Genocide

Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

537. In relation to crimes under different statutory provisions, as the Trial Chamber recalled, cumulative convictions for the same conduct are permissible if each statutory provision involved has a materially distinct element not contained in the other.[1] Further, the Appeals Chamber notes that the Trial Chamber correctly held that conspiracy to commit genocide and genocide involve different underlying acts or omissions and a materially distinct actus reus.[2]

538. In this case, the Trial Chamber reasoned that – as Popović’s and Beara’s participation in the JCE to Murder with genocidal intent was the basis of the convictions for genocide as well as for inferring an agreement to commit genocide – “entering a conviction for the substantive offence of genocide renders redundant a conviction for conspiracy”.[3] The Trial Chamber also concluded that “the full criminality of the Accused is accounted for by a conviction for genocide”.[4] The Appeals Chamber, however, recalls “that a trial chamber is bound to enter convictions for all distinct crimes which have been proven in order to fully reflect the criminality of the convicted person”.[5] As conspiracy to commit genocide and genocide are distinct crimes, it was necessary to enter convictions against Popović and Beara for conspiracy to commit genocide in order to reflect their full culpability.[6] […]

[1]           Karemera and Ngirumpatse Appeal Judgement, para. 710; Gatete Appeal Judgement, para. 259 & fn. 630. See [Popović et al.] Trial Judgement, para. 2111 & fns 6103-6104.

[2]           [Popović et al.] Trial Judgement, para. 2118 & fns 6115-6116. See Karemera and Ngirumpatse Appeal Judgement, para. 710; Gatete Appeal Judgement, para. 260 & fns 632-633.

[3]           Trial Judgement, paras 2124-2126.

[4]           Trial Judgement, para. 2127.

[5]           Gatete Appeal Judgement, para. 261. See Karemera and Ngirumpatse Appeal Judgement, para. 711.

[6]           See Gatete Appeal Judgement, para. 261.

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Notion(s) Filing Case
Appeal Judgement - 12.03.2008 SEROMBA Athanase
(ICTR-2001-66-A)

161. The Appeals Chamber recalls that

[i]n the context of genocide, however, “direct and physical perpetration” need not mean physical killing; other acts can constitute direct participation in the actus reus of the crime.

The jurisprudence makes clear that “committing” is not limited to direct and physical perpetration and that other acts can constitute direct participation in the actus reus of the crime.  The question of whether an accused acts with his own hands, e.g. when killing people, is not the only relevant criterion.  The Appeals Chamber therefore finds, Judge Liu dissenting, that the Trial Chamber erred in law by holding that “committing” requires direct and physical perpetration of the crime by the offender. To remedy this error, the Appeals Chamber will apply the correct legal standard—i.e., whether Athanase Seromba’s actions were “as much an integral part of the genocide as were the killings which [they] enabled.”  In so doing, it will determine whether, as the Prosecution has argued on appeal, the Trial Chamber’s factual conclusions and the evidence contained in the trial record support the conclusion that Athanase Seromba became a principal perpetrator of the crime itself by approving and embracing as his own the decision to commit the crime and thus should be convicted for committing genocide.

162. The Appeals Chamber considers that the law should be applied to the factual findings of the Trial Chamber, taken as a whole. It is on this basis that the Appeals Chamber will determine the proper mode of liability under Article 6(1) of the Statute. In cases of ambiguity reference may be made, pursuant to Rules 109 and 118(A) of the Rules, to the record on appeal.

171. On the basis of these underlying factual findings, the Appeals Chamber finds that Athanase Seromba approved and embraced as his own the decision of Kayishema, Ndahimana, Kanyarukiga, Habarugira, and other persons to destroy the church in order to kill the Tutsi refugees. It is irrelevant that Athanase Seromba did not personally drive the bulldozer that destroyed the church. What is important is that Athanase Seromba fully exercised his influence over the bulldozer driver who, as the Trial Chamber’s findings demonstrate, accepted Athanase Seromba as the only authority, and whose directions he followed. The Appeals Chamber finds, Judge Liu dissenting, that Athanase Seromba’s acts, which cannot be adequately described by any other mode of liability pursuant to Article 6(1) of the Statute than “committing”, indeed were as much as an integral part of the crime of genocide as the killings of the Tutsi refugees.[1] Athanase Seromba was not merely an aider and abetter but became a principal perpetrator in the crime itself.

172. The Appeals Chamber observes, Judge Liu dissenting, that Athanase Seromba’s conduct was not limited to giving practical assistance, encouragement or moral support to the principal perpetrators of the crime, which would merely constitute the actus reus of aiding and abetting.[2] Quite the contrary, the findings of the Trial Chamber allow for only one conclusion, namely, that Athanase Seromba was a principal perpetrator in the killing of the refugees in Nyange church. The Appeals Chamber therefore finds that Athanase Seromba’s conduct can only be characterized as “committing” these crimes.

173. The Appeals Chamber recalls that an accused evinces the requisite mens rea for committing a crime when he acts with an intent to commit that crime.[3] This stands in contrast to the mens rea for aiding and abetting, which “is indicated by the requirement that the act of participation be performed with knowledge that it will assist the principal in the commission of the criminal act.”[4]

Also see infra on Judge Liu’s Dissenting Opinion.

[1] Cf. Gacumbitsi Appeal Judgement, para. 60.

[2] Blaškić Appeal Judgement, para. 46.

[3] Blagoje Simić et al. Trial Judgement, para. 137.

[4] Kayishema and Ruzindana Appeal Judgement, para. 186.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 12.03.2008 SEROMBA Athanase
(ICTR-2001-66-A)

46. The Appeals Chamber recalls that “serious bodily or mental harm” is not defined in the Statute,[1] and that the Appeals Chamber has not squarely addressed the definition of such harm. The quintessential examples of serious bodily harm are torture, rape, and non-fatal physical violence that causes disfigurement or serious injury to the external or internal organs.[2] Relatedly, serious mental harm includes “more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat”.[3] Indeed, nearly all convictions for the causing of serious bodily or mental harm involve rapes or killings.[4] To support a conviction for genocide, the bodily harm or the mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part.[5]

47. The Appeals Chamber notes that the Trial Chamber did not clearly differentiate the actus reus of the underlying crime and the actus reus for aiding and abetting that crime. The Trial Chamber suggested that “[Athanase] Seromba’s refusal to allow the refugees to get food from the banana plantation substantially contributed to their physical weakening”[6] and that “[Athanase] Seromba’s order prohibiting refugees from getting food from the banana plantation, his refusal to celebrate mass in Nyange church, and his decision to expel employees and Tutsi refugees” facilitated their “living in a constant state of anxiety”.[7] Beyond these vague statements, the only other reference in the Trial Judgement to the underlying acts that caused serious bodily or mental harm is the conclusory statement that “it is beyond dispute that during the events of April 1994 in Nyange church, the attackers and other Interahamwe militiamen [...] caused serious bodily or mental harm to [the Tutsi refugees] on ethnic grounds, with the intent to destroy them, in whole or in part, as an ethnic group.”[8]

48. The Trial Chamber failed to define the underlying crime to which Athanase Seromba’s actions supposedly contributed. It also had a duty to marshal evidence regarding the existence of the underlying crime that caused serious bodily or mental harm, and its parsimonious statements fail to do so. In the absence of such evidence, the Appeals Chamber cannot equate nebulous invocations of “weakening” and “anxiety” with the heinous crimes that obviously constitute serious bodily or mental harm, such as rape and torture.

49. The Appeals Chamber finds that the Trial Chamber failed to establish with sufficient precision the crime of “causing serious bodily or mental harm”; therefore, Athanase Seromba’s conviction for aiding and abetting such a crime cannot stand. Accordingly, the Appeals Chamber grants this sub-ground of appeal and reverses the finding of the Trial Chamber that Athanase Seromba aided and abetted the causing of serious bodily or mental harm.

[1] Semanza Trial Judgement, para. 320.

[2] Semanza Trial Judgement, para. 320, referring to Kayishema and Ruzindana Trial Judgement, para. 109; Ntagerura et al. Trial Judgement, para. 664.

[3] Kajelijeli Trial Judgement, para. 815, referring to Kayishema and Ruzindana Trial Judgement, para. 110; Semanza Trial Judgement, para. 321.

[4] See, e.g., Muhimana Trial Judgement, paras. 512, 513, 519; Gacumbitsi Trial Judgement, paras. 292, 293; Ntakirutimana Trial Judgement, paras. 788-790; Musema Trial Judgement, paras. 889, 890.

[5] Kajelijeli Trial Judgement, para. 184; Krajišnik Trial Judgement, para. 862; Report of the International Law Commission on the Work of its Forty-Eighth Session 6 May - 26 July 1996, UN GAOR International Law Commission, 51st Sess., Supp. No. 10, p. 91, UN Doc. A/51/10 (1996). In relation to crimes against humanity, a Trial Chamber has refused to find that the removal of a church roof, which deprived Tutsis of an effective hiding place from those who sought to kill them, constituted the causing of serious bodily or mental harm because “the Chamber [was] not satisfied that this act amount[ed] to an act of similar seriousness to other enumerated acts in the Article”. Ntakirutimana Trial Judgement, para. 855.

[6] Trial Judgement, para. 327.

[7] Trial Judgement, para. 326.

[8] Trial Judgement, para. 340.

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ICTR Statute Article 2(2)(b) ICTY Statute Article 4(2)(b)
Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

430. In holding that the crime of genocide does not require the existence of a State policy, the Trial Chamber relied on, inter alia, the Krstić, Jelisić, and Kayishema and Ruzindana Appeal Judgements.[1] […] In the Jelisić Appeal Judgement, the Appeals Chamber held that “the existence of a plan or policy is not a legal ingredient of the crime”,[2] while in Kayishema and Ruzindana the ICTR Appeals Chamber stated that “a genocidal plan is not a constituent element of the crime of genocide”.[3] Although these judgements do not explicitly address the issue of State policy, the Appeals Chamber considers that if a policy is not a legal requirement, it follows that State policy cannot be a legal requirement. Thus, the question of whether the existence of a State policy is required for the crime of genocide has already been considered by the Tribunal.

[1]           [Popović et al.] Trial Judgement, paras 828-830.

[2]           Jelisić Appeal Judgement, para. 48.

[3]           Kayishema and Ruzindana Appeal Judgement, para. 138.

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Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

422. […] Although the substantiality requirement is textually indicated in the provision describing the specific intent required for genocide, i.e. the requirement that there must exist an “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”,[1] it is the objective, contextual characteristics of the targeted part of the group, including, inter alia, its numeric size relative to the total size of the group,[2] that form the basis for determining whether the targeted part of the group is substantial.[3] […]

[1]           Article 4(2) of the Statute (emphasis added). See Krstić Appeal Judgement, paras 6, 8-9. See also Article II of the Genocide Convention.

[2]           Krstić Appeal Judgement, para. 12.

[3]           See Krstić Appeal Judgement, paras 12-17 (where substantiality is discussed by reference to various contextual and objective characteristics of the targeted part of the group, the Bosnian Muslims of Srebrenica); Benjamin Whitaker, Revised and Updated Report on the Question of Prevention and Punishment of the Crime of Genocide, U.N. Doc. E/CN.4/Sub.2/1985/6, para. 29 (“‘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.”).

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Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

26. The Appellant […] contests the Trial Chamber’s finding that he possessed the requisite mens rea for genocide arguing that the Trial Chamber inferred his intent from his alleged presence at the crime sites alongside the assailants whose intent was to kill the Tutsi under a “spontaneous” JCE.[1] In his view, for the crime of genocide to occur, the intent to commit genocide must be formed prior to the commission of genocidal acts.[2] The Appeals Chamber finds no merit in this submission. The inquiry is not whether the specific intent was formed prior to the commission of the acts, but whether at the moment of commission the perpetrators possessed the necessary intent. The Trial Chamber correctly considered whether the Appellant and the physical perpetrators possessed genocidal intent at the time of the massacres.[3] The Appellant’s argument on this point is therefore without merit.

[1] Simba Notice of Appeal, I-G-7; Simba Appeal Brief, para. 320.

[2] Simba Appeal Brief, paras 299, 320.

[3] Trial Judgement, paras 416, 418.

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Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

264. […] The Appeals Chamber has previously held that genocidal intent can be proven through inference from the facts and circumstances of a case.[1] Correspondingly, the Appeals Chamber has held that it is sufficient if the evidentiary facts from which the state of mind is to be inferred are pleaded.[2] […]

[1] Gacumbitsi Appeal Judgement, para. 40; Rutaganda Appeal Judgement, para. 525.

[2] Blaskić Appeal Judgement, para. 219 (internal footnotes omitted).

