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Decision on Referral - 04.12.2008 HATEGEKIMANA Idelphonse

The Appeals Chamber considered whether the Trial Chamber erred in denying referral of Hategekimana’s case on the basis that Rwandan law does not recognise command responsibility. The Appeals Chamber noted Rwanda’s submission that command responsibility is recognised by Rwandan law,[1] and held that:

12.    In light of Rwanda’s submissions, the Appeals Chamber is satisfied that command responsibility is recognized under Rwandan law, in particular the Gacaca Law and the Organic Law No. 33bis/2003, and that the Trial Chamber therefore erred in assuming that Rwandan law does not recognize command responsibility, or that it did not do so at the time relevant to the Amended Indictment. Hategekimana’s submission that the Genocide Law had no legal effect at the time when the Trial Chamber was seized of the Referral Request is thus of limited utility, since it was open to the Trial Chamber to consider Article 53 of the Gacaca Law and the Organic Law No. 33bis/2003. Accordingly, the Appeals Chamber finds that the Trial Chamber, which was aware of the Gacaca Law[2] and had information before it as to the existence of the Organic Law No. 33bis/2003,[3] erred in failing to consider these laws when making its findings on this issue. The Appeals Chamber further notes that the Trial Chamber held that it was not satisfied that Rwanda’s legal framework “criminalizes command responsibility”[4] and that it was “not satisfied that there is an adequate legal framework under Rwandan law which criminalizes Mr. Hategekimana’s alleged conduct.”[5] The Appeals Chamber finds the Trial Chamber’s holdings in this respect to be somewhat confusing, in that they could be interpreted as characterizing command responsibility as a “crime” rather than as a mode of individual criminal responsibility incurred by a superior for failure to prevent or punish certain criminal acts, as enumerated in the Statute, which were committed by his or her subordinates. 

13.    The Appeals Chamber accordingly grants this ground of appeal.

[1] See Appeal Decision, para. 11. See also Rwanda Amicus Brief, paras. 8, 9.

[2] Rule 11bis Decision, paras. 15, 17, 72, 74. See also para. 65.

[3] HRW Amicus Brief, paras. 22, 32.

[4] Rule 11bis Decision, para. 78(i).

[5] Rule 11bis Decision, para. 19.

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