Complicity in genocide as understood through the ICTR experience

International Criminal Law Review

Volumn 2, Issue 4, 2002, Pages 375-408

  Obote Odora, Alex ^a  

^a International Criminal Court   (Sweden)

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EID: 34248066834     PISSN: 1567536X     EISSN: 15718123     Source Type: Journal    
DOI: 10.1163/156753602761061824     Document Type: Article

References (52)

1. William A. Schabas, Genocide in International Law (Cambridge University Press, 2000) at p. 286.
2. See Prosecutor v Jean Kambanda, (Case No. ICTR-97-23-S), Judgement of 4 September 1998.
3. See also Jean Kambanda v Prosecutor, (Case No. ICTR-97-23-A) Judgement of 19 October 2000.
4. See for example, France v Wagner et al (1948) 3 Law Reports of the Trials of War Criminals 23, pp 40-2 and 94-5 (Permanent Military Tribunal at Strasbourg);
5. United States v. Weiss, (1948) 11 Law Reports of the Trials of War Criminals 5 (General Military Court of the United States Zone);
6. see also "Provisions Regarding Attempts, Complicity and Conspiracy" (1948) 9 Law reports of the Trials of War Criminals 97-8;
7. "Inchoate Offences" (1948) 15 Law Reports of the Trials of War Criminals 89;
8. "Questions of Substantive Law" (1948) 1 Law Reports of the Trials of War Criminals 43.
9. See agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (1951) 82 IMTS 279, annex. Article 6 in part, reads: "Leaders, organisers and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. " Similarly, Article II.2 of Control Council Law No. 10 established criminal responsibility for individuals who were accessory to a crime, took a consenting part therein, were connected with plans or enterprises involving its commission of any such crime.
10. See Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Humanity, 20 December 1945, Official Gazette of the Control Council of Germany, No. 3 Berlin, 31 January 1946.
11. See the Trial of Bruno Tesch & 2 others, [the Zyclon B Case] I Law Reports of War Criminals 93(1949) tt, p. 94, where the Prosecutor argued that: "Knowingly to supply a commodity to a branch of the State which was using that commodity for the mass extermination of Allied civilian nations was a war crime, and that the people who did it were war criminals for putting the means to commit the crime into the hands of those who actually carried it out." Two of the accused were convicted of knowingly supplying the gas; one had actual knowledge of the use being put to the poison, whereas the other had knowledge imputed to him by virtue of his position as second in command and his access to relevant documents. In contrast, in the case of I. G. Farben, the IMT concluded that company executive reasonably believed that the gas shipped to concentration camps were being deployed for lawful purposes
12. [see United States v Krauch, 8 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 at p. 1080, 1168-72(1952)].
13. Article VI states: "Complicity in the commission of a crime against peace, war crime, or a crime against humanity as set forth in Principle VI is a crime under international law." See Principles of Nuremberg Charter and Judgement Formulated by the International Law Commission, G. A. Res. 177 A (II);
14. Report of the International Law Commission Covering Its Session, 5 June to 29 July 1950, UN Doc. A/16, p. 12, Article VII.
15. See the Convention on the Prevention and Punishment of the Crime of Genocide UNTS.1021 vol. 78(1951) p. 277. Article II provides that: 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 a 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; and, according to Article III of the Genocide Convention, the following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Attempt to commit genocide; (d) Complicity in genocide.
16. See the ICTR Statute Article 2(2) and (3) annexed to the United Nations Security Resolution S/RES/955(1994).
17. See UN Doc. E/447, pp. 5-13.
18. See the United States Draft of 30 September 1947, UN Doc. E/623 Article III.
19. See the French Draft of 15 February 1948, UN Doc. E/Add.1, Article I.
20. See the Soviet Union's proposal, UN Doc. E/AC.25/9, Principle V.
21. See Proposal by the Delegation of China on 16 April 1948, UN Doc. E/AC. 25/9 Article II.
22. See Official Report, Fifth Series Parliamentary Debates, and Commons 1968-69, vol. 777, p. 480-509.
23. See Prosecutor v Jean-Paul Akayesu (Case No. ICTR-96-4-I) at para. 692.
24. See Prosecutor v Bagilishema (Case No. ICTR-95-1A-T), at para 71.
25. See Prosecutor v Serushago, (Case No. ICTR-98-39-S), Sentence, 5 February 1999, para 15.
26. See Prosecutor v Kayishema and Ruzindana, (Case No. ICTR-95-1-T), para 91 states: "... the dolus specialis applies to all acts of genocide mentioned in Article 2 (a) to (e) of the Statute, that is, all the enumerated acts must be committed 'with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such'. It is this specific intent that distinguishes the crime of genocide from the ordinary crime of murder".
27. See Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, and Article 30(3).