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Notion(s) Filing Case
Appeal Judgement - 22.03.2006 STAKIĆ Milomir
(IT-97-24-A)

In the Trial Judgement, the Trial Chamber decided that the elements of genocide had to be considered separately in relation to each specific group targeted, in that case Bosnian Muslims and Bosnian Croats; it held that targeted group of genocide could not be defined negatively, in that case as the “non-Serbs”.[1] After considering inter alia the plain text of Article 4 of the Genocide Convention, its drafting history, commentaries thereof, and exploring the Prosecution’s arguments based on a subjective definition of genocide, the Appeals Chamber concluded that the targeted group of genocide can only be defined positively.[2] It held the following:

25. […] First, contrary to what the Prosecution argues, the Krstić and Rutaganda Trial Judgements do not suggest that target groups may only be defined subjectively, by reference to the way the perpetrator stigmatises victims. The Trial Judgement in Krstić found only that “stigmatisation … by the perpetrators” can be used as “a criterion” when defining target groups – not that stigmatisation can be used as the sole criterion. Similarly, while the Rutaganda Trial Chamber found national, ethnical, racial, and religious identity to be largely subjective concepts, suggesting that acts may constitute genocide so long as the perpetrator perceives the victim as belonging to the targeted national, ethnical, racial, or religious group, it also held that “a subjective definition alone is not enough to determine victim groups, as provided for in the Genocide Convention.”[3] Other Trial Judgements from the ICTR have also concluded that target groups cannot be only subjectively defined.[4]

26. Second, the Appeals Chamber notes that whether or not a group is subjectively defined is not relevant to whether a group is defined in a positive or a negative way, which is the issue now before the Chamber. Consequently, when a target group is defined in a negative manner (for example non-Serbs), whether the composition of the group is identified on the basis of objective criteria, or a combination of objective and subjective criteria, is immaterial as the group would not be protected under the Genocide Convention.

[1] Trial Judgement, para. 512.

[2] Judgement, paras 20-28.

[3] Rutaganda Trial Judgement, paras 56-57.

[4] In the Musema Trial Judgement, para. 162, the Trial Chamber stated that “a subjective definition alone is not enough”. In the Semanza Trial Judgement, para. 317, the Trial Chamber held that “the determination of whether a group” can be defined as a target group “ought to be assessed … by reference to the objective particulars of a given social or historical context, and by the subjective perceptions of the perpetrators” (emphasis in original). In the Bagilishema Trial Judgement, para. 65, the Trial Chamber was even more explicit, noting that the concept of a national, ethnical, racial, or religious group “must be assessed in light of a particular political, social, historical, and cultural context,” and that membership in “the targeted group must be an objective feature of the society in question”.

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ICTR Statute Article 2(2) ICTY Statute Article 4(2)
Notion(s) Filing Case
Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

141. The Appeals Chamber notes that the Trial Chamber correctly set forth the requisite elements of the mens rea for genocide and extermination as a crime against humanity. In particular, the Trial Chamber observed that for genocide an accused must act “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”. With respect to extermination as a crime against humanity, the Trial Chamber recalled that an accused must “intend to kill persons on a massive scale or to subject a large number of people to conditions of living that would lead to their death in a widespread or systematic manner.” The Trial Chamber further observed that the perpetrator must have acted with knowledge that his acts formed part of a widespread or systematic attack against the civilian population on national, political, ethnic, racial, or religious grounds.

142. The Trial Chamber established Munyakazi’s intent to participate in the crimes based on his personal participation and leadership role in attacks, which resulted in the death of thousands of mostly Tutsi civilians. The Appeals Chamber can identify no error in this approach. The Appeals Chamber has held that an accused’s intent to participate in a crime may be inferred from circumstantial evidence, including his active participation in an attack. Indeed, contrary to Munyakazi’s suggestion, “[t]he inquiry is not whether the specific intent was formed prior to the commission of the acts, but whether at the moment of commission the perpetrators possessed the necessary intent.” The lack of evidence concerning Munyakazi’s personal views about Tutsis does not undermine the reasonableness of the Trial Chamber’s findings. Furthermore, the evidence of his active participation in the killing of thousands of Tutsi civilians at two parishes reasonably demonstrates that he possessed both genocidal intent and the requisite intent for extermination as a crime against humanity, that is, the intent to kill on a large scale with awareness that the crimes formed part of a widespread and systematic attack against Tutsi civilians.

[1] Trial Judgement, paras. 493, 504, 506.

[2] Trial Judgement, para. 493.

[3] Trial Judgement, para. 506.

[4] Trial Judgement, paras. 503, 504.

[5] Trial Judgement, paras. 380, 423, 491, 496, 500, 507.

[6] See, e.g., Rukundo Appeal Judgement, para. 61; Nahimana et al. Appeal Judgement, para. 524; Seromba Appeal Judgement, paras. 176, 177.

[7] Simba Appeal Judgement, paras. 262, 266.

[8] Simba Appeal Judgement, para. 266.

[9] See Trial Judgement, paras. 499, 500.

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ICTR Statute Article 2(2) ICTY Statute Article 4(2)
Notion(s) Filing Case
Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

524. As recalled by the Appeals Chamber of ICTY in Jelisic, the Statute[1] defines the specific intent required for the crime of genocide as “the intent to accomplish certain specific types of destruction”[2] against a targeted group. Pursuant to the Statute, therefore, specific intent implies that the perpetrator seeks to destroy, in whole or in part, a national, ethnic, racial or religious group as such, by means of the acts enumerated under Article 2 of the said Statute.[3] In order to prove specific intent, it must be established that the enumerated acts were directed against a group referred to under Article 2 of the Statute and committed with the intent to destroy, in whole or in part, the said group as such.

525. The crime of genocide sometimes implies several offenders participating in the commission of the crime. The Appeals Chamber concurs with the Appellant that in order to find a person guilty of genocide, it must be established that such a person was personally possessed of the specific intent to commit the crime at the time he did so. Nonetheless, as stated by the Appeals Chamber in Kayishema/Ruzindana, “explicit manifestations of criminal intent are […] often rare in the context of criminal trials”.[4] In the absence of explicit, direct proof, the dolus specialis may therefore be inferred from relevant facts and circumstances.[5] Such an approach prevents perpetrators from escaping convictions simply because such manifestations are absent.[6] The validity of this interpretation was confirmed by the Appeals Chambers of both ad hoc Tribunals.[7] With respect to the facts and circumstances from which specific intent may be inferred, the ICTY Appeals Chamber in Jelisic stated that such facts are, inter alia:

[…] the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts.[8] (Emphasis added)

The ICTY Appeals Chamber also indicated that the existence of a plan or policy is not “a legal ingredient” of the crime of genocide,[9] but that proving the existence of such a plan or policy may facilitate proof of the crime.[10] Moreover, the Kayishema/Ruzindana Appeal Judgement reveals that making anti-Tutsi utterances or being affiliated to an extremist anti-Tutsi group is not a sine qua non for establishing dolus specialis.[11] The Appeals Chamber holds the view that establishing such a fact may, nonetheless, facilitate proof of specific intent.

528. […] The Appeals Chambers of the International Tribunal and the ICTY also confirmed that in the absence of explicit, direct evidence, specific intent may be inferred from other facts, such as the general context and the perpetration of other acts systematically directed against a given group. Such an approach does not imply that the guilt of an accused may be inferred only from his affiliation with “a guilty organisation.”

[1] Article 4(2) of the ICTY Statute corresponds to Article 2(2) of the ICTR Statute.

[2] Jelisic Appeal Judgement, para. 45: “The intent to accomplish certain specified types of destruction”.

[3] Ibid., para. 46.

[4] Kayishema/Ruzindana Appeal Judgement, para. 159.

[5] Kayishema/Ruzindana Appeal Judgement, para. 159; Jelisic Appeal Judgement, para. 47.

[6] Kayishema/Ruzindana Appeal Judgement., para. 159.

[7] Jelisic and Kayishema/Ruzindana, respectively.

[8] Jelisic Appeal Judgement, para. 47.

[9] Ibid, para. 48.

[10] Ibid., para. 48.

[11] Kayishema/Ruzindana Appeal Judgement, para. 160.

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Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

1029. It is established case-law that cumulative convictions for genocide and crime against humanity are permissible on the basis of the same acts, as each has a materially distinct element from the other, namely, on the one hand, “the intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, and, on the other, “a widespread or systematic attack against a civilian population”.[1]

[1] Ntagerura et al. Appeal Judgement, para. 426; Semanza Appeal Judgement, para. 318. With specific reference to cumulative convictions for genocide and extermination, see Ntakirutimana Appeal Judgement, para. 542; Musema Appeal Judgement, paras. 366-367, 370. 

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Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

1032. […] [T]he Appeals Chamber would recall that the crime of genocide inter alia requires the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. Persecution, like the other acts enumerated in Article 3 of the Statute, must have been committed as part of a widespread and systematic attack on a civilian population. It was therefore open to the Trial Chamber to enter cumulative convictions under Articles 2(3)(a) and 3(h) of the Statute on the basis of the same acts. […]

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Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

492. A person commits the crime of genocide (Article 2(3)(a) of the Statute) if he or she commits one of the acts enumerated in Article 2(2) of the Statute (actus reus) with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such (“genocidal intent”).[1] Furthermore, even if an accused has not committed genocide himself, his responsibility may be established under one of the modes of responsibility provided for in Article 6(1) and (3) of the Statute. Where a person is accused of having planned, instigated, ordered or aided and abetted the commission of genocide by one or more other persons pursuant to Article 6(1) of the Statute, the Prosecutor must establish that the accused’s acts or omissions substantially contributed to the commission of acts of genocide.[2]

595. […] The Appeals Chamber recalls that, for the Appellant to be convicted under Article 6(1) of the Statute, it must have been established that specific acts or omissions of the Appellant themselves constituted an instigation to the commission of genocide. An alternative would be that specific acts or omissions of the Appellant may have substantially contributed to instigation by others.

[1] Other terms are also used, such as “special intent”, “specific intent”, “particular intent” or “dolus specialis. Genocidal intent is examined infra XII. C.

[2] Supra XI. A.

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ICTR Statute Article 2(3)(a) ICTY Statute Article 4(3)(a)
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

496. […][T]he acts committed against Hutu political opponents cannot be perceived as acts of genocide, because the victim of an act of genocide must have been targeted by reason of the fact that he or she belonged to a protected group. In the instant case, only the Tutsi ethnic group may be regarded as a protected group under Article 2 of the Statute and Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide,[1] since the group of “Hutu political opponents” or the group of “Tutsi individuals and Hutu political opponents” does not constitute a “national, ethnical, racial or religious group” under these provisions.[2] Furthermore, although the jurisprudence of the ad hoc Tribunals acknowledges that the perception of the perpetrators of the crimes may in some circumstances be taken into account for purposes of determining membership of a protected group,[3] in this instance neither the Trial Chamber nor the Prosecutor cited any evidence to suggest that the Appellants or the perpetrators of the crimes perceived Hutu political opponents as Tutsi. In other words, in the present case Hutu political opponents were acknowledged as such and were not “perceived” as Tutsi. Even if the perpetrators of the genocide believed that eliminating Hutu political opponents was necessary for the successful execution of their genocidal project against the Tutsi population, the killing of Hutu political opponents cannot constitute acts of genocide.

[1] UN GA Resolution 260 A (III) of 9 December 1948 (“Genocide Convention”).

[2] In this regard, see Stakić Appeal Judgement, para. 22, which recalls that the drafters of the Genocide Convention declined to include destruction of political groups within the definition of genocide.

[3] See Stakić Appeal Judgement, para. 25; Muhimana Trial Judgement, para. 500; Ndindabahizi Trial Judgement, para. 468; Gacumbitsi Trial Judgement, para. 255; Kajelijeli Trial Judgement, para. 813; Bagilishema Trial Judgement, para. 65; Musema Trial Judgement, para. 161; Rutaganda Trial Judgement, para. 56.

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ICTR Statute Article 2(3)(a) ICTY Statute Article 4(3)(a)
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

347. With respect to mens rea, the Appeals Chamber recalls that the indictment may either (i) plead the state of mind of the accused, in which case the facts by which that matter is to be established are matters of evidence, and need not be pleaded; or (ii) the evidentiary facts from which the state of mind is to be inferred.[1]

[1] Blaškić Appeal Judgement, para. 219.

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Notion(s) Filing Case
Appeal Judgement - 18.03.2010 NCHAMIHIGO Siméon
(ICTR-01-63-A)

363. The Appeals Chamber recalls that proof of the existence of a “high level genocidal plan” is not required in order to convict an accused of genocide[1] or for the mode of liability of instigation to commit genocide.[2] Accordingly, the Appeals Chamber finds no error on the part of the Trial Chamber in considering as unnecessary proof of a nexus between the Appellant’s crimes and a national campaign.

[1] See Semanza Appeal Judgement, para. 260. See also Simba Appeal Judgement, para. 260.

[2] See Nahimana et al. Appeal Judgement, para. 480. 

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Notion(s) Filing Case
Appeal Judgement - 05.07.2001 JELISIĆ Goran
(IT-95-10-A)

45. […] The Appeals Chamber will use the term “specific intent” to describe the intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such.[1]

47. As to proof of specific intent, it may, in the absence of direct explicit evidence, be inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts.

48. The Appeals Chamber is of the opinion that the existence of a plan or policy is not a legal ingredient of the crime.  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.[2]

49. The Appeals Chamber further recalls the necessity to distinguish specific intent from motive.  The personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power.  The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide. In the Tadić appeal judgement the Appeals Chamber stressed the irrelevance and “inscrutability of motives in criminal law”.[3]

[1]  The Appeals Chamber does not attribute to this term any meaning it might carry in a national jurisdiction.

