05.01.07 - ICTR/SEROMBA - APPEAL EXPECTED AFTER A SURPRISING SENTENCE

Arusha, January 5th 2007 (FH) – The determination of sentences for the International Criminal Tribunal for Rwanda (ICTR) as for most tribunals in democratic countries, remains at each Chamber’s discretion. However, the verdict issued mid-December against the Catholic priest Athanase Seromba raises questions the Appeals Chamber will perhaps answer. On December 13th 2006, the Court of the ICTR, presided by Judge Andrésia Vaz (Senegal), assisted by Karin Hökborg (Sweden) and Gustave Kam (Burkina Faso), declared Athanase Seromba guilty of genocide and crimes against Humanity. The prosecution had called for life imprisonment on all counts he would be found guilty of. He received fifteen years. Athanase Seromba is the first Catholic priest to have been tried by the international jurisdiction after the condemnation in 2003 of Elizaphan Ntakirutimana, a minister of the Adventist Church. The articles 23 of the ICTR Status and 101 of its Rules of Procedure and Evidence define the guidelines for the determination of sentences. These articles establish the necessity to consider the general sentence grid that applies in Rwanda, the seriousness of the offense and the personal situation of the defendants. However, these guidelines are neither compulsory, nor exhaustive or cumulative; they are meant to facilitate the work of the chambers. The choice of sentences is entirely at their discretion; they can take into consideration other elements they deem relevant (Ruggiu, 1st instance, 12.1.O6). The fundamental texts of the ICTR do not organize crimes into a hierarchy. Still, it remains that genocide, defined by its special willful deceit, constitutes « a crime of extreme seriousness »; it is the « criminal offense above all the others » (Musema, 1st instance, 01.27.00). In all the genocide trials before the ICTR in which defendants have not pleaded guilty, the prosecutor has demanded the maximum sentence. Legal texts do not establish sentence grids for every given criminal offense though, but a range of sentences has been defined. For instance, the principal suspects who are found guilty of genocide or of extermination as crimes against Humanity, or of both charges, face prison terms ranging from 15 years to life (Semanza, 1st instance, 05.15.03). The gradation of sentences depends on the status of the accused. The heaviest sentences are reserved for those who had positions of authority, who planned or ordered the perpetration of atrocities and those who demonstrated particular zeal or sadism in their crimes. In Seromba’s case, the Court of First Instance hasn’t retained the charge of genocide planning. He has been found guilty of helping and supporting the genocide, his position of leader of parish simply been retained as an aggravating circumstance. The last times defendants were condemned to 12 to 15 years of imprisonment for crimes of genocide (in the cases of Ruggiu, Serushago and Serugendo) or of extermination as crimes against Humanity, they had previously stricken guilty pleas. Seromba has not. Neither had Elizaphan Ntakirutimana, minister of the Adventist Church, who has been condemned for genocide to 10 years in prison. In determining sentences, the Chamber also has to consider aggravating and extenuating circumstances. This goes together with the imperious obligation to individualize verdicts so that they are adapted to the personal situation of the defendants, to the global context of their guilt and to the seriousness of the offenses, the determining criteria being that the sentence must match the criminal behavior in its entirety (Akayesu, Appeals Chamber, 06.1.01). As for extenuating circumstances, it appears in the case of Seromba that his surrender has been considered as voluntary. And yet, he had been traced by an association of victims as he was working as a priest near Florence, Italy under a false identity. For several months, no doubt dragooned by the Catholic Church, very influential in the country, the Italian government had refused to execute the international arrest warrant against Seromba. In terms of aggravating circumstances, the Chamber notably mentioned the fact that he had fled under a false identity and that his status deserved him the confidence of the persons who sought refuge in his parish and believed they would be safe there. Oddly enough, the Chamber has retained the fact that he had refused to celebrate Mass for those sheltered in his church, thus « causing (them) mental distress ». Does the verdict against Seromba pursue the conventional goals the Tribunal has set for itself, that is to say to punish, to dissuade, to protect society, to put an end to impunity, to favor reconciliation and to take the road to peace? The Prosecutor decided on December 22nd 2006 to appeal the verdict and other elements of the judgment. AV/PB/MG © Hirondelle News Agency