القاعدة ذات الصلة
Rwanda
Practice Relating to Rule 153. Command Responsibility for Failure to Prevent, Punish or Report War Crimes
Rwanda’s Law Setting up Gacaca Jurisdictions (2001) aims
to organize the putting on trial of persons prosecuted for having, between 1 October 1990 and 31 December 1994, committed acts qualified and punished by the Penal Code and which constitute: a) … crimes of genocide or crimes against humanity as defined by the [1948 Genocide Convention], by the [1949 Geneva Convention IV and the 1977 Additional Protocols], as well as in the [1968 UN Convention on the Non-Applicability of Statutory Limitation to War Crimes and Crimes against Humanity]. 
Rwanda, Law Setting up Gacaca Jurisdictions, 2001, Article 1.
The Law provides:
The fact that any of the acts aimed at by this organic law has been committed by a subordinate does not free his superior from his criminal responsibility if he knew or could know that his subordinate was getting ready to commit this act or had done it and that the superior has not taken necessary and reasonable measures to punish the authors or prevent that the mentioned act be not committed when he had means. 
Rwanda, Law Setting up Gacaca Jurisdictions, 2001, Article 53(2).
Rwanda’s Presidential Order Establishing Army General Statutes (2002) provides:
Any officer and/or man heading a service shall be answerable to his hierarchical superiors for the smooth functioning of that service. He shall be required, therefore, to punish or cause to be punished all abuses, negligence or breaches of laws and regulations that may come to his notice in the exercise of his functions. 
Rwanda, Presidential Order Establishing Army General Statutes, 2002, Article 31.
Rwanda’s Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes (2003) provides:
The fact that one of the crimes provided for by this law has been committed by a subordinate does not free the authority which is his superior from its criminal responsibility if it knew or had reasons to know that the subordinate was preparing to commit that act or had committed it and if the authority superior in hierarchy did not take the necessary and reasonable measures to prevent the said act from being committed or to punish its perpetrators, and to inform the relevant authorities. 
Rwanda, Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes, 2003, Article 18.
In September 1997, in the Rwigamba case, Rwanda’s Military High Court stated:
- The Court finds that in the evening of 11/09/1995 at around 7h00 pm, in Kanama Commune, Kayove Sector, on the winding Nyakiriba road, enemies set up an ambush against a military Toyota Hilux pickup with Second Lieutenant RURAZA Claude on board, who was coming from Bigogwe military camp and heading to Gisenyi where he was transferred to, and shot at the car, causing the death of Second Lieutenant RURAZA.
- The Court finds that Lieutenant Maitre RUTINYWA arrived at the place of the incident right after the shooting at the car, and took the body of Second Lieutenant RURAZA Claude and guns that were in the car to the Bigogwe military camp, and informed its Commander Major RWIGAMBA of the incident.
- The Court finds that Major RWIGAMBA, who was the Commander of the 5th Battalion, before leaving the Bigogwe camp for where the incident had taken place, sent a message to the Commander of Gisenyi and Ruhengeri Zone, (Brigade CO) Colonel BAGIRE, informing him that Second Lieutenant RURAZA Claude had been shot dead by enemies in an ambush, and informing him that he was about to go to the place of the incident and would keep informing him on developments;
- The Court finds that in the report Colonel BAGIRE proved that he did not receive the message in that night due to a communication problem, that he got the message in the morning and immediately left for Kanama, where the incident had taken place.
- The Court finds that Major RWIGAMBA, Commander of the 5th Battalion, just after learning about the death of Second Lieutenant RURAZA Claude in an ambush, immediately prepared a military operation within his Battalion in order to search for those enemies, using the technique of surrounding the sectors of Kayove and Bisizi in Kanama Commune in the area where Second Lieutenant RURAZA Claude had been shot dead.
- The Court finds that Major RWIGAMBA used, in that Battalion military operation, two platoons under the command of Second Lieutenant Emmanuel RUTAYISIRE who moved into the Kayove sector together with Major Goodman BAGURETE RUZIBIZA (OPTO of the 5th Battalion), and another platoon under the command of Second Lieutenant SANO moved into the Bisizi sector close to the place where Major RWIGAMBA was staying because the platoon had no message radio.