[2] This was also held in the oral decision by the Appeals Chamber for the ICTR in Obed Ruzindana and Clément Kayishema v. Prosecutor, Case No.: ICTR-95-1-A, 1 June 2001.

[3] Prosecutor v. Duško Tadić, Case No.: IT-95-1-A, Judgement, 15 July 1999 (“the Tadić appeal judgement”), para. 269, p. 120.

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ICTR Statute Article 2(2) ICTY Statute Article 4(2)
Notion(s) Filing Case
Appeal Judgement - 18.03.2010 NCHAMIHIGO Siméon
(ICTR-01-63-A)

136. […] The Appeals Chamber recalls that, with respect to mens rea, an indictment may plead either (1) the state of mind of the accused, in which case the facts by which that state of mind is to be established are matters of evidence, and need not be pleaded; or (2) the evidentiary facts from which the state of mind is to be inferred.[1]

137. In the instant case, the Indictment pleaded that the Appellant had “the intent to destroy, in whole or in part, an ethnic or racial group as such”,[2] thus providing sufficient notice to the Appellant of the allegation that he possessed the specific intent to commit genocide. The Indictment therefore did not have to plead that the Appellant participated in recruiting young Hutu men for militia training as Impuzamugambi.

[1] Nahimana et al. Appeal Judgement, para. 347. See also Blaškić Appeal Judgement, para. 219.

[2] Indictment [The Prosecutor v. Siméon Nchamihigo, Case No. ICTR-2001-63-T, Second Revised Amended Indictment (In conformity with Trial Chamber III Decision dated 7 December 2006), filed 11 December 2006], para. 19.

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Appeal Judgement - 16.01.2007 NDINDABAHIZI Emmanuel
(ICTR-01-71-A)

At paras 138 and 139, the Appeals Chamber held that

[t]here is only one genocide that was committed in Rwanda between 6 April 1994 and 17 July 1994 and that resulted in the killings of hundreds of thousands of Tutsi. In sentencing, acts in furtherance of this one genocide and attributable to the accused can be taken into account. The Appeals Chamber notes that while the genocide in Rwanda cost the lives of hundreds of thousands of people, the Appellant’s individual criminal responsibility has to be measured according to his own contributions and the killings resulting therefrom, taking into account his own position. 

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Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

53. The words “as such,” [in Article 2(2) of the ICTR Statute] however, constitute an important element of genocide, the “crime of crimes.”[1] It was deliberately included by the authors of the Genocide Convention in order to reconcile the two diverging approaches in favour of and against including a motivational component as an additional element of the crime. The term “as such” has the effet utile of drawing a clear distinction between mass murder and crimes in which the perpetrator targets a specific group because of its nationality, race, ethnicity or religion.[2] In other words, the term “as such” clarifies the specific intent requirement. It does not prohibit a conviction for genocide in a case in which the perpetrator was also driven by other motivations that are legally irrelevant in this context. Thus the Trial Chamber was correct in interpreting “as such” to mean that the proscribed acts were committed against the victims because of their membership in the protected group, but not solely because of such membership.

See also paragraphs 49–52.

[1] Prosecutor v. Kambanda, ICTR-97-23-S, Judgement and Sentence, 4 September 1998, para. 16; Prosecutor v. Jelisić, IT-95-10-A, Judgement, 14 December 1999, Partial Dissenting Opinion of Judge Wald, para. 2.

[2] See William A. Schabas, Genozid im Völkerrecht (2003), pp. 340-341; William A. Schabas, Genocide in International Law (2000), pp. 254-255.

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ICTR Statute Article 2(2)
Notion(s) Filing Case
Decision on Joint Criminal Enterprise - 22.10.2004 RWAMAKUBA André
(ICTR-98-44-AR72.4)

31. [...] The Appeals Chamber holds that customary international law recognized the application of the mode of liability of joint criminal enterprise to the crime of genocide before 1992, and that in consequence the statement to that effect in the Tadić Appeal Judgement was legally correct. Consequently, the International Tribunal has jurisdiction to try the Appellant on a charge of genocide through the mode of liability of joint criminal enterprise.

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Decision on Exclusion of Evidence - 23.03.2010 KANYARUKIGA Gaspard
(ICTR-02-78-AR73.2)

The Appellant Kanyarukiga requests the exclusion of Witness YAU’s evidence as in his submission this evidence relates to material facts not properly pleaded in the operative indictment.[1]

9. The Appeals Chamber recalls that there are two ways in which mens rea may be pleaded: (i) either the specific state of mind itself should be pleaded as a material fact, in which case, the facts by which that material fact is to be established are ordinarily matters of evidence, and need not be pleaded; or (ii) the evidentiary facts from which the state of mind is to be inferred, should be pleaded.[2]

10. In the present case, the Indictment pleads as a material fact the specific state of mind alleged in relation to the counts of genocide and complicity in genocide, in particular that Kanyarukiga acted “with the intent to destroy the Tutsi population in whole [or] in part”.[3] Given that the Indictment pleads as a material fact the specific state of mind alleged, the facts by which his mens rea is to be established are matters of evidence and need not be pleaded.[4]

[1] The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-I, Amended Indictment, 14 November 2007 (“Indictment”).

[2] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007 (“Nahimana et al. Appeal Judgement”), para. 347; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004 (“Blaškić Appeal Judgement”), para. 219.

[3] Indictment, para. 4. See also Indictment, paras. 7 (“Gaspard KANYARUKIGA, with intent to destroy, in whole or in part, the Tutsi racial or ethnic group, or knowing that other people intended to destroy, in whole or in part, the Tutsi racial or ethnical group…”), 8 (“Gaspard KANYARUKIGA, with intent to destroy in whole or in part, the Tutsi racial or ethical [sic] group, or knowing that other people intended to destroy, in whole or in part, the Tutsi racial or ethnic group, and knowing that his assistance would contribute to the crime of genocide…”).

[4] Nahimana et al. Appeal Judgement, para. 347; Blaškić Appeal Judgement, para. 219.

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Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

318. A conviction for genocide or complicity in genocide is not impermissibly cumulative with the convictions for crimes against humanity.  A conviction for genocide under Article 2 of the Statute requires proof of an “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.”[1]  That is a wholly different legal and factual showing from the finding of a “widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds” that must support a conviction for crimes against humanity.[2]  Upon this basis, the Appeals Chamber has held that convictions for genocide and convictions for crimes against humanity, based on the same facts, are permissible.[3]

[1] Article 2(2) of the Statute.

[2] Article 3 of the Statute.

[3] Musema Appeal Judgement, para. 370; Krstić Appeal Judgement, paras 219-227; Ntakirutimana Appeal Judgement, para. 542.

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Appeal Judgement - 08.04.2015 TOLIMIR Zdravko
(IT-05-88/2-A)

616. The Appeals Chamber notes that there is no appellate jurisprudence which addresses the specific cumulative convictions for genocide and murder as a violation of the laws or customs of war. However, the ICTR Appeals Chamber has upheld cumulative convictions for war crimes, as a broad category, and genocide based on the materially distinct elements of genocide and war crimes.[1] Relevantly, genocide requires proof of specific intent while war crimes require proof of the existence of a nexus between the alleged crimes and the armed conflict.[2]

See also para. 617.

[1] See Semanza Appeal Judgement, para. 368; Rutaganda Appeal Judgement, para. 583.

[2] Ibidem.

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Appeal Judgement - 08.04.2015 TOLIMIR Zdravko
(IT-05-88/2-A)

225. Article 4(2)(c) of the Statute provides that genocide can be committed by “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”.[1] This provision has been analysed and interpreted by a number of trial chambers of the ICTY and the ICTR. The Trial Chamber in this case correctly summarised this jurisprudence as:

The underlying acts covered by Article 4(2)(c) are methods of destruction that do not immediately kill the members of the group, but ultimately seek their physical destruction. Examples of such acts punishable under Article 4(2)(c) include, inter alia, subjecting the group to a subsistence diet; failing to provide adequate medical care; systematically expelling members of the group from their homes; and generally creating circumstances that would lead to a slow death such as the lack of proper food, water, shelter, clothing, sanitation, or subjecting members of the group to excessive work or physical exertion.[2]

Unlike Articles 4(2)(a) and (b), Article 4(2)(c) does not require proof of a result such as the ultimate physical destruction of the group in whole or in part. However, Article 4(2)(c) applies only to acts calculated to cause a group’s physical or biological destruction deliberately and, as such, these acts must be clearly distinguished from those acts designed to bring about the mere dissolution of the group. Such acts, which have been referred to as “cultural genocide”, were excluded from the Genocide Convention. For example, the forcible transfer of a group or part of a group does not, by itself, constitute a genocidal act, although it can be an additional means by which to ensure the physical destruction of a group.[3]

226. The Appeals Chamber has not previously been called upon to address the issue of what acts qualify as the actus reus of genocide under Article 4(2)(c) of the Statute. However, it is satisfied that the legal principles stated by the Trial Chamber are consistent with the existing case law of the ICTY and the ICTR, as well as the letter and spirit of the Genocide Convention. The Appeals Chamber recalls, in this respect the relevant findings of the ICJ in the recent Croatia v. Serbia case. Citing ICTY jurisprudence, the ICJ held that:

[d]eliberate infliction on the [protected] group of conditions of life calculated to bring about its physical destruction in whole or in part, within the meaning of Article II(c) of the Convention, covers methods of physical destruction, other than killing, whereby the perpetrator ultimately seeks the death of the members of the group. Such methods of destruction include notably deprivation of food, medical care, shelter or clothing, as well as lack of hygiene, systematic expulsion from homes, or exhaustion as a result of excessive work or physical exertion.[4]

The Appeals Chamber recalls that it is not bound by the legal determinations reached by trial chambers of this Tribunal or by the ICJ.[5] The Appeals Chamber notes, however, that the ICJ is the principal organ of the United Nations and the competent organ to resolve disputes relating to the interpretation of the Genocide Convention.[6] The Appeals Chamber further notes that the ICJ’s interpretation of Article II(c) of the Genocide Convention cited above was based on ICTY trial jurisprudence and is consistent with it. The Appeals Chamber is therefore satisfied that the jurisprudence set out by the Trial Chamber accurately reflects the applicable law.

227. […] The Appeals Chamber recalls that Article 4(2)(c) of the Statute covers “methods of destruction that do not immediately kill the members of the group, but ultimately seek their physical destruction”.[7] It is clear from the Tribunal’s case law, explicitly relied upon by the ICJ, that killings may not be considered, under Article 4(2)(c) of the Statute, as acts resulting in the deliberate infliction of conditions of life calculated to bring about the protected group’s physical destruction.

228. The Appeals Chamber recalls that the different categories of genocidal acts proscribed in Article 4(2) of the Statute correspond to and aim to capture different methods of physical destruction of a protected group: subparagraphs (a) and (b) of Article 4(2) of the Statute proscribe acts causing a specific result, which must be established by the evidence, i.e., killings and serious bodily or mental harm respectively;[8] on the other hand, subparagraph (c) of the same Article purports to capture those methods of destruction that do not immediately kill the members of the group, but which, ultimately, seek their physical destruction.[9] The chambers of the Tribunal and the ICJ have listed several acts as examples of such methods of destruction that could potentially meet the threshold of Article 4(2)(c) of the Statute and Article II(c) of the Genocide Convention, including deprivation of food, medical care, shelter or clothing, lack of hygiene, systematic expulsion from homes, or subjecting members of the group to excessive work or physical exertion.[10] Notably, killings, which are explicitly mentioned as a separate genocidal act under Article 4(2)(a) of the Statute, may not be considered as a method of inflicting upon the protected group conditions of life calculated to bring about its destruction under Article 4(2)(c) of the Statute.

229. The Appeals Chamber, therefore, finds merit in Tolimir’s contention that the Trial Chamber was legally barred from considering the combined effect of the killing and the forcible transfer operations under Article 4(2)(c) of the Statute. The Appeals Chamber recognises that in the Indictment, this actus reus of genocide was alleged to have been perpetrated through “the forcible transfer of the women and children from Srebrenica and Žepa, the separation of the men in Potočari and the execution of the men from Srebrenica”, all of which operations were to be considered together.[11] Such combined consideration, however, was contrary to the legal principles governing the application of Article 4(2)(c) of the Statute, which limit the scope of the provision to “methods of physical destruction, other than killing”.[12]

230. Another error committed by the Trial Chamber in its application of Article 4(2)(c) of the Statute was its consideration of the destruction of mosques in Srebrenica and Žepa as an additional act through which the Bosnian Serb Forces inflicted on the protected group conditions of life calculated to bring about its destruction.[13] […] [A]cts amounting to “cultural genocide” are excluded from the scope of the Genocide Convention.[14] Notably, the ICJ also held that “the destruction of historical, cultural and religious heritage cannot be considered to constitute the deliberate infliction of conditions of life calculated to bring about the physical destruction of the group”.[15] The Trial Chamber, therefore, committed a legal error in considering the destruction of mosques in Srebrenica and Žepa under Article 4(2)(c) of the Statute.

[…]

234. The Appeals Chamber recalls again that the forced displacement of a population “does not constitute in and of itself a genocidal act”[16] and that acts meeting the threshold of Article 4(2)(c) of the Statute typically relate to the deliberate withholding or taking away of the basic necessities of life over an extended period of time.[17] […]

[1]    The same language is used in Article II(c) of the Genocide Convention.

