3. THE APPLICABLE LAW

3.1 Individual criminal responsibility (Article 6 of the Statute)

    3.2 The Crime of Genocide (Article 2 of the Statute)

        3.2.1 Genocide

        3.2.2 Complicity in Genocide

        3.2.3 Conspiracy to Commit Genocide

    3.3 Crime against Humanity (Article 3 of the Statute)

    3.4.Violation of Common Article 3 and Additional Protocol II

    3.5 Cumulative charges

3.1 Individual criminal responsibility (Article 6 of the Statute)

  1. The Accused is charged under Article 6(1) of the Statute with individual criminal responsibility for all the crimes alleged in the Indictment and under Article 6(3) of the Statute for acts committed by his subordinates.
  2. The Chamber will now examine these two forms of criminal responsibility.

3.1.1 Individual criminal responsibility (Article 6(1) of the Statute)

  1. Article 6(1) of the Statute provides that: "A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute shall be individually responsible for the crime."
  2. In the Akayesu Judgement(1), the Chamber issued an opinion on the principle of individual criminal responsibility under Article 6(1) of the Statute. The reasoning of this opinion is similar to that in the Tadic(2), Celebici(3), Kayishema and Ruzindana,(4) and Rutaganda(5) Judgements.
  3. The Chamber finds that the aforementioned case-law regarding the principle of individual criminal responsibility, as articulated notably in the Akayesu and Rutaganda Judgements, is sufficiently established and is applicable in the instant case.
  4. The Chamber notes that, under Article 6(1), an accused person may incur individual criminal responsibility as a result of five forms of participation in the commission of one of the three crimes referred to in the Statute. Article 6(1) covers different stages in the commission of a crime, ranging from its initial planning to its execution.
  5. The Chamber observes that the principle of individual criminal responsibility, under Article 6(1), implies that the planning or the preparation of a crime actually must lead to its commission. However, the Chamber notes that Article 2(3) of the Statute, pertaining to the crime of genocide, foresees the possibility for the Tribunal to prosecute attempted genocide, among other acts. Since attempt is by definition an inchoate crime, inherent in the criminal conduct per se, it may be punishable as a separate crime irrespective of whether or not the intended crime is accomplished.
  6. Consequently, the Chamber holds that an accused may incur individual criminal responsibility for inchoate offences under Article 2(3) of the Statute but that, conversely, a person engaging in any form of participation in other crimes falling within the jurisdiction of the Tribunal, such as crimes covered under Articles 3 and 4 of the Statute, may incur criminal responsibility only if the intended crime is accomplished.
  7. The Chamber finds that in addition to incurring responsibility as a principal offender, the accused may also be liable for criminal acts committed by others if, for example, he planned such acts, instigated another to commit them, ordered that they be committed, or aided and abetted another in the commission of such acts.
  8. The Chamber defines five forms of criminal participation under Article 6(1) as follows:
  9. The first form of participation, planning of a crime, implies that one or more persons contemplate the commission of a crime at both its preparatory and execution phases.
  10. The second form of participation, incitement to commit a crime, involves instigating another, directly and publicly, to commit an offence. Instigation is punishable only where it leads to the actual commission of an offence intended by the instigator, except with genocide, where an accused may be held individually criminally liable for incitement to commit genocide under Article 2(3)(c) of the Statute, even where such incitement fails to produce a result.(6)
  11. The third form of participation, ordering, implies a superior-subordinate relationship between the person giving the order and the one executing it, with the person in a position of authority using such position to persuade another to commit a crime.
  12. The fourth form of participation in which an accused incurs criminal responsibility is where he actually commits one of the crimes within the jurisdiction ratione materiae of the Tribunal.
  13. The Chamber holds that an accused may participate in the commission of a crime either through direct commission of an unlawful act or by omission, where he has a duty to act.
  14. The fifth and last form of participation where individual criminal responsibility arises under Article 6(1) is "otherwise aid[ing] and abett[ing] in the planning, preparation, or execution of a crime referred to in Articles 2 to 4".
  15. The Chamber is of the view that aiding and abetting alone may be sufficient to render the accused criminally liable. In both instances, it is not necessary that the person aiding and abetting another to commit an offence be present during the commission of the crime. The relevant act of assistance may be geographically and temporally unconnected to the actual commission of the crime.
  16. The Chamber holds that aiding and abetting include all acts of assistance in the form of either physical or moral support; nevertheless, it emphasizes that any act of participation must substantially contribute to the commission of the crime. The aider and abettor assists or facilitates another in the accomplishment of a substantive offence.

3.1.2 Responsibility of the Superior for Subordinates

  1. Article 6(3) of the Statute provides that :

"The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was commited by a subordinate does not relieve his or her superior of criminal responsiblity if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof."

  1. The principle enunciating the responsibility of command derives from the principle of individual criminal responsiblity as applied by the Nuremberg and Tokyo Tribunals. It was subsequently codified in Article 86 of the Additional Protocol I of 8 June 1977 to the Geneva Conventions of 1949.
  2. It is significant to note that there are varying views regarding the mens rea required for command responsibility. According to one view, mens rea derives from the legal concept of strict liability that is, the superior is criminally responsible for acts committed by his subordinates solely on the basis of his position of responsibility, with no need to prove the criminal intent of the superior. Another view holds that the superior's negligence, which is so serious as to be tantamount to consent or criminal intent, is a lesser requirement to establish the accused's mens rea.
  3. Another position was articulated in one of the "Commentaries on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949", which provides that the mens rea required, as an essential element, to establish superior responsibility "must be so serious that it is tantamount to malicious intent, apart from any link between the conduct in question and the damage that took place."(7)
  4. The Chamber reiterates its determination in the Akayesu Judgement, where it found that the requisite mens rea of any crime is the accused's criminal intent. This requirement, which amounts to at least a negligence that is so serious as to be tantamount to acquiescence, also applies in determining the individual criminal responsibility of a person accused of crimes defined in the Statute, for which it is certainly proper to ensure that there existed malicious intent, or, at least, to ensure that the accused's negligence was so serious as to be tantamount to acquiescence or even malicious intent.
  5. As to whether the form of individual criminal responsibility referred to under Article 6(3) of the Statute also applies to persons in both military and civilian authority, it is important to note that during the Tokyo Trials, civilian authorities were convicted of war crimes under this principle.
  6. Thus Hirota, former Foreign Minister of Japan, was convicted, inter alia of mass rape, known as the "Rape of Nanking", under a count that he had "recklessly disregarded" his legal duty by virtue of his offices to take adequate steps to secure the observance and prevent breaches of law and customs of war. The Tokyo Tribunal held that:

"Hirota was derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities, failing any other action open to him to bring about the same result. He was content to rely on assurances which he knew were not being implemented while hundreds of murders, violations of women and other atrocities were being committed daily. His inaction amounted to criminal negligence."(8)

  1. Judge Roling, dissenting from this finding, held that Hirota should have been acquitted, insofar as:

"[...] a Tribunal should be very careful in holding civil government officials responsible for the behaviour of the army in the field. Moreover, the Tribunal is here to apply the general principles of law as they exist with relation to the responsibility for 'omissions'. Considerations of both law and policies of [...] justice [...] indicate that this responsibility should only be recognized in a very restricted sense."

  1. In view of such disparate legal interpretations, it is disputable whether the principle of individual criminal responsibility, articulated in Article 6 (3) of the Statute, should be applied to civilians. Accordingly, the Chamber reiterates its reasoning in the Akayesu Judgement, with which Trial Chamber II concurred in the Kayishema and Ruzindana Judgement, that it is appropriate to assess on a case-by-case basis the power of authority actually devolved on an accused to determine whether or not he possessed the power to take all necessary and reasonable measures to prevent the commission of the alleged crimes or to punish their perpetration. Therefore the superior's actual or formal power of control over his subordinates remains a determining factor in charging civilians with superior responsibility.
  2. As the Judges of the Tribunal for the Former Yugoslavia observed in Celebici, (with whom Chamber II concurred in Kayishema and Ruzindana), in explaining their reasoning on the application of the principle of the superior-subordinate relationship to persons in non-military positions of authority:

"[N]o express limitation is made restricting the scope of this type of responsibility to military commanders or situations arising under a military command. [The principle of superior-subordinate relationship] extends beyond the responsibility of military commanders to also encompass political leaders and other civilian superiors in positions of authority."(9)

  1. In a previous decision, in reviewing the Indictment against an accused, the ICTY articulated a similar finding:

"[T]he Tribunal has particularly valid grounds for exercising its jurisdiction over persons who, through their position of political or military authority, are able to order the commission of crimes falling within its competence ratione materiae or who knowingly refrain from preventing or punishing the perpetrators of such crimes."(10)

  1. From an historical and legal perspective, it is significant to consider different reasoning developed since the Second World War regarding the responsibility of non-military superiors for the actions of their subordinates.
  2. It is thus important to note the conviction of General Akiro Muto for acts occurring during his tenure as Chief of Staff to General Yamashita at the time of the "Rape of Nanking", in which The Tokyo Tribunal reasoned that influential power, which is not power of formal command, was sufficient basis for charging one with superior responsibility.(11)
  3. The influence at issue in a superior - subordinate command relationship often appears in the form of psychological pressure.(12) This is particularly relevant to the case at bar, insofar as Alfred Musema was a socially and politically prominent person in Gisovu Commune.
  4. It is also significant to note that a civilian superior may be charged with superior responsibility only where he has effective control, be it de jure or merely de facto, over the persons committing violations of international humanitarian law.
  5. In the Herman Roechling Judgement, civilian industrial leaders were found guilty, inter alia, of failing to take action against abuses committed by members of the Gestapo against forced labourers. It appears that the accused had only de facto power insofar as the accused was granted no official authority to issue orders to personnel under Gestapo command. The Superior Tribunal of the Military Government for the French Zone of Occupation in Germany determined that because one of the accused was Herman Roechling's son-in-law, he had de facto influence, which would have allowed him to arrange with the factory police for better treatment of the workers.(13) The Tribunal rejected his defence of ignorance regarding the actions of his subordinates and held that:

