Genocidal intent

Notion(s) Filing Case
Rule 98bis Judgement - 11.07.2013 KARADŽIĆ Radovan
(IT-95-5/18-AR98bis.1)

79. The Indictment alleges that JCE members, including Karadžić, used others to carry out the crimes forming part of the JCE’s common purpose, including members of the Bosnian Serb forces.[1] The Appeals Chamber recalls that members of a JCE can incur liability for crimes committed by principal perpetrators who were non-JCE members, provided that it has been established that the crimes can be imputed to at least one member of the JCE and that this member—when using the principal perpetrators—acted in accordance with the common objective.[2] Such a link is established by a showing that the JCE member used the non-JCE member to commit a crime pursuant to the common criminal purpose of the JCE.[3] The Appeals Chamber further recalls that the relevant question in the context of JCE I liability is whether the JCE member used the non-JCE member to commit the actus reus of the crime forming part of the common purpose; it is not determinative whether the non-JCE member shared the mens rea of the JCE member or that the non-JCE member knew of the existence of the JCE.[4] Therefore, in accordance with the allegations underlying Count 1 of the Indictment, it is the genocidal intent of Karadžić and other alleged JCE members, not the physical perpetrators of the underlying alleged genocidal acts, that is determinative for purposes of JCE I.

[1] Indictment [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Prosecution’s Marked-Up Indictment, 19 October 2009, Appendix A], paras 11-14. See also Indictment, para. 37; Appeal Brief [Prosecution Rule 98bis Appeal Brief, 25 September 2012], para. 91.

[2] Krajišnik Appeal Judgement, para. 225. See also Brđanin Appeal Judgement, paras 413, 430.

[3] Krajišnik Appeal Judgement, para. 225. See also Brđanin Appeal Judgement, para. 410.

[4] Krajišnik Appeal Judgement, para. 226. See also Brđanin Appeal Judgement, para. 410.

Download full document
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

1011.            […] [T]he Trial Chamber found that, at the beginning of June 1994, Nyiramasuhuko came to the Cyarwa-Sumo Sector, Ngoma Commune, and distributed condoms for the Interahamwe to be used in the raping and killing of Tutsi women in that sector.[1] The Trial Chamber further found that Nyiramasuhuko gave the following order to the woman to whom she distributed the condoms: “[g]o and distribute these condoms to your young men, so that they use them to rape Tutsi women and to protect themselves from AIDS, and after having raped them they should kill all of them. Let no Tutsi woman survive because they take away our husbands.”[2]

1012.            […] [T]he Trial Chamber found that “this circumstantial evidence shows Nyiramasuhuko’s intent to destroy, in whole or in substantial part, the Tutsi group”[3] and relied in part on this evidence to find that Nyiramasuhuko possessed the specific intent to commit genocide in relation to other events.[4]

[…]

1029.            With respect to Nyiramasuhuko’s argument that, although genocidal intent can be inferred, it cannot be split from the actus reus and must be assessed with respect to the specific alleged crime, at the alleged time, and in the circumstances alleged, the Appeals Chamber recalls that genocidal intent may be inferred, inter alia, from evidence of other culpable acts systematically directed against the same group.[5] […]

1030.            The Appeals Chamber notes that Nyiramasuhuko’s distribution of condoms and statement evincing her intent to target Tutsi women occurred in the beginning of June 1994. In light of the time elapsed between the Mid-May Attack and this incident, this incident alone could not effectively demonstrate Nyiramasuhuko’s specific intent when ordering killings of Tutsis at the prefectoral office during the Mid‑May Attack.[6] However, as highlighted previously, the Trial Judgement reflects that the finding of Nyiramasuhuko’s genocidal intent when ordering killings at the prefectoral office during the Mid-May Attack – and the Night of Three Attacks – was predicated on her role in the attack that occurred then and there.[7] In addition, the Trial Chamber also relied on additional circumstantial evidence that Nyiramasuhuko possessed the specific intent to commit genocide from 19 April 1994, when she tacitly approved Kambanda’s and Sindikubwabo’s Speeches during Nsabimana’s Swearing-In Ceremony. Nyiramasuhuko has not demonstrated that the Trial Chamber erred in this regard. To the extent that the Trial Chamber relied on Nyiramasuhuko’s distribution of condoms and statement evincing her intent to target Tutsi women as additional circumstantial evidence of Nyiramasuhuko’s genocidal intent, the Appeals Chamber finds no error in this approach.

[1] Trial Judgement, paras. 4985, 5938, 6014.

[2] Trial Judgement, paras. 4985, 5938, 6014.

[3] Trial Judgement, paras. 5940, 6018.

[4] Trial Judgement, paras. 5870, 5871. See also ibid., paras. 5873, 5874. Nyiramasuhuko was found guilty of genocide for ordering Interahamwe to kill Tutsis who had sought refuge at the Butare Prefecture Office. See ibid., paras. 5867, 5876, 5969, 5970.

[5] Rukundo Appeal Judgement, para. 234; Blagojević and Jokić Appeal Judgement, para. 123; Krstić Appeal Judgement, para. 33. See also Jelisić Appeal Judgement, para. 47; Semanza Appeal Judgement, paras. 261, 262; Kayishema and Ruzindana Appeal Judgement, para. 159.

[6] Cf. Šainović et al. Appeal Judgement, para. 1035.

[7] See supra, para. 985.

Download full document