[2]    Trial Judgement, para. 740, citing Akayesu Trial Judgement, paras 505-506, Brđanin Trial Judgement, para. 691, Stakić Trial Judgement, paras 517–518, Musema Trial Judgement, para. 157, Rutaganda Trial Judgement, para. 52, Kayishema and Ruzindana Trial Judgement, paras 115–116, Popović et al. Trial Judgement, para. 814.

[3]    Trial Judgement, para. 741, and authorities cited therein.

[4]    ICJ Croatia v. Serbia Judgment, para. 161, citing Brđanin Trial Judgement, para. 691, Stakić Trial Judgement, paras 517–518.

[5]    Karadžić Rule 98bis Appeal Judgement, para. 94.

[6]    See Charter of the United Nations, Art. 92; Genocide Convention, Art. IX. See also supra, n. 580.

[7]    Trial Judgement, para. 740 (emphasis added).

[8]    Trial Judgement, para. 737, and authorities cited therein.

[9]    Trial Judgement, para. 741, citing Brđanin Trial Judgement, paras 691, 905, Stakić Trial Judgement, para. 517.

[10]   See Trial Judgement, para. 740 (referring to “subjecting the group to a subsistence diet; failing to provide adequate medical care; systematically expelling members of the group from their homes; and generally creating circumstances that would lead to a slow death such as the lack of proper food, water, shelter, clothing, sanitation, or subjecting members of the group to excessive work or physical exertion.”). See also Karadžić Rule 98bis Appeal Judgement, para.  47 (referring to cruel and inhumane treatment, inhumane living conditions, and forced labour); ICJ Croatia v. Serbia Judgment, para. 161 (referring to “deprivation of food, medical care, shelter or clothing, as well as lack of hygiene, systematic expulsion from homes, or exhaustion as a result of excessive work or physical exertion”).

[11]   Indictment, para. 24.

[12]   ICJ Croatia v. Serbia Judgment, para. 161.

[13]   Trial Judgement, para. 766. The Appeals Chamber notes that Tolimir does not challenge this finding. However, considering that the issue is of general significance to the jurisprudence of the Tribunal, in the exercise of its discretion, the Appeals Chamber has decided to consider the issue proprio motu.

[14]   Trial Judgement, para. 741, and authorities cited therein.

[15]   Bosnia Genocide Judgment, para. 344. See also ICJ Croatia v. Serbia Judgment, paras 386-390 (affirming that the destruction of cultural property cannot qualify as an act of genocide under any of the categories of Article II of the Genocide Convention, even if such acts may be taken into account to establish genocidal intent).

[16]   See Krstić Appeal Judgement, para. 33.

[17]   See Trial Judgement, para. 740, and authorities cited therein. See also Karadžić Rule 98bis Appeal Judgement, paras 34, 37, 47; ICJ Croatia v. Serbia Judgment, para. 161.

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ICTR Statute Article 2(2)(c) ICTY Statute Article 4(2)(c)
Notion(s) Filing Case
Appeal Judgement - 08.04.2015 TOLIMIR Zdravko
(IT-05-88/2-A)

261. The Appeals Chamber first observes that the Trial Chamber correctly stated that the prominence of the targeted portion of the protected group is a relevant factor in determining whether the perpetrator intended to destroy at least a substantial part of the protected group.[1] Indeed, as the Trial Chamber held, “genocidal intent may […] consist of the desired destruction of a more limited number of persons selected for the impact that their disappearance would have on the survival of the group as such”.[2] This holding is consistent with other trial judgements of the Tribunal,[3] as well as the Appeals Chamber’s own jurisprudence. The Appeals Chamber recalls, in this respect, that “[i]f a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4” of the Statute.[4]

262. The Commission of Experts Report, on which the Trial Chamber relied as support for its legal analysis vis-à-vis the killings of the three Žepa leaders,[5] states, in relevant part:

[i]f essentially the total leadership of a group is targeted, it could also amount to genocide. Such leadership includes political and administrative leaders, religious leaders, academics and intellectuals, business leaders and others – the totality per se may be a strong indication of genocide regardless of the actual numbers killed. A corroborating argument will be the fate of the rest of the group. The character of the attack on the leadership must be viewed in the context of the fate or what happened to the rest of the group. If a group has its leadership exterminated, and at the same time or in the wake of that, has a relatively large number of the members of the group killed or subjected to other heinous acts, for example deported on a large scale or forced to flee, the cluster of violations ought to be considered in its entirety in order to interpret the provisions of the Convention in a spirit consistent with its purpose.[6]

263. The Appeals Chamber finds no legal error in the Trial Chamber’s statement that the selective targeting of leading figures of a community may amount to genocide and may be indicative of genocidal intent.[7] The Appeals Chamber is not persuaded that the commission of genocide through the targeted killings of only the leaders of a group suggests that the leaders of the group are subject to special, stronger protection than the other members of the group, as Tolimir suggests. Recognising that genocide may be committed through the killings of only certain prominent members of the group “selected for the impact that their disappearance would have on the survival of the group as such”[8] aims at ensuring that the protective scope of the crime of genocide encompasses the entire group, not just its leaders. […]

264. […] For a finding of genocide it suffices that the leaders were “selected for the impact that their disappearance would have on the survival of the group as such”.[9] Genocide may be committed even if not all leaders of a group are killed – even though targeting “the totality [of the leadership] per se may be a strong indication of genocide regardless of the actual numbers killed”.[10]

265. […] The Appeals Chamber recalls that according to the Commission of Experts Report and as the Trial Chamber itself recognised, “[t]he character of the attack on the leadership must be viewed in the context of the fate or what happened to the rest of the group […] at the same time or in the wake of that” attack.[11] As the Trial Chamber found, the selective targeting of a protected group’s leadership may amount to genocide only if the leaders are selected because of “the impact that their disappearance would have on the survival of the group as such”.[12] The impact of the leaders’ disappearance may of course be assessed only after the leaders are attacked. Only by considering what happened to the rest of the protected group at the same time or in the wake of the attack on its leadership could “the impact that [the leaders’] disappearance would have on the survival of the group as such” be assessed.[13]

[…]

267. The Appeals Chamber has already established that the Trial Chamber did not err in finding that the only reasonable inference from the evidence was that the three Žepa leaders suffered a violent death at the hands of their Bosnian Serb captors.[14] However, the Trial Chamber failed to explain how their detention and killings – committed weeks after the entire Žepa population had been forcibly transferred from the enclave – had any impact “on the survival of the group as such”.[15] The Trial Chamber accepted in its conclusion that there was such an impact, but it did not consider or analyse whether or how the killings of the three Žepa leaders after the Bosnian Muslim civilian population of Žepa had been transferred to safe areas of BiH specifically affected the ability of those removed civilians to survive and reconstitute themselves as a group.[16] A finding that Žepa’s Bosnian Muslims lost three of their leaders[17] does not suffice to infer that those civilians were affected by the loss of their leaders in a way that would threaten or tend to contribute to their physical destruction as a group.

[…]

269. In this context, particularly in light of the fact that the forcible transfer operation of Žepa’s Bosnian Muslims had been completed before the three Žepa leaders were detained and killed and in the absence of any findings as to whether or how the loss of these three prominent figures affected the ability of the Bosnian Muslims from Žepa to survive in the post-transfer period, the inference of genocidal intent was not the only reasonable inference that could be drawn from the record. In the view of the Appeals Chamber, the evidence does not allow for the conclusion that the murders of the three Žepa leaders had a significant impact on the physical survival of the group as such so as to amount to genocide. There is, in sum, no sufficient evidentiary support for the finding that Hajrić, Palić, and Imamović were killed “with the specific genocidal intent of destroying part of the Bosnian Muslim population as such”.[18] […]

[1]    Trial Judgement, para. 749.

[2]    Trial Judgement, para. 749, citing Jelisić Trial Judgement, para. 82.

[3]    See Sikirica et al. Judgement on Motions to Acquit, para. 77; Jelisić Trial Judgement, para. 82.

[4]    Krstić Appeal Judgement, para. 12 (cited in Trial Judgement, para. 749).

[5]    Trial Judgement, paras 749, 777. The Jelisić Trial Judgement also relied on this report as the basis for its holding that genocidal intent may consist of the desired destruction of a more limited number of persons selected for the impact that their disappearance would have on the survival of the group as such. See Jelisić Trial Judgement, para. 82.

[6]    Commission of Experts Report, para. 94 (emphasis added).

[7]    Trial Judgement, paras 749, 777, and authorities cited therein. The Appeals Chamber notes that this statement correctly stated the applicable law, even though, with the exception of the present case, no conviction for genocide has ever been entered by the Tribunal, or other international criminal tribunals, on the basis of the selective targeting of a protected group’s leadership. See, e.g., Sikirica et al. Judgement on Motions to Acquit, paras 84-85; Jelisić Trial Judgement, paras 82-83.

[8]    Trial Judgement, para. 777, and authorities cited therein.

[9]    Trial Judgement, para. 777, and authorities cited therein.

[10]   Commission of Experts Report, para. 94 (cited in Trial Judgement, para. 777).

[11]   Commission of Experts Report, para. 94. The Trial Chamber also stated that the killings of the three Žepa leaders must not be seen in isolation, but in conjunction with “the fate of the remaining population of Žepa”. Trial Judgement, para. 781.

[12]   Trial Judgement, para. 749, citing Jelisić Trial Judgement, para. 82.

[13]   Trial Judgement, para. 749, citing Jelisić Trial Judgement, para. 82.

[14]   See supra, para. 144.

[15]   Trial Judgement, para. 782.

[16]   Trial Judgement, paras 780-782.

[17]   Trial Judgement, para. 782.

[18]   Trial Judgement, para. 782. 

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ICTR Statute Article 2 ICTY Statute Article 4
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Appeal Judgement - 08.04.2015 TOLIMIR Zdravko
(IT-05-88/2-A)

201. Article 4(2)(b) of the Statute provides that genocide can be committed by “causing serious bodily or mental harm to members of the [protected] group” with intent to destroy, in whole or in part, the group as such.[1] “Serious bodily or mental harm” is not defined in the Statute. Drawing on the case law of the ICTY and the ICTR, the Trial Chamber held that serious bodily or mental harm:

must be of such a serious nature as to contribute or tend to contribute to the destruction of all or part of the group; although it need not be permanent or irreversible, it must go “beyond temporary unhappiness, embarrassment or humiliation” and inflict “grave and long-term disadvantage to a person’s ability to lead a normal and constructive life”.[2]

The Trial Chamber also stated that the determination of the seriousness of the harm in question “must be made on a case-by-case basis”.[3]

202. The Appeals Chamber recalls that it has not directly addressed what constitutes serious mental harm as an act of genocide. Nonetheless, it is satisfied that the definition of serious mental harm adopted in the Trial Judgement is consistent with the case law of the ICTY and the ICTR and aligns with the letter and spirit of the Genocide Convention. […]

203. As correctly stated by the Trial Chamber, serious mental harm must be of such a serious nature as to contribute or tend to contribute to the destruction of all or part of the group.[4] The ICTR Appeals Chamber in the Seromba case has held in this regard that:

serious mental harm includes “more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat”. Indeed, nearly all convictions for the causing of serious bodily or mental harm involve rapes or killings. To support a conviction for genocide, the bodily harm or the mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part.[5]

Contrary to Tolimir’s argument, serious mental harm must be lasting[6] but need not be permanent and irremediable.[7] Tolimir fails to show that these articulations of serious mental harm are “too general and imprecise”.[8]

204. The Appeals Chamber is also not persuaded that the United States of America’s “understanding” of serious mental harm as “the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques”, expressed in its instrument of accession to the Genocide Convention,[9] is correct under customary international law […]

[…]

207. […] The Appeals Chamber notes that there is ICTY and other international jurisprudence for the proposition that survivors of killing operations may suffer serious mental harm amounting to an act of genocide.[10] The Appeals Chamber finds no error in the Trial Chamber’s conclusion that the mental harm suffered by the survivors of the killings qualified as an act of genocide under Article 4 of the Statute. […]

[…]

209. […] The Appeals Chamber recalls that while “forcible transfer does not in and of itself constitute a genocidal act […] it is […] a relevant consideration as part of the overall factual assessment”[11] and “could be an additional means by which to ensure the physical destruction” of the protected group.[12] Nothing in the Tribunal’s jurisprudence or in the Genocide Convention provides that a forcible transfer operation may only support a finding of genocide if the displaced population is transferred to concentration camps or places of execution. Tolimir cites no authority suggesting the existence of such a requirement. A forcible transfer operation may still “ensure the physical destruction” of the protected group[13] by causing serious mental harm or leading to conditions of life calculated to bring about the group’s physical destruction, even if the group members are not transferred to places of execution. […]

[…]

211. Further, the Appeals Chamber is not persuaded that the Trial Chamber was not entitled to take into account the inability and fears of the group to return to their former homes, or the post-transfer quality of their life in making such an assessment. […] The Appeals Chamber notes that these factors are particularly relevant to considering whether the harm caused grave and long-term disadvantage to the ability of members of the protected group to lead a normal and constructive life.[14]

212. […] As noted above, serious mental harm need not result from acts causing permanent or irremediable mental impairment. It suffices that the harmful conduct caused grave and long-term disadvantage to the ability of the members of the protected group to lead a normal and constructive life[15] so as to threaten the physical destruction of the group in whole or in part.[16] […]

[…]

215. On the other hand, the Appeals Chamber recalls that serious mental harm results only from acts causing grave and long-term disadvantage to the ability of members of the protected group to lead a normal and constructive life[17] and threatening the physical destruction of the group as such.[18] […]

216. […] [S]erious mental harm must be “more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat”.[19] The Appeals Chamber further recalls that acts falling under Article 4(2)(b) of the Statute require proof of a result, i.e., that serious mental harm was inflicted.[20]

217. The Trial Chamber did not find that Žepa’s Bosnian Muslim population suffered a mass violent separation of families and the ongoing trauma of having lost their family members, like the Bosnian Muslims from Srebrenica,[21] and failed to point to any evidence on the record establishing that the mental harm suffered by that group tended to contribute to the destruction of the Muslims of Eastern BiH as such.[22] Even if all the factors considered by the Trial Chamber were established, in the absence of findings or references to evidence of any long-term consequences of the forcible transfer operation on the Žepa population and the Bosnian Muslim population of Eastern BiH in general and of a link between the circumstances of the transfer operation in Žepa and the physical destruction of the protected group as a whole, no reasonable trial chamber could have found that the Bosnian Muslims forcibly transferred from Žepa suffered serious mental harm within the meaning of Article 4(2)(b) of the Statute. The Appeals Chamber, Judges Sekule and Güney dissenting, thus reverses the Trial Chamber’s findings in this regard and Tolimir’s remaining arguments are rendered moot and need not be addressed.

[1]    The same language is used in Article II(b) of the Genocide Convention.

[2]    Trial Judgement, para. 738, citing Krajišnik Trial Judgement, para. 862; Seromba Appeal Judgement, para. 46; Gatete Trial Judgement, para. 584, Brđanin Trial Judgement, para. 690; Stakić Trial Judgement, para. 516; Akayesu Trial Judgement, paras 502–504; Kayishema and Ruzindana Trial Judgement, para. 108; Bagosora et al. Trial Judgement, para. 2117; Krstić Trial Judgement, para. 513; Blagojević and Jokić Trial Judgement, para. 645.

[3]    Trial Judgement, para. 738.

[4]    Trial Judgement, para. 738, and authorities cited therein. See also ICJ Croatia v. Serbia Judgment, para. 157 (“in light of the [Genocide] Convention’s object and purpose, the ordinary meaning of 'serious’ is that the bodily or mental harm referred to in subparagraph (b) of that Article must be such as to contribute to the physical or biological destruction of the group, in whole or in part.”). The Appeals Chamber notes that, significantly, under Article IX of the Genocide Convention, the International Court of Justice (“ICJ”) is the competent organ to resolve disputes relating to the interpretation of that Convention. It is also the principal judicial organ of the United Nations and the community of nations at large. See Charter of the United Nations, Art. 92.

[5]    Seromba Appeal Judgement, para. 46 (internal citations omitted). See also Krajišnik Trial Judgement, paras 862-863 (“‘failure to provide adequate accommodation, shelter, food, water, medical care, or hygienic sanitation facilities’ will not amount to the actus reus of genocide if the deprivation is not so severe as to contribute to the destruction of the group, or tend to do so. Living conditions, which may be inadequate by any number of standards, may nevertheless be adequate for the survival of the group”); International Criminal Court, Elements of Crimes (2011), Art. 6(b), n. 3 (specifying that an act of serious bodily or mental harm “may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment”.).

[6]     Judge Sekule dissents on the Majority’s interpretation of the jurisprudence in that “harm must be lasting” for reasons set out in his partly dissenting opinion appended to the present Judgement.

[7]    See Trial Judgement, para. 738; Blagojević and Jokić Trial Judgement, paras 645-646; Brđanin Trial Judgement, para. 690; Stakić Trial Judgement, para. 516; Krstić Trial Judgement, para. 513 (holding that serious mental harm “must involve harm that goes beyond temporary unhappiness, embarrassment or humiliation” and result “in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life.”); Bagosora et al. Trial Judgement, para. 2117; Kayishema and Ruzindana Trial Judgement, para. 108; Akayesu Trial Judgement, paras 502–504. See also Bosnia Genocide Judgment, para. 300 (quoting with approval Stakić Trial Judgement in this regard).

[8]    See Appeal Brief, para. 73.

[9]    See Genocide Convention Implementation Act of 1987, Pub. L. No. 100-606, 102 Stat. 3045, 18 U.S.C. §1091(a)(3) (1988), also available at 28 I.L.M. 754 (1989).

[10]   See Popović et al. Trial Judgement, para. 845; Blagojević and Jokić Trial Judgement, para. 647; Krstić Trial Judgement, para. 514; Bosnia Genocide Judgment, paras 290-291.

[11]   Blagojević and Jokić Appeal Judgement, para. 123. See also Krstić Appeal Judgement, para. 33.

[12]   Krstić Appeal Judgement, para. 31.

[13]   Krstić Appeal Judgement, para. 31.

[14]   See supra, para. 201.

[15]   See supra, para. 201.

[16]   Seromba Appeal Judgement, para. 46.

[17]   See supra, paras 203-204, 209.

[18]   Seromba Appeal Judgement, para. 46.

[19]   Seromba Appeal Judgement, para. 46.

[20]   Trial Judgement, para. 737; Brđanin Trial Judgement, para. 688; Stakić Trial Judgement, para. 514. See also Popović et al. Trial Judgement, para. 811.

[21]   The Appeals Chamber acknowledges the Trial Chamber’s finding that, “[i]n the period leading up to the fall of the Žepa enclave, the population of Žepa, including the able-bodied men and some wounded, had fled to the surrounding mountains”. See Trial Judgement, para. 639. The Trial Chamber also found that, even though Žepa’s Muslim civilians “started returning to the centre of Žepa in order to be evacuated” once news about the 24 July 1995 evacuation agreement began to spread (Trial Judgement, para. 639), “[m]ost of the able-bodied men, including members of the ABiH, remained in the mountains at this time”. Trial Judgement, n. 2737, and authorities cited therein. In analysing whether the genocidal act of Article 4(2)(b) of the Statute had been committed, however, the Trial Chamber did not list the de facto separation of families in Žepa among the factors causing serious mental harm to the Bosnian Muslims of Žepa (Trial Judgement, para. 758), even though it did hold that serious mental harm was caused as a result of, inter alia, the forced, violent separation of Srebrenica’s Muslim families in Potočari, which resulted in the detention of men and boys from Srebrenica and their subsequent murders by the Bosnian Serb Forces. See Trial Judgement, para. 756.

[22]   Cf. Seromba Appeal Judgement, para. 48 (“the Appeals Chamber cannot equate nebulous invocations of 'weakening’ and 'anxiety’ with the heinous crimes that obviously constitute serious bodily or mental harm, such as rape and torture.”).

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ICTR Statute Article 2(2)(b) ICTY Statute Article 4(2)(b)
Notion(s) Filing Case
Appeal Judgement - 08.04.2015 TOLIMIR Zdravko
(IT-05-88/2-A)

218. This conclusion, of course, does not amount to a conclusion that the Bosnian Muslims of Žepa were not the victims of genocide. The Appeals Chamber emphasises that the only question addressed here is whether the Trial Chamber erred in finding that the forcible transfer operation in Žepa – which the Trial Chamber distinguished from the transfer operation in Srebrenica and analysed separately vis-à-vis the actus reus of Article 4(2)(b) of the Statute – inflicted on the transferred Muslim population serious mental harm, as that term is used in Article 4(2)(b) of the Statute and the Genocide Convention. This question does not involve the definition of the protected group. In this sense, the Appeals Chamber recalls its earlier conclusion that the Trial Chamber did not err in holding that the Bosnian Muslims of Žepa are, along with the Muslims of Srebrenica and Eastern BiH in general, members of the protected group.[1] By virtue of being “within the targeted part of the protected group”, the Bosnian Muslims of Žepa were among the ultimate victims of the genocidal enterprise against the Muslims of Eastern BiH.[2]

[…]

236. As clarified above, and consistent with the Appeals Chamber’s recent case law, all members of the protected group as defined by the Trial Chamber – i.e., “the Bosnian Muslim population of Eastern Bosnia and in particular, of the enclaves of Srebrenica, Žepa and Goražde”[3] – were the victims of the genocidal acts of Article 4(2)(a) and 4(2)(b) of the Statute (killings and acts causing serious mental harm), by virtue of being “within the targeted part of the protected group”.[4] In this and the previous subsections, the Appeals Chamber only finds that the displaced Bosnian Muslims of Žepa were not the direct victims of the specific genocidal act defined in Article 4(2)(b) and Article 4(2)(c) of the Statute – acts causing serious mental harm and acts deliberately inflicting conditions of life calculated to bring about the protected group’s physical destruction in whole or in part. The Appeals Chamber’s conclusions do not diminish the status of Žepa’s Muslim populations as victims of the genocide committed against the entire protected group by means of (i) the killings of Srebrenica’s male population (which qualifies as a genocidal act under both Article 4(2)(a) and 4(2)(b) of the Statute) and (ii) the forcible transfer operation of Srebrenica’s women, children, and elderly (which qualifies as a genocidal act under Article 4(2)(b) of the Statute).[5]

[1]    See supra, paras 185-188. It is this group that is the victim of the crime of genocide – and each underlying act meeting the threshold of Article 4 of the Statute and committed with genocidal intent – and not the individual members of the group. See Trial Judgement, para. 747, citing Akayesu Trial Judgement, para. 521.

[2]    See also Popović et al. Appeal Judgement, para. 458. The Appeals Chamber refers, in this respect, to its relevant findings in the Popović et al. case, which involved facts and charges almost identical to the present case. The Popović et al. Appeal Judgement affirmed that “the Muslims of Eastern Bosnia including the inhabitants of Žepa were found to be victims of the genocidal enterprise” (Popović et al. Appeal Judgement, para. 458), even though the Popović et al. Trial Chamber had confined its analysis of genocidal acts falling under Article 4(2)(b) of the Statute “to an analysis of the serious bodily and mental harm caused by the killing operation” of the Bosnian Muslim men and boys from Srebrenica. Popović et al. Trial Judgement, para. 843. See also Popović et al. Trial Judgement, paras 844-847. In the Popović et al. case, the Appeals Chamber did not address the Trial Chamber’s holding that the Bosnian Muslim of Žepa were victims of genocide, even though serious bodily or mental harm had only been caused by the killing operation of the Bosnian Muslim men and boys from Srebrenica, not the forcible transfer operations in either Srebrenica or Žepa and this issue was not challenged on appeal. In the view of the Appeals Chamber, the same distinction between victims of genocide (which include all members of the protected group) and direct targets of each act that constitutes the actus reus of genocide applies to the present case.

[3]    Trial Judgement, para. 775, citing Indictment, para. 10.

[4]    Popović et al. Appeal Judgement, para. 458. See also supra, para. 218.

[5]    See supra, paras 208-212.

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ICTR Statute Article 2 ICTY Statute Article 4
Notion(s) Filing Case
Appeal Judgement - 13.12.2004 NTAKIRUTIMANA and NTAKIRUTIMANA
(ICTR-96-10-A and ICTR-96-17-A)

542. […] the Musema Appeals Chamber held that the crime of genocide under Article 2 of the Statute and the crime of extermination under Article 3 of the Statute each contained a materially distinct element not required by the other. The materially distinct element of genocide is the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group. The materially distinct element of extermination, as a crime against humanity, is the requirement that the crime was committed as part of a widespread or systematic attack against a civilian population.[1] Upon this basis, the Appeals Chamber held that convictions for genocide and extermination as a crime against humanity, based on the same facts, are permissible.[2] This conclusion has recently been confirmed by the ICTY Appeals Chamber in the Krstić case.[3]

[1] Musema Appeal Judgement, para. 366.

[2] Musema Appeal Judgement, para. 370.

[3] Krstić Appeal Judgement, paras. 219-227. 

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ICTR Statute Article 2
Article 3
Notion(s) Filing Case
Appeal Judgement - 13.12.2004 NTAKIRUTIMANA and NTAKIRUTIMANA
(ICTR-96-10-A and ICTR-96-17-A)

500. The ICTY Appeals Chamber has explained, on several occasions, that an individual who aids and abets other individuals committing a specific intent offence may be held responsible if he assists the commission of the crime knowing the intent behind the crime.[1] More recently, as the Prosecution argued at the Appeal hearing, in the Krstić case the ICTY Appeals Chamber considered that the same principle applies to the Statute’s prohibition of genocide and that “[t]he conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case-law of the Tribunal.”[2] In reaching this conclusion, the Krstić Appeals Chamber derived aiding and abetting as a mode of liability from Article 7(1) of the ICTY Statute, but also considered that aiding and abetting constitutes a form of complicity, suggesting that complicity under Article 2 of the ICTR Statute and Article 4 of the ICTY Statute would also encompass aiding and abetting, based on the same mens rea, while other forms of complicity may require proof of specific intent.

