I) GENOCIDE (Article 2)

a) Statute

ICTR Statute, Article 2:

“1. The International Tribunal for Rwanda shall have the power to prosecute persons committing genocide as defined in para. 2 of this article or of committing any of the other acts enumerated in para. 3 of this article.

2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

a) Killing members of the group;

b) Causing serious bodily or mental harm to members of the group;

c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

d) Imposing measures intended to prevent births within the group;

e) Forcibly transferring children of the group to another group.

3. The following acts shall be punishable:

a) Genocide;

b) Conspiracy to commit genocide;

c) Direct and public incitement to commit genocide;

d) Attempt to commit genocide;

e) Complicity in genocide.”

Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T (Trial Chamber), June 7, 2001, para. 55: The Chamber “considers that a crime of genocide is proven if it is established beyond reasonable doubt, firstly, that one of the acts listed under Article 2(2) of the Statute was committed and, secondly, that this act was committed against a specifically targeted national, ethnical, racial or religious group, with the specific intent to destroy, in whole or in part, that group. Genocide therefore invites analysis under two headings: the prohibited underlying acts and the specific genocidal intent or dolus specialis.”

ii) genocide is international customary law and jus cogens

Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T (Trial Chamber), May 21, 1999, para. 88: “[T]he crime of genocide is considered part of international customary law and, moreover, a norm of jus cogens.”

Prosecutor v. Rutaganda, Case No. ICTR-96-3 (Trial Chamber), December 6, 1999, para. 46: “The Genocide Convention is undeniably considered part of customary international law . . . .” See also Prosecutor v. Musema, Case No. ICTR-96-13-A (Trial Chamber), January 27, 2000, para. 15.

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

i) generally

(1) defined

Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Trial Chamber), September 2, 1998, para. 498, 517-522: “Genocide is distinct from other crimes insomuch as it embodies a special intent or dolus specialis. Special intent of a crime is the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged. Thus, the special intent in the crime of genocide lies in ‘the intent to destroy, in whole or in part, a national, ethnical, racial or religious group.’” The Chamber found that “the offender is culpable only when he has committed one of the offences charged under Article 2(2) . . . with the clear intent to destroy, in whole or in part, a particular group. The offender is culpable because he knew or should have known that the act committed would destroy, in whole or in part, a group.” See also Musema, (Trial Chamber), January 27, 2000, para. 164.

Rutaganda, (Trial Chamber), December 6, 1999, para. 59: A person may only be convicted of genocide if he committed one of the enumerated acts with “the specific intent to destroy, in whole or in part, a particular group.”

(2) intent required prior to commission of acts

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 91: “[T]he mens rea must be formed prior to the commission of the genocidal acts.” “[T]he individual acts themselves, however, do not require premeditation; the only consideration is that the act should be done in furtherance of the genocidal intent.”

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 91: “It is this specific intent that distinguishes the crime of genocide from the ordinary crime of murder. The Trial Chamber opines that for the crimes of genocide to occur, the mens rea must be formed prior to the commission of the genocidal acts.”

(3) intent can be inferred

Rutaganda, (Trial Chamber), December 6, 1999, para. 61-63: “[I]ntent can be, on a case-by-case basis, inferred from the material evidence submitted to the Chamber, including the evidence which demonstrates a consistent pattern of conduct by the Accused.” See also Musema, (Trial Chamber), January 27, 2000, para. 167.

Prosecutor v. Semanza, Case No. ICTR-97-20 (Trial Chamber), May 15, 2003, para. 313: “A perpetrator’s mens rea may be inferred from his actions.”

Bagilishema, (Trial Chamber), June 7, 2001, para. 63: “[E]vidence of the context of the alleged culpable acts may help the Chamber to determine the intention of the Accused, especially where the intention is not clear from what that person says or does. The Chamber notes, however, that the use of context to determine the intent of an accused must be counterbalanced with the actual conduct of the Accused. The Chamber is of the opinion that the Accused’s intent should be determined, above all, from his words and deeds, and should be evident from patterns of purposeful action.”

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

Akayesu, (Trial Chamber), September 2, 1998, para. 523-524: “[T]he Chamber considers that intent is a mental factor which is difficult, even impossible to determine,” but found that “in the absence of a confession from the accused,” intent may be inferred from the following factors:

“the general context of the perpetration of other culpable acts systematically directed against that same group, whether . . . committed by the same offender or by others;”

“the scale of atrocities committed;”

the “general nature” of the atrocities committed “in a region or a country;”

“the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups;”

“the general political doctrine which gave rise to the acts;”

“the repetition of destructive and discriminatory acts;” or

“the perpetration of acts which violate, or which the perpetrators themselves consider to violate the very foundation of the group—acts which are not in themselves covered by the list . . . but which are committed as part of the same pattern of conduct.”

See also Musema, (Trial Chamber), January 27, 2000, para. 166.

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 93, 527: The Chamber agreed with Akayesu that intent might be difficult to determine. It stated that the accused’s “actions, including circumstantial evidence, however may provide sufficient evidence of intent,” and that “intent can be inferred either from words or deeds and may be demonstrated by a pattern of purposeful action.” The Chamber noted the following as relevant indicators:

“the number of group members affected;”

“the physical targeting of the group or their property;”

“the use of derogatory language toward members of the targeted group;”

“the weapons employed and the extent of bodily injury;”

“the methodical way of planning;”

“the systematic manner of killing;” and

“the relative proportionate scale of the actual or attempted destruction of a group.”

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

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 94, 276: “[A]lthough a specific plan to destroy does not constitute an element of genocide, it would appear that it is not easy to carry out a genocide without such a plan, or organisation.” “[I]t is virtually impossible for the crime of genocide to be committed without some or indirect involvement on the part of the State given the magnitude of this crime.” “[I]t is unnecessary for an individual to have knowledge of all details of genocidal plan or policy.” “[T]he existence of such a [genocidal] plan would be strong evidence of the specific intent requirement for the crime of genocide.”

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

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

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 96-97: The Chamber held that “‘in part’ requires the intention to destroy a considerable number of individuals who are part of the group.”

Bagilishema, (Trial Chamber), June 7, 2001, para. 64: The Chamber agreed “with the statement of the International Law Commission, that ‘the intention must be to destroy the group as such, meaning as a separate and distinct entity, and not merely some individuals because of their membership in particular group.’ Although the destruction sought need not be directed at every member of the targeted group, the Chamber considers that the intention to destroy must target at least a substantial part of the group.”

(2) actual extermination of entire group not required

Akayesu, (Trial Chamber), September 2, 1998, para. 497: “[G]enocide does not imply the actual extermination of [a] group in its entirety, but is understood as such once any one of the acts mentioned in Article 2(2)(a) through 2(2)(e) is committed with the specific intent to destroy ‘in whole or in part’ a national, ethnical, racial or religious group.” See also Rutaganda, (Trial Chamber), December 6, 1999, para. 48-49.

(3) not necessary to establish genocide throughout country

Akayesu, (Trial Chamber), September 2, 1998, n. 61: “[I]n a case other than that of Rwanda, a person could be found guilty of genocide without necessarily having to establish that genocide had taken place throughout the country concerned.”

(4) destruction

Semanza, (Trial Chamber), May 15, 2003, para. 315: “The drafters of the Genocide Convention . . . unequivocally chose to restrict the meaning of ‘destroy’ to encompass only acts that amount to physical or biological genocide.”

(a) sexual violence as destruction

Akayesu, (Trial Chamber), September 2, 1998, para. 731: The Chambers held that acts of sexual violence can form an integral part of the process of destruction of a group. “These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole.” See also Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 95.

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

(1) meant to cover any stable and permanent group

Akayesu, (Trial Chamber), September 2, 1998, para. 511, 516, 701-702: The Chamber relied on the travaux preparatoires of the Genocide Convention, which indicate that “the crime of genocide was allegedly perceived as targeting only ‘stable’ groups, constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more ‘mobile’ groups which one joins through individual voluntary commitment, such as political and economic groups.” The Chamber stated that the four groups protected by the convention share a “common criterion,” namely, “that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner.” “[I]t was necessary . . . to respect the intent of the drafters . . . which, according to the travaux preparatoires, was clearly to protect any stable and permanent group.” “[T]he Tutsi did indeed constitute a stable and permanent group and were identified as such by all.” See also Musema, (Trial Chamber), January 27, 2000, para. 160-163.

Rutaganda, (Trial Chamber), December 6, 1999, para. 56: “[T]here are no generally and internationally accepted precise definitions [of] national, ethnical, racial and religious groups;” each should “be assessed in the light of a particular political, social and cultural context.” See also Musema, (Trial Chamber), January 27, 2000, para. 161.

(a) whether group membership is subjective or objective

Rutaganda, (Trial Chamber), December 6, 1999, para. 57-58, 373: “[F]or the purposes of applying the Genocide Convention, membership of a group is, in essence, a subjective rather than an objective concept. The victim is perceived by the perpetrator of genocide as belonging to a group slated for destruction. In some instances, the victim may perceive himself/herself as belonging to the said group.” The Chamber, however, held that “a subjective definition alone is not enough to determine victim groups” and, relying on the travaux preparatoires, held that the Genocide Convention “was presumably intended to cover relatively stable and permanent groups.” Therefore, “the Chamber holds that in assessing whether a particular group may be considered as protected from the crime of genocide, it will proceed on a case-by-case basis, taking into account both the relevant evidence proffered and the political, social and cultural context.” See also Musema, (Trial Chamber), January 27, 2000, para. 160-163.

Semanza, (Trial Chamber), May 15, 2003, para. 317: “The Statute of the Tribunal does not provide any insight into whether the group that is the target of an accused’s genocidal intent is to be determined by objective or subjective criteria or by some hybrid formulation. The various Trial Chambers of this Tribunal have found that the determination of whether a group comes within the sphere of protection . . . ought to be assessed on a case-by-case basis by reference to the objective particulars of a given social or historical context, and by the subjective perceptions of the perpetrators. The Chamber finds that the determination of a protected group is to be made on a case-by-case basis, consulting both objective and subjective criteria.”

(2) interpretation of “as such”

Prosecutor v. Niyitegeka, Case No. ICTR-96-14 (Trial Chamber), May 16, 2003, para. 410: The Chamber interpreted “‘as such’ to mean that the act must be committed against an individual because the individual was a member of a specific group and specifically because he belonged to this group, so that the victim is the group itself, not merely the individual.”

Rutaganda, (Trial Chamber), December 6, 1999, para. 60: The act “must have been committed against one or more persons . . . because of their membership in [a specific] group [rather than] by reason of . . . individual identity. The victim of the act is . . . a member of a given group . . . which . . . means the victim of the crime of genocide is the group itself and not the individual alone.” See also Akayesu, (Trial Chamber), September 2, 1998, para. 521; Musema, (Trial Chamber), January 27, 2000, para. 165.

Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-T (Trial Chamber), December 3, 2003, para. 948: “The individual is the personification of the group.”

(3) national group

Akayesu, (Trial Chamber), September 2, 1998, para. 512: “[A] national group is defined as a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties.”

(4) ethnical/ethnic group

Akayesu, (Trial Chamber), September 2, 1998, para. 513: “An ethnic group is generally defined as a group whose members share a common language or culture.”

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 98: “An ethnic group is one whose members share a common language and culture; or, a group which distinguishes itself, as such (self identification); or, a group identified as such by others, including perpetrators of the crimes (identification by others).”

(a) application

Akayesu, (Trial Chamber), September 2, 1998, para. 122-124, 170-172, 701-702, n. 56, n. 57: Based on witness testimony and official classifications, the Chamber held that in Rwanda in 1994, “the Tutsi constituted a group referred to as ‘ethnic,’” and found that the Tutsi did “constitute a stable and permanent group and were identified as such by all.” The Chamber also found the following evidence sufficient to show that it was “a particular group, the Tutsi ethnic group, which was targeted”:

evidence that at roadblocks all over the country, Tutsis were separated from Hutus and killed;

evidence of the “propaganda campaign” by audiovisual and print media, overtly calling for the killing of Tutsis;

classification as either Hutu or Tutsi on identity cards and birth certificates, and by law;

individuals’ self-identification as either Hutu or Tutsi.

The Chambers held this despite its acknowledgement that the “Tutsi population does not have its own language or a distinct culture from the rest of the Rwandan population” or meet the general definition of an ethnic group, i.e. “members [who] speak the same language and/or have the same culture,” because both Hutu and Tutsi share the same language and culture. Also, many Hutu were also killed simply because they were “viewed as having sided with the Tutsi.”

Prosecutor v. Ntakirutimana and Ntakirutimana, Case No. ICTR-96-10 & ICTR-96-17-T (Trial Chamber), February 21, 2003, para. 789: In holding that Elizaphan Ntakirutimana had the requisite intent to commit genocide, the Chamber held that the Tutsi were an ethnic group.

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 291: “[T]he victims of this tragedy were Tutsi civilians which leaves this Chamber satisfied that the targets of the massacres were ‘members of a group,’ in this case an ethnic group.”

Semanza, (Trial Chamber), May 15, 2003, para. 422: “The Chamber took judicial notice of the fact that: ‘Between 6 April 1994 and 17 July 1994, citizens native to Rwanda were severally identified according to the following ethnic classifications: Tutsi, Hutu and Twa’” and held that “the Tutsi in Rwanda were an ‘ethnical’ group.”

(b) association of ethnic group with political agenda

Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-T (Trial Chamber), December 3, 2003, para. 969: “[T]he association of the Tutsi ethnic group with a political agenda, effectively merging ethnic and political identity, does not negate the genocidal animus that motivated the Accused. To the contrary, the identification of Tutsi individuals as enemies of the state associated with political opposition, simply by virtue of their Tutsi ethnicity, underscores the fact that their membership in the ethnic group, as such, was the sole basis on which they were targeted.”

(5) racial group

Akayesu, (Trial Chamber), September 2, 1998, para. 514: “The conventional definition of racial group is based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors.”

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 98: “A racial group is based on hereditary physical traits often identified with geography.”

(6) religious group

Akayesu, (Trial Chamber), September 2, 1998, para. 515: “The religious group is one whose members share the same religion, denomination or mode of worship.”

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 98: “A religious group includes denomination or mode of worship or a group sharing common beliefs.”

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

Akayesu, (Trial Chamber), September 2, 1998, para. 720-721: In one instance, the Chamber held that certain acts constituted “serious bodily or mental harm” when a woman was beaten, threatened and interrogated about the whereabouts of another person, but that because she was Hutu, “they cannot constitute acts of genocide against the Tutsi group.”

iv) application

Akayesu, (Trial Chamber), September 2, 1998, para. 117-121, 168-169: The Chamber found the following sufficient to demonstrate “intent to destroy, in whole or in part”:

expert and other testimony showing statements of political leaders, songs, and popular slogans which evidenced an intent to eliminate all Tutsis in Rwanda;

testimony on the cutting of Achilles’ tendons to prevent victims from fleeing;

expert testimony and images of bodies thrown into a tributary of the Nile, showing the intent to return Tutsis to their alleged place of origin;

testimony on the killing of newborns;

testimony of proverbs and public statements advocating the killing of pregnant women, including Hutu women carrying fetuses of Tutsi men, because of the patrilinear society.

Niyitegeka, (Trial Chamber), May 16, 2003, para. 427: In finding Niyitegeka guilty of conspiracy to commit genocide, the Chamber held as follows: “Considering the Accused’s participation and attendance at meetings . . . to discuss the killing of Tutsi in Bisesero, his planning of attacks against Tutsi in Bisesero, his promise and distribution of weapons to attackers to be used in attacks against Tutsi, his expression of support . . . of the Prime Minister, Jean Kambanda, and the Interim Government, and actions or inactions in failing to protect the Tutsi population, and his leadership role in conducting and speaking at the meetings . . . the Chamber finds that the Accused had the requisite intent, together with his co-conspirators, to destroy, in whole or in part, the Tutsi ethnic group.”

Niyitegeka, (Trial Chamber), May 16, 2003, para. 436-437: In finding Niyitegeka guilty of direct and public incitement to commit genocide, the Chamber held as follows: “Considering the Accused’s spoken words, urging the attackers to work, thanking, encouraging and commending them for the ‘work’ they had done, ‘work’ being a reference to killing Tutsi . . . the Chamber finds that the Accused had the requisite intent to destroy, in whole or in part, the Tutsi ethnic group.”

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 957-969: “In ascertaining the intent of the Accused, the Chamber has considered their individual statements and acts, as well as the message they conveyed through the media they controlled.” “[The] Kangura [newspaper] and RTLM [radio station] explicitly and repeatedly, in fact relentlessly, targeted the Tutsi population for destruction. Demonizing the Tutsi as having inherently evil qualities, equating the ethnic group with ‘the enemy’ and portraying its women as seductive enemy agents, the media called for the extermination of the Tutsi ethnic group as a response to the political threat that they associated with Tutsi ethnicity.” “The genocidal intent in the activities of the CDR [political party that depicted the Tutsi population as the enemy] was expressed through the phrase ‘tubatsembasembe’ or ‘let’s exterminate them’, a slogan chanted repeatedly at CDR rallies and demonstrations. At a policy level, CDR communiques called on the Hutu population to ‘neutralize by all means possible’ the enemy, defined to be the Tutsi ethnic group.” “The editorial policies as evidenced by the writings of Kangura and the broadcasts of RTLM constitute, in the Chamber’s view, conclusive evidence of genocidal intent. Individually, each of the Accused made statements that further evidence his genocidal intent.” “[T]he Chamber finds beyond a reasonable doubt that Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze acted with intent to destroy, in whole or in part, the Tutsi ethnic group.”

d) Underlying offenses

i) killing members of the group

(1) elements

Semanza, (Trial Chamber), May 15, 2003, para. 319: “[I]n addition to showing that an accused possessed an intent to destroy the group as such, in whole or in part, the Prosecutor must show the following elements: (1) the perpetrator intentionally killed one or more members of the group, without the necessity of premeditation; and (2) such victim or victims belonged to the targeted ethnical, racial, national, or religious group.”

(2) intent required

Akayesu, (Trial Chamber), September 2, 1998, para. 500-501: The Chamber noted that the French version of the Statute uses “meurtre” while the English version uses “killing.” The Chamber found that “killing” was “too general since it could . . . include both intentional and unintentional homicides whereas the term ‘meurtre’ . . . is more precise.” Thus, the Chamber held that “‘meurtre’ is homicide committed with the intent to cause death.”

Compare Rutaganda, (Trial Chamber), December 6, 1999, para. 50: “Article 2(2)(a) of the Statute, like the corresponding provisions of the Genocide Convention, refers to ‘meurtre’ in the French version and to ‘killing’ in the English version. In the opinion of the Chamber, the term ‘killing’ includes both intentional and unintentional homicides, whereas the word ‘meurtre’ covers homicide committed with the intent to cause death. Given the presumption of innocence, and pursuant to the general principles of criminal law, the Chamber holds that the version more favourable to the Accused should be adopted, and finds that Article 2(2)(a) of the Statute must be interpreted in accordance with the definition of murder in the Criminal Code of Rwanda, which provides, under Article 311, that ‘Homicide committed with intent to cause death shall be treated as murder.’” See also Musema, (Trial Chamber), January 27, 2000, para. 155; Bagilishema, (Trial Chamber), June 7, 2001, para. 57-58.

Compare Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-A (Appeals Chamber), June 1, 2001, para. 151: “[T]here is virtually no difference” between the terms “killing” and “meurtre” as either term is linked to the intent to destroy in whole or in part. Both should refer to intentional but not necessarily premeditated murder.

(3) causation

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 952-953: “The nature of media is such that causation of killing and other acts of genocide will necessarily be effected by an immediately proximate cause in addition to the communication itself. [T]his does not diminish the causation to be attributed to the media, or the criminal accountability of those responsible for the communication.” “The Chamber accepts that this moment in time [the downing of the President’s plane and the death of President Habyarimana] served as a trigger for the events that followed. That is evident. But if the downing of the plane was the trigger, then RTLM [radio station], [the] Kangura [newspaper] and CDR [political party that depicted the Tutsi population as the enemy] were the bullets in the gun. The trigger had such a deadly impact because the gun was loaded. [T]he killing of Tutsi civilians can be said to have resulted, at least in part, from the message of ethnic targeting for death that was clearly and effectively disseminated through RTLM, Kangura and CDR, before and after 6 April 1994.”

(4) application

Akayesu, (Trial Chamber), September 2, 1998, para. 114-116: The Chamber found the following evidence of widespread killings throughout Rwanda sufficient to show both “killing” and “causing serious bodily harm to members of a group”:

testimony regarding “heaps of bodies . . . everywhere, on the roads, on the footpaths and in rivers and, particularly, the manner in which all these people had been killed;”
testimony stating that “many wounded persons in the hospital . . . were all Tutsi and . . . apparently, had sustained wounds inflicted with machetes to the face, the neck, and also to the ankle, at the Achilles' tendon, to prevent them from fleeing;”
testimony that the “troops of the Rwandan Armed Forces and of the Presidential Guard [were] going into houses in Kigali that had been previously identified in order to kill” and testimony of other murders elsewhere;
“photographs of bodies in many churches” in various areas;
testimony regarding “identity cards strewn on the ground, all of which were marked ‘Tutsi.’”

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

(1) general definition

Akayesu, (Trial Chamber), September 2, 1998, para. 504: “[S]erious bodily or mental harm” means, inter alia, “acts of torture, be they bodily or mental, inhumane or degrading treatment, persecution.”

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 108-113: The meanings of “serious bodily harm” and “serious mental harm” should be “determined on a case-by-case basis, using a common sense approach.” The meaning of “causing serious bodily harm” is largely self-explanatory, and “could be construed to mean harm that seriously injures the health, causes disfigurement or causes any serious injury to the external, internal organs or senses.” “[C]ausing serious mental harm should be interpreted on a case-by-case basis in light of the relevant jurisprudence.”

Rutaganda, (Trial Chamber), December 6, 1999, para. 51: “[S]erious bodily or mental harm” “include[s] acts of bodily or mental torture, inhumane or degrading treatment, rape, sexual violence, and persecution.” See also Musema, (Trial Chamber), January 27, 2000, para. 156; Bagilishema, (Trial Chamber), June 7, 2001, para. 59.

(2) no requirement of permanency or irremediability

Akayesu, (Trial Chamber), September 2, 1998, para. 502: The harm did not need to be “permanent and irremediable.” See also Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 108; Rutaganda, (Trial Chamber), December 6, 1999, para. 51; Musema, (Trial Chamber), January 27, 2000, para. 156; Bagilishema, (Trial Chamber), June 7, 2001, para. 59; Semanza, (Trial Chamber), May 15, 2003, para. 320-322.

Compare Semanza, (Trial Chamber), May 15, 2003, para. 321: “Serious mental harm” means “more than minor or temporary impairment of mental faculties.”

See also Section (I)(d)(i)(4) above for application.

(3) rape and sexual violence can qualify

Akayesu, (Trial Chamber), September 2, 1998, para. 706-707, 731-734, 688: Rape and other acts of sexual violence constitute infliction of “serious bodily or mental harm” on members of the group. See also Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 108; Musema, (Trial Chamber), January 27, 2000, para. 156.

(4) threats during interrogation can qualify

Akayesu, (Trial Chamber), September 2, 1998, para. 711-712: Death threats during interrogation, alone or coupled with beatings, constitute infliction of “serious bodily or mental harm” inflicted on members of the group. See also Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 108.

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

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 112: “The Chamber considers that an accused may be held liable under these circumstances only where, at the time of the act, the accused had the intention to inflict serious mental harm in pursuit of the specific intention to destroy a group in whole or in part.”

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

Akayesu, (Trial Chamber), September 2, 1998, para. 505-506: This phrase means “methods of destruction by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction.” This includes, “inter alia, subjecting a group of people to a subsistence diet, systematic expulsion from homes and the reduction of essential medical services below minimum requirement.” See also Rutaganda, (Trial Chamber), December 6, 1999, para. 52; Musema, (Trial Chamber), January 27, 2000, para. 157.

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 115-116: “[D]eliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” “include[s] circumstances which will lead to a slow death, for example, lack of proper housing, clothing, hygiene and medical care or excessive work or physical exertion” and “methods of destruction which do not immediately lead to the death of members of the group.” “[T]he conditions of life envisaged include rape, the starving of a group of people, reducing required medical services below a minimum, and withholding sufficient living accommodation for a reasonable period.”

But see Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 548: The Chamber held that although the Tutsi group in Kibuye were “deprived of food, water and adequate sanitary and medical facilities,” “these deprivations were not the deliberate creation of conditions of life . . . intended to bring about their destruction” because these “deprivations . . . were a result of the persecution of the Tutsis, with the intent to exterminate them within a short period of time thereafter.” Furthermore, the Chambers found that the times periods “were not of sufficient length or scale to bring about destruction of the group.”

iv) imposing measures intended to prevent births within the group

Akayesu, (Trial Chamber), September 2, 1998, para. 507-508: “[I]mposing measures intended to prevent births within the group” include: “sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example . . . is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group.” The Chamber noted that the measures may be mental as well as physical. “For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate.” See also Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 117; Rutaganda, (Trial Chamber), December 6, 1999, para. 53; Musema, (Trial Chamber), January 27, 2000, para. 158.

v) forcibly transferring children of the group to another group

Akayesu, (Trial Chamber), September 2, 1998, para. 509: “[T]he objective [of this act] is not only to sanction a direct act of forcible physical transfer, but also to sanction acts of threats or trauma which would lead to the forcible transfer of children from one group to another.” See also Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 118; Rutaganda, (Trial Chamber), December 6, 1999, para. 54; Musema, (Trial Chamber), January 27, 2000, para. 159.

e) Punishable acts

i) genocide

See discussion above.

ii) conspiracy to commit genocide

(1) definition

Musema, (Trial Chamber), January 27, 2000, para. 191: “[C]onspiracy to commit genocide is to be defined as an agreement between two or more persons to commit the crime of genocide.” See also Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 798; Niyitegeka, (Trial Chamber), May 16, 2003, para. 423; Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1041.

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1042: “The offence of conspiracy requires the existence of an agreement, which is the defining element of the crime of conspiracy.”

(2) mental state (mens rea)

Musema, (Trial Chamber), January 27, 2000, para. 192: The mens rea of the crime of conspiracy to commit genocide “rests on the concerted intent to commit genocide, that is to destroy, in whole or in part, a national, ethnic, racial or religious group, as such.” The “requisite intent for the crime of conspiracy to commit genocide is . . . the intent required for the crime of genocide, that is the dolus specialis of genocide.”

(3) conspiracy need not be successful

Musema, (Trial Chamber) January 27, 2000, para. 194: The “crime of conspiracy to commit genocide is punishable, even if it fails to produce a result . . . even if the substantive offence, in this case genocide, has not actually been perpetrated.”

Niyitegeka, (Trial Chamber), May 16, 2003, para. 423: “[T]he act of conspiracy itself is punishable, even if the substantive offence has not actually been perpetrated.”

(4) a formal agreement is not needed

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1045: “The essence of the charge of conspiracy is the agreement among those charged. [T]he existence of a formal or express agreement is not needed to prove the charge of conspiracy.”

(5) conspiracy can be inferred/knowledge requirement

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1047: “[C]onspiracy to commit genocide can be inferred from coordinated actions by individuals who have a common purpose and are acting within a unified framework. A coalition, even an informal coalition, can constitute such a framework so long as those acting within the coalition are aware of its existence, their participation in it, and its role in furtherance of their common purpose.”

(6) institutional coordination

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1048: “[C]onspiracy to commit genocide can be comprised of individuals acting in an institutional capacity as well as or even independently of their personal links with each other. Institutional coordination can form the basis of a conspiracy among those individuals who control the institutions that are engaged in coordinated action.”

(7) conspiracy is an inchoate offense

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1044: “[C]onspiracy is an inchoate offence, and as such has a continuing nature that culminates in the commission of the acts contemplated by the conspiracy.”

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

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1043: “The Appeals Chamber in Musema has affirmed that distinct crimes may justify multiple convictions, provided that each statutory provision that forms the basis for a conviction has a materially distinct element not contained in the other. The Chamber notes that planning is an act of commission of genocide, pursuant to Article 6(1) of the Statute. The offence of conspiracy requires the existence of an agreement, which is the defining element of the crime of conspiracy. Accordingly, the Chamber considers that the Accused can be held criminally responsible for both the act of conspiracy and the substantive offence of genocide that is the object of the conspiracy.”

