15.12.07 - ICTR/JUSTICE - UN APPEALS COURT RULES OUT GENOCIDE CONSPIRACY IN ‘MEDIA CASE' (ANALYSIS)

The Hague,15 December 2007 (FH) - The recent decision of the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) to quash the majority of the guilty verdicts in the ‘media case' involving three former top Rwandan media executives, has brought to the fore the legal issue of what is meant by direct conspiracy to commit genocide.
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The three media officials are Ferdinand Nahimana, a founder of the pro-Hutu Radio Television des Mille Collines (RTLM); Jean-Bosco Barayagwiza, a director of RTLM; and Hassan Ngeze, owner and Editor-in-Chief of vernacular Kangura newspaper(which means wake it up).

Nahimana and Ngeze were sentenced by the lower court to life imprisonment,which is the highest prison term under the UN statute,and Barayagwiza was handed a 35-years jail.

The Appeals judges overturned the prison sentences and gave Nahimana 30 years sentence; Ngeze 35 years imprisonment and Barayagwiza 35 years jail after acquitting them of most charges.

For the first time, the judges, in first instance, had based the crime of conspiracy to commit genocide on the existence of an institutional coordination--dialogue had been established between RTLM,
the Kangura newspaper and the pro-Hutu political party of the Coalition for the Defence of the Republic (CDR).

In their judgment of 3 December 2003, they had concluded that the defendants "had knowingly acted in concert, by using the institutions which they controlled, to promote a common goal, namely to target the Tutsi population and destroy it". They found them guilty of conspiracy "to collaborate personally" and because "' there was interaction between the entities which they controlled, namely the RTLM, Kangura and the CDR".

The Appeals Chamber, notes that if starting from the factual elements it could be concluded that there was a direct conspiracy between the appellants, even a "common goal" at the institutions with an aim of committing genocide, it assesses that it was not the only possible conclusion and thus guilt was not proved.

In the absence of direct evidence, the Appeal judges reminded, if the prosecutor wanted to establish criminal responsibility "on the basis of a unit of circumstantial elements of evidence, the conclusion should emerge from the whole of the established facts".

Components of the crime of conspiracy to commit genocide, which is one of the qualified acts of genocide according to article 2 (3) (b), were progressively defined by jurisprudences.

An Appeals Chamber decision of 7 July,2007 in the former Rwandan Transport and Communications Minister Andre Ntagerura's et al. case defined conspiracy as "a resolution to act on which at least two people agreed, in order to commit the genocide". It is the resolution to act concertedly, which can be a tacit
conspiracy according to the appeal chamber, which constitutes the material element of the infraction.

Since the Georges Rutaganda (Businessman and second Vice-President of the notorious Interahamwe militia) decision of 5 May,2003 , international criminal jurisprudence excludes any form of responsibility "pursuant to the theory of guilt by association,in particular by similarity of behaviour".

Media executives Nahimana and Ngeze had based themselves, inter alia, on this theory of "conscious parallelism" to try to clear themselves.

"The fact that individuals react simultaneously and in the same manner to a common situation, by no means proves the existence of a preliminary conspiracy and of a concerted plan", put forward by their lawyers.

But the Appeal judges did not consider that the first instance chamber(lower court) declared them guilty by association or because of
the similarity of their behaviour.

The moral element, clearly involved in the Alfred Musema (ex-Director of Tea factory in Gisovu) judgement of 27 January,2000 and Eliezer Niyitegeka (ex-Minister for Information)judgment of 16 May,2003 is qualified by the intention, which the individuals involved in the conspiracy, to destroy all or in part a national, ethnic, racial or religious group as such.

The moral element, which is the same one as that of the main infraction,the genocide, must exist before the commission of the acts.

In these two judgments, the first instance chamber specified that the infraction of conspiracy is punishable even if it was not followed by action. The conspiracy is a formal infraction, therefore punishable in itself, even if the main infraction, the genocide, was not committed.

The resolution to act in a concerted manner, which qualifies conspiracy to commit genocide, directly refers to the planning of the genocide. But the latter is not envisaged as such in the ICTR statute.

For the judges of international criminal law,the existence of a precise plan is not necessary (ex-Kibuye mayor Clement Kayishema and ex-businessman Obed Ruzindana case of 21 May 1999).

On the contrary, France, for example, considers that planning forms an integral part of the definition of genocide. The total or partial destruction of the protected group must be carried out "pursuant to a concerted plan" (article 211-1 of the criminal code). The existence of this concerted plan will have to be established.

Until now, 17 people have been, or are, prosecuted by the ICTR for conspiracy to commit genocide.

Eleven have been acquitted of this charge. Only two accused, Jean Kambanda, former Prime Minister during the 1994 genocide, and Niyitegeka, were convicted (three cases prosecuting conspiracy
are still in progress.

AV/PB/MM/SC
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