27.01.07 - ICTR/JURISPRUDENCE - THE PLEA GUILTY IS SOMETIMES FAR FROM THE REALITY

Arusha, 25 january 2007 (FH) - The practice of plea of guilty, originating in the Anglo-Saxon law system, is convenient for everybody, Accused, Parties and Chambers, but it is sometimes used at the expense of the victims when Accusation and Defence agree on an incrimination which is often far from reality. After the judgement of Vincent Rutaganira in December 2004, several lawyers working at the Tribunal noticed with astonishment and under the seal of anonymity that the six counts of the indictment had changed into one count of complicity in extermination for aiding and abetting its commission by omission. Thus, the Accused was blamed only for not having reproved. Eventually, he was sentenced to six years imprisonment. In December 2006, Joseph Nzabirinda nicknamed “Biroto”, former Encadreur of the youths in the Butare prefecture and former member of investigation team for the Defence of the International Criminal Tribunal for Rwanda (ICTR), was the seventh Accused to enter a guilty plea. After mature deliberation, he recognized that he had been an approving spectator of the killings of the Tutsis during the events in 1994. The Chamber accepted his plea of guilty on 14 December 2006 and found him guilty of having “aided and abetted, by omission, the perpetration of crimes of assassinations”. The terms “aiding” and “abetting” are distinct legal concepts. There are one of the five forms of participation in a crime. Each of them can engage the criminal responsibility of the Accused as an accomplice under article 6(1) of the Statute of the ICTR. The term “aiding” means assisting another to commit a crime whereas the term “abetting” refers to encouraging, advising or instigating the commission of a crime. To engage the criminal responsibility of the perpetrator, the assistance must contribute directly and have a substantial effect on the commission. But this assistance does not need to be an indispensable element of the acts of the perpetrator (Bagilishema, Trial Chamber, 7 June 2001). The qualification of “an approving spectator” was created before the International Criminal Tribunal for the former Yugoslavia (ICTY) in Prosecutor v. Furundzija (12 December 1998). Although no conventional disposition existed, the Tribunal found inspiration in the International case law and laid down some principles. The Tribunal notably decided that the assistance does not require to be material to constitute an offence. The role of the individual in the commission of the offence need not always be tangible (Kayishema et Ruzindama, Trial Chamber, 21 May 1999). It is sufficient to show a moral support or to encourage the perpetrators while they are committing a crime. Then the Trial Chamber considered that an “approving spectator who is held in such respect by other perpetrators that his presence encourages them in their conduct, may be guilty in a crime against humanity”. The responsibility of the “approving spectator” does require his or her actual presence at the scene of the crime or in its immediate vicinity. This presence is perceived by the actual perpetrator as approval of his conduct Both the ICTY and ICTR admitted that the “spectator” accused must have a significant status which noteworthy may encourage or legitimate the main perpetrator’s acts. Concerning a subordinate, a tacit approval could be not sufficient to characterize the offence (Bagilishema, Trial Chamber, 7 June 2001). The assistance must have been knowingly provided, with the awareness that it would contribute to the criminal act. However, the Accused does not need to share the will of the principal perpetrator. In the case of the “approving spectator”, the individual must know that his presence would be seen by the perpetrator of the crime as encouragement or support (Semanza, Trial Chamber, 15 May 2003). The Defence and the Accusation agreed on sentences from 5 to 8 years imprisonment. After having heard the arguments of the parties, the Trial Chamber will decide on 17 January 2007 whether it sticks to this proposal. AV/PB/CV © Hirondelle News Agency