"[n]o superior may prefer this defence indefinitely; for it is his duty to know what occurs in his organization and lack of knowledge, therefore, can only be the result of criminal negligence."(14)

  1. Such power of control, even if it is merely de facto, generally implies "indirect subordination", which, according to Article 87 of Additonal Protocol I to the Geneva Conventions, extends beyond the commander's duty to his direct subordinates to "other persons under his responsiblity," to prevent violations of the Geneva Conventions.(15)
  2. In accord with such reasoning that a superior's authority may be merely de facto, deriving from his influence or his indirect power, the determining question is the extent to which Alfred Musema had power of control over persons who a priori were not under his authority during the period from April to July 1994, namely, the soldiers, the Gisovu Commune police, and the Interahamwe.
  3. Regarding the criteria to be met to establish superior responsibility of a civilian, it is important to consider the reasoning behind the adoption of Article 86(2) of Additional Protocol I to the Geneva Conventions, which states:

"The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all necessary measures within their power to prevent or repress the breach."(16)

  1. During deliberations for adoption of Article 86(2) ( which the provisions of Article 6(3) of the ICTR Statute closely resemble in spirit and in form) delegates held that the mental standard "should have known" was too broad and would subject the commander, a posteriori, to arbitrary judgements with respect to what he should have known.(17)
  2. Therefore, in an attempt to avoid ambiguities in applying a mental standard to criminal resonsibility, the drafters of Article 86(2) followed juridical and legal textual authorities that do not distinguish between civilian or military superior authority.
  3. Accordingly, the Chamber finds that the definition of individual criminal responsibility, as provided under Article 6(3) of the Statute, applies not only to the military but also to persons exercising civilian authority as superiors. Thus the fundamental issue is to determine the extent to which the superior -- notably Alfred Musema -- exercised power, whether de jure or de facto, over the actions of his indirect subordinates.


3.2 The Crime of Genocide (Article 2 of the Statute)

 

3.2.1 Genocide

  1. Article 2(3)(a) of the Statute provides the Tribunal with the power to try crimes of genocide. Accordingly, Musema is charged under Article 2(3)(a) of the Statute.
  2. The definition of genocide, as provided in Article 2 of the Statute, cites, verbatim, Articles 2 and 3 of the Convention on the Prevention and Punishment of the Crime of Genocide (the "Genocide Convention").(18) Article 2(2) of the Statute reads as follows:

      "Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

      (a) Killing members of the group;

      (b) Causing serious bodily or mental harm to members of the group;

      (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

      (d) Imposing measures intended to prevent births within the group;

      (e) Forcibly transferring children of the group to another group."

  1. The Genocide Convention is undeniably considered part of customary international law, as reflected in the advisory opinion issued in 1951 by the International Court of Justice on reservations to the Genocide Convention, and as noted by the United Nations Secretary-General in his Report on the establishment of the International Criminal Tribunal for the Former Yugoslavia.(19)
  2. The Chamber notes that Rwanda acceded, by legislative decree, to the Convention on Genocide on 12 February 1975(20), and that the crime of genocide was therefore punishable in Rwanda in 1994.
  3. The Chamber notes that the crime of genocide has been defined in several cases considered by the Tribunal, notably in the Akayesu and Rutaganda Judgements. The Chamber adheres to the definition of the crime of genocide as defined in those judgements.
  4. The Chamber is therefore of the opinion that for the crime of genocide to be established, it is necessary, firstly, that one of the acts listed under Article 2(2) of the Statute be committed; secondly, that such an act be committed against a national, ethnical, racial or religious group, specifically targeted as such; and, thirdly, that the "act be committed with the intent to destroy, in whole or in part, the targeted group".

The acts enumerated under Article 2(2)(a) to (e) of the Statute

  1. Article 2(2)(a) of the Statute, like the corresponding provisions of the Genocide Convention, refers to "meurtre" in the French version and to "killing" in the English version. The Chamber believes that the term "killing" includes both intentional and unintentional homicides, whereas the word "meurtre" covers homicide committed with the intent to cause death. The Chamber holds that, given the presumption of the innocence of the Accused, and pursuant to the general principles of criminal law, the version more favourable to the Accused should be adopted. The Chamber therefore finds that Article 2(2)(a) of the Statute must be interpreted in accordance with the definition of murder in the Criminal Code of Rwanda, which provides, under Article 311, that "Homicide committed with intent to cause death shall be treated as murder".
  2. For the purposes of interpreting Article 2(2)(b) of the Statute, the Chamber understands the words "serious bodily or mental harm" to include, but not limited to, acts of bodily or mental torture, inhumane or degrading treatment, rape, sexual violence, and persecution. The Chamber is of the opinion that "serious harm" need not entail permanent or irremediable harm.
  3. In the Chamber's opinion, the words "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part", as indicated in Article 2(2)(c) of the Statute, are to be construed "as methods of destruction by which the perpetrator does not necessarily intend to immediately kill the members of the group", but which are, ultimately, aimed at their physical destruction. The Chamber holds that the means of deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, in whole or in part, include subjecting a group of people to a subsistence diet, systematic expulsion from their homes and deprivation of essential medical supplies below a minimum vital standard.
  4. In its interpretation of Article 2(2)(d) of the Statute, the Chamber holds that the words "measures intended to prevent births within the group" should be construed as including sexual mutilation, enforced sterilization, forced birth control, forced separation of males and females, and prohibition of marriages. The Chamber notes that measures intended to prevent births within the group may be not only physical, but also mental.
  5. The Chamber is of the opinion that the provisions of Article 2(2)(e) of the Statute, on the forcible transfer of children from one group to another, are aimed at sanctioning not only any direct act of forcible physical transfer, but also any act of threat or trauma which would lead to the forcible transfer.

Potential groups of victims of the crime of genocide

  1. It is the Chamber's view that it is necessary to consider the potential groups of victims of genocide in light of the provisions of the Statute and the Genocide Convention, which stipulate that genocide aims at "destroy[ing], in whole or in part, a national, ethnical, racial or religious group, as such."
  2. The Chamber notes that, as stated in the Rutaganda Judgement, the concepts of national, ethnical, racial and religious groups have been researched extensively and, at present, there are no generally and internationally accepted precise definitions thereof. Each of these concepts must be assessed in the light of a particular political, social and cultural context. Moreover, the Chamber notes that for the purposes of applying the Genocide Convention, membership of a group is, in essence, a subjective rather than an objective concept. The victim is perceived by the perpetrator of genocide as belonging to a group slated for destruction. In some instances, the victim may perceive himself/herself as a member of said group.
  3. Nevertheless, the Chamber is of the view that a subjective definition alone is not enough sufficient to determine victim groups, as provided for in the Genocide Convention. It appears, from a reading of the travaux préparatoires of the Genocide Convention(21), that certain groups, such as political and economic groups, have been excluded from the protected groups, because they are considered to be "non stable" or "mobile" groups which one joins through individual, voluntary commitment. That would seem to suggest a contrario that the Convention was presumably intended to cover relatively stable and permanent groups.
  4. Therefore, the Chamber holds that in assessing whether a particular group may be considered protected from the crime of genocide, it will proceed on a case-by-case basis, taking into account both the relevant evidence proffered and the specific political, social and cultural context in which the acts allegedly took place.

The special intent of the crime of genocide

  1. Genocide is distinct from other crimes because it requires a dolus specialis, a special intent. The special intent of a crime is the specific intention which, as an element of the crime, requires that the perpetrator clearly intended the result charged. The dolus specialis of the crime of genocide lies in "the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such". A person may be convicted of genocide only where it is established that he committed one of the acts referred to under Article 2(2) of the Statute with the specific intent to destroy, in whole or in part, a particular protected group.
  2. For any of the acts charged to constitute genocide, the said acts must have been committed against one or more persons because such person or persons were members of a specific group, and specifically, because of their membership in this group. Thus, the victim is singled out not by reason of his individual identity, but rather on account of his being a member of a national, ethnical, racial or religious group. The victim of the act is, therefore, a member of a given group selected as such, which, ultimately, means the victim of the crime of genocide is the group itself and not the individual alone. The perpetration of the act charged, therefore, extends beyond its actual commission - for example, the murder of a particular person - to encompass the realization of the ulterior purpose to destroy the group in whole or in part.
  3. The dolus specialis is a key element of an intentional offence, which offence is characterized by a psychological nexus between the physical result and the mental state of the perpetrator. With regard to the issue of determining the offender's specific intent, the Chamber applies the following reasoning, as held in the Akayesu Judgement:

" [...] intent is a mental factor which is difficult, even impossible, to determine. This is the reason why, in the absence of a confession from the accused, his intent can be inferred from a certain number of presumptions of fact. The Chamber considers that it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act."(22)

  1. Therefore, the Chamber is of the view that, as stated in the Rutaganda Judgement: "[...] in practice, intent can be, on a case-by-case basis, inferred from the material evidence submitted to the Chamber, including the evidence which demonstrates a consistent pattern of conduct by the Accused."(23)



3.2.2 Complicity in Genocide

  1. The Prosecutor has charged the Accused with this crime under Count 2 of the Indictment, as an alternative to Count 1 of genocide. The Statute indeed provides, under Article 2(3)(e), the Tribunal with the power to prosecute persons with complicity in genocide.
  2. The Chamber notes that complicity is a form of criminal participation both under the Anglo-Saxon legal tradition (or Common Law) and the Roman-Continental legal tradition (or Civil Law).
  3. According to the Chamber, the definition of complicity in genocide articulated in the Akayesu Judgement, states that an accomplice to an offence may be defined as someone who associates himself in an offence committed by another, complicity necessarily implying the existence of a principal offence.
  4. The issue before the Chamber is whether genocide must be committed for a person to be found guilty of complicity in genocide. The Chamber notes that complicity can only exist when there is a punishable, principal act committed by someone, the commission of which the accomplice has associated himself with.
  5. In this regard, the Chamber notes from the Travaux Préparatoires of the Genocide Convention that the crime of complicity in genocide was recognised only where genocide had actually been committed. The Genocide Convention did not provide the possibility for punishment of complicity in an attempt to commit genocide, complicity in incitement to commit genocide nor complicity in conspiracy to commit genocide, all of which were, in the view of some States, too vague to be punishable under the Convention.
  6. Consequently, the Chamber is of the opinion that in order for an accused to be found guilty of complicity in genocide, it must be proven beyond a reasonable doubt that the crime of genocide has been committed.
  7. In regard to the issue of whether a person can be prosecuted for complicity, even where the perpetrator of the principal offence has himself not been tried, the Chamber notes that all criminal systems provide that a person may very well be tried as an accomplice, even where the principal perpetrator of the crime has not been identified, or where, for any other reasons, the latter's guilt can not be proven. The Rwandan Penal code is clear on this subject, and stipulates under Article 89 that accomplices:

"may be prosecuted even where the perpetrator may not face prosecution for personal reasons, such as double jeopardy, death, insanity or non-identification".

  1. The Chamber notes that the logical inference from the foregoing is that an individual cannot thus be both the principal perpetrator of a particular act and the accomplice thereto. An act with which an accused is charged cannot, therefore, be characterised as both an act of genocide and an act of complicity in genocide. Consequently, since the two are mutually exclusive, the same individual cannot be convicted of both crimes for the same act(24).
  2. In regard to the physical elements of complicity in genocide (actus reus), three forms of accomplice participation are recognised in most criminal Civil Law systems: complicity by instigation, complicity by aiding and abetting, and complicity by procuring means(25).
  3. Under Common Law, the forms of accomplice participation, namely "aiding and abetting, counselling and procuring", to a large extent, mirror those conducts characterised under Civil Law which, as indicated above, are "l'aide, l'assistance, et la fourniture des moyens".
  4. Complicity by aiding or abetting implies a positive action which excludes, in principle, complicity by failure to act or omission. Procuring means is a common form of complicity. It covers those persons who procured weapons, instruments or any other means to be used in the commission of an offence, with the full knowledge that they would be used for such purposes.
  5. For the purposes of interpreting Article 2 (3) (e) of the Statute, which does not define the concept of complicity, the Chamber is of the opinion that it is necessary to define complicity as per the Rwandan Penal Code, and to consider the first three forms of criminal participation referred to in Article 91 of said Code, which defines the elements of complicity in genocide, thus:

      (a) Complicity by procuring means, such as weapons, instruments or any other means, used to commit genocide, with the accomplice knowing that such means would be used for such a purpose;

      (b) Complicity by knowingly aiding or abetting a perpetrator of a genocide in the planning or enabling acts thereof;

      (c) Complicity by instigation, for which a person is liable who, though not directly participating in the crime of genocide, gave instructions to commit genocide, through gifts, promises, threats, abuse of authority or power, machinations or culpable artifice, or who directly incited the commission of genocide.

  1. The intent or mental element of complicity in general implies that, at the moment he acted, the accomplice knew of the assistance he was providing in the commission of the principal offence. In other words, the accomplice must have acted knowingly.
  2. As far as genocide is concerned, the intent of the accomplice is thus to knowingly aid or abet one or more persons to commit the crime of genocide. Therefore, the Chamber is of the opinion that an accomplice to genocide need not necessarily possess the dolus specialis of genocide, namely the specific intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such.(26)
  3. Thus, if an accused knowingly aided or abetted another in the commission of a murder, while being unaware that the principal was committing such a murder, with the intent to destroy, in whole or in part, the group to which the murdered victim belonged, said accused could be prosecuted for complicity in murder, and certainly not for complicity in genocide. However, if an accused knowingly aided and abetted in the commission of such a murder while he knew or had reason to know that the principal was acting with genocidal intent, the accused would be an accomplice to genocide, even though he did not share the murderer's intent to destroy the group.
  4. In conclusion, the Chamber is of the opinion that an accused is liable for complicity in genocide if he knowingly and voluntarily aided or abetted or instigated one or more persons in the commission of genocide, while knowing that such a person or persons were committing genocide, even though the accused himself did not have the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such.

3.2.3 Conspiracy to Commit Genocide

  1. Article 2(3)(b) of the Statute provides that the Tribunal shall have the power to prosecute persons charged with the crime of conspiracy to commit genocide. The Prosecutor has charged the Accused with such a crime under Count 3 of the Indictment.
  2. The Chamber notes that the crime of conspiracy to commit genocide covered in the Statute is taken from the Genocide Convention. The "Travaux Préparatoires" of the Genocide Convention suggest that the rationale for including such an offence was to ensure, in view of the serious nature of the crime of genocide, that the mere agreement to commit genocide should be punishable even if no preparatory act has taken place(27). Indeed, during the debate preceding the adoption of the Convention, the Secretariat advised that, in order to comply with General Assembly resolution 96 (I), the Convention would have to take into account the imperatives of the prevention of the crime of genocide:

      "This prevention may involve making certain acts punishable which do not themselves constitute genocide, for example, certain material acts preparatory to genocide, an agreement or a conspiracy with a view to committing genocide, or systematic propaganda inciting to hatred and thus likely to lead to genocide."(28)

  1. The Chamber notes that Common Law systems tend to view "entente" or conspiracy as a specific form of criminal participation, punishable in itself. Under Civil Law, conspiracy or "complot" derogates from the principle that a person cannot be punished for mere criminal intent ("résolution criminelle") or for preparatory acts committed. In Civil Law systems, conspiracy (complot) is punishable only where its purpose is to commit certain crimes considered as extremely serious, such as, undermining the security of the State.
  2. With respect to the constituent elements of the crime of conspiracy to commit genocide, the Chamber notes that, according to the "Travaux Préparatoires" of the Genocide Convention, the concept of conspiracy relied upon the Anglo-Saxon doctrine of conspiracy. In its Report, the Ad hoc Committee states that conspiracy "is a crime under Anglo-American law": Ad Hoc Committee Report (1948) 8. This reflected the assumptions made during debates on conspiracy. The French representative initially observed that conspiracy was a foreign concept to French law. The US representative, speaking as Chair, explained that "in Anglo-Saxon law 'conspiracy' was an offence consisting in the agreement of two or more persons to effect any unlawful purpose".(29) Venezuela's representative later remarked that in Spanish the word "conspiration" meant a conspiracy against the Government and that the English term "conspiracy" was rendered in Spanish by "asociación" (association) for the purpose of committing a crime.(30) The representative of Poland observed that in Anglo-Saxon law the word "complicity" extended only to "aiding and abetting" and that the offence described as "conspiracy" did not involve complicity. Poland recalled that the Secretariat draft made separate provision for complicity and conspiracy.(31) In the Sixth Committee debates, Mr Maktos of the United States of America stated that "conspiracy" had "a very precise meaning in Anglo-Saxon law; it meant the agreement between two or more persons to commit an unlawful act".(32) Mr. Raafat of Egypt noted that the notion of conspiracy had been introduced into Egyptian law and "meant the connivance of several persons to commit a crime, whether the crime was successful or not".(33)
  3. For its part, the United Nations War Crimes Commission defined conspiracy as follows:

    "The doctrine of conspiracy is one under which it is a criminal offence to conspire or to take part in an allegiance to achieve an unlawful object, or to achieve a lawful object by unlawful means."(34)

  1. Civil Law distinguishes two types of actus reus, qualifying two "levels" of 'complot' or conspiracy. Following an increasing level of gravity, the first level concerns (le complot simple) simple conspiracy, and the second level (le complot suivi d'actes matériels) conspiracy followed by material acts. Simple conspiracy is usually defined as a concerted agreement to act, decided upon by two or more persons (résolution d'agir concertée et arrêtée entre deux ou plusieurs personnes) while the conspiracy followed by preparatory acts is an aggravated form of conspiracy where the concerted agreement to act is followed by preparatory acts. Both forms of 'complot' require that the following three common elements of the offence be met: (1) an agreement to act [la résolution d'agir];(35) (2) concerted wills [le concert de volontés]; and (3) the common goal to achieve the substantive offence [l'objectif commun de commettre l'infraction principale].
  2. Under Common Law, the crime of conspiracy is constituted when two or more persons agree to a common objective, the objective being criminal.
  3. The Chamber notes that the constitutive elements of conspiracy, as defined under both systems, are very similar. Based on these elements, the Chamber holds that conspiracy to commit genocide is to be defined as an agreement between two or more persons to commit the crime of genocide.
  4. With respect to the mens rea of the crime of conspiracy to commit genocide, the Chamber notes that it rests on the concerted intent to commit genocide, that is to destroy, in whole or in part, a national, ethnic, racial or religious group, as such. Thus, it is the view of the Chamber that the requisite intent for the crime of conspiracy to commit genocide is, ipso facto, the intent required for the crime of genocide, that is the dolus specialis of genocide.(36)
  5. It emerges from this definition that, as far as the crime of conspiracy to commit genocide is concerned, it is, indeed, the act of conspiracy itself, in other words, the process ("procédé") of conspiracy, which is punishable and not its result. The Chamber notes, in this regard, that under both Civil and Common Law systems, conspiracy is an inchoate offence ("infraction formelle") which is punishable by virtue of the criminal act as such and not as a consequence of the result of that act.(37)
  6. The Chamber is of the view that the crime of conspiracy to commit genocide is punishable even if it fails to produce a result, that is to say, even if the substantive offence, in this case genocide, has not actually been perpetrated.
  7. Moreover, the Chamber raised the question as to whether an accused could be convicted of both genocide and conspiracy to commit genocide.
  8. Under Civil Law systems, if the conspiracy is successful and the substantive offence is consummated, the accused will only be convicted of the substantive offence and not of the conspiracy. Further, once the substantive crime has been accomplished and the criminal conduct of the accused is established, there is no reason to punish the accused for his mere résolution criminelle (criminal intent), or even for the preparatory acts committed in furtherance of the substantive offence. Therefore an accused can only be convicted of conspiracy if the substantive offence has not been realized or if the Accused was part of a conspiracy which has been perpetrated by his co-conspirators, without his direct participation.
  9. Under Common Law, an accused can, in principle, be convicted of both conspiracy and a substantive offence, in particular, where the objective of the conspiracy extends beyond the offences actually committed. However, this position has incurred much criticism. Thus, for example, according to Don Stuart:

      "The true issue is not whether evidence has been used twice to achieve convictions but rather whether the fundamental nature of the conspiracy offence is best seen [...] as purely preventive, incomplete offence, auxiliary offence to the principal offence and having no true independent rationale to exist on its own alongside the full offence. On this view it inexorably follows that once the completed offence has been committed there is no justification for also punishing the incomplete offence."(38)

  1. In the instant case, the Chamber has adopted the definition of conspiracy most favourable to Musema, whereby an accused cannot be convicted of both genocide and conspiracy to commit genocide on the basis of the same acts. Such a definition is in keeping with the intention of the Genocide Convention. Indeed, the "Travaux Préparatoires" show that the crime of conspiracy was included to punish acts which, in and of themselves, did not constitute genocide. The converse implication of this is that no purpose would be served in convicting an accused, who has already been found guilty of genocide, for conspiracy to commit genocide, on the basis of the same acts.


3.3 Crime against Humanity (Article 3 of the Statute)

  1. The Chamber notes that the Akayesu Judgement traced the historical development and evolution of crimes against humanity as far back as the Charter of the International Military Tribunal of Nuremberg.(39) The Akayesu Judgement also examined the gradual evolution of crimes against humanity in the cases of Eichmann, Barbie, Touvier and Papon. After consideration, the Chamber concurs with the historical development of crimes against humanity, as articulated in the Akayesu Judgement.
  2. The Chamber notes that Article 7 of the Statute of the International Criminal Court defines a crime against humanity as any of the enumerated acts committed, as part of a widespread or systematic attack directed against any civilian population, with the Perpetrator having knowledge of the said attack. These enumerated acts are murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this article, or any other crime within the jurisdiction of the Court: enforced disappearance of persons; the crime of apartheid; other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or mental or physical health.(40)

 

Crimes against humanity, pursuant to Article 3 of the Statute of the Tribunal

  1. Article 3 of the Statute confers on the Tribunal the jurisdiction to prosecute persons for acts which constitute crimes against humanity. The Chamber concurs with the reasoning in the Akayesu and Rutaganda Judgements, that offences falling within the ambit of crimes against humanity may be broadly broken down into four essential elements, namely:

      (a) the actus reus must be committed as part of a widespread or systematic attack;

      (b) the actus reus must be committed against the civilian population;

      (c) the actus reus must be committed on one or more discriminatory grounds, namely, national, political, ethnic, racial or religious grounds;

      (d) the actus reus must be inhumane in nature and character, causing great suffering, or serious injury to body or to mental or physical health.(41)

(a) The actus reus must be committed as part of a widespread or systematic attack

  1. The Chamber is of the opinion that the actus reus cannot be a random inhumane act, but rather is an act committed as part of an attack. With regard to the nature of this attack, the Chamber notes that Article 3 of the English version of the Statute reads "as part of a widespread or systematic attack [..].", while the French version of the Statute reads "dans le cadre d'une attaque généralisée et systématique [...]". The French version requires that the attack be both of a widespread and systematic nature, while the English version requires that the attack be of a widespread or systematic nature and need not be both.
  2. The Chamber notes that customary international law requires that the attack be either of a widespread or systematic nature and need not be both. The English version of the Statute conforms more closely with customary international law, and the Chamber therefore accepts the elements as set forth in Article 3 of the English version of the Statute, and follows the interpretation in other ICTR judgements, namely: that the "attack" under Article 3 of the Statute, must be either of a widespread or systematic nature and need not be both.(42)
  3. The Chamber considers that "widespread", as an element of crimes against humanity, is a massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against multiple victims, while "systematic" constitutes organized action, following a regular pattern, on the basis of a common policy and involves substantial public or private resources. It is not essential for such policy to be adopted formally as a policy of a State. However, there must exist some form of preconceived plan or policy.(43) The Chamber notes that these definitions were endorsed in the Akayesu and Rutaganda Judgements.(44)
  4. The Chamber notes that "attack", as an element of a crime against humanity, was defined in the Akayesu Judgement, as an unlawful act of the kind enumerated in Article 3(a) to (i) of the Statute. An attack may also be non-violent in nature, such as imposing a system of apartheid, which is declared a crime against humanity in Article 1 of the Apartheid Convention of 1973, or exerting pressure on the population to act in a particular manner, which may come under the purview of an attack, if orchestrated on a massive scale or in a systematic manner.(45) The definition of "attack", as defined in the Akayesu Judgement, was later endorsed in the Rutaganda Judgement.(46) The Chamber concurs with this definition.
  5. The Chamber concurs with the Kayishema and Ruzindana Judgement, which held that the perpetrator of an act falling within the ambit of crimes against humanity must have "actual or constructive knowledge of the broader context of the attack, meaning that the accused must know that his act[s] is part of a widespread or systematic attack on a civilian population and pursuant to some kind of policy or plan."(47)

 

(b) The actus reus must be committed against the civilian population

  1. The Chamber notes that the actus reus for any of the enumerated acts in Article 3 of the Statute must be directed against the civilian population if it is to constitute a crime against humanity. In the Akayesu and Rutaganda Judgements, "civilian population", pursuant to Article 3 of the Statute, was defined as people who were not taking any active part in the hostilities.(48) The fact that there are individuals among the civilian population who themselves are not civilians does not deprive the population of its civilian character.(49) The Chamber concurs with this definition.



(c) The actus reus must be committed on discriminatory grounds

  1. The Statute stipulates that inhumane acts committed against the civilian population must be committed on "national, political, ethnic, racial or religious grounds". Discrimination on the basis of a person's political ideology satisfies the requirement of "political" grounds as envisaged in Article 3 of the Statute.
  2. Inhumane acts committed against persons not falling within any one of the discriminatory categories may constitute crimes against humanity if the perpetrator's intention in committing such acts was to further his attack on the group discriminated against on one of the grounds specified in Article 3 of the Statute. The perpetrator must have the requisite intent for the commission of a crime against humanity.(50)
  3. In the 15 July 1999 Tadi Judgement, the Appeals Chamber held that the Trial Chamber erred in finding that all crimes against humanity require a discriminatory intent. The Appeals Chamber ruled that discriminatory intent is an indispensable element of the offence only with regard to those crimes for which such intent is expressly required: namely, the offence of persecution, pursuant to Article 5(h) of the ICTY Statute.(51)
  4. The Chamber has compared the provisions of Article 5 of the ICTY Statute with the provisions of Article 3 of the ICTR Statute. Accordingly, the Chamber notes that, although the provisions of both aforementioned Articles pertain to crimes against humanity, except for the offence of persecution, there is a material and substantial difference in the respective elements of the offences, that constitute crimes against humanity. This difference stems from the fact that Article 3 of the ICTR Statute expressly requires "national, political, ethnic, racial or religious" discriminatory grounds with respect to the offences of murder, extermination, deportation, imprisonment, torture, rape, and, other inhumane acts, whereas Article 5 of the ICTY Statute does not stipulate any discriminatory grounds with respect to these offences.

(d) The Enumerated Acts

  1. Article 3 of the Statute enumerates various acts that constitute crimes against humanity, namely: murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecution on political, racial and religious grounds, and other inhumane acts. This list is not exhaustive. Any act which is inhumane in nature and character may constitute a crime against humanity, provided the other elements are satisfied. This is evident in (i) which caters for all other inhumane acts not stipulated in (a) to (h) of Article 3.(52)
  2. The Chamber notes that with respect to crimes against humanity, Musema is indicted for murder, extermination, rape and other inhumane acts. The Chamber, in interpreting Article 3 of the Statute, will focus its discussion on these offences only.

Murder

  1. Pursuant to Article 3 (a) of the Statute, murder may constitute a crime against humanity. The Chamber notes that Article 3(a) of the English version of the Statute refers to "Murder", while the French version of the Statute refers to "Assassinat". Customary international law dictates that the offence of "Murder", and not "Assassinat", constitutes a crime against humanity.
  2. In both the Akayesu and Rutaganda Judgements, murder was defined as the unlawful, intentional killing of a human being. The requisite elements of murder, as a crime against humanity, were defined as follows:

      (a) The victim is dead;

      (b) The death resulted from an unlawful act or omission of the Accused or a subordinate;

      (c) At the time of the killing the Accused or a subordinate had the intention to kill or inflict grievous bodily harm on the deceased having known that such bodily harm is likely to cause the victim's death, and is reckless as to whether or not death ensures;

      (d) The victim was discriminated against, on any one of the enumerated discriminatory grounds;

      (e) The victim was a member of the civilian population;

      (f) The act or omission was part of a widespread or systematic attack on the civilian population.(53)

  1. The Rutuganda Judgement further held that the act or omission that constitutes murder must be discriminatory in nature and directed against a member of the civilian population.(54)

Extermination

  1. Pursuant to Article 3 (c) of the Statute, extermination constitutes a crime against humanity. By its very nature, extermination is a crime which is directed against a group of individuals. Extermination differs from murder in that it requires an element of mass destruction, which is not a prerequisite for murder.
  2. In both the Akayesu and Rutaganda Judgements, the elements of extermination were defined as follows:

      (a) the Accused or his subordinate participated in the killing of certain named or described persons;

      (b) the act or omission was unlawful and intentional;

      (c). the unlawful act or omission must be part of a widespread or systematic attack;

      (d) the attack must be against the civilian population;

      (e) the attack must be on discriminatory grounds, namely: national, political, ethnic, racial, or religious grounds.(55)

  1. The Rutaganda Judgement further held that the act or omission that constitutes extermination must be discriminatory in nature and directed against members of the civilian population. Further, this act or omission includes, but is not limited to, the direct act of killing. It can be any act or omission, or cumulative acts or omissions that cause the death of the targeted group of individuals.(56)

Rape

  1. Rape may constitute a crime against humanity, pursuant to Article 3(g) of the Statute. In the Akayesu Judgement, rape as a crime against humanity was defined as:

      "[...] a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violence, which includes rape, is considered to be any act of a sexual nature which is committed on a person under circumstances which are coercive. This act must be committed:

      (a) as part of a widespread or systematic attack;

      (b) on a civilian population;

      (c) on certain catalogued discriminatory grounds, namely: national, ethnic, political, racial, or religious grounds."(57)

  1. The Chamber notes that, while rape has been defined in certain national jurisdictions as non-consensual intercourse, variations on the acts of rape may include acts which involve the insertions of objects and/or the use of bodily orifices not considered to be intrinsically sexual.
  2. The Chamber also observes that in defining rape, as a crime against humanity, the Trial

Chamber in the Akayesu Judgement acknowledged:

      "that rape is a form of aggression and that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts. The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment does not catalogue specific acts in its definition of torture, focussing rather on the conceptual frame work of state sanctioned violence. This approach is more useful in international law. Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."(58)

  1. The Chamber notes that the definition of rape and sexual violence articulated in the Akayesu Judgement was adopted by the Trial Chamber II of the ICTY in its Delalic Judgement(59).
  2. The Chamber has considered the alternative definition of rape set forth by Trial Chamber I of the ICTY in its Furundzija Judgement, which relies on a detailed description of objects and body parts. In this judgement the Trial Chamber looked to national legislation and noted:

      "The Trial Chamber would emphasise at the outset, that a trend can be discerned in the national legislation of a number of States of broadening the definition of rape so that it now embraces acts that were previously classified as comparatively less serious offences, that is sexual or indecent assault. This trend shows that at the national level States tend to take a stricter attitude towards serious forms of sexual assault; the stigma of rape now attaches to a growing category of sexual offences, provided of course they meet certain requirements, chiefly that of forced physical penetration."(60)

  1. The Furundzija Judgement further noted that "most legal systems in the common and civil law worlds consider rape to be the forcible sexual penetration of the human body by the penis or the forcible insertion of any other object into either the vagina or the anus".(61) Nevertheless, after due consideration of the practice of forced oral penetration, which is treated as rape in some States and sexual assault in other States, the Trial Chamber in that case determined as follows:



      "183. The Trial Chamber holds that the forced penetration of the mouth by the male sexual organ constitutes a most humiliating and degrading attack upon human dignity. The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person, whatever his or her gender. The general principle of respect for human dignity is the basic underpinning and indeed the very raison d'être of international humanitarian law and human rights law, indeed in modern times it has become of such paramount importance as to permeate the whole body of international law. This principle is intended to shield human beings from outrages upon their personal dignity, whether such outrages are carried out by unlawfully attacking the body or by humiliating and debasing the honour, the self-respect or the mental well being of a person. It is consonant with this principle that such an extremely serious sexual outrage as forced oral penetration should be classified as rape."(62)

  1. The Chamber concurs with the conceptual approach set forth in the Akayesu Judgement for the definition of rape, which recognizes that the essence of rape is not the particular details of the body parts and objects involved, but rather the aggression that is expressed in a sexual manner under conditions of coercion.
  2. The Chamber considers that the distinction between rape and other forms of sexual violence drawn by the Akayesu Judgement, that is "a physical invasion of a sexual nature" as contrasted with "any act of a sexual nature" which is committed on a person under circumstances which are coercive is clear and establishes a framework for judicial consideration of individual incidents of sexual violence and a determination, on a case by case basis, of whether such incidents constitute rape. The definition of rape, as set forth in the Akayesu Judgement, clearly encompasses all the conduct described in the definition of rape set forth in Furundzija.
  3. The Chamber notes that in the Furundzija Judgement, the Trial Chamber considered forced penetration of the mouth as a humiliating and degrading attack on human dignity and largely for this reason included such conduct in its definition of rape even though State jurisdictions are divided as to whether such conduct constitutes rape.(63) The Chamber further notes, as the Furundzija Judgement acknowledges, that there is a trend in national legislation to broaden the definition of rape.(64) In light of the dynamic ongoing evolution of the understanding of rape and the incorporation of this understanding into principles of international law, the Chamber considers that a conceptual definition is preferable to a mechanical definition of rape. The conceptual definition will better accommodate evolving norms of criminal justice.
  4. For these reasons, the Chamber adopts the definition of rape and sexual violence set forth in the Akayesu Judgement.

Other Inhumane Acts

  1. The Chamber notes that Article 3 of the Statute provides a list of eight enumerated acts that may constitute crimes against humanity. The enlisted acts are murder, extermination, enslavement, deportation, imprisonment, torture, rape and persecution on political, racial and religious grounds. This list of acts is not exhaustive and Article 3(i) of the Statute provides for "Other inhumane Acts" that may constitute crimes against humanity.
  2. The Chamber notes that the ICC Statute provides that:

      "Other inhumane acts [are acts] of a similar character [ to the other specified enumerated acts] intentionally causing great suffering, or serious injury to body or to mental or physical health"(65).

  1. The Chamber finds that an act or omission will fall within the ambit of "Other inhumane Acts", as envisaged in Article 3(i) of the Statute, provided the nature and character of such act or omission is similar in nature, character, gravity and seriousness to the other acts, as enumerated in sub-articles (a) to (h) of Article 3. Further, the inhumane act or omission must:

      (a) Be directed against member(s) of the civilian population;

      (b) The perpetrator must have discriminated against the victim(s), on one or more of the enumerated discriminatory grounds;

      (c) The perpetrator's act or omission must form part of a widespread or systematic attack and the perpetrator must have knowledge of this attack.

  1. The Chamber agrees that the perpetrator's act(s) must be assessed "on a case-by-case basis"(66), with a view to establishing whether such act(s) fall within the ambit of "Other inhumane Acts", as envisaged in Article 3 of the Statute.

 

3.4.Violation of Common Article 3 and Additional Protocol II

Article 4 of the Statute

  1. Pursuant to Article 4 of the Statute, the Chamber shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977.
  2. According to the Statute, these violations shall include, but shall not be limited to:

      a) violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;

      b) collective punishments;

      c) taking of hostages;

      d) acts of terrorism;

      e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;

      f) pillage;

      g) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples;

      h) threats to commit any of the foregoing acts.

Applicability of Common Article 3 of the Geneva Conventions and Additional Protocol II

  1. The Chamber esteems that, before discussing the elements for the above cited offences, it is necessary to comment upon the applicability of Common Article 3 and Additional Protocol II regarding the situation which existed in Rwanda in 1994 at the time of the events referred to in the Indictment.
  2. In the light of the principle nullum crimen sine lege, the Chamber must examine whether the above-mentioned instruments, as incorporated in Article 4 of the Statute, were in force on the territory of Rwanda at the time the tragic events took place within its borders.
  3. In the Kayishema and Ruzindana Judgement, Trial Chamber II adjudged, without addressing the question whether or not the instruments incorporated in Article 4 of the Statute are to be considered as customary international law, that these instruments were indisputably in force in Rwanda at the time, as Rwanda became a Party to the Conventions of 1949 on 5 May 1964 and to Protocol II on 19 November 1984. Moreover, the Trial Chamber stated that, as all the offences enumerated in Article 4 of the Statute also constituted offences under the laws of Rwanda, there was no doubt that persons responsible for the breaches of these international instruments during the events in the Rwandan territories in 1994 could be subject to prosecution(67).
  4. These findings were affirmed by Trial Chamber I in the Rutaganda Judgement.(68)
  5. In the Akayesu Judgement, Trial Chamber I acknowledged the binding nature of the obligation as well, but focused upon customary international law as the source of this obligation rather than treaty law. With regard to Common Article 3, the Trial Chamber held that the "norms of Common Article 3 had acquired the status of customary law in that most States, by their domestic penal codes, have criminalized acts which if committed during internal armed conflict, would constitute violations of Common Article 3"(69). This is in line with the view of both the ICTY Trial Chambers(70) and the ICTY Appeals Chamber(71) stipulating that Common Article 3 beyond doubt formed part of customary international law. In relation to Additional Protocol II, the Trial Chamber in the aforesaid Akayesu Judgement stated that, although not all of Additional Protocol II could be said to be customary law, the guarantees contained in Article 4(2) (Fundamental Guarantees) thereof, which reaffirm and supplement Common Article 3, form part of existing customary international law(72).
  6. All of the norms reproduced in Article 4 of the Statute are covered by Article 4(2) of Additional Protocol II.
  7. The Chamber therefore concludes that, at the time the crimes alleged in the Indictment were perpetrated, persons were bound to respect the provisions of the 1949 Geneva Conventions and their 1977 Additional Protocols, as incorporated in Article 4 of the Statute. Violations thereof, as a matter of custom and convention, attracted individual criminal responsibility and could result in the prosecution of the authors of the offences.
  8. The question remains however to what extent these instruments are applicable in the instant case.

Test of applicability of Common Article 3 and Additional Protocol II

  1. The Chamber having deemed Common Article 3 and Additional Protocol II, as incorporated in Article 4 of the Statute, to be in force in Rwanda at the time of the events alleged in the Indictment, the issue the Chamber must address at this stage is the material requirements of applicability of Common Article 3 and Addition Protocol II to be met for an act to be deemed a serious violation thereof.

Ratione Materiae

  1. The four 1949 Geneva Conventions and Additional Protocol I thereto generally apply to international armed conflicts, whereas Common Article 3 to the Geneva Conventions extends a minimum threshold of humanitarian protection as well to all persons affected by a non-international conflict, a protection which was further developed and enhanced in the 1977 Additional Protocol II. Offences alleged to be covered by Article 4 of the Statute must, as a primary matter, have been committed in the context of a non-international armed conflict, satisfying the requirements of Common Article 3 and Additional Protocol II.

Common Article 3

  1. Common Article 3 applies to "armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties"(73). In absence of a general definition of non-international armed conflict, which may take very different forms, the Chamber finds it necessary to describe situations of this type in relation to the objective facts characterizing them.
  2. First, a non-international conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other: the parties to the conflict are not sovereign States, but the government of a single State in conflict with one or more armed factions within its territory.
  3. The expression "armed conflicts" introduces a material criterion: the existence of open hostilities between armed forces which are organized to a greater or lesser degree. Internal disturbances and tensions, characterized by isolated or sporadic acts of violence, do not therefore constitute armed conflicts in a legal sense, even if the government is forced to resort to police forces or even armed units for the purpose of restoring law and order. Within these limits, non-international armed conflicts are situations in which hostilities break out between armed forces or organized armed groups within the territory of a single State.(74)
  4. Having defined the term in an abstract manner, to the Chamber it is apparent that whether a conflict meets the criteria of Common Article 3 is to be decided on a case by case basis.
  5. In dealing with this issue, the Akayesu Judgement suggested an 'evaluation test' whereby the Trial Chamber evaluated the intensity and organization of the parties to the conflict to make a finding on the existence of an armed conflict not of an international character(75).
  6. This approach, followed as well in the Rutaganda Judgement, finds favour with the Trial Chamber of this instance.

Additional Protocol II

  1. As aforesaid, Common Article 3 does not in itself define "armed conflict not of an international character". Before the elaboration of Additional Protocol II, the absence of clarity on this concept gave rise to a great variety of interpretations and in practice its applicability was often denied.(76) In order to reinforce and improve the protection granted to victims of non-international armed conflict the Additional Protocol II was adopted in 1977, giving a number of objective criteria which would not be dependent on the subjective judgements of the parties. Additional Protocol II, in other words, develops and supplements the brief rules contained in Common Article 3 without modifying its existing conditions of application. As a result, in circumstances where the material requirements of applicability of Protocol II are met, it is self-evident that they also satisfy the threshold requirements of the broader Common Article 3.
  2. Additional Protocol II applies to "all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. The Protocol explicitly does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts."(77)
  3. Thus the conditions to be met to fulfil the material requirements of applicability of Additional Protocol II at the time of the events alleged in the Indictment would entail showing that:

 

  1. The Protocol applies automatically as soon as the material conditions as defined in the Article are fulfilled. However, prior to the making of a finding thereon, this Chamber deems it necessary to make a number of precisions as regards the said criteria.
  2. The concept of armed conflict has already been discussed under the above section pertaining to Common Article 3. It is sufficient to recall that an armed conflict is distinguished from internal disturbances by the level of intensity of the conflict and the degree of organization of the parties to the conflict. Under Additional Protocol II, the parties to the conflict will usually either be the government confronting dissident armed forces, or the government fighting insurgent organized armed groups. The term "armed forces" of the High Contracting Party should be understood in the broadest sense, so as to cover all armed forces as described within national legislation.(78)
  3. Furthermore, the armed forces opposing the government must be under responsible command. This requirement implies some degree of organization within the armed groups or dissident armed forces, but this does not necessarily mean that there is a hierarchical system of military organization similar to that of regular armed forces. It means an organization capable of, on the one hand, planning and carrying out sustained and concerted military operations- operations that are kept up continuously and that are done in agreement according to a plan, and on the other, of imposing discipline in the name of the de facto authorities(79).
  4. In addition to this, these dissident armed forces must be able to dominate a sufficient part of the territory so as to maintain these sustained and concerted military operations and the insurgents must be in a position to implement this Protocol(80).

The nexus between the crime and the armed conflict

  1. The Chamber must also be satisfied that there is a link or nexus between the offence committed and the armed conflict for Article 4 of the Statute to apply.
  2. In other words, the alleged crimes, referred to in the Indictment, must be closely related to the hostilities or committed in conjunction with the armed conflict.
  3. The Akayesu Judgement addressed this subject stating that the acts perpetrated by the accused had to be "[...] acts, committed in conjunction with the armed conflict".(81)
  4. In the Rutaganda Judgement it was held that the term nexus should not be defined in abstracto. Rather, the evidence adduced in support of the charges against the accused must satisfy the Chamber that such a nexus exists. Thus, the burden rests on the Prosecutor to prove beyond a reasonable doubt, that, on the basis of the facts, such a nexus exists between the crime committed and the armed conflict(82). This approach finds favor with the Chamber in this instance.

Ratione personae

  1. Two distinct issues arise with respect to personal jurisdiction over serious violations of Common Article 3 and Additional Protocol II; the class of perpetrators and the class of victims.

The class of perpetrators

  1. Under Common Article 3 of the Geneva Conventions, the perpetrator must belong to a "Party to the conflict", whereas under Additional Protocol II(83) the perpetrator must be a member of the "armed forces" of either the government or of the dissidents.
  2. Neither the Geneva Conventions nor the Additional Protocols give an exact definition of "Party to the conflict" or "armed forces". Taken literally, the duties and responsibilities of the Geneva Conventions and the Additional Protocols will only apply to individuals of all ranks belonging to the armed forces under the military command of either of the belligerent parties.
  3. In the Akayesu Judgement, the Chamber, however, expressed the opinion that, due to the overall protective and humanitarian purpose of these international legal instruments, the delimitation of this category of persons bound by the provisions in Common Article 3 and Additional Protocol II should not be too restricted.(84) Indeed, according to the Judgement, a too restrictive definition of these terms would dilute the protection afforded by these instruments to the victims and potential victims of armed conflicts. Hence, in the opinion of the Trial Chamber, the categories of persons covered by these terms should not be limited to individuals of all ranks belonging to the armed forces under the military command of either belligerent parties but should be interpreted in their broadest sense, to include individuals who are legitimately mandated and expected as public officials or agents or persons otherwise holding public authority de facto representing the Government to support or fulfil the war efforts. This was affirmed in both the Rutaganda Judgement and the Kayishema and Ruzindana Judgement.
  4. It could be objected that the Accused, as a civilian, cannot be considered as being a member of the "armed forces" (in the broadest sense).
  5. Yet, jurisprudence on this issue emanating from both the Nuremberg and Tokyo Tribunals and from the ICTR clearly established that civilians can be held responsible for violations of international humanitarian law committed in an armed conflict. The Nuremberg and Tokyo Tribunals, however, dealt with the matter in the context of an international armed conflict, while in the instant case, the question arises in the context of an internal conflict.
  6. Nevertheless, the Chamber, in cognisance of the importance and relevance of these trials with respect to the instant case, deems it necessary to review such decisions prior to making its findings thereon.
  7. In the Zyklon B case, the decision of the British military court was a clear example of the application of the rule that the provisions of the laws and customs of war are addressed not only to combatants and to members of State and other public authorities, but to anybody who is in a position to assist in their violation. The military court, who sentenced two civilians, Tech-the owner of a gas company- and Weinbacher-his second in command-, to death, (85) acted on the principle that any civilian who is as accessory to a violation of the laws and customs of war is himself liable as a war criminal.(86)
  8. In the Essen Lynching Case, three civilians -Braschoss, Kaufer and Boddenberg- were found guilty of the killing of unarmed prisoners of war, because they had taken part in the ill-treatment of which eventually led to the death of the victims.(87)
  9. In the Hadamar Trial decision, another application was given of the rule that the provisions of laws and customs of war are addressed not only to combatants but also to civilians, and that civilians, by committing illegal acts against nationals of the opponent, may become guilty of war crimes. In Casu, part of the staff of a civilian institution - a sanatorium were found guilty for killing allied nationals by means of injections.(88)
  10. These principles were also followed in Tokyo by the International Tribunal for the Far East, that accused Hirota, the former Foreign Minister of Japan, of various violations of war crimes.
  11. So it is well-established that the post-World War II Trials unequivocally support the imposition of individual criminal liability for war crimes on civilians where they have a link or connection with a Party to the conflict. The principle of holding civilians liable for breaches of the laws of war is, moreover, favoured by a consideration of the humanitarian object and purpose of the Geneva Conventions and the Additional Protocols, which is to protect war victims from atrocities."(89)
  12. Therefore, the Chamber concludes that the Accused could fall in the class of individuals who may be held responsible for serious violations on international humanitarian law, in particular serious violations of Common Article 3 and Additional Protocol II.

The class of victims

  1. Common Article 3(1) of the Geneva Conventions states that protection must be afforded to "persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat". Article 4 of Additional Protocol II refers to "all persons who do not take a direct part in the hostilities or who have ceased to take part in the hostilities".
  2. Article 50 of Additional Protocol I stipulates in its first paragraph that "a civilian is any person who does not belong to one of the categories of persons referred to in Article 4(A)(1), (2), (3) and(6) of the Third Convention and in Article 43 of this Protocol." Each of these Articles enumerates the various types of combatants.
  3. On this basis, the ICRC concluded that: "thus the Protocol adopted the only satisfactory solution, which is that of a negative definition, namely, that the civilian population is made up of persons who are not members of the armed forces or placed hors de combat".(90)
  4. Pursuant to Article 13(2) of the Additional Protocol II, the civilian population, as well as individual civilians, shall not be the object of attack. However, if civilians take a direct part in the hostilities, they then lose their right to protection as civilians per se and could fall within a class of perpetrators. To take a 'direct' part in the hostilities means acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces.
  5. The Chamber considers, following the findings of the Rutaganda Judgement, that a civilian shall be anyone who falls out with the categories of "perpetrator" developed supra, namely individuals of all ranks belonging to the armed forces under the military command of either of the belligerent parties, or to individuals who were legitimately mandated and expected, as public officials or agents or persons otherwise holding public authority or de facto representing the Government, to support or fulfil the war efforts. The class of civilians thus broadly defined, it will be a matter of evidence on a case by case basis whether a victim has the status of civilian.
  6. Concerning this issue, the Chamber recalls that, from a reading of the Indictment, the victims were all allegedly civilians, being usually men, women and children seeking refuge from the massacres.

Ratione loci

  1. Having commented upon the criteria ratione materiae and ratione personae, the Chamber will now evaluate if the criteria of ratione loci are met.
  2. In spite of the fact that there is no clear provision on the applicability ratione loci either in Common Article 3 or Additional Protocol II, the protection afforded to individuals by these instruments applies throughout the territory of the State where the hostilities are occurring, once the objective material conditions for applicability of the said instruments have been satisfied. Indeed, from that moment, persons affected by the conflict are covered by the Protocol wherever they are in the territory of the State engaged in conflict.(91)
  3. This approach was confirmed in the Akayesu Judgement(92), the Rutaganda Judgement(93) and the Tadic Judgement(94) (with regard in particular to Common Article 3), which all conclude that Common Article 3 and Additional Protocol II apply in the whole territory where the conflict is occurring and are not limited to the "war front" or to the "narrow geographical context of the actual theater of combat operations".

Specific violation

  1. Musema is charged under Count 8 and 9 of the Indictment for violations of Articles 3 Common to the 1949 Geneva Conventions and of Additional Protocol II thereof, in violation of Articles 4(a) and (e) of the Tribunal's Statute . If all the requirements of applicability of Article 4 of the Statute as developed supra are met, the onus is on the Prosecutor to then prove that the alleged acts of the accused constituted the required actus reus and mens rea of 4Articles 4(a) and (e) of the Statute.

Required elements of Article 4 (a) of the Statute of the Tribunal

      a) Murder: The specific elements of murder are stated in Section 3.3. on Crime against Humanity in the Applicable Law.

      b) Torture: Intentionally inflicting severe pain or suffering, whether physical or mental, on a person for such purposes as obtaining from him or a third person information or a confession, or punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering only arising form, inherent in or incidental to, lawful sanctions.

      c) Mutilation: causing severe physical injury or damage to victims.

Required elements of Article 4 (e) of the Statute of the Tribunal

      a) Humiliating and degrading treatment: Subjecting victims to treatment designed to subvert their self-regard. Like outrages upon personal dignity, these offences may be regarded as a lesser forms of torture; moreover ones in which the motives required for torture would not be required, nor would it be required that the acts be committed under state authority.

      b) Rape: The specific elements of rape are stated in Section 3.3. on Crime against Humanity in the Applicable Law.

      c) Indecent assault: The accused caused the infliction of pain or injury by an act which was of a sexual nature and inflicted by means of coercion, force, threat or intimidation and was non-consensual.

The violation must be serious

  1. Article 4 of the Statute states that "The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Common Article 3 and of the Additional Protocol II ". The Trial Chamber in the Akayesu Judgement understood, in line with the Appeals Chamber Decision in Tadic(95) that the phrase "serious violation" means "a breach of a rule protecting important values which must involve grave consequences for the victim"(96).
  2. The list of serious violations provided in Article 4 of the Statute is taken from Common Article 3 of the Geneva Conventions and of Additional Protocol II, which outline "Fundamental Guarantees"as a humanitarian minimum of protection for war victims. The list in Article 4 of the Statute thus comprises serious violations of the fundamental humanitarian guarantees which, as has been stated above, are recognised as customary international law.
  3. In the opinion of the Chamber, violations of these fundamental humanitarian guarantees, by their very nature, are therefore to be considered as serious.


3.5 Cumulative charges

  1. The Accused, by his alleged acts in relation to the events described in paragraphs 4.1 to 4.11 of the Indictment, is cumulatively charged with eight counts. Assuming that the Chamber is satisfied beyond a reasonable doubt that a specific act alleged in the Indictment was committed and that several legal characterizations under different counts have been established, it should adopt only a singular legal characterization given to such act, or whether it may the Chamber may find the Accused guilty of all the counts arising from the said act.
  2. The Chamber notes that the principle of cumulative charges was applied by the Nuremberg Tribunal, especially regarding war crimes and crimes against humanity.(97)
  3. Regarding the concurrence of the various crimes covered under the Statute, the Chamber, in the Akayesu Judgement, held that:

      "[...] it is acceptable to convict the accused of two offences in relation to the same set of facts in the following circumstances: (1) where the offences have different elements; or (2) where the provisions creating the offences protect different interests; or (3) where it is necessary to record a conviction for both offences in order fully to describe what the accused did. However, the Chamber finds that it is not justifiable to convict an accused of two offences in relation to the same set of facts where (a) one offence is a lesser included offence of the other, [...]or (b) where one offence charges accomplice liability and the other offence charges liability as a principal."(98)

  1. Trial Chamber II of the Tribunal, in its Kayishema and Ruzindana Judgement, endorsed the afore-mentioned test of concurrence of crimes and found that it is only acceptable:

      "(1) where offences have differing elements, or (2) where the laws in question protect differing social interests."(99)

  1. Trial Chamber II ruled in the Kayishema and Ruzindana Judgement that the cumulative charges were legally improper and untenable. It found that in that particular case all elements including the mens rea element requisite to show genocide, extermination and murder, and the evidence relied upon to prove the alleged commission of the crimes, were the same. Furthermore, in the opinion of Trial Chamber II, the protected social interests were also the same. Therefore, it held that the Prosecutor should have charged the Accused in the alternative.(100)
  2. Judge Tafazzal H. Khan, one of the Judges sitting in Trial Chamber II to consider the said case, expressed a dissenting opinion on the application of the issue of cumulative charges. Relying on consistent jurisprudence he pointed out that the Chamber should have placed less emphasis on the overlapping elements of the cumulative crimes.

      "What must be punished is culpable conduct; this principle applies to situations where the conduct offends two or more crimes, whether or not the factual situation also satisfies the distinct elements of the two or more crimes, as proven."(101)

  1. In his dissenting opinion, the Judge goes on to emphasize that the full assessment of charges and the pronouncement of guilty verdicts are important in order to reflect the totality of the accused's culpable conduct.

      "[...] where the culpable conduct was part of a widespread and systematic attack specifically against civilians, to record a conviction for genocide alone does not reflect the totality of the accused's culpable conduct. Similarly, if the Majority had chosen to convict for extermination alone instead of genocide, the verdict would still fail to adequately capture the totality of the accused's conduct."(102)

  1. This Chamber fully concurs with the dissenting opinion thus entered. It notes that this position, which endorses the principle of cumulative charges, also finds support in various decisions rendered by the ICTY. In the case of the Zoran Kupreskic and others, the Trial Chamber of the ICTY in its decision on Defence challenges to form of the indictment held that:

      "The Prosecutor may be justified in bringing cumulative charges when the articles of the Statute referred to are designed to protect different values and when each article requires proof of a legal element not required by the others."(103)

  1. Furthermore, the Chamber holds that offences covered under the Statute - genocide, crimes against humanity and violations of Article 3 common to the Geneva Conventions and of Additional Protocol II - have disparate ingredients and, especially, that their punishment is aimed at protecting discrete interests. As a result, multiple offences may be charged on the basis of the same acts, in order to capture the full extent of the crimes committed by an accused.
  2. Finally, the Chamber notes that in Civil Law systems, including that of Rwanda, there a rule of concours idéal d'infractions which allows multiple charges for the same act under certain circumstances. Rwandan law allows multiple charges in the following circumstances:

      "Penal Code of Rwanda: Chapter VI - Concurrent offences:

      Article 92: Where a person has committed several offences prior to a conviction on any such charges, such offences shall be concurrent.

      Article 93: Notional plurality of offences occurs:

      1. Where a single conduct may be characterized as constituting several offences;

      2. Where a conduct includes acts which, though constituting separate offences, are interrelated as deriving from the same criminal intent or as constituting lesser included offences of one another.

      3. In the former case, only the sentence prescribed for the most serious offence shall be passed while, in the latter case, only the sentence provided for the most severely punished offence shall be passed, the maximum of which may be exceeded by half."

  1. Consequently, in light of the foregoing, notably of the Akayesu and Rutaganda Judgements, the Chamber maintains that it is justified to convict an accused of two or more offences for the same act under certain circumstances.

1. The Akayesu Judgement

2. Judgement of the International Criminal Tribunal for the Former Yugosalvia, Case No.: IT -94-1-T, 7 May 1997.

3. Judgement of the International Criminal Tribunal for the Former Yugoslavia, Case No.: IT 96-21-T, The Prosecutor versus Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, "The Celebici Case",16 November 1998.

4. The Kayishema and Ruzindana Judgement.

5. The Rutaganda Judgement

6. Akayesu Judgement, para. 562.

7. Claude Pilloud et al.,  "Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949", 1987, p. 1012.

8. Complete Transcripts of the Proceedings of the International Military Tribunal for the Far East, reprinted in R. John Pritchard and Sonia Magbanua Zaide (ed), the Tokyo War Crimes Trials,Vol. 20, Garland Publishing : New York and London 1981, Edition Garlands (Tokyo Trials Official Transcripts) 49, 791.

