In April 1994 Elizaphan Ntakirutimana was the most senior Seventh-day Adventist official in western Rwanda, a pastor of more than thirty years who ran his church's regional office from a hilltop complex at Mugonero, in Kibuye prefecture. Within weeks, the International Criminal Tribunal for Rwanda later found, he had become a man who carried attackers to the hills where Tutsi refugees were sheltering and who ordered the roof taken off a church so that the people inside it would have nowhere left to go.
He was seventy years old in 1994. By the time the tribunal judged him, in February 2003, he was seventy-eight, and his case had already passed through a magistrate's court in Laredo, Texas, a federal district court, the United States Court of Appeals for the Fifth Circuit and the Supreme Court of the United States. He was the first person arrested in the United States on a warrant from the Rwanda tribunal. In Arusha, Tanzania, a Trial Chamber found him guilty of genocide and sentenced him to ten years' imprisonment. On appeal in December 2004 the tribunal quashed the conviction that rested on the attack at Mugonero, affirmed his conviction for aiding and abetting genocide in the Bisesero hills, and added a conviction for aiding and abetting extermination as a crime against humanity. The ten-year term stood. He walked out of custody on December 6, 2006, the first person the tribunal had convicted and jailed to be released at the end of a sentence, and he died in Arusha less than seven weeks later.
He was tried together with his son, Gérard Ntakirutimana, a physician at the Adventist hospital at Mugonero, who was convicted in the same judgment and sentenced to twenty-five years.
Ntakirutimana was born in 1924 in Ngoma secteur, in the commune of Gishyita, Kibuye prefecture, the same corner of western Rwanda where the events of 1994 would take place. He began school in 1939 at the Adventist mission at Ngoma. After finishing primary school in 1946 he worked in the mission office and as a teacher, and on August 4, 1961, he was ordained a pastor.
His rise through the church was steady. In 1967 he was elected president of the West Rwanda Association of the Seventh-day Adventist Church, the regional body that the church also called the West Rwanda "field," and he served until 1970. Between 1970 and 1994 he held a series of other church posts, among them treasurer of the church's Trans-Africa Division from 1985 to 1989, and he was elected president of the West Rwanda Association three more times, the last in 1994. In court he described himself, as his son did, as Hutu.
The association's headquarters stood inside the Mugonero Complex, which the Seventh-day Adventist Association ran in Ngoma secteur. In 1994 its main buildings were a nursing school, a chapel, the West Rwanda field office and a hospital of several buildings set among lawns, with staff residences on the grounds. The main Ngoma Adventist Church stood about a kilometer to the north, and a secondary school about two kilometers to the south. Gérard Ntakirutimana had joined the hospital as a doctor in April 1993.
The killing of Tutsi across Rwanda began in April 1994, after the aircraft carrying President Juvénal Habyarimana was brought down. In Gishyita commune, Tutsi began arriving at the Mugonero Complex around April 9. Witnesses at trial gave numbers that ranged from about one hundred on the first day to many thousands by the middle of the month; the Trial Chamber settled on "many hundreds, even thousands," and found that most of them were Tutsi and unarmed. The numbers kept rising between about April 12 and April 16.
On April 15 the pastor went to the complex to find his treasurer and warned that security had deteriorated. That afternoon or evening, seven Tutsi pastors sheltering at Mugonero wrote him a letter. They had heard that they would be killed the next day, and they asked him to intercede with the bourgmestre of Gishyita, the commune's chief official. The tribunal described the letter as written in a tone of great respect. It said: "tomorrow we shall die with our families."
The court accepted that the pastor left early the next morning, April 16, and reached Gishyita a little after 6:30, accompanied by at least one gendarme. It accepted his account of the meeting in the communal office, in which the bourgmestre told him, in substance, that he could do nothing, that there was no government and no authority, and that he had no power. On his return the pastor wrote a reply to the Tutsi pastors saying that the bourgmestre had refused and that they had not sinned against God. He sent it through gendarmes rather than delivering it himself. The Trial Chamber held that the reply alone did not show he supported the attack.
The attack on the complex that day, the Trial Chamber found, claimed hundreds of lives. The Chamber rejected the defense alibi, which placed the pastor in Gishyita from mid-morning onward, and found as a fact that he conveyed attackers to the Mugonero Complex on the morning of April 16. That finding would not survive the appeal.
