Genocide, War Crimes and Crimes Against Humanity:
Topical Digests of the Case Law of the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia

Case Law of the International Criminal Tribunal for Rwanda

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Case Law of the International Criminal Tribunal for the Former Yugoslavia

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SUMMARY OF JUDGMENTS AGAINST THE ACCUSED

LISTING OF CASES INCLUDED

I) GENOCIDE (Article 2)

a) Statute

b) Generally

i) elements

ii) genocide is international customary law and jus cogens

c) Mental state (mens rea) (special intent or dolus specialis)

i) generally

(1) defined

(2) intent required prior to commission of acts

(3) intent can be inferred

(4) factors in assessing mental state (mens rea)

(5) specific plan not required, but is strong evidence of intent

ii) “intent to destroy in whole or in part”

(1) considerable number required or substantial part of the group

(2) actual extermination of entire group not required

(3) not necessary to establish genocide throughout country

(4) destruction

(a) sexual violence as destruction

iii) “a national, ethnical, racial, or religious group, as such”

(1) meant to cover any stable and permanent group

(a) whether group membership is subjective or objective

(2) interpretation of “as such”

(3) national group

(4) ethnical/ethnic group

(a) application

(b) association of ethnic group with political agenda

(5) racial group

(6) religious group

(7) mistreatment of persons not included in enumerated group not genocide

iv) application

d) Underlying offenses

i) killing members of the group

ii) causing serious bodily or mental harm to members of the group

(1) general definition

(2) no requirement of permanency or irremediability

(3) rape and sexual violence can qualify

(4) threats during interrogation can qualify

(5) intent to inflict “serious mental harm” required

iii) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part

iv) imposing measures intended to prevent births within the group

v) forcibly transferring children of the group to another group

e) Punishable acts

i) genocide

ii) conspiracy to commit genocide

(1) definition

(2) mental state (mens rea)

(3) conspiracy need not be successful

(4) a formal agreement is not needed

(5) conspiracy can be inferred/knowledge requirement

(6) institutional coordination

(7) conspiracy is an inchoate offense

(8) whether court may convict for both genocide and conspiracy to commit genocide for same acts

(9) application

iii) direct and public incitement to commit genocide

(1) direct

(2) public

(3) mental state (mens rea) for inciting genocide

(4) incitement need not be successful/causal relationship not required to find incitement

(5) application

(a) distinguishing incitement from legitimate use of media

a. importance of tone

b. importance of context

c. distinguish informative use

d. distinguish legitimate civil defense

e. ethnic expressions should receive more scrutiny

f. international law is point of reference

iv) attempt to commit genocide

v) complicity in genocide

(1) definition

(a) complicity requires a positive act

(2) mental state (mens rea)

(a) complicity in genocide does not require genocide’s special intent

(3) genocide required

(4) principal perpetrator need not be identified or convicted

(5) same person cannot be convicted of genocide and complicity regarding the same act

(6) difference between complicity and individual criminal responsibility for genocide

II) CRIMES AGAINST HUMANITY (Article 3)

a) Statute

b) Elements

i) the act must be inhumane in nature and character, causing great suffering, or serious injury to body or to mental or physical health (element 1)

ii) the act must be committed as part of a “widespread or systematic attack” (element 2)

(1) attack

(2) random acts or acts committed for personal reasons excluded

(3) “widespread or systematic” not both

(4) widespread

(5) systematic

(a) whether plan or policy required

(6) application

iii) the act/attack must be committed against members of the civilian population (element 3)

(1) confusion whether term is “act” or “attack”

(2) civilian defined

(3) presence of non-civilians does not strip population of its civilian character

(4) population

iv) the attack must be on national, political, ethnic, racial or religious grounds (discriminatory grounds) (element 4)

(1) political grounds

(2) national, ethnical, racial, religious grounds

v) mental state (mens rea) (element 5)

(1) knowledge that the accused’s act is part of a widespread or systematic attack on a civilian population

(2) discriminatory intent not required for acts other than persecution

vi) both state and non-state actors covered

c) Underlying offenses

i) the individual acts contain their own elements and need not contain the elements of crimes against humanity

ii) murder

(1) defined

(2) mental state (mens rea)

iii) extermination

(1) defined

(2) mental state (mens rea)

(2) rape can be torture

(3) no “public official requirement”

viii) rape and sexual violence

(1) defined

(2) mental state (mens rea)

ix) persecutions on political, racial and religious grounds

(1) elements

(2) intent/mental state (mens rea)

(3) persecution also defined in terms of impact

(4) persecution is broader than incitement

(5) perpetrator can be held accountable for both persecution and extermination

(6) application

(a) application to hate speech

x) other inhumane acts

(1) defined

(a) generally

(b) sexual violence included

(2) mental state (mens rea)

(a) generally

(b) mental state for third party suffering

(3) application

III) WAR CRIMES (Article 4)

a) Statute

b) Generally

i) applicability needs to be assessed

ii) Common Article 3 and list of prohibited acts in Statute are part of customary international law; alternatively, Rwanda was party to the Geneva Conventions and Protocols, and criminalized the enumerated acts

iii) individual criminal responsibility applies

iv) “serious violation” required; list of prohibited acts in Article 4 of the Statute are serious violations

c) Elements

i) armed conflict requirement (element 1)

(1) armed conflict of a non-international character required

(a) “armed conflict of a non-international nature” defined

(b) internal disturbances excluded

(2) application of Common Article 3 and Additional Protocol II depend on objective criteria

(3) type of conflict required for Additional Protocol II - additional requirements

(a) armed forces

(b) responsible command

ii) link between the accused and the armed forces - rejected

(1) civilians can be liable for war crimes

iii) geographic jurisdiction (ratione loci) (element 2)

(1) once criteria are met, apply to whole state, not just “theatre of combat”

iv) personal jurisdiction (ratione personae) (element 3)

(1) class of victims - civilians protected

(2) the presence of non-civilians does not deprive the population of its civilian character

(3) analyze whether the victim was directly taking part in the hostilities

v) nexus between the crime and the armed conflict (element 4)

(1) direct connection required/offense must be closely related to the hostilities

(2) actual hostilities not required in area of crimes; actual hostilities not required at exact time of crimes

vi) mental state (mens rea) (element 5)

d) Underlying offenses

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

(1) murder

(2) torture

ii) collective punishments

iii) taking of hostages

iv) acts of terrorism

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

(1) outrages upon personal dignity includes sexual violence

(2) humiliating and degrading treatment

(3) rape

(4) indecent assault

vi) pillage

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

viii) threats to commit any of the foregoing acts

IV) INDIVIDUAL CRIMINAL RESPONSIBILITY (Article 6(1) )

a) Statute

b) Generally

i) required elements

ii) crime must have actually occurred for Article 6(1) liability, but not for genocide

iii) individual and command responsibility distinguished

iv) planning, instigating, ordering, committing, aiding, abetting read disjunctively

v) can be liable for acts committed by others

c) Participation: that the accused’s conduct contributed to the commission of an illegal act (element 1)

i) generally - contribution must be substantial

ii) planning

iii) instigating/inciting

(1) generally

(2) no “direct and public” requirement

iv) ordering

v) committing

vi) aiding and abetting

(1) defined

(2) either aiding or abetting alone suffices

(3) mental state (mens rea)

(a) specific intent required for aiding and abetting genocide

(4) assistance must substantially contribute/have substantial effect

(5) assistance need not be indispensable

(6) assistance need not be at same time offense committed

(7) presence not required

(8) mere encouragement can suffice

(9) presence combined with authority can constitute assistance

vii) acting with common criminal purpose: may give rise to liability for “committing” or “aiding and abetting”

d) Mental state (mens rea) (element 2)

e) Application

V) COMMAND RESPONSIBILITY (Article 6(3) )

a) Statute

b) Generally

i) liability for both individual criminal responsibility and command responsibility possible

c) Elements

i) the existence of a superior-subordinate relationship of effective control (element 1)

(1) superior-subordinate relationship

(2) effective control

(3) consider de facto as well as de jure control/formal status alone not determinative

(4) applies to civilian as well as military commanders

(5) whether civilians require control similar to military for culpability

ii) mental state (mens rea) (element 2)

(1) knowledge or constructive knowledge that the crime was about to be or was being, or had been committed

(2) responsibility is not based on strict liability

(3) different test for mental state of civilian and military commanders

iii) the failure to take necessary and reasonable measures to prevent or stop the crime, or to punish the perpetrator (element 3)

(1) attempts to prevent or punish must be considered except where the accused ordered the crimes

d) Application

VI) DEFENSES

a) Alibi and special defenses

i) excerpts from Rule 67: reciprocal disclosure of evidence

ii) burden of proof for alibi defense

iii) notice for alibi defense

iv) rebuttal for alibi defense

VII) CHARGING, CONVICTING AND SENTENCING

a) Cumulative charges and convictions

i) cumulative charges permitted

ii) cumulative convictions based on same conduct permitted only where crimes involve a materially distinct element

iii) application – multiple convictions

(1) permitted for genocide and crimes against humanity

(2) permitted for genocide, crimes against humanity and war crimes

b) Sentencing/penalties

i) instruments governing penalties

(1) Article 23: Penalties

(2) Rule 101 of the Rules of Procedure and Evidence

ii) generally

(1) considerations in Statute and Rules not mandatory nor exhaustive

(2) only prison sentences dispensed

(3) restitution

(4) goal of penalties: retribution, deterrence, rehabilitation, protecting society, justice, ending impunity, promoting reconciliation, and restoring peace

iii) determining penalties

(1) taking account of Rwandan law/practice

(2) ranking of crimes: genocide is “crime of crimes,” then crimes against humanity; war crimes are lesser

(3) gradation in sentencing: imposing highest penalties on those who planned or ordered atrocities, or those who committed crimes with especial zeal or sadism

(4) range of sentences

(5) single sentence: discretionary

iv) individualization of penalties

(1) aggravating circumstances

(2) mitigating circumstances

(a) generally

(b) application

VIII) MISCELLANEOUS

a) “Equality of arms” between the parties is not the same as equality of means and resources

b) Presumption of impartiality attaches to judge and tribunal

c) Selective prosecution

d) Guilty plea: conditions for accepting a plea agreement

i) guilty plea must be voluntary

ii) guilty plea must be informed

iii) guilty plea must be unequivocal

ALPHABETICAL INDEX

February 2004