When 'Mere Presence' Implicates, But the 'Scale of the Operation' Mitigates: The Curious Criminality of Mass Atrocity

42 Pages Posted: 4 Oct 2012 Last revised: 28 May 2014

See all articles by Mark Drumbl

Mark Drumbl

Washington and Lee University - School of Law

Date Written: October 4, 2012


This paper unpacks thorny criminological and penological questions through the lens of a single case, Prosecutor v. Grégoire Ndahimana (International Criminal Tribunal for Rwanda, Trial Chamber III, 2011). This case is yet another judicial intervention into the Nyange church massacre, a tragedy that took the lives of up to 2,000 Tutsi civilians in Rwanda during the 1994 genocide. Ndahimana was the bourgmestre (mayor) of the commune – Kivumu – in which the church was sited. He was convicted and sentenced to a 15 year term of imprisonment, less (as is customary) time served (in his case, since August 2009).

This paper initially proceeds descriptively and then pursues an interrogative bent.

As to description, this paper sets out the gruesome details of the Nyange church massacre, the background of the accused Ndahimana, and the specifics of his trial judgment and sentence. Ndahimana was convicted of genocide and of extermination as a crime against humanity by aiding and abetting as well as by virtue of his command responsibility. Judges on Trial Chamber III, however, fractured regarding modes of liability and also regarding factors in mitigation. As to modes of liability, the majority dismissed many of the allegations against Ndahimana and found that he had command responsibility only over the communal police, whom he failed to punish for crimes they committed on April 15, 1994, and that he aided and abetted the church demolition merely by being present at the time (April 16) and lending tacit approval thereto. As to penological determinations, the majority relied upon the systemic nature of the demolition and the broad coordination that it necessitated in order to mitigate Ndahimana’s sentence. The majority posited that his involvement may have been “more the product of duress” than of “extremism or ethnic hatred.” Judge Arrey sharply dissented regarding both liability and sentence.

As to interrogation, this paper inductively cycles back from the judgment to explore more fully the admixture of situational and dispositional factors that fuelled the Nyange church massacre. The Ndahimana case exposes the murkiness of individual agency within connived collective criminality. It elucidates the clumsiness of the purported joint criminal enterprise – the infighting, tensions, and squabbles among group members – while recognizing its destructive effectiveness. This case also examines how a seemingly moderate small-town politician became, in the time span of several days, ensnared in one of the balefully iconic acts of the Rwandan genocide. Finally, the trial proceedings attest to troubling inconsistencies in fact-finding within the ICTR even among factually overlapping cases.

In the end, one take-away is that much more than the pyrrhic and reductive intercessions of the criminal law are required to appreciate the etiology of mass atrocity, at least how it unfolded at the micro-level in Nyange, and, moreover, to fashion adequate remedies. Hence, the call for pluralism: a true pluralism, namely, one of method, of nomenclature, of epistemology, and of accountability.

Keywords: Crimes against humanity, International criminal justice, Collective crimes, Sentencing, Conspiracy, Criminal enterprises

JEL Classification: K10, K33

Suggested Citation

Drumbl, Mark, When 'Mere Presence' Implicates, But the 'Scale of the Operation' Mitigates: The Curious Criminality of Mass Atrocity (October 4, 2012). Washington & Lee Legal Studies Paper No. 2012-33. Available at SSRN: https://ssrn.com/abstract=2156512 or http://dx.doi.org/10.2139/ssrn.2156512

Mark Drumbl (Contact Author)

Washington and Lee University - School of Law ( email )

Sydney Lewis Hall
Lexington, VA 24450
United States
540-458-8531 (Phone)
540-458-8488 (Fax)

HOME PAGE: http://law.wlu.edu/faculty/profiledetail.asp?id=11

Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics