The intent to commit genocide in the case law of the International Criminal Tribunal for Rwanda

Criminal Law Forum

Volumn 13, Issue 3, 2002, Pages 273-291

  Aptel, Cécile ^a  

^a International Criminal Tribunal for the Former Yugoslavia   (Netherlands)

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EID: 27244438977     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1023/A:1023344825934     Document Type: Article

References (90)

1. Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78 U.N.T.S. 277. The Convention came into force on 12 January 1951.
2. G.A. Res. 96(I).
3. The International Criminal Tribunal for the Former Yugoslavia was established on 25 May 1993 by Security Council Resolution 808 (subsequently amended by U.N. Doc. S/RES/1166, U.N. Doc. S/RES/1329 and U.N. Doc. S/RES/1411 (2002)). The International Criminal Tribunal for Rwanda was created by Resolution 955 of the Security Council, adopted on 8 November 1994 (subsequently amended by U.N. Doc. S/RES/1165, U.N. Doc. S/RES/1329 and U.N. Doc. S/RES/1411 (2002) and U.N. Doc. S/RES/1431 (2002)). Article 4 of the Statute of the International Criminal Tribunal for the Former Yugoslavia, which is an annex to Resolution 827, and article 2 of the Statute of the International Criminal Tribunal for Rwanda, which is an annex to Resolution 955, give the tribunals subject-matter jurisdiction over the crime of genocide.
4. The Statute of the International Criminal Court, U.N. Doc. A/CONF. 183/9, often referred to as the "Rome Statute", was adopted in Rome on 17 July 1998 and entered into force on 1 July 2002.
5. Prosecutor v. Kambanda (Case No. ICTR-97-23-S), Judgment and Sentence, 4 September 1998, paras. 3-4.
6. Prosecutor v. Akayesu (Case No. ICTR-96-4-T), Judgment, 2 September 1998.
7. Prosecutor v. Kayishema Ruzindana (Case No. ICTR-95-1-T), Judgment and Sentence, 21 May 1999.
8. Prosecutor v. Serushago (Case No. ICTR-98-39-T), Sentence, 5 February 1999. Omar Serushago had pleaded guilty on 14 December 1998.
9. Prosecutor v. Rutaganda (Case No. ICTR-96-3-T), Judgment and Sentence, 6 December 1999.
10. Prosecutor v. Musema (Case No. ICTR-96-13-T), Judgment and Sentence, 27 January 2000.
11. Prosecutor v. Ruggiu (Case No. ICTR-97-32-T), Judgment and Sentence, 1 June 2000. He pleaded guilty to the two counts against him, one for direct and public incitement to commit genocide, on 15 May 2000.
12. Prosecutor v. Bagilishema (Case No. ICTR-95-1A-T), Judgment, 7 June 2001.
13. Prosecutor v. Sikirica et al. (Case No. IT-95-8), Judgment on Defence Motions to Acquit, 3 September 2001, and Sentencing Judgment, 13 November 2001.
14. Prosecutor v. Krstic (Case No. IT-98-33), Judgment, 2 August 2001.
15. Prosecutor v. Jelisic (Case No. IT-95-10-T), Judgment, 14 December 1999. Goran Jelesic was acquitted of genocide by the Trial Chamber, but pleaded guilty to crimes against humanity and violations of the laws or customs of war.
16. To date, the ICTR Appeals Chamber has reviewed the Akayesu, Kambanda, Kayishema Ruzindana, Serushago, Jelisic and Bagilishema judgments. Only the Kayishema Ruzindana appeals judgment deals with the issue of the requisite intent for genocide, noting: "Kayishema submits that the Trial Chamber erred in finding that he possessed the requisite mens rea for the crime of genocide, a challenge which is limited to the factual aspects of the Trial Chamber's finding. Accordingly, Kayishema does not take issue with the Trial Chamber's conclusion in respect of how intent may be inferred."
17. Kayishema Ruzindana v. Prosecutor (Case No. ICTR-95-1-A), Motifs de l'arrêt, 1 June 2001, para. 147. It should be noted that a number of Trial Chambers findings reviewed in this article are still subject to appeal and that the jurisprudence could therefore obviously be modified in the future.
18. The Statutes of the ad hoc tribunals do not define the elements of the crimes over which they have jurisdiction. It is thereby left to the judges, through jurisprudence, to determine them, if only to conform to the principle of nullem crimen sine lege. This principle, also sometimes referred to as the principle of legality, provides that conduct does not constitute a crime unless it has previously been declared to be so by law and also clearly defined. Paragraph 2 of article 22 of the Statute of the International Criminal Court, entitled Nullum crimen sine lege, stipulates: "The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted." For the International Criminal Court, this resulted in the preparation of the Elements of the Crimes, drafted by the Preparatory Commission for the International Criminal Court, U.N. Doc. PCNICC/2000/1/Add.2, para. 3, adopted by the Assembly of States Parties on 30 June 2000.
19. As Otto Triffterer clearly expresses: "…there are two subjective elements required to establish criminal responsibility for genocide: the mens rea as the pendant to the actus reus and the 'intent to destroy…'" Otto Triffterer, Genocide, its Particular Intent to Destroy in Whole or in Part the Group as Such, 14 LEIDEN J. INT'L L. 400 (2001).
20. Report of the International Law Commission on the work of its forty-eighth session, 6 May-26 July 1996, U.N. Doc. A/51/10, comment no. 5 on article 17 (genocide).
21. The definition of genocide has remained unchanged over the last fifty years, notwithstanding various attempts at amendment, notably to enlarge the categories of groups protected.
22. The ancillary forms of genocide - complicity in genocide, direct and public incitement to commit genocide, conspiracy to commit genocide, attempt to commit genocide defined in article III of the Genocide Convention - also form part of the material jurisdiction of the ICTR. In GENOCIDE IN INTERNATIONAL LAW, THE CRIMES OF CRIMES (2000), William A. Schabas indicates that "the considerations concerning the mens rea of genocide […] should also apply mutatis mutandis to the other acts listed in article III". The jurisprudence of the ICTR, as exposed in the Prosecutor v. Akayesu, with regard the intent to commit complicity in genocide stipulates however that "an accused is liable as an accomplice to genocide if he knowingly aided and 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".
23. See Prosecutor v. Akayesu, supra note 6, para. 544.
24. Almost all proceedings before the ICTR involve charges of genocide, and, as indicated supra, to date, this Tribunal has rendered eight judgments on genocide.
25. HANNAH ARENDT, EICHMANN IN JERUSALEM: A REPORT ON THE BANALITY OF EVIL 272 (1963).
26. Prosecutor v. Kambanda, supra note 5, para. 16.
27. Prosecutor v. Akayesu, supra note 6, para. 498.
28. Prosecutor v. Kayishema Ruzindana, supra note 7, para. 91.
29. Prosecutor v. Bagilishema, supra note 12, para. 55.
30. See notably Prosecutor v. Kambanda, supra note 5, para. 16;
31. Prosecutor v. Akayesu, supra note 6, para. 498;
32. Prosecutor v. Kayishema Ruzindana, supra note 7, para. 91;
33. and Prosecutor v. Bagilishema, supra note 12, paras. 55 and 60.
34. Prosecutor v. Akayesu, supra note 6, para. 498.
35. Ibid, para. 518.
36. See in particular Otto Triffterer, supra note 18;
37. and Alexander K.A. Greenawalt, Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation, 99 COLUM. L. REV. 2259 (1999).
38. Otto Triffterer, supra note 18.
39. Ibid.
40. Ibid.
41. Ibid.
42. 1996 Report of the International Law Commission, supra note 19, article 17 (genocide).
43. William A. Schabas, The Jelesic case and the mens rea of the Crime of Genocide, 14 LEIDEN J. INT'LL. 125 (2001).
44. 1996 Report of the International Law Commission, supra note 19, comment no. 6 on article 17 (genocide).
45. State Attorney's Office against Nikola Jorgic, High Court of Dusseldorf, IV - 26/96, 2 StE 8/96.
46. Prosecutor v. Akayesu, supra note 6, para. 521.
47. Ibid., para. 522.
48. Prosecutor v. Kayishema Ruzindana, supra note 7, para. 95.
49. Prosecutor v. Akayesu, supra note 6, para. 497.
50. Commenting on the 1948 Convention, Nehemiah Robinson supported the idea that "the intended destruction must take place on grounds of the national or racial origin, religious beliefs or political opinion of the group's members. In other words, besides the intention of the destruction, there must be a specific motive for the act, deriving from the peculiar characteristics of the group. Thus, the intention to destroy the group would not suffice to represent an act of Genocide if the motives were other than those described above. If the destruction was carried out in the conduct of a war, for instance, or with the intention of robbery, or for motives of profit, or the like, it would not constitute Genocide." NEHEMIAH ROBINSON, THE GENOCIDE CONVENTION 60-61 (1960).
51. 1996 Report of the International Law Commission, supra note 19, comment no. 7 on article 17 (genocide).
52. Prosecutor v. Kayishema Ruzindana, supra note 7, para. 96.
53. Ibid. For the Special Rapporteur, "in part" would seem to imply a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership.
54. Ibid, "the crime of Genocide by its very nature requires the intention to destroy at least a substantial part of a particular group".
55. Prosecutor v. Bagilishema, supra note 12, para. 64.
56. Nevertheless, when reviewing the notion of "in whole or in part", it is important to introduce the notion of attempt to commit genocide, as recalled by Professor Daniel D. Ntanda Nsereko: "It is submitted that as long as the perpetrator injures or kills [a person, even if only one] with intent and in execution of a co-ordinated plan to destroy the rest of his victim's group or a substantial part of it, he is guilty of genocide or at least attempt to commit genocide." Daniel D. Ntanda Nsereko, Genocide: A Crime Against Mankind, in SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW - THE EXPERIENCE OF INTERNATIONAL AND NATIONAL COURT 125 (Gabrielle Kirk McDonald Olivia Swaak-Goldman, eds., 1999).
57. IbidDaniel D. Ntanda Nsereko, SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW - THE EXPERIENCE OF INTERNATIONAL AND NATIONAL COURT 125, p. 125.
58. This exercise would almost surely lead to a difficult position, with possible discrepancies, depending on the "original" size of the group. Indeed, while "destroying" twenty members of a group constituted of millions of people may not be considered as "substantial enough" to constitute genocide, in another situation, the killing of twenty members of a rather limited group constituted of no more than a few hundred persons, could be deemed a substantial number.
59. Otto Triffterer, supra note 18.
60. An example of such a "cultural" genocide would be the systematic elimination of the religious leaders of a given religion, which would intentionally aim at destroying the very fabric of the said group as an ultimate consequence.
61. It is estimated that, at the very least, 500,000 victims died throughout the country, during the 1994 genocide in Rwanda. For certain sources, more than a million perished. This estimate does not even take into consideration the victims of genocide who did not died, but to whom permanent physical or mental harm was caused.
62. In Prosecutor v. Akayesu, supra note 6, the Chamber wrote: "Based on the Nottebohm decision rendered by the International Court of Justice, the Chamber holds that a national group is defined as a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties" (para. 512).
63. "An ethnic group is generally defined as a group whose members share a common language or culture" (para. 513). "The conventional definition of racial group is based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors" (para. 514). "The religious group is one whose members share the same religion, denomination or mode of worship" (para. 515). Similarly, Prosecutor v. Kayishema Ruzindana, supra note 7, stated: "An ethnic group is one whose members share a common language and culture; or, a group which distinguishes itself, as such (self identification); or, a group identified as such by others, including perpetrators of the crimes (identification by others).
64. A racial group is based on hereditary physical traits often identified with geography. A religious group includes denomination or mode of worship or a group sharing common beliefs" (para. 98). As noted by Rafaelle Maison: "L'appartenance à un groupe humain ne peut etre qu'une revendication individuelle: rechercher une catégorisation objective revient à employer le schéma d'analyse qui est celui des auteurs des discriminations." Rafaelle Maison, Le crime de génocide dans les premiers jugements du Tribunal pénal international pour le Rwanda, 103 REVUE GÉNÉRALE DE DROIT INT'L PUBLIC 137 (1999).
65. Prosecutor v. Rutaganda, supra note 9, para. 56.
66. Ibid.
67. An additional and interesting dimension of the most recent jurisprudence of the ICTR on this point is found in Prosecutor v. Bagilishema, where the Trial Chamber, in a footnote, indicated that it agrees with the comment of the Commission of Experts on Rwanda that "to recognise that there exists discrimination on racial or ethnic grounds, it is not necessary to presume or posit the existence of race or ethnicity itself as a scientifically objective fact", as cited in V. MORRIS M. SCHARF, I THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA 176 (1998).
68. Prosecutor v. Bagilishema, supra note 12, para. 65.
69. 1996 Report of the International Law Commission, supra note 19, comment no. 9 on article 17 (genocide).
70. See William A. Schabas, supra note 21, p. 5.
71. Ibid.
72. See Code pénal francais, article 211-1, Journal Officiel, 23 July 1992.
73. Prosecutor v. Akayesu, supra note 6, para. 516. Consequently, the Trial Chamber found: "In the light of the facts brought to its attention during the trial, the Chamber is of the opinion that, in Rwanda in 1994, the Tutsi constituted a group referred to as 'ethnic' in official classifications. Thus, the identity cards at the time included a reference to 'ubwoko' in Kinyarwanda or 'ethnie' (ethic group) in French which, depending on the case, referred to the designation Hutu or Tutsi, for example. The Chamber further noted that all the Rwandan witnesses who appeared before it invariably answered spontaneously and without hesitation the questions of the Prosecutor regarding their ethnic identity. Accordingly, the Chamber finds that, in any case, at the time of the alleged events, the Tutsi did indeed constitute a stable and permanent group and were identified as such by all" (para. 702).
74. Nehemiah Robinson, supra note 44, p. 15.
75. Prosecutor v. Akayesu, supra note 6, para. 523.
76. Ibid.
77. See also para. 728: "[T]he Chamber holds the view that the intent underlying an act can be inferred from a number of facts. The Chamber is of the opinion that it is possible to infer the genocidal intention that presided over the commission of a particular act, inter alia, from all acts or utterances of the accused, or from the general context in which other culpable acts were perpetrated systematically against the same group, regardless of whether such other acts were committed by the same perpetrator or even by other perpetrators." Regarding the specific case of the accused Jean-Paul Akayesu, the Chamber found that "regarding Akayesu's acts and utterances during the period relating to the acts alleged in the Indictment, the Chamber is satisfied beyond reasonable doubt, on the basis of all evidence brought to its attention during the trial, that on several occasions the accused made speeches calling, more or less explicitly, for the commission of genocide. The Chamber, in particular, held in its findings on Count 4, that the accused incurred individual criminal responsibility for the crime of direct and public incitement to commit genocide. Yet, according to the Chamber, the crime of direct and public incitement to commit genocide lies in the intent to directly lead or provoke another to commit genocide, which implies that he who incites to commit genocide also has the specific intent to commit genocide: that is, to destroy, in whole or in part, a national, ethnical, racial or religious group, as such" (para. 729). The Chamber further noted: "Owing to the very high number of atrocities committed against the Tutsi, their widespread nature not only in the commune of Taba, but also throughout Rwanda, and to the fact that the victims were systematically and deliberately selected because they belonged to the Tutsi group, with persons belonging to other groups being excluded, the Chamber is also able to infer, beyond reasonable doubt, the genocidal intent of the accused in the commission of the above-mentioned crimes" (para. 730). In a similar manner, Prosecutor v. Rutaganda provides that: "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" (para. 63).
78. Prosecutor v. Kayishema Ruzindana, supra note 7, para. 93. In this judgment, when reviewing specifically Kayishema's and Ruzindana's intent to destroy in whole or in part the Tutsi group, the Chamber reviewed the accuseds' utterances, their words and deeds, the number of victims, the fact that the latter were killed regardless of gender or age, and the persistent pattern of conduct (the attacks were carried out in a methodical manner, the repetitive character of the planned and programmed massacres, and the constant focus on the Tutsi members of the population) (paras. 531 to 545).
79. Prosecutor v. Akayesu, supra note 6, para. 523.
80. Prosecutor v. Bagilishema, supra note 12, para. 63.
81. Alexander K.A. Greenawalt, see supra note 31.
82. Elements of Crimes, supra note 17.
83. Prosecutor v. Kayishema Ruzindana, supra note 7, para. 276.
84. Ibid., para. 94.
85. William A. Schabas, supra note 21, p. 207.
86. Ibid., p. 208.
87. Thomas W. Simon, Defining Genocide, 15 WISCONSIN INT'L L. J. 250 (1996).
88. 1996 Report of the International Law Commission, supra note 19, p. 90.
89. The Appeals Chamber of the ICTY made a finding on the same basis in Jelisic: "[T]he existence of a plan or policy is not a legal ingredient of the crime [of genocide]. However, in the context of proving specific intent, the existence of a plan or policy may become an important factor in most cases. The evidence may be consistent with the existence of a plan or policy, or may even show such existence, and the existence of a plan or policy may facilitate proof of the crime." Prosecutor v. Jelisic (Case no. IT-95-10-A), Judgment, 5 July 2001, para. 48.
90. This finding had already previously been made by the ICTR Appeals Chamber in Kayishama Ruzindana v. Prosecutor, supra note 16, para. 193.