The people who lived through Mugonero fled into Bisesero, a stretch of hills between about 1,500 and 2,500 meters high across parts of Gishyita and Gisovu communes, without fixed borders and with few level places. From April through June 1994, predominantly Tutsi refugees sheltered there in numbers that witnesses put in the thousands. The Trial Chamber found that attacks on them took place almost daily over those months and that the attackers included militia, gendarmes, soldiers and civilians.
Prosecution witnesses placed Ntakirutimana at a series of places in Bisesero: Nyarutovu cellule in mid-May and again in the third week of May, Dege and Muyira Hill on May 20, Murambi Hill and Ku Cyapa in May and June, and at Ku Cyapa again in June. His defense argued that he had rarely left Mugonero during those weeks. The Chamber found that he had left Mugonero more often than the defense evidence suggested, and concluded that the alibi did not raise a reasonable possibility that he was elsewhere.
The Trial Chamber found that he transported attackers to sites in Bisesero, including Murambi Church, Nyarutovu, Gitwa, Mubuga, Murambi Hill and Ku Cyapa; that he pointed out refugees to attackers; and that he ordered the removal of the roof of Murambi Church so that it could no longer shelter the refugees inside. The Appeals Chamber later upheld the roof finding and held that the inference the Trial Chamber drew from it was reasonable: that the removal was meant to take away the refugees' hiding place and so make the killing easier.
The United Nations Security Council created the Rwanda tribunal in November 1994 to try genocide and other serious violations of international humanitarian law committed in Rwanda, and by Rwandan citizens in neighboring states, between January 1 and December 31, 1994. Two indictments against Ntakirutimana followed in 1996. The first, the Mugonero Indictment, case ICTR-96-10, was confirmed on June 20, 1996. It charged the pastor, his son and two other men, a businessman and the bourgmestre of Gishyita, over the attack on the complex. The second, the Bisesero Indictment, case ICTR-96-17, was confirmed on September 7, 1996, and charged father and son over the attacks in the hills that followed. Between them the indictments charged genocide, complicity in genocide, conspiracy to commit genocide, crimes against humanity (murder, extermination and other inhumane acts) and, in the Bisesero case, serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II.
By then Ntakirutimana was no longer in Rwanda. He had left the country in 1994 and had lived legally in Laredo, Texas, ever since. He was arrested in Texas on September 29, 1996, on the tribunal's warrant. His son was arrested in Ivory Coast a month later, on October 29, 1996, and was in the tribunal's detention facility in Arusha by November 30.
The father's surrender took far longer. In September 1996 the United States government filed a request in the federal court for the Southern District of Texas, at Laredo, asking that he be surrendered to the tribunal. The United States had no extradition treaty with the tribunal. Instead it relied on an executive agreement signed on January 24, 1995, and on a 1996 statute, Section 1342 of Public Law 104-106, which applied the federal extradition laws to surrenders to the Rwanda tribunal.
A magistrate judge, sitting as the extradition officer, refused the request. He held that the statute was unconstitutional because, on historical practice, extradition required a treaty, and he held in the alternative that the papers supporting the request did not establish probable cause. Ntakirutimana was released about fourteen months after his arrest. The government could not appeal an extradition refusal, so it did the one thing the law allowed: it added two declarations to its evidence and filed a second request in the same court. He was arrested again on February 26, 1998.
On August 6, 1998, a federal district judge, sitting as the extradition officer, certified that he could be surrendered. The judge held that the executive agreement and the statute together gave a constitutional basis for surrender, that the Constitution set no specific requirement of a treaty, and that the evidence was enough to establish probable cause. The evidence came largely from declarations by a tribunal investigator who had taken statements from witnesses identified only by letters, people who had survived Mugonero and Bisesero and who knew the pastor. Ntakirutimana then petitioned for a writ of habeas corpus, the district court denied it, and he appealed.
Ntakirutimana's defense, led by a former Attorney General of the United States, made four arguments to the Fifth Circuit: that the Constitution required an Article II treaty before anyone could be surrendered to the tribunal; that the request did not show probable cause; that the United Nations Charter did not allow the Security Council to create the tribunal; and that the tribunal could not protect the rights guaranteed by the Constitution and international law.
On August 5, 1999, a divided panel affirmed. The majority held that neither the text of the Constitution nor the Supreme Court's 1936 decision in Valentine v. United States required that the authority to extradite come in the form of a treaty; what the law required was some grant of authority, and a statute could supply it. The court called the combination of the executive agreement and Public Law 104-106 a Congressional-Executive Agreement and held that it was a constitutional basis for the surrender. On probable cause, it applied the narrow standard of habeas review, asking only whether there was any competent evidence tending to show it, and found that there was. A second judge on the panel wrote separately, concurring because he considered the court bound by precedent. The third dissented. In his view, the structure of the Constitution required that most international agreements be ratified under the Treaty Clause, by the President with two-thirds of the Senate, and an executive agreement backed by an ordinary statute could not take its place. He would have granted the writ.
The opinion was revised on August 23, 1999. On January 24, 2000, the Supreme Court declined to review the case, which ended the litigation in the American courts. In March 2000 the Secretary of State signed the order authorizing his surrender. On March 24, 2000, more than three years after his first arrest, he was transferred to the United Nations Detention Facility in Arusha. At the time he was the only minister of religion in the tribunal's custody.
He made his initial appearance on March 31, 2000, and pleaded not guilty to all counts. His son had pleaded not guilty more than three years earlier, on December 2, 1996, to five counts under the Mugonero Indictment and seven under the Bisesero Indictment.
The indictments were amended more than once while the father was in Texas. A 1998 decision amended the Mugonero Indictment, and on March 27, 2000, the charges against the businessman were removed from it; a further amendment was granted in a decision of October 6, 2000. The Bisesero Indictment was amended in July 1998. On February 22, 2001, the Trial Chamber granted a motion to join the two cases, so that father and son would answer both indictments in a single trial.
The trial took place before Trial Chamber I of the tribunal, three judges sitting in Arusha. The prosecution opened on September 18, 2001, and closed on November 2, 2001, after twenty-seven trial days. It called nineteen witnesses: sixteen protected witnesses, two investigators and an expert. The defense case opened on February 4, 2002, was adjourned on February 15, resumed on April 10 and closed on May 10, 2002, after thirty trial days and twenty-four witnesses, both of the accused among them. In all the Chamber heard forty-three witnesses over fifty-seven trial days. Closing arguments were heard on August 21 and 22, 2002. It was one of the fastest trials the tribunal had yet held.
The defense case rested on the alibis, on character evidence about the pastor's decades of church and community service, and on the argument that neither man could have stopped the killing. It also renewed a motion to dismiss the case altogether, complaining that defense witnesses had been intimidated, that the prosecution was selective, and that translation and administrative failings had made the trial unfair. The Chamber found no merit in any of those complaints. It noted that no evidence had been offered that witnesses were prevented from testifying and that the defense had not shown it tried to use the tribunal's witness protection program.
The Trial Chamber pronounced its judgment on February 19, 2003; the written judgment is dated February 21. The judges were unanimous.
On both indictments it found Elizaphan Ntakirutimana "GUILTY of Genocide" under Count 1A of the Mugonero Indictment and Count 1 of the Bisesero Indictment. It found him not guilty of complicity in genocide, not guilty of conspiracy to commit genocide, not guilty of crimes against humanity (murder), not guilty of crimes against humanity (extermination), not guilty of crimes against humanity (other inhumane acts) and, under the Bisesero Indictment, not guilty of serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II.
His liability was not as a principal. The Chamber convicted him under Article 6(1) of the tribunal's Statute for aiding and abetting genocide, on the basis of his conveying attackers to Mugonero on April 16 and to the Bisesero sites, his pointing out of refugees, and the removal of the Murambi Church roof. It found that he knew Tutsi were being targeted, relying in part on the pastors' letter of April 15, and it found that he had the intent to destroy the Tutsi ethnic group.
Gérard Ntakirutimana was found guilty of genocide and of crimes against humanity (murder) and not guilty on the remaining counts.
The prosecution asked for imprisonment for the rest of each man's natural life. It argued that under Rwanda's Organic Law both would have fallen into the first category of genocide offenders and faced the death penalty, and it said there were no mitigating circumstances. The defense made no specific submissions on sentence and asked for acquittal.
In mitigation the Chamber gave special weight to the pastor's age, seventy-eight, to his health, which had been evident throughout the trial, to his good character and public service before April 1994, and to his more than four years in custody. It found that he had not played a leading role and had not personally taken part in the killing. In aggravation it weighed his position of authority as a church leader in Kibuye and the fact that he had brought attackers to Mugonero, a recognized place of refuge, and to Bisesero.
It sentenced him to "IMPRISONMENT FOR 10 YEARS," and his son to twenty-five years. Both terms were to run from the date of judgment, with credit for all the time each man had spent in custody, in the father's case from his first arrest in Texas, and both were to be served in a state chosen by the tribunal's President. The tribunal had enforcement agreements at the time with Mali, Benin and Swaziland. Ntakirutimana became the first clergyman convicted of genocide by an international tribunal.
Both men and the prosecution filed notices of appeal on March 21, 2003. A five-judge bench of the Appeals Chamber took the case. The briefs were complete by October 13, 2003, and after two postponements, the second at the request of the pastor's counsel, the appeal was heard on July 7, 8 and 9, 2004. The Appeals Chamber signed its judgment in The Hague on December 9, 2004, and issued it in Arusha on December 13.
The pastor's most important victory concerned Mugonero. The prosecution had never pleaded in the Mugonero Indictment that he conveyed attackers to the complex on April 16. The Appeals Chamber held that this was a material fact, that the defect had not been cured, and that the Trial Chamber had erred in basing a conviction on facts that were never pleaded. It quashed his conviction for aiding and abetting genocide under Count 1A of the Mugonero Indictment and did not need to rule on his challenges to the witnesses who described that morning.
The same reasoning removed parts of the Bisesero case. The Appeals Chamber set aside, for want of notice, the findings about a convoy to Kabatwa Hill and the events at the Mubuga primary school, and it held that the evidence about Muyira Hill and Ku Cyapa did not establish that he took part in the attack there. It rejected his other challenges. The finding at Nyarutovu cellule and Gitwa Hill stood. So did the finding on the Murambi Church roof. It also dismissed his argument that the refugees were not targeted solely for their ethnicity, holding that the definition of genocide does not require that.
On the mental element, the Appeals Chamber held that the Trial Chamber had set the bar too high: aiding and abetting genocide requires knowledge of the principal perpetrators' genocidal intent, not the aider's own intent to commit genocide. It found that he had that knowledge. It affirmed his conviction for aiding and abetting genocide under Count 1 of the Bisesero Indictment.
The prosecution won one of its grounds against him. The Trial Chamber had treated the killing of named or described persons as an element of extermination, and the Appeals Chamber held that customary international law requires no such thing. Extermination is killing on a large scale within a widespread or systematic attack on a civilian population, without any numerical minimum. Applying that test to the findings that remained, transporting attackers who pursued Tutsi at Murambi Hill, pointing out refugees at Nyarutovu Hill and ordering the Murambi Church roof destroyed, the Appeals Chamber found that he knew the perpetrators intended to exterminate the Tutsi refugees and that he made a substantial contribution to the mass killing at Murambi. It reversed his acquittal and entered a conviction for "aiding and abetting extermination as a crime against humanity under Count 5" of the Bisesero Indictment.
The prosecution also appealed his sentence and asked the Appeals Chamber to raise it to twenty years, arguing that under Rwandan sentencing practice he would have received a mandatory life sentence. The Appeals Chamber held that it would intervene only for a discernible error and found none. It agreed that his age and health deserved special consideration, described his remaining convictions as of a serious nature, and held that the revisions to the verdict did not affect the elements on which the ten-year sentence rested. "This sentence is maintained," the Chamber wrote. It affirmed the ten years, subject to credit for the time he had already spent in detention, and dismissed every other ground of appeal on both sides concerning him. His son's twenty-five-year sentence was also confirmed.
With credit running from his first arrest in Texas in September 1996, the sentence was served by the end of 2006. On December 6, 2006, at eighty-one, he was released, the first person convicted and jailed by the tribunal to be freed after completing his term.
He died in Arusha on the night of January 22, 2007. His son was still serving his sentence at the time.
Two pieces of law shaped this case more than any other. The first was American. The United States had never surrendered a person to an international criminal court, and it had no extradition treaty with the tribunal. Its 1995 agreement with the tribunal provided that the United States would surrender persons found in its territory whom the tribunal had charged or convicted, and required the tribunal to present enough information to establish a reasonable basis to believe the person had committed the crimes charged, a standard designed to meet the American probable cause requirement. Section 1342 of Public Law 104-106, enacted in 1996, made the federal extradition statutes, beginning at 18 U.S.C. Section 3181, apply to such surrenders, and Section 3186 gave the Secretary of State the final decision once a court had found the person extraditable. The Fifth Circuit's holding that this combination satisfied the Constitution, over a dissent arguing that only a treaty ratified by two-thirds of the Senate would do, was what allowed the surrender to proceed.
