibility. The Chamber also found unproven the Prosecution's allegation that in instructing the refugees to move to Kibuye, the accused " 'knew or had reason to know that attacks at these locations [were] imminent.'" Moreover, it found that the Prosecution had failed to show that Bagilishema "was notified or should have known about the inhumane conditions at the Stadium, or about the attack on the Complex, or about the imminent attack on the Stadium." Finally, the court found that the Prosecution had not demonstrated that the accused's failure to take sufficient follow-up actions (e.g., punishment) as "bourgmestre" amounted to acquiescence in the killings, constituting aiding and abetting. Judge Güney disagreed with these findings.

In the period April 13 to July 1994, killings continued to take place in Mabanza and the Prosecution charged Bagilishema with several individual instances. In each case, however, the Chamber found the accused not criminally responsible because the allegations had not been proven beyond a reasonable doubt.

Lastly, the amended indictment charged Bagilishema with crimes in relation to the establishment and operation of several roadblocks at which some people, in particular Bigirimana and Judith, had been killed. In addition to examining the individual and superior criminal liability of the accused in these cases under Article 6(1) and Article 6(3) (which both failed), the Trial Chamber analyzed whether Bagilishema was responsible because of gross negligence. The court described this form of liability as "a species of liability by omission" that would be available "if the Prosecution were to show that the Accused had been grossly negligent in his administration of one or more roadblocks under his control, such negligence causing the murder of Tutsi civilians (by roadblock staff)."

The Trial Chamber held that for liability on the basis of criminal negligence to arise in this case, the Prosecution not only had to prove Bagilishema's public duty in security matters, but also the following four cumulative elements: (1) "that one or more crimes were committed in connection with identified roadblocks;" (2) "that [Bagilishema] was responsible for the administration of those roadblocks because he was involved in their establishment, acquiesced to their continuing existence, or more generally because they came under his control as bourgmestre;" (3) "that measures, if any, taken by [Bagilishema] to detect and prevent crimes in connection with the stated roadblocks were clearly inadequate in the circumstances;" and (4) "that the crimes in question would have been detected or prevented had [Bagilishema] administered the roadblocks with reasonable diligence." The Chamber found that not all of these elements had been proven beyond a reasonable doubt; in particular, the Prosecution had failed to prove "the Accused's wanton disregard for high-risk activities at roadblocks" and that "having established the Trafipro roadblock, the Accused neglected to regulate the conduct of those staffing it, thus causing the deaths of Bigirimana and Judith." Consequently, the court also declined to hold Bagilishema responsible on the basis of criminal negligence. The Prosecution has appealed this acquittal.

Judge Güney disagreed in his Separate and Dissenting Opinion on two points. In his view, there was sufficient evidence to hold Bagilishema responsible as an accomplice for the killings of thousands at Kibuye, and for the crimes committed against civilians at the Trafipro roadblock.


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