9. Celebici Judgement, para. 214.

10. The Prosecutor v. Milan Martic, Case No.: ICTR 95-11-1, 8 March 1996.

11. Tokyo Trial Official Transcript, pp. 49 820-21.

12. See Kai Ambos, Individual Criminal Responsibility in International Criminal Law, in G. K. McDonald/o. Swaak Goldman, Substantive and Procedural Aspects of International Criminal Law (1999, forthcoming).

13. The Government Commissioner of the General Tribunal of the Military Government for the French Zone of Occupation in Germany v. Herman Roechling and Others, Law Reports, Vol. XIV, Appendix B, p. 1075, para. 1092.

14. Ibid, Law Reports, Vol. XIV, Appendix B, p.1097, para. 1106.

15. Commentary to the Additional Protocols, n.9

16. The ICRC commentary to the Protocol makes it clear that "superior" refers to civilian as well as military leaders. "It should not be concluded that this provision [Article 86] only concerns the commander under whose direct orders the subordinate is placed. The role of commanders as such is dealt with in Article 87 (Duty of Commanders ). The concept of a superior is broader and should be seen in terms of a hierarchy encompassing the concept of control." Yves Sandoz and al. Ed., 1987.

17. Analysis of the Additional Protocols to the Geneva Conventions of 12 August 1949, p. 1-86-1

18. The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations General Assembly on 9 December 1948.

19. Secretary-General's Report pursuant to para. 2 of Resolution 808 (1993) of the Security Council, 3 May 1993, S/25704.

20. Legislative Decree of 12 February 1975, Official Gazette of the Republic of Rwanda, 1975, p.230. Rwanda acceded to the Genocide Convention but stated that it shall not be bound by Article 9 of this Convention.

21. Summary Records of the meetings of the Sixth Committee of the General Assembly, 21 September - 10 December 1948, Official Records of the General Assembly.

22. Akayesu Judgement, para. 523.

23. Rutaganda Judgement, para. 63.

24. In this regard, the Chamber notes that, in the Akayesu Judgement, the Trial Chamber, having made this observation on the applicable law and having found Jean-Paul Akayesu guilty of the crime of genocide for certain acts, therefore found him not guilty of the crime of complicity in genocide for the same acts.

25. See, for example, Article 46 of the Senegalese Penal Code, Article 121-7 of the Nouveau code pénal français (New French Penal Code). It should be noted that the Rwandan Penal Code includes two other forms of participation, namely, incitement to commit a crime through speeches, shouting or threats uttered in public places or at public gatherings, or through the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings, or through the public display of placards or posters, and complicity by harbouring or aiding a criminal.

26. See the conclusions of the Chamber on the dolus specialis of genocide, Section 3.2.2 of the Judgement.

27. See Summary Records of the meetings of the Sixth Committee of the General Assembly, 21 September - 10 December 1948, Official Records of the General Assembly.

28. Note by the Secretariat (1948) 8.

29. See UN Doc E/AC. 25/SR.16, p.4 (USA).

30. See UN Doc E/AC. 25/SR.16, p.5.

31. See UN Doc E/A.25/SR.16, p.5.

32. See Sixth Committee Report art. III(b), at 10.[Lippman (1994) 40].

33. Id.

34. United Nations War Crimes Commission (1948) 196.

35. According to the French Cour de Cassation, the agreement to act shall consist of a well-decided and positive will to act in relation to the common goal to commit the substantive offence.

36. See supra the Chamber's findings with respect to the mens rea of the crime of genocide, or the dolus specialis.

37. The crime of conspiracy to commit genocide is to that extent akin to the crime of direct and public incitement to commit genocide. In its findings on the crime of incitement to commit genocide in paragraph 52 of the Akayesu Judgement, the Chamber stated with respect to inchoate offences that: "[...] In the opinion of the Chamber, the fact that such acts are in themselves particularly dangerous because of the high risk they carry for society, even if they fail to produce results, warrants that they be punished as an exceptional measure. The Chamber holds that genocide clearly falls within the category of crimes so serious that direct and public incitement to commit such a crime must be punished as such, even where such incitement failed to produce the result expected by the perpetrator.

38. Don Stuart, Canadian Criminal Law: a Treatise, 1995, 3rd edition, p. 647.

39. See Akayesu Judgement, para. 563 to 576.

40. See Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Court on 17 July 1998.

41. See Akayesu Judgement, para. 578; Rutaganda Judgement, para. 66.

42. See Akayesu Judgement, fn 144, Kayishema and Ruzindana Judgement, fn 63 and Rutaganda; para. 68.

43. Report on the International Law Commission to the General Assembly, 51 U.N. GAOR Supp. (No 10 ) at 94 U.N.Doc. A/51/10 (1996)

44. See Akayesu Judgement, para. 580 and Rutaganda Judgement, para. 69.

45. See Akayesu Judgement, para. 581.

46. See Rutaganda and Judgement, para. 70.

47. Kayishema and Ruzindana Judgement, para. 134.

48. See Akayesu Judgement, para. 582; Rutaganda Judgement, para. 72.

49. See Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of International Armed Conflict; Article 50.

50. See Akayesu Judgement, para 584; Rutaganda Judgement, para. 72.

51. See 15 July 1999 Tadi Judgement of the Appeals Chamber, para. 305.

52. See id. para. 585.

53. See Akayesu Judgement, para. 589 and 590.

54. See Rutaganda Judgement, para. 81.

55. Akayesu Judgement, para. 589 and 590;Rutaganda Judgement, para.83.

56. See Rutaganda Judgement, para. 81.

57. Id. para. 598.

58. Akayesu Judgement, para. 597.

59. See Delalic Judgement, para. 478-9.

60. See Furundzija Judgement, para. 179.

61. Id. para. 181.

62. Id. para. 183

63. Id. para. 184-6.

64. Id.. para. 179.

65. Rome Statute of the International Criminal Court, Article 7(k).

66. See Kayishema and Ruzindana Judgement, para. 151.

67. See Kayishema and Ruzindana Judgement para. 156-158.

68. See Rutaganda Judgement, para. 90.

69. See Akayesu Judgement, para. 608.

70. See ICTY Tadi Judgement (7 May 1997).

71. See "Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction" (2 October 1995).

72. See Akayesu Judgement, para. 610.

73. Common Article 3 states:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and persons, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d )the passing of sentences and the carrying out of executions without previous judgement pronounced by a regular constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and the sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreement, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

74. See ICRC Commentary on Additional Protocol II, para. 4338-4341.

75. See Akayesu Judgement, para. 619-620.

76. See ICRC Commentary on the Additional Protocols of June 1977 to the Geneva Conventions of 12 August 1949, para. 4448.

77. See Article 1 of the Additional Protocol II.

78. See ICRC Commentary on the Additional Protocol, para. 4460-4462.

79. See ICRC Commentary on the Additional Protocol, para. 4463.

80. Ibid., para. 4464-4471.

81. See Akayesu Judgement, para. 643.

82. See Rutaganda Judgement, para 102-103. The findings on this matter are in line with the findings of the Kayishema and Ruzindana Judgement, para. 188.

83. See Article 1(1) of the Additional Protocol II.

84. See Akayesu Judgement, para. 630 to 634.

85. See LRTWC, Vol. I. p. 103.

86. See LRTWC, Vol.I, p. 103.

87. See LRTWC,Vol. I. p.88.

88. See LRTWC, Vol. I, o. 46-55.

89. See Akayesu Judgement para. 633

90. See ICRC Commentary on the Additional Protocols, p.610, section 1913.

91. See ICRC Commentary on Additional Protocol II, para. 4490.

92. See Akayesu Judgement para. 635-636.

93. See Rutaganda Judgement, para. 104.

94. See ICTY "Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction" (2 October 1995), para. 69.

95. See " Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction" ( 2 October 1995), para. 94.

96. See Akayesu Judgement, para. 616.

97. The indictment against the major German War Criminals presented to the International Military Tribunal stated that "the prosecution will rely upon the facts pleaded under Count Three (violations of the laws and customs of war) as also constituting crimes against humanity (Count Four)." Several accused persons were convicted of both war crimes and crimes against humanity. The judgement of the International Military Tribunal delivered at Nuremberg on 30 September and 1 October 1946 ruled that "[...]from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity." The commentary on the Justice case held the same view: "It is clear that war crimes may also constitute crimes against humanity; the same offences may amount to both types of crimes." The trials on the basis of Control Council Law No. 10 followed the same approach. Pohl, Heinz Karl Franslau, Hans Loerner, and Erwin Tschentscher were all found to have committed war crimes and crimes against humanity. National cases, such as Quinn v. Robinson, the Eichmann case and the Barbie case also support this finding. In the Tadi case, Trial Chamber II of ICTY, based on the above reasoning, ruled that "acts which are enumerated elsewhere in the Statute may also entail additional culpability if they meet the requirements of persecution." Thus, the same acts, which meet the requirements of other crimes--grave breaches of the Geneva Conventions, violation of the laws or customs of war and genocide, may also constitute the crimes against humanity for persecution.

98. Akayesu Judgement, para.468.

99. Kayishema and Ruzindana Judgement, para. 627.

100. Kayishema and Ruzindana Judgement, para. 645, 646 and 650.

101. Kayishema and Ruzindana Judgement, "Separate and Dissenting Opinion of Judge Tafazzal Hossain Khan Regarding the Verdicts Under the Charges of Crimes Against Humanity/Murder and Crimes Against Humanity/Extermination", para. 13.

102. Ibid. para.33.

103. The Prosecutor v. Zoran Kupreskic and others, "Decision on Defence Challenges to Form of the Indictment", IT-95-16-PT, (15 May 1998).