The second was the tribunal's own Statute. Article 2 gave it the power to prosecute genocide, complicity in genocide and conspiracy to commit genocide; Article 3, crimes against humanity; and Article 4, serious violations of Common Article 3 and Additional Protocol II. Article 6(1) made individually responsible anyone who planned, instigated, ordered, committed or otherwise aided and abetted those crimes. The pastor was convicted under that last form of liability. The Appeals Chamber's ruling in his case settled two points: that aiding and abetting genocide requires knowledge of the principal perpetrators' intent rather than the aider's own intent to destroy the group, and that complicity in genocide as defined in the Statute includes aiding and abetting. Its holding that extermination requires no proof of named or described victims, and no minimum number of deaths, was the reason a conviction for extermination was entered against him on appeal. Because a material fact left out of an indictment cannot support a conviction unless the defect is cured, the same court quashed the conviction for the morning at Mugonero.
Ntakirutimana pleaded not guilty and denied the charges from his first appearance in Arusha. His defense maintained that he was in Gishyita for most of April 16, 1994, and that he rarely left Mugonero in the weeks that followed. The Trial Chamber rejected both alibis.
His conviction for the attack on the Mugonero Complex no longer stands. The Appeals Chamber did not hold that the Trial Chamber's account of that morning was wrong; it held that the conduct had never been pleaded in the indictment and so could not found a conviction. The findings about Kabatwa Hill and the Mubuga primary school were set aside on the same ground, and the Appeals Chamber held that the evidence about Muyira Hill and Ku Cyapa did not establish his participation in the attack there.
He was acquitted of conspiracy to commit genocide, of complicity in genocide, of murder and other inhumane acts as crimes against humanity, and of serious violations of the Geneva Conventions and Additional Protocol II. The Trial Chamber found that he did not play a leading role. It also found unproven the allegation that he had drawn Tutsi to the Mugonero Complex in order to have them harmed; about half a dozen people had gone there on his advice, and the Chamber found they had been encouraged to go for their safety.
On his reply to the seven pastors, the Trial Chamber accepted that he wrote back after his meeting with the bourgmestre to say the official had refused, and held that the evidence about the reply's substance was not enough to show he condoned the attack.
1924: Born in Ngoma secteur, Gishyita commune, Kibuye prefecture, Rwanda.
1939: Begins school at the Adventist mission at Ngoma.
August 4, 1961: Ordained a Seventh-day Adventist pastor.
1967 to 1970: First term as president of the West Rwanda Association of the Seventh-day Adventist Church.
1985 to 1989: Treasurer of the church's Trans-Africa Division.
1994: Re-elected president of the West Rwanda Association.
About April 9, 1994: Refugees begin arriving at the Mugonero Complex.
April 15, 1994: Seven Tutsi pastors at Mugonero write to him asking him to intercede with the bourgmestre of Gishyita.
April 16, 1994: Attack on the Mugonero Complex; the Trial Chamber finds he conveyed attackers there (conviction later quashed).
April to June 1994: Attacks on refugees in the Bisesero hills.
November 1994: The UN Security Council creates the International Criminal Tribunal for Rwanda.
January 24, 1995: The United States signs its surrender agreement with the tribunal.
June 20, 1996: The Mugonero Indictment (ICTR-96-10) is confirmed.
September 7, 1996: The Bisesero Indictment (ICTR-96-17) is confirmed.
September 29, 1996: Arrested in Texas.
October 29, 1996: Gérard Ntakirutimana is arrested in Ivory Coast.
1997: A magistrate judge in Laredo refuses the first request for surrender; he is released about fourteen months after his arrest.
February 26, 1998: Re-arrested on a second request.
August 6, 1998: A federal district court certifies that he may be surrendered.
August 5, 1999: The Fifth Circuit affirms the denial of habeas corpus (opinion revised August 23).
January 24, 2000: The Supreme Court declines to review the case.
March 2000: The Secretary of State signs the surrender order.
March 24, 2000: Transferred to the UN Detention Facility in Arusha.
March 31, 2000: Initial appearance; pleads not guilty to all counts.
February 22, 2001: The Trial Chamber joins the two cases.
September 18, 2001: Trial opens.
August 21 and 22, 2002: Closing arguments.
February 19, 2003: Judgment pronounced; guilty of genocide on both indictments; ten years' imprisonment (written judgment dated February 21).
March 21, 2003: Notices of appeal filed by both accused and the prosecution.
July 7 to 9, 2004: Appeal hearing.
December 13, 2004: The Appeals Chamber quashes the Mugonero conviction, affirms aiding and abetting genocide at Bisesero, enters aiding and abetting extermination, and affirms the ten-year sentence.
December 6, 2006: Released after completing his sentence.
January 22, 2007: Dies in Arusha.