- The Court finds that Major RWIGAMBA gave orders to start surrounding the area in the night and to seek the enemy in the morning.
- The Court finds that the conclusions issued by the National Commission set up by the Vice President and Minister of Defence to investigate the incident are relevant, especially Article 2 where it states that: “there has been a military operation led by soldiers in that area with the aim of finding and capturing the enemy”, and therefore shows that there was no malicious intention to kill civilians.[]
- The Court finds that the military operation to surround the area in the night and to track the enemy in the morning was not respected, because at around 2h00am the enemy shot at the soldiers and then fighting started, and because at around 4h00am Major RWIGAMBA gave orders to Major RUZIBIZA, Second Lieutenant RUTAYISIRE and Second Lieutenant SANO to tell people to go attend a meeting in Bisizi Sector, the meeting aiming at comforting them and informing them not to give support to the enemy.
- The Court finds that the conclusions of the report of the National Commission to investigate incidents that occurred in Kanama Commune are relevant, especially Article 5 whereby it stipulates that: “there was excess use of force […] in that military operation”, this means that some civilian people were killed during that fighting;
- The Court finds that when soldiers were calling people to attend the meeting, some soldiers, who could not be recognized, killed some of the civilian people;
- The Court finds that the conclusions of the report of the National Commission to investigate incidents that occurred in Kanama Commune [are relevant], especially in Article 5 whereby it stipulates that: “there was a lack of commanding authority over the soldiers during that military operation”, which led to the killing of a number of civilian persons by some soldiers;
- The Court finds that between 86 and 110 civilian people were killed, as set out by the National Commission to investigate incidents that occurred in Kanama Commune in its report, especially under Article 4;
- The Court finds that the crime of murder provided for and punished by Article 311 of the Rwandan Penal Code, with which Major RUZIBIZA, Second Lieutenant RUTAYISIRE and Second Lieutenant SANO are charged by the Military Prosecution, has not been committed, because there is no evidence proving beyond any reasonable doubt that they killed any civilians themselves or gave any order to kill civilians; therefore, the killings that happened were committed by some soldiers who were under their command but on their own behalf, and were done in secret;
- The Court finds that the crime of complicity for murder with which the Military Prosecution is charging Major RWIGAMBA, has not been committed, because there is no evidence beyond any reasonable doubt proving that he gave instructions to kill civilians to Major RUZIBIZA, Second Lieutenant RUTAYISIRE and Second Lieutenant SANO and that killings were committed by some soldiers who were under the command of Major RUZIBIZA, Second Lieutenant RUTAYISIRE and Second Lieutenant SANO on their own behalf and done in a secret way;
- The Court finds that Major RWIGAMBA, Major RUZIBIZA, Second Lieutenant RUTAYISIRE and Second Lieutenant SANO were negligent during that military operation in supervising soldiers who were under their command, [to prevent] them from killing civilians, in particular for the reason that there was no risk for them to do it because they have that authority; for that reason they have committed the crime of not providing assistance to a person in danger, provided for and punished by Article 256 paragraph one of the Rwandan Penal Code.
- The Court finds that the conclusion of the National Commission to investigate incidents that occurred in Kanama Commune is relevant, especially Article 5 whereby it stipulates that: “The Commission is of the view that the military commanders who carried out the military operation in Kanama Commune did not use sufficient diligence, they lacked supervision over soldiers in the operation”, so Major RUZIBIZA, Second Lieutenant RUTAYISIRE and Second Lieutenant SANO are convicted of the crime mentioned under the preceding paragraph.