28. See Prosecutor v Delalic et al, (Case No. IT-96-21-T), Judgement of 16 November 1996), para 1235 at which the Trial Chamber stated: "Generally, motive is not an essential ingredient of liability for the commission of an offence. It is to some extent a necessary factor in the determination of sentence after guilt has been established. The offences charged are violations of international humanitarian law. It is, therefore, essential to consider the motives of the accused. The motive for committing an act, which results in the offence charged, may constitute aggravation or mitigation of the appropriate sentence. For instance, where the accused is found to have committed the offence charged with cold, calculated premeditation, suggestive of revenge against the individual victim or group to which the victim belongs, such circumstances necessitate the imposition of aggravated punishment. On the other hand, if the accused is found to have committed the offence charged reluctantly and under the influence of group pressure and, in addition, demonstrated compassion towards the victim or the group to which the victim belongs, these are certainly mitigating factors which the Trial Chamber will take into consideration in the determination of the appropriate sentence."
29. See Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and establishing the Charter of the International Military Tribunal, (1951) 82 UNTS 279.
30. See also Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Humanity, 20 December 1945, Official Gazette of the Control Council for Germany, No. 3 Berlin, 31 January 1946, Article II.1 (c).
31. See ICTR Statute, UN Doc. S/RES/955, annex, Article 3;
32. see also ICTY Statute, UN Doc. S/RES/827, annex, art. 5.
33. See UN Doc. A/C.6. SR. 76.
34. See "Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780(1992); UN Doc. S/25274".
35. See also, William A. Schabas, Genocide in International Law, supra note 1, and page 292.
36. See Prosecutor v Dusko Tadic, (Case No. IT-94-I-T), Opinion and Judgement of 7 May 1997, para. 689. The trial Chamber adds that: "... presence alone is not sufficient if it is an ignorant or unwilling presence. However, if the presence can be shown or inferred, by circumstantial or other evidence, to be knowing and to have a direct and substantial effect on the commission of the illegal act, then it is sufficient on which to base a finding of participation and assign the criminal culpability that accompanies it".
37. See Prosecutor v Furundzija, (Case No. IT-95-17/1-T), Judgement of 10 December 1998, para 249.
38. See Smith J. C. and Hogan B., Criminal Law, 7th ed., 1992, at p. 126.
39. William A. Schabas, Genocide in International Law, Supra note 1, at p. 293.
40. See Prosecutor v Tadic (Case No. IT-94-I-A) Judgement of 15 July 1999 para. 229.
41. See for example a later discussion of the Co-ordinators submitted at the conclusion of the February 1999 session of the Working Group on Elements of Crimes following informal discussions with interested states, took the reference to "members of the group" to mean "one or more persons of that group" UN Doc. PCNICC/1999/WGEC/RT. I.
42. See Prosecutor v Karadzic and Mladic, (Case No. IT-95-5-R61)
43. and also see Prosecutor v Karadzic and Mladic, (Case No. IT-95-19-R61).
44. See the 1989 Convention on the Right of the Child, UN Doc. A/RES/44/25, annex, Article 1.
45. Report of the Commission to the General Assembly on the Work of Its Forty-First session, UN Doc. A/CN.4/SER. A/1989 Add. I, p. 102, and paras 4 and 27.
46. Report of the International Law Commission on the Work of Its Forty-eight Session, 6 May 1996, UN Doc. A/51/10 at p. 92.
47. See Modified Indictment pursuant to decision on the review by Judge Yakov A. Ostrovsky of 29 September 1998 (Case No. ICTR-98-39-I).
48. Prosecutor v Omar Serushago, (Case No. ICTR-98-39-S) Decision of 5 February 1999, para.25 (IX).
49. See Ibid. para 25 (I) through XXIV; and in Omar Serushago v Prosecutor (Case No. ICTR-98-39-A), Appeal Decision of 6 April 2000, para. 19.
50. See Prosecutor v Omar Serushago, (Case No. ICTR-98-39-S), Decision of 5 February 1999. At para 26, the Trial Chamber states: "In light of the admissions made by Omar Serushago in amplification of his plea of guilty, the Trial Chamber, on 14 December, accepted his plea and found him guilty on the following counts: (I) By the acts or omissions described in paragraph 4.1 to 5.27 and more specifically in the paragraphs referred to below, Omar Serushago, pursuant to Article 6(1), according to paragraphs 3.2, 3.3, 4.1, 4.12, 4.15, 5.3, 5.7, to 5.16, 5.18, 5.19, 5.27 and pursuant to Article 6(3), according paragraphs 5.8 to 5.16, 5.18, 5.19, 5.21, is responsible for killing and causing serious bodily or mental harm to members of the Tutsi population with intent to destroy, in whole or in part, a racial or ethnic group, and thereby committed GENOCIDE, a crime stipulated in Article 2(3) (e) of the Statute of the Tribunal, for which he is individually responsible pursuant to Article 6 of the Statute and which is punishable in reference to Articles 22 and 23 of the Statute".
51. See Prosecutor v Kambanda, (Case No. ICTR-97-23-S) at para. 40(4) where the Trial Chamber held that: "By his acts or omission described in paragraphs 3.10, 3.12 to 3.15 and 3.17 to 3.19 of the indictment, which do not constitute the same acts relied on for counts 1, 2, and 3 Jean Kambanda was complicit in the killing and the causing of serious bodily or mental harm to members of the Tutsi population, and thereby committed COMPLICITY IN GENOCID stipulated in Article 2(3) (e) of the Statute as a crime, and attribute to him by virtue of Article 6(1) and 6(3), which is punishable in reference to Articles 22 and 23 of the Statute of the Tribunal.
52. Ibid. para 40(4) and also see Prosecutor v Kambanda, (Case No. ICTR-97-23-I) dated 28 October 1997, para 3.12.