501. The Appeals Chamber endorses this view and finds that a conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case-law of this Tribunal. […]

[1] See Krnojelac Appeal Judgement, para. 52 (“the aider and abettor in persecution, an offence with a specific intent, must be aware . . . of the discriminatory intent of the perpetrators of that crime,” but “need not share th[at] intent”); Vasiljević Appeal Judgement, para. 142 (“In order to convict [the accused] for aiding and abetting the crime of persecution, the Appeals Chamber must establish that [he] had knowledge that the principal perpetrators of the joint criminal enterprise intended to commit the underlying crimes, and by their acts they intended to discriminate . . . .”); see also Tadić Appeal Judgement, para. 229 (“In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal.”).

[2] Krstić Appeal Judgement, para. 140. It must be stressed that, in the Krstić case, the Appeals Chamber has considered at paragraph 134 of the Judgement that “As has been demonstrated, all that the evidence can establish is that Krstić was aware of the intent to commit genocide on the part of some members of the VRS Main Staff, and with that knowledge, he did nothing to prevent the use of Drina Corps personnel and resources to facilitate those killings. This knowledge on his part alone cannot support an inference of genocidal intent. Genocide is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirement of specific intent. Convictions for genocide can be entered only where that intent has been unequivocally established. There was a demonstrable failure by the Trial Chamber to supply adequate proof that Radislav Krstić possessed the genocidal intent. Krstić, therefore, is not guilty of genocide as a principal perpetrator.” 

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ICTR Statute Article 2(2) ICTY Statute Article 4(2)
Notion(s) Filing Case
Appeal Judgement - 20.10.2010 RUKUNDO Emmanuel
(ICTR-2001-70-A)

62. The Appeals Chamber finds no error in the fact that the Trial Chamber took into consideration the judicially-noticed fact that “during 1994, there was a campaign of mass killing intended to destroy, in whole or at least in very large part, Rwanda’s Tutsi population”.[1] […]

63. As the Appeals Chamber’s jurisprudence underscores, Rukundo is correct in contending that judicial notice and evidence of the general context cannot be a substitute for specific findings on mens rea. However, the Trial Chamber’s analysis does not use the general context in Rwanda and in Gitarama Prefecture as the sole basis for finding that Rukundo possessed the mens rea for genocide. Instead, it appropriately used the judicially-noticed finding of widespread attacks against Tutsis in Rwanda, and the contextual evidence about the targeting of Tutsis in Gitarama Prefecture, as a frame or context in which to interpret numerous other indicators of Rukundo’s mens rea. […]

[1] Trial Judgement, para. 565, citing The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73(c), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006 (“Karemera et al. Appeal of Decision on Judicial Notice”), para. 35.

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Notion(s) Filing Case
Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

The Trial Chamber determined that Blagojević was complicit in genocide by allowing Bratunac Brigade resources and personnel to be used in connection with the forcible transfer from Potočari and the mistreatment and murder of the Bosnian Muslim detainees in Bratunac town.[1] For the Trial Chamber, the forcible transfer of the women and others was a “manifestation of the specific intent to rid the Srebrenica enclave of its Bosnian Muslim population” and the killings and mistreatment at Bratunac town were a similar “manifestation of this intent to destroy the group.”[2]

122. The main question for the Appeals Chamber is whether, in the absence of knowledge about the mass killings, the above findings form a sufficient basis to conclude that Blagojević knew of the principal perpetrators’ genocidal intent. It follows from the Krstić Appeal Judgement that the existence of the mass killings which followed the take-over of Srebrenica was key to the finding that genocide had been committed.[3] In this respect, the Appeals Chamber stated: “[t]he main evidence underlying the Trial Chamber’s conclusion that the VRS forces intended to eliminate all the Bosnian Muslims of Srebrenica was the massacre by the VRS of all men of military age from that community.”[4] Moreover, the Appeals Chamber also placed significant weight on Radislav Krstić’s awareness of the mass killings in determining that he had knowledge of the genocidal intent of the principal perpetrators.[5] In this respect, the Appeals Chamber refers to its assessment of the impact of Radislav Krstić’s awareness of the forcible transfer operation, the separations in Potočari, and the detention and mistreatment of Bosnian Muslim men in Bratunac town on his knowledge of the genocidal intent of the principal perpetrators.[6]

123. The Appeals Chamber notes that genocidal intent may be inferred, among other facts, from evidence of other culpable acts systematically directed against the same group.[7] Thus, the Appeals Chamber accepts that the forcible transfer operation, the separations, and the mistreatment and murders in Bratunac town are relevant considerations in assessing whether the principal perpetrators had genocidal intent.[8] However, the Appeals Chamber is not convinced by the Trial Chamber’s reasoning that the forcible transfer operation alone or coupled with the murders and mistreatment in Bratunac town would suffice to demonstrate the principal perpetrators’ intent to “destroy” the protected group.[9] The Krstić Appeal Judgement clearly held that “forcible transfer does not constitute in and of itself a genocidal act”, and it is simply a relevant consideration as part of the overall factual assessment.[10] Similarly, the Appeals Chamber notes that “opportunistic killings” by their very nature provide a very limited basis for inferring genocidal intent. Rather, as the Appeals Chamber determined in the Krstić Appeal Judgement, these culpable acts simply assist in placing the mass killings in their proper context.[11] Consequently, no reasonable trier of fact could find beyond a reasonable doubt that, without knowledge of the mass killings, Blagojević’s awareness of the other facts related to the forcible transfer operation shows that he had knowledge of the principal perpetrators’ genocidal intent.[12]

[1] Trial Judgement, paras. 784, 787. More specifically, the Trial Chamber concluded that the following acts of practical assistance had had a substantial effect on the commission of genocide: (1) aiding and abetting the murders committed in Brutanac town; (2) aiding and abetting persecutions committed through the underlying acts of murder, cruel and inhumane treatment, terrorizing the civilian population and forcible transfer; (3) aiding and abetting the commission of other inhumane acts through forcible transfer; and, thus, rendering practical assistance in the killings and in causing serious bodily or mental harm to the Bosnian Muslims from Srebrenica.

[2] Trial Judgement, paras. 675-676.

[3] See, e.g., Krstić Appeal Judgement, paras. 26, 28, 29, 37, 83, 98, 100, 137.

[4] Krstić Appeal Judgement, para. 26.

[5] Krstić Appeal Judgement, paras. 104, 106, 112, 137.

[6] Krstić Appeal Judgement, paras. 99, 100 [CITATION OMITTED].

[7] 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.

[8] See, e.g., Krstić Appeal Judgement, para. 33 (“the Trial Chamber […] was entitled to conclude that the evidence of the transfer supported its finding that some members of the VRS Main Staff intended to destroy the Bosnian Muslims in Srebrenica.”).

[9] Trial Judgement, paras. 665, 675, 676.

[10] Krstić Appeal Judgement, para. 33.

[11] Krstić Appeal Judgement, para. 35 (“As already explained, the scale of the killing, combined with the VRS Main Staff’s awareness of the detrimental consequences it would have for the Bosnian Muslim community of Srebrenica and with the other actions the Main Staff took to ensure that community’s physical demise, is a sufficient factual basis for the finding of specific intent.”).

[12] The Trial Chamber’s conclusion to the contrary may have been based on a view that in removing a group from a particular location, the removers are “destroying” the group. See Trial Judgement, paras. 657-666. The Appeals Chamber emphasizes, however, that displacement is not equivalent to destruction. See [Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgement of 26 February 2007] para. 334  

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Notion(s) Filing Case
Decision on Reconsideration - 01.12.2006 KAREMERA et al.
(ICTR-98-44-AR73(C))

At para. 21, the Appeals Chamber recalled that:

[T]he existence of a plan or policy is not a legal ingredient of the crime of genocide. While the existence of such plan may help to establish that the accused possessed the requisite genocidal intent, it remains only evidence supporting the inference of intent and does not become the legal ingredient of the offence.[1]

As a result it held that “if the existence of a plan to commit genocide is vital to the Prosecution’s case, this must be proved by evidence.” (para. 21).

[1] The Prosecutor v. Radislav Krstic, Case No. IT-98-33-A, Judgment, 19 April 2004,para.225 which refers to   The Prosecutor V. Goran Jelisic, Case No. IT-95-10-A,Judgment , 5 July 2001, para.48

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ICTR Statute Article 2(2) ICTY Statute Article 4(2)
Notion(s) Filing Case
Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

364.   In the case at bar, the Trial Chamber found Musema guilty of genocide (Count 1) and of extermination as a crime against humanity (Count 5) on the basis of the same set of facts.  Musema requests the reversal of the conviction for extermination.  The issue is whether such double conviction is permissible.

365.   Applying the provisions of the test articulated above, the first issue is whether a given statutory provision has a materially distinct element not contained in the other provision, an element being regarded as materially distinct from another if it requires proof of a fact not required by the other.

366.   Genocide requires proof of an intent to destroy, in whole or in part, a national, ethnical, racial or religious group; this is not required by extermination as a crime against humanity.  Extermination as a crime against humanity requires proof that the crime was committed as a part of a widespread or systematic attack against a civilian population, which proof is not required in the case of genocide.

367.   As a result, the applicable test with respect to double convictions for genocide and extermination as a crime against humanity is satisfied; these convictions are permissible.  Accordingly, Musema’s ground of appeal on this point is dismissed.

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Appeal Judgement - 19.04.2004 KRSTIĆ Radislav
(IT-98-33-A)

138. […] As the Trial Chamber observed, there is an overlap between Article 4(3) as the general provision enumerating punishable forms of participation in genocide and Article 7(1) as the general provision for criminal liability which applies to all the offences punishable under the Statute, including the offence of genocide.[1]  There is support for a position that Article 4(3) may be the more specific provision (lex specialis) in relation to Article 7(1).[2]  There is, however, also authority indicating that modes of participation enumerated in Article 7(1) should be read, as the Tribunal’s Statute directs, into Article 4(3), and so the proper characterization of such individual’s criminal liability would be that of aiding and abetting genocide.[3]

139. The Appeals Chamber concludes that the latter approach is the correct one in this case. 

140. This […] raises the question of whether, for liability of aiding and abetting to attach, the individual charged need only possess knowledge of the principal perpetrator’s specific genocidal intent, or whether he must share that intent.  The Appeals Chamber has previously explained, on several occasions, that an individual who aids and abets a specific intent offense may be held responsible if he assists the commission of the crime knowing the intent behind the crime.[4]  This principle applies to the Statute’s prohibition of genocide, which is also an offence requiring a showing of specific intent.  The conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case-law of the Tribunal.

[…]

142. […] there is authority to suggest that complicity in genocide, where it prohibits conduct broader than aiding and abetting, requires proof that the accomplice had the specific intent to destroy a protected group.  Article 4 of the Statute is most naturally read to suggest that Article 4(2)’s requirement that a perpetrator of genocide possess the requisite “intent to destroy” a protected group applies to all of the prohibited acts enumerated in Article 4(3), including complicity in genocide.[5]  There is also evidence that the drafters of the Genocide Convention intended the charge of complicity in genocide to require a showing of genocidal intent.  […]  The texts of the Tribunal’s Statute and of the Genocide Convention, combined with the evidence in the Convention’s travaux préparatoires, provide additional support to the conclusion that the drafters of the Statute opted for applying the notion of aiding and abetting to the prohibition of genocide under Article 4.[6]

[1] See ibid. [Trial Judgement], para. 640; see also Semanza Trial Judgement, paras. 394 - 395 & n. 655.

[2] See Stakić Trial Judgement, para. 531; Stakić Decision on Rule 98 Bis Motion for Judgement of Acquittal [Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Decision on Rule 98bis Motion for Judgement of Acquittal, 31 October 2002], para. 47; Semanza Trial Judgement, paras. 394 – 395.

[3] See Stakić Trial Judgement, para. 531; Stakić Decision on Rule 98 Bis Motion for Judgement of Acquittal, para. 47.

[4] See Krnojelac Appeal Judgement, para. 52 (“the aider and abettor in persecution, an offence with a specific intent, must be aware . . . of the discriminatory intent of the perpetrators of that crime,” but “need not share th[at] intent”); Vasiljević Appeal Judgement, para. 142 (“In order to convict [the accused] for aiding and abetting the crime of persecution, the Appeals Chamber must establish that [he] had knowledge that the principal perpetrators of the joint criminal enterprise intended to commit the underlying crimes, and by their acts they intended to discriminate . . . .”); see also Tadić Appeal Judgement, para. 229 (“In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal.”).

[5] The same analysis applies to the relationship between Article II of the Genocide Convention, which contains the requirement of specific intent, and the Convention’s Article III, which lists the proscribed acts, including that of complicity.

[6] As it is not at issue in this case, the Appeals Chamber takes no position on the mens rea requirement for the conviction for the offence of complicity in genocide under Article 4(3) of the Statute where this offense strikes broader than the prohibition of aiding and abetting.

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ICTR Statute Article 2(2) ICTY Statute Article 4(2)
Notion(s) Filing Case
Appeal Judgement - 19.04.2004 KRSTIĆ Radislav
(IT-98-33-A)

8. It is well established that where a conviction for genocide relies on the intent to destroy a protected group “in part,” the part must be a substantial part of that group. The aim of the Genocide Convention is to prevent the intentional destruction of entire human groups, and the part targeted must be significant enough to have an impact on the group as a whole. […]

9. The question has also been considered by Trial Chambers of the ICTR, whose Statute contains an identical definition of the crime of genocide.  These Chambers arrived at the same conclusion.  In Kayishema, the Trial Chamber concluded, after having canvassed the authorities interpreting the Genocide Convention, that the term “‘in part’ requires the intention to destroy a considerable number of individuals who are part of the group.”  This definition was accepted and refined by the Trial Chambers in Bagilishema and Semanza, which stated that the intent to destroy must be, at least, an intent to destroy a substantial part of the group.

[…]

12. The intent requirement of genocide under Article 4 of the Statute is therefore satisfied where evidence shows that the alleged perpetrator intended to destroy at least a substantial part of the protected group.  The determination of when the targeted part is substantial enough to meet this requirement may involve a number of considerations.  The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry.  The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group.  In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration.  If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4.

13. The historical examples of genocide also suggest that the area of the perpetrators’ activity and control, as well as the possible extent of their reach, should be considered.  Nazi Germany may have intended only to eliminate Jews within Europe alone; that ambition probably did not extend, even at the height of its power, to an undertaking of that enterprise on a global scale.  Similarly, the perpetrators of genocide in Rwanda did not seriously contemplate the elimination of the Tutsi population beyond the country’s borders.  The intent to destroy formed by a perpetrator of genocide will always be limited by the opportunity presented to him.  While this factor alone will not indicate whether the targeted group is substantial, it can - in combination with other factors - inform the analysis.

14. These considerations, of course, are neither exhaustive nor dispositive.  They are only useful guidelines.  The applicability of these factors, as well as their relative weight, will vary depending on the circumstances of a particular case.

See also para. 8 (part) and paras. 9–11.

32. In determining that genocide occurred at Srebrenica, the cardinal question is whether the intent to commit genocide existed.  While this intent must be supported by the factual matrix, the offence of genocide does not require proof that the perpetrator chose the most efficient method to accomplish his objective of destroying the targeted part.  Even where the method selected will not implement the perpetrator’s intent to the fullest, leaving that destruction incomplete, this ineffectiveness alone does not preclude a finding of genocidal intent.  The international attention focused on Srebrenica, combined with the presence of the UN troops in the area, prevented those members of the VRS Main Staff who devised the genocidal plan from putting it into action in the most direct and efficient way.  Constrained by the circumstances, they adopted the method which would allow them to implement the genocidal design while minimizing the risk of retribution.

33. The Trial Chamber - as the best assessor of the evidence presented at trial - was entitled to conclude that the evidence of the transfer [of women, children, and elderly within the Sebrenica enclave to other areas of Muslim-controlled Bosnia] supported its finding that some members of the VRS Main Staff intended to destroy the Bosnian Muslims in Srebrenica.  The fact that the forcible transfer does not constitute in and of itself a genocidal act[6] does not preclude a Trial Chamber from relying on it as evidence of the intentions of members of the VRS Main Staff.  The genocidal intent may be inferred, among other facts, from evidence of “other culpable acts systematically directed against the same group.”

Inferring intent from the factual circumstances of the crime:

[…]

34. The Defence also argues that the record contains no statements by members of the VRS Main Staff indicating that the killing of the Bosnian Muslim men was motivated by genocidal intent to destroy the Bosnian Muslims of Srebrenica.[8]  The absence of such statements is not determinative.  Where direct evidence of genocidal intent is absent, the intent may still be inferred from the factual circumstances of the crime.[9]  The inference that a particular atrocity was motivated by genocidal intent may be drawn, moreover, even where the individuals to whom the intent is attributable are not precisely identified.  If the crime committed satisfies the other requirements of genocide, and if the evidence supports the inference that the crime was motivated by the intent to destroy, in whole or in part, a protected group, a finding that genocide has occurred may be entered.

35. In this case, the factual circumstances, as found by the Trial Chamber, permit the inference that the killing of the Bosnian Muslim men was done with genocidal intent.  As already explained, the scale of the killing, combined with the VRS Main Staff’s awareness of the detrimental consequences it would have for the Bosnian Muslim community of Srebrenica and with the other actions the Main Staff took to ensure that community’s physical demise, is a sufficient factual basis for the finding of specific intent.  The Trial Chamber found, and the Appeals Chamber endorses this finding, that the killing was engineered and supervised by some members of the Main Staff of the VRS.[10]  The fact that the Trial Chamber did not attribute genocidal intent to a particular official within the Main Staff may have been motivated by a desire not to assign individual culpability to persons not on trial here.  This, however, does not undermine the conclusion that Bosnian Serb forces carried out genocide against the Bosnian Muslims.

[1] See Art. 2 of the ICTR Statute (defining the specific intent requirement of genocide as the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”).

[2] Kayishema and Ruzindana Trial Judgement, para. 97.

[3] See Bagilishema Trial Judgement, para. 64 (“the intention to destroy must target at least a substantial part of the group”) (citing Kayishema and Ruzindana Trial Judgement, para. 97); Semanza Trial Judgement and Sentence, para. 316 (“The intention to destroy must be, at least, to destroy a substantial part of the group”) (citing Bagilishema Trial Judgement, para. 64).  While Kayishema used the term “considerable number” rather than “substantial part,” Semanza and Bagilishema make it clear that Kayishema did not intend to adopt a different standard with respect to the definition of the term “a part.”  The standard adopted by the Trial Chambers of the ICTR is therefore consistent with the jurisprudence of this Tribunal.

[4] The Trial Chambers in Jelisić and Sikirica referred to this factor as an independent consideration which is sufficient, in and of itself, to satisfy the requirement of substantiality.  See Jelisić Trial Judgement, para. 82; Sikirica Trial Judgement, para. 65.  Properly understood, this factor is only one of several which may indicate whether the substantiality requirement is satisfied.

[5] For a discussion of these examples, see William A. Schabas, Genocide in International Law (2000), p. 235.

[6] See Stakić Trial Judgement, para. 519 & nn. 1097 - 1098 (citing K. Kreß, Münchner Kommentar zum StGB, Rn 57, section 6 VStGB (2003); William A. Schabas, Genocide in International Law (2000), p. 200; BGH v. 21.2.2001 – 3 StR 244/00, NJW 2001, 2732 (2733)).

[7] Jelisić Appeal Judgement, para. 47.

[8] Defence Appeal Brief [Defence Appeal Brief, 7 May 2002], paras. 74-77.

[9] Jelisić Appeal Judgement, para. 47; see also Rutaganda Appeal Judgement, para. 528.

[10] Trial Judgement, paras. 591 - 599.

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ICTR Statute Article 2(2) ICTY Statute Article 4(2)
Notion(s) Filing Case
Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

The Appeals Chamber held that an accused who was present at the scene of a genocidal massacre, personally closely supervised it, and participated in it by separating those to be killed on the basis of ethnicity can be convicted of “committing” genocide through direct and physical perpetration even if he did not personally kill anyone himself:

59. In addition, by a differently composed majority, the Appeals Chamber holds, Judge Güney dissenting, that even if the killing of Mr. Murefu were to be set aside, the Trial Chamber’s conclusion that the Appellant “committed” genocide would still be valid. The Trial Chamber convicted the Appellant of “ordering” and “instigating” genocide on the basis of findings of fact detailing certain conduct that, in the view of the Appeals Chamber, should be characterized not just as “ordering” and “instigating” genocide, but also as “committing” genocide.

60. As the Trial Chamber observed, the term “committed” in Article 6(1) of the Statute has been held to refer “generally to the direct and physical perpetration of the crime by the offender himself.”[1] In the context of genocide, however, “direct and physical perpetration” need not mean physical killing; other acts can constitute direct participation in the actus reus of the crime.[2] Here, the accused was physically present at the scene of the Nyarubuye Parish massacre, which he “directed” and “played a leading role in conducting and, especially, supervising”.[3] It was he who personally directed the Tutsi and Hutu refugees to separate -- and that action, which is not adequately described by any other mode of Article 6(1) liability, was as much an integral part of the genocide as were the killings which it enabled.[4] Moreover, these findings of fact were based on allegations that were without question clearly pleaded in the Indictment.[5]

61. The Appeals Chamber is persuaded that in the circumstances of this case, the modes of liability used by the Trial Chamber to categorize this conduct -- “ordering” and “instigating” -- do not, taken alone, fully capture the Appellant’s criminal responsibility. The Appellant did not simply “order” or “plan” genocide from a distance and leave it to others to ensure that his orders and plans were carried out; nor did he merely “instigate” the killings. Rather, he was present at the crime scene to supervise and direct the massacre, and participated in it actively by separating the Tutsi refugees so that they could be killed. The Appeals Chamber finds by majority, Judge Güney dissenting, that this constitutes “committing” genocide.

[1] Trial Judgement, para. 285; see Kayishema and Ruzindana Appeal Judgement, para. 187; Tadić Appeal Judgement, para. 188. The term also encompasses joint criminal enterprise, as discussed further below.

[2] For instance, it has been recognized that selection of prisoners for extermination played an integral role in the Nazi genocide. See, e.g., Judgment of the International Military Tribunal for the Trial of German Major War Criminals, Nuremberg, 30th September and 1st October, 1946, p. 63 (London: His Majesty's Stationary Office, 1946) (Reprinted Buffalo, New York: William S. Hein & Co., Inc., 2001) (describing the selection process at Auschwitz); Att'y Gen. of Israel v. Adolf Eichmann, 36 I.L.R. 5, p. 185 (Isr. D.C., Jerusalem, Dec. 12, 1961), aff'd, 36 I.L.R.277 (Isr. S. Ct., May 29, 1962) (same).

[3] See Trial Judgement, paras. 168, 169, 171, 172, 173, 261.

[4] Trial Judgement, para. 168.

[5] See Indictment, paras. 4, 13-21.

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ICTR Statute Article 2(3)(a) ICTY Statute Article 4(3)(a)
Notion(s) Filing Case
Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

229. The Appeals Chamber agrees that the crimes’ commission in Kalimanzira’s own prefecture and not at the national level is not a relevant fact for the purpose of assessing their gravity. The genocide that was committed in Rwanda between 6 April 1994 and 17 July 1994, which resulted in the killings of hundreds of thousands of Tutsis, is indivisible.[1] […]

[1] See Ndindabahizi Appeal Judgement, para. 138.

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Appeal Judgement - 09.10.2012 GATETE Jean Baptiste
(ICTR-00-61-A)

259. The Appeals Chamber observes that this is the first time that it has been called upon to adjudicate the issue of whether an accused can be convicted both of genocide and conspiracy to commit genocide. The Appeals Chamber recalls that convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other.

260. The Appeals Chamber recalls that genocide and conspiracy to commit genocide are distinct crimes under Articles 2(3)(a) and 2(3)(b) of the Statute. As the Trial Chamber correctly observed, the crime of genocide has a materially distinct actus reus from the crime of conspiracy to commit genocide and both crimes are based on different underlying conduct. The crime of genocide requires the commission of one of the enumerated acts in Article 2(2) of the Statute, while the crime of conspiracy to commit genocide requires the act of entering into an agreement to commit genocide.The Appeals Chamber finds that the Trial Chamber did not err in concluding that the crimes are distinct and that the conduct underlying each crime is not the same.

261. […T]he Appeals Chamber considers that a trial chamber is bound to enter convictions for all distinct crimes which have been proven in order to fully reflect the criminality of the convicted person. Accordingly, the Appeals Chamber finds, Judge Agius dissenting, that by convicting Gatete only of genocide while he was also found criminally responsible for conspiracy to commit genocide, the Trial Chamber failed to hold him responsible for the totality of his criminal conduct, which included entering into the unlawful agreement to commit genocide.

262. […] The Appeals Chamber recalls that criminalising conspiracy to commit genocide, as an inchoate crime, aims to prevent the commission of genocide. However, the Appeals Chamber considers that another reason for criminalising conspiracy to commit genocide is to punish the collaboration of a group of individuals resolved to commit genocide. The danger represented by such collaboration itself justifies the incrimination of acts of conspiracy, irrespective of whether the substantive crime of genocide has been committed. Thus, the Appeals Chamber finds, Judge Agius dissenting, that the inchoate nature of the crime of conspiracy does not obviate the need to enter a conviction for this crime when genocide has also been committed by the accused, since the crime of genocide does not punish the agreement to commit genocide.

263. Finally, the Trial Chamber inferred from the evidence establishing that Gatete participated in a joint criminal enterprise that he also entered into an agreement to commit genocide. On this basis, it found that entering a conviction for the crime of genocide would render a conviction for conspiracy redundant. The Appeals Chamber recalls that conspiracy to commit genocide is a crime under the Statute, while joint criminal enterprise is a form of criminal responsibility. The Appeals Chamber considers, Judge Agius dissenting, that a comparison of the evidence underpinning these two elements is irrelevant when deciding whether convictions can be entered for both crimes of genocide and conspiracy to commit genocide, as the issue of cumulative convictions arises only between crimes.

[1] The Appeals Chamber notes that trial chambers have dealt with this issue in various ways, from considering that the test on permissibility of cumulative convictions was applicable to finding that it did not apply and from entering convictions on both crimes to entering a conviction on only one. See Nzabonimana Trial Judgement, fn. 2184 (where the trial chamber considered that it did not need to address the issue of whether cumulative convictions may be entered for conspiracy to commit genocide and genocide because the conduct that served as the basis for conspiracy to commit genocide was different from the conduct that served as the basis for genocide); Karemera and Ngirumpatse Trial Judgement, para. 1713 (where the trial chamber concurred with the Musema, Popović et al., and Gatete trial chambers and decided not to enter a conviction of conspiracy considering the conviction of genocide); Nyiramasuhuko et al. Trial Judgement, paras. 5678, 5970, fn. 14634 (Nyiramasuhuko was convicted of conspiracy to commit genocide and genocide; the trial chamber considered that it did not need to address whether convictions may be entered simultaneously for conspiracy to commit genocide and for genocide because the conduct that served as the basis for conspiracy to commit genocide is different from that forming the basis for genocide); Nahimana et al. Trial Judgement, paras. 1043, 1090 (where the trial chamber found that the test on cumulative convictions applied and that cumulative convictions were permissible as both crimes comprise materially distinct elements); Kajelijeli Trial Judgement, paras. 787-793, 798 (where the trial chamber noted the discrepancies between Niyitegeka and Musema Trial Judgements but did not feel called upon to express a preference as Kajelijeli was found not guilty of conspiracy to commit genocide); Niyitegeka Trial Judgement, paras. 420, 429, 480 (where the accused was convicted of both crimes); Musema Trial Judgement, paras. 198, 940, 941, p. 276 (where the trial chamber stated “that [it] 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” without finding the accused guilty of the crime of conspiracy to commit genocide in the absence of any evidence presented by the Prosecution); Kambanda Trial Judgement, paras. 3, 39, 40 (where the accused pleaded guilty to both conspiracy to commit genocide and genocide).

[2] Čelebići Appeal Judgement, para. 412. See also Ntabakuze Appeal Judgement, para. 260; Bagosora and Nsengiyumva Appeal Judgement, para. 413; Nahimana et al. Appeal Judgement, para. 1019; Ntakirutimana Appeal Judgement, para. 542.

[3] See Trial Judgement, para. 654.

[4] Nahimana et al. Appeal Judgement, para. 492.

[5] Seromba Appeal Judgement, para. 218; Nahimana et al. Appeal Judgement, para. 894; Ntagerura et al. Appeal Judgement, para. 92.

[6] Cf. Strugar Appeal Judgement, para. 324; Stakić Appeal Judgement, para. 358.

[7] See Ad Hoc Committee on Genocide, Note by the Secretariat, Economic and Social Council, E/AC.25/3, 2 April 1948, p. 8.

[8] A reading of the travaux préparatoires of the Genocide Convention [Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, entered into force on 12 January 1951 (“Genocide Convention”)] shows that the Committee considered that conspiracy to commit genocide must be punished both in view of the gravity of the crime of genocide and of the fact that in practice genocide is a collective crime, presupposing the collaboration of a greater or smaller number of persons. See Ad Hoc Committee on Genocide, Report of the Committee and Draft Convention Drawn up by the Committee, Economic and Social Council, E/794, 24 May 1948, p. 20.

[9] Trial Judgement, para. 661.

[10] See Article 2(3)(b) of the Statute [Statute of the International Criminal Tribunal for Rwanda]; Nahimana et al. Appeal Judgement, para. 896.

[11] Participation in a joint criminal enterprise is a form of committing under Article 6(1) of the Statute. See, e.g., Nahimana et al. Appeal Judgement, para. 478; Ntagerura et al. Appeal Judgement, para. 24; Ntakirutimana Appeal Judgement, para. 462.

[12] However, this factor may be relevant when it comes to sentencing as “a penalty must reflect the totality of the crimes committed by a person and be proportionate to both the seriousness of the crimes committed and the degree of participation of the person convicted”. See Ntakirutimana Appeal Judgment, para. 562; Rutaganda Appeal Judgement, para. 591.

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ICTR Statute Article 2(3)(c);
Article 2(3)(b)
ICTY Statute Article 4(3)(a);
Article 4(3)(b)
Notion(s) Filing Case
Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

141. The Appeals Chamber notes that the Trial Chamber correctly set forth the requisite elements of the mens rea for genocide and extermination as a crime against humanity. In particular, the Trial Chamber observed that for genocide an accused must act “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”. With respect to extermination as a crime against humanity, the Trial Chamber recalled that an accused must “intend to kill persons on a massive scale or to subject a large number of people to conditions of living that would lead to their death in a widespread or systematic manner.” The Trial Chamber further observed that the perpetrator must have acted with knowledge that his acts formed part of a widespread or systematic attack against the civilian population on national, political, ethnic, racial, or religious grounds.

142. The Trial Chamber established Munyakazi’s intent to participate in the crimes based on his personal participation and leadership role in attacks, which resulted in the death of thousands of mostly Tutsi civilians. The Appeals Chamber can identify no error in this approach. The Appeals Chamber has held that an accused’s intent to participate in a crime may be inferred from circumstantial evidence, including his active participation in an attack. Indeed, contrary to Munyakazi’s suggestion, “[t]he inquiry is not whether the specific intent was formed prior to the commission of the acts, but whether at the moment of commission the perpetrators possessed the necessary intent.” The lack of evidence concerning Munyakazi’s personal views about Tutsis does not undermine the reasonableness of the Trial Chamber’s findings. Furthermore, the evidence of his active participation in the killing of thousands of Tutsi civilians at two parishes reasonably demonstrates that he possessed both genocidal intent and the requisite intent for extermination as a crime against humanity, that is, the intent to kill on a large scale with awareness that the crimes formed part of a widespread and systematic attack against Tutsi civilians.

[1] Trial Judgement, paras. 493, 504, 506.

[2] Trial Judgement, para. 493.

[3] Trial Judgement, para. 506.

[4] Trial Judgement, paras. 503, 504.

[5] Trial Judgement, paras. 380, 423, 491, 496, 500, 507.

[6] See, e.g., Rukundo Appeal Judgement, para. 61; Nahimana et al. Appeal Judgement, para. 524; Seromba Appeal Judgement, paras. 176, 177.

[7] Simba Appeal Judgement, paras. 262, 266.

[8] Simba Appeal Judgement, para. 266.

[9] See Trial Judgement, paras. 499, 500.

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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

138.    […] [The Trial Chamber] further opined (and the Appeals Chamber agrees) that even though a genocidal plan is not a constituent element of the crime of genocide, the existence of such a plan would be strong evidence of the specific intent requirement for the crime of genocide.[1]

[1] Ibid. [Trial Judgment], para. 276.

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ICTR Statute Article 2 ICTY Statute Article 4
Notion(s) Filing Case
Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

163.    The Appeals Chamber notes that a “persistent pattern of conduct” is not a legal ingredient of the crime of genocide as defined in Article 2 of the Statute […].

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ICTR Statute Article 2 ICTY Statute Article 4
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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

161.    […] The Appeals Chamber notes that criminal intent (mens rea) must not be confused with motive and that, in respect of genocide, personal motive does not exclude criminal responsibility providing that the acts proscribed in Article 2(2)(a) through to (e) were committed “with intent to destroy, in whole or in part a national, ethnical, racial or religious group”.[1]

[1] See also Tadić Appeal Judgement, para. 269.

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ICTR Statute Article 2 ICTY Statute Article 4
Notion(s) Filing Case
Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

169.    Article 2 of the Statute provides that “[g]enocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as …”, the relevant acts in the instant case being genocide by killing members of the group and causing serious bodily or mental harm to members of the group. The Appeals Chamber finds that there is no legal ingredient in Article 2 of the Statute, which requires the establishment of a nexus between the manner in which a genocide was carried out and the personal circumstances of an accused. Similarly, the provision does not require proof that an accused had certain means at his disposal to prepare and commit genocide. The financial situation of an accused would normally not be of major importance to the question of whether he could be held liable for genocide.

170.    Furthermore, genocide is not a crime that can only be committed by certain categories of persons.  As evidenced by history, it is a crime which has been committed by the low-level executioner and the high-level planner or instigator alike. […]

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ICTR Statute Article 2 ICTY Statute Article 4
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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

151.    The Appeals Chamber understands the Trial Chamber’s reasoning to be that, if a doubt exists in the interpretation of a statute, the doubt must be interpreted in favour of the accused. The Trial Chamber considered that “meurtre” is not the same as “killing”.[1] However, having regard to the operative part of Article 2(2) of the Statute, it found that “there is virtually no difference” between the two terms as the term “killing” is linked to the intent to destroy in whole or in part.[2] The Appeals Chamber accepts this view, but states that if the word “virtually” is interpreted in a manner that suggests a difference, though minimal, between the two terms, it would construe them both as referring to intentional but not necessarily premeditated murder, this being, in its view, the meaning to be assigned to the word “meurtre”. […]

[1] Trial Judgement, para. 103. 

[2] Ibid., para. 104.

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ICTR Statute Article 2(2) ICTY Statute Article 4(2)
Notion(s) Filing Case
Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

367.    […] The Appeals Chamber remarks that there is no hierarchy of crimes under the Statute, and that all of the crimes specified therein are “serious violations of international humanitarian law”,[1] capable of attracting the same sentence. The actual sentence imposed depends, of course, upon the evaluation of the various factors referred to in the Statute and the Rules. The Appeals Chamber finds that the Trial Chamber’s description of genocide as the “crime of crimes” was at the level of general appreciation, and did not impact on the sentence it imposed. Furthermore, upon examining the statements of the Trial Chamber, it is evident that the primary thrust of its finding as to the gravity of the offences relates to the fact that genocide in itself is a crime that is extremely grave. Such an observation is correct, and for these reasons, there was no error in its finding on this point.

[1] Article 1 of the Statute.

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ICTR Statute Article 23(2) ICTY Statute Article 24(2)
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Appeal Judgement - 29.09.2014 KAREMERA & NGIRUMPATSE
(ICTR-98-44-A)

611.   […] The Appeals Chamber considers that whilst the Trial Chamber’s findings on sexual assaults can reasonably underpin a conviction of genocide, they cannot form the basis of a conviction for rape as crime against humanity. The Appeals Chamber recalls that acts of sexual violence are a broader category than rape.[1] […] Accordingly, the Appeals Chamber finds that the Trial Chamber erred in relying on its findings of sexual assaults committed throughout Rwanda to convict Karemera and Ngirumpatse of rape as a crime against humanity.[2] […]

[1] See Rukundo, Trial Judgement, para. 380. See also Kunara~ et al. Appeal Judgement, para. 150.

[2] The Appeals Chamber finds that the Trial Chamber reasonably considered that rapes and sexual assaults amounted to genocide in the form of serious bodily and mental harm. See [Karemera and Ngirumpatse] Trial Judgement, para. 1667.

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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

3322.            The Appeals Chamber has held in relation to genocide that “committing” under Article 6(1) of the Statute, which envisions the physical perpetration of a crime, does not only mean physical killing and that other acts can constitute direct participation in the actus reus of the crime.[1] The question is whether an accused’s conduct was “as much an integral part of the [crimes] as were the killings which it enabled.”[2] In the cases where the Appeals Chamber has concluded that an accused’s role constituted an integral part of the crimes, the accused were present at the crime scene and conducted, supervised, directed, played a leading role, or otherwise fully exercised influence over the physical perpetrators.[3]

3323.            Even if the Appeals Chamber were to overturn the Trial Chamber’s findings that Kanyabashi’s Speech was not inflammatory and did not substantially contribute to the subsequent killings, it is not convinced that Kanyabashi’s approval of Kambanda’s and Sindikubwabo’s Speeches, his position of authority, and the contents of his speech are sufficient to qualify Kanyabashi’s overall conduct as that of “committing” genocide. The Appeals Chamber considers that, where it is not established that the accused was present at the scene of the crimes, conducted, supervised, directed, played a leading role, or otherwise fully exercised influence over the physical perpetrators, making a speech days, if not weeks, before the physical perpetration of killings cannot be deemed to constitute “direct participation in the actus reus” of the killings. Nor can such circumstances compel the conclusion that the conduct of the individual who gave the speech was as much an integral part of the genocide as were the killings which it allegedly enabled. In the view of the Appeals Chamber, the notion of commission by playing an integral part in the crime is not as expansive as the Prosecution argues in the present case. […]

[1] Munyakazi Appeal Judgement, para. 135; Kalimanzira Appeal Judgement, para. 219; Seromba Appeal Judgement, para. 161; Gacumbitsi Appeal Judgement, para. 60.

[2] Munyakazi Appeal Judgement, para. 135; Kalimanzira Appeal Judgement, para. 219; Seromba Appeal Judgement, para. 161; Gacumbitsi Appeal Judgement, para. 60. See also Nzabonimana Appeal Judgement, para. 477.

[3] See Munyakazi Appeal Judgement, paras. 135, 136; Seromba Appeal Judgement, paras. 171, 172; Gacumbitsi Appeal Judgement, paras. 60, 61. See also Nzabonimana Appeal Judgement, para. 477; Kalimanzira Appeal Judgement, paras. 219, 220.

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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.

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