FOR ALL THE ABOVE REASONS, IN THE PRESENCE OF ALL PARTIES:
Pursuant to the Rwandan Penal Code, especially in Article 256 paragraph one;
Decides that Major RUZIBIZA is not guilty of the crime of murder provided for and punished by Article 311 of the Rwandan Penal Code, with which the Office of the Military Prosecutor General is charging him;
Finds Second Lieutenant RUTAYISIRE not guilty of the crime of murder provided for and punished by Article 311 of the Rwandan Penal Code, with which the Office of the Military Prosecutor General is charging him;
Finds Second Lieutenant SANO not guilty of the crime of murder provided for and punished by Article 311 of the Rwandan Penal Code, with which the Office of the Military Prosecutor General is charging him;
Finds Major RWIGAMBA not guilty of the crime of complicity for murder provided for and punished by Article 91 and 311 of the Rwandan Penal Code, with which the Office of the Military Prosecutor General is charging him;
Finds Major RWIGAMBA guilty of the crime of not providing assistance to a person in danger, as provided for and punished by Article 256 of the Rwandan Penal Code paragraph one, and shall therefore be punished;
Finds Major RUZIBIZA guilty of the crime of not providing assistance to a person in danger, as provided for and punished by Article 256 of the Rwandan Penal Code paragraph one, and shall therefore be punished;
Finds Second Lieutenant RUTAYISIRE guilty of the crime of not providing assistance to a person in danger, as provided for and punished by Article 256 of the Rwandan Penal Code paragraph one, and shall therefore be punished;
Finds Second Lieutenant SANO guilty of the crime of not providing assistance to a person in danger, as provided for and punished by Article 256 of the Rwandan Penal Code paragraph one, and shall therefore be punished;
- Major RWIGAMBA is sentenced to twenty-eight (28) months of imprisonment.
- Major RUZIBIZA is sentenced to twenty-eight (28) months of imprisonment;
- Second Lieutenant RUTAYISIRE is sentenced to twenty-eight (28) months of imprisonment;
- Second Lieutenant SANO is sentenced to twenty-eight (28) months of imprisonment;
- The Court reminds all parties that appeal must be made within thirty (30) days from the date of the public pronouncement of the judgement. 
Rwanda, Military High Court, Rwigamba case, Judgment, 12 September 1997.
In December 1997, in the Rugambwa case, Rwanda’s Military High Court stated:
- The Court finds that in the evening of 02/03/1997 at around 06h30 p.m., near the Musanze school premises in Kigombe Commune, Ruhengeri Prefecture, the enemy set an ambush and shot at four vehicles, killed four people, injured seven others, attacked even the Musanze school, but failed as he was thwarted by the army.
- The Court finds that Major RUGAMBWA, who was the commander of the 5th Battalion that was in charge of Ruhengeri town and its surrounding areas, looked for means to carry out a military operation on the next morning in order to search for the enemy militiamen who had caused the incident the preceding day because they were still likely in that area.
- The Court finds that on 02/03/1997 Major RUGAMBWA, by walkie-talkie communication, called Lieutenant Colonel Laurent Munyakazi, Deputy Commander of the 211th Brigade, to tell him about the ambush; the latter immediately called Lieutenant Colonel Martin Nzaramba, Commander of the 211th Brigade, who ordered him to tell Major RUGAMBWA to give the Brigade Commander more details about that incident.
- The Court finds that Major RUGAMBWA did not observe that order and did not call Lieutenant Colonel Martin Nzaramba and that his allegations of not having been able to reach him are baseless because he had a variety of means of communication he could use, either telephone, walkie-talkie or radio, but that he did not use any of them;
- The Court finds that Major RUGAMBWA prepared the military operation without informing the 211th Brigade Commander who was the only person to authorize it, as Major RUGAMBWA had received clear instructions about it;
- The Court finds that Major RUGAMBWA, while preparing the military operation, got human support from EGENA [Ecole de la Gendarmerie Nationale – National Police School] school gendarmes and others from the Ruhengeri camp, in order to support his troops who were of a limited number because of their prior deployment to other places.
- The Court finds that soldiers from the 5th Battalion were deployed to Gashangiro, Gahondogo and Musanze sectors of Kigombe Commune, while gendarmes from EGENA and Ruhengeri camp were deployed to Kabaya sector of Kigombe commune and Kimonyi sector of Mukingo commune.
- The Court finds that instructions given to those soldiers were to move throughout these sectors, search in houses, and after that to take the population, mainly men, to the playing field of Musanze secondary school where a meeting was to be held chaired by Major RUGAMBWA.
- The Court finds that the soldiers and gendarmes received no instructions to kill civilians.
- The Court finds that the military operation started at the same time in the sectors mentioned above between 6h00 and 8h00 until 14h00.
- The Court finds that the national army fought the enemy in the operation and fought to the extent that even one soldier of the Ruhengeri camp called Pte Simon Muhirwa was shot in the Kabaya sector at around 12h00.
- The Court finds that in the above sectors where the operation was carried out 151 members of the civilian population were killed as follows: in Kabaya Sector 104 civilians lost their lives, 14 in Kimonyi Sector, 25 in Gahondogo sector, 4 in Gashangiro Sector and 4 in Musanze Sector.
- The Court finds that among the people who were killed were children, women and the elderly and some of the soldiers, as confirmed by some of the local population questioned who explained how their relatives and their neighbours were abusively killed by some soldiers who were unidentified, using bullets and traditional weapons.
- The Court finds that some of the soldiers who were in the operation have [been] questioned and affirmed that they have confirmed that their superiors did not closely supervise the operation and hence members of the civilian population were killed.
- The Court finds that Major RUGAMBWA, instead of following up the military operation, was moving around hearing gunshots;
- The Court finds that Major RUGAMBWA was informed by Lieutenant Kagarura that he had seen a big number of civilians killed but he did not do anything, he rather went on driving around.
- The Court finds that Major RUGAMBWA prepared the operation brutally and did not inform any of his superiors and did not even supervise his soldiers during the operation, but rather preferred to move around while he could hear gunshots everywhere. That negligence, gross recklessness and lack of diligence caused the death of many civilian people, that crime is provided for and punished by Articles 343 and 344 of the Rwandan penal code.
- The Court finds that Major RUGAMBWA in the course of the operation was told by Lieutenant Kagarura that there were some people killed by soldiers, but he ignored it and did not even take his soldiers before justice; that would be considered mitigating circumstances to the crime of murder and complicity for murder as provided for by Article 258 of the Rwandan Penal Code.
- The Court finds that there was a joint criminal enterprise as provided for by Article 94 paragraph 1 of the Rwandan Penal Code;
- The Court finds that on charges of which Major RUGAMBWA Claver was a good performing soldier, the fact that it was the first time he has committed such faults would serve as mitigating circumstances;
- The Court finds that some of the soldiers that were under the command of Lieutenant Jean Bosco RUTIKANGA, Second Lieutenant Deus KARAKASI, Second Lieutenant Sylvestre KABANGO, Second Lieutenant Evariste NSABIMANA, S/Sgt TUYISENGE Amiel killed some civilian people with the assistance of their commanders because they were watching what was happening and did nothing to stop the killing, they rather acted as blessing them, this facilitated the commission of that crime which is provided for and punished by Articles 89, 91 paragraph 3 and 311 of the Rwandan Penal Code.
- The Court finds that the fact that soldiers who killed civilian persons were not identified could not render Lieutenant Jean Bosco RUTIKANGA, Second Lieutenant Deus KARAKASI, Second Lieutenant Sylvestre KABANGO, Second Lieutenant Evariste NSABIMANA, S/Sgt TUYISENGE Amiel innocent of the crime of complicity for genocide.
- The Court finds that Lieutenant Jean Bosco RUTIKANGA, Second Lieutenant Deus KARAKASI, Second Lieutenant Sylvestre KABANGO, Second Lieutenant Evariste NSABIMANA, S/Sgt TUYISENGE Amiel knew that the soldiers under their command were killing civilian people and it was in their power to prevent or limit the consequences but they did not inform any judicial or administrative authorities in order to have those soldiers punished; the crime is provided for and punished by Article 258 of the Rwandan Penal Code.
- The Court finds that with regard to crimes committed by Lieutenant RUTIKANGA John Bosco, Second Lieutenant Deus KARAKASI, Second Lieutenant Sylvestre KABANGO, Second Lieutenant Evariste NSABIMANA, S/Sgt TUYISENGE Amiel, there is a joint criminal enterprise, that is provided for by Article 93 Book 1 of the Rwandan Penal Code.
- The Court considers that the fact that Lieutenant RUTIKANGA John Bosco, Second Lieutenant Deus KARAKASI, Second Lieutenant Sylvestre KABANGO, Second Lieutenant Evariste NSABIMANA, S/Sgt TUYISENGE Amiel were deployed in a region where they often had to fight against the enemy, had to stay under the trauma of fighting at anytime, which may even cause them lack of good control of soldiers under their command, shall be mitigating circumstances.
FOR ALL THE ABOVE REASONS, THE MILITARY HIGH COURT
- Pursuant to the Rwandan Penal Code, especially Articles 89, 91 paragraph 3; 93; 94 paragraph one, 343 and 344;
- Finds Major RUGAMBWA Claver guilty and liable for the crime of murder due to negligence, recklessness, imprudence and insubordination without malicious intent, provided for and punished by Articles 343 and 344 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Major RUGAMBWA Claver guilty and liable for the crime of having knowledge of an intention to commit a crime, and it was in his/her power to prevent or limit the consequences but he did not inform any judicial or administrative authorities, as provided for and punished by Article 258 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Lieutenant Jean Bosco RUTIKANGA guilty and liable for the crime of complicity for murder as provided for and punished by Articles 89, 91 paragraph 3, and 311 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Second Lieutenant Sylvestre KABANGO guilty and liable for the crime of complicity for murder as provided for and punished by Articles 89, 91 paragraph 3s and 311 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Second Lieutenant Deus KARAKASI guilty and liable for the crime of complicity for murder as provided for and punished by Articles 89, 91 paragraph 3, and 311 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Second Lieutenant Evariste NSABIMANA guilty and liable for the crime of complicity for murder as provided for and punished by Articles 89, 91 paragraph 3, and 311 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Second Sergeant TUYISENGE Amiel guilty and liable for the crime of complicity for murder as provided for and punished by Articles 89, 91 paragraph 3, and 311 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Lieutenant Jean Bosco RUTIKANGA guilty and liable for the crime of having knowledge of the commission or the intention to commit a crime, and it was in his/her power to prevent or limit the consequences but he did not inform any judicial or administrative authorities, as provided for and punished by Article 258 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Second Lieutenant Sylvestre KABANGO guilty and liable for the crime of having knowledge of the commission or the intention to commit a crime, and it was in his/her power to prevent or limit the consequences but he did not inform any judicial or administrative authorities, as provided for and punished by Article 258 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Second Lieutenant Deus KARAKASI guilty and liable for the crime of having knowledge of the commission or the intention to commit a crime, and it was in his/her power to prevent or limit the consequences but he did not inform any judicial or administrative authorities, as provided for and punished by Article 258 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Second Lieutenant Evariste NSABIMANA guilty and liable for the crime of having knowledge of the commission or the intention to commit a crime, and it was in his/her power to prevent or limit the consequences but he did not inform any judicial or administrative authorities, as provided for and punished by Article 258 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Finds Staff Sergeant TUYISENGE Amiel guilty and liable for the crime of having knowledge of the commission or the intention to commit a crime, and it was in his/her power to prevent or limit the consequences but he did not inform any judicial or administrative authorities, as provided for and punished by Article 258 of the Rwandan Penal Code, a crime of which he was accused by the Office of the Military Prosecutor General;
- Sentences Major Claver RUGAMBWA to forty-four (44) months imprisonment;
- Sentences Lieutenant RUTIKANGA Jean Bosco to five (5) years’ imprisonment;
- Sentences Second Lieutenant Sylvestre KABANGO to five (5) years’ imprisonment;
- Sentences Second Lieutenant Deus KARAKASI to five (5) years’ imprisonment;
- Sentences Second Lieutenant Evariste NSABIMANA to five (5) years’ imprisonment;
- Sentences Staff Sergeant TUYISENGE Amiel to five (5) years’ imprisonment;
Reminds all the Parties that the period within which to appeal is thirty (30) days counting from the day of pronouncement of this judgement. 
Rwanda, Military High Court, Rugambwa case, Judgment, 1 December 1997.