But see Musema, (Trial Chamber), January 27, 2000, para. 198: “[T]he accused cannot be convicted of both genocide and conspiracy to commit genocide on the basis of the same acts.”

(9) application

Niyitegeka, (Trial Chamber), May 16, 2003, para. 428: “Bearing in mind that the Accused and others acted together as leaders of attacks against Tutsi . . . taking into account the organized manner in which the attacks were carried out, which presupposes the existence of a plan, and noting, in particular, that the Accused sketched a plan for an attack in Bisesero at a meeting . . . to which the people in attendance . . . agreed, the Chamber finds that the above facts evidence the existence of an agreement [i.e., conspiracy] between the Accused and others . . . to commit genocide.”

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1049-1055: “Nahimana, Barayagwiza and Ngeze consciously interacted with each other, using the institutions they controlled to promote a joint agenda, which was the targeting of the Tutsi population for destruction. There was public presentation of this shared purpose and coordination of efforts to realize their common goal.” “The Chamber finds that Nahimana, Ngeze and Barayagwiza, through personal collaboration as well as interaction among institutions within their control, namely RTLM [radio station], [the] Kangura [newspaper] and CDR [political party that depicted the Tutsi population as the enemy], are guilty of conspiracy to commit genocide. . . .”

iii) direct and public incitement to commit genocide

Akayesu, (Trial Chamber), September 2, 1998, para. 559: “[D]irect and public incitement must be defined . . . as directly provoking the perpetrator(s) to commit genocide, whether through speeches, shouting or threats uttered in public places or at public gatherings, or through the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings, or through the public display of placards or posters, or through any other means of audiovisual communication.”

Akayesu, (Trial Chamber), September 2, 1998, para. 555: “Incitement is defined in Common law systems as encouraging or persuading another to commit an offence” and “[o]ne line of authority . . . would also view threats or other forms of pressure as a form of incitement.” “Civil law systems punish direct and public incitement assuming the form of provocation, which is defined as an act intended to directly provoke another to commit a crime or a misdemeanour through speeches, shouting or threats, or any other means of audiovisual communication.” Under Civil law, the elements of provocation are “direct” and “public.”

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1017: “[T]he crime of direct and public incitement to commit genocide, like conspiracy, is an inchoate offence that continues in time until the completion of the acts contemplated.”

(1) direct

Akayesu, (Trial Chamber), September 2, 1998, para. 557: Incitement must “assume a direct form and specifically provoke another to engage in a criminal act.” “[M]ore than mere vague or indirect suggestion goes to constitute direct incitement.” “Under Civil law systems, provocation, the equivalent of incitement, is regarded as . . . direct where it is aimed at causing a specific offence to be committed. The prosecution must prove a definite causation between the act characterized as incitement, or provocation in this case, and a specific offence.” “[I]ncitement may be direct, and nonetheless implicit.” See also Niyitegeka, (Trial Chamber), May 16, 2003, para. 431.

Akayesu, (Trial Chamber), September 2, 1998, para. 557-558: The “direct” element of incitement “should be viewed in the light of its cultural and linguistic context.” The Chamber will assess it “on a case-by-case basis, in light of the culture of Rwanda and the specific circumstances of the instant case.” It would do this “by focusing mainly on the issue of whether the persons for whom the message was intended immediately grasped the implication thereof.” See also Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1011.

(2) public

Akayesu, (Trial Chamber), September 2, 1998, para. 556: Whether incitement is “public” should be evaluated on the basis of two factors: “the place where the incitement occurred and whether or not assistance was selective or limited.” In Civil law systems, words are “public where they [are] spoken aloud in a place that [is] public by definition.” “According to the International Law Commission, public incitement is characterized by a call for criminal action to a number of individuals in a public place or to members of the general public at large by such means as the mass media, for example, radio or television.” See also Prosecutor v. Ruggiu, Case No. ICTR-97-32-I (Trial Chamber), June 1, 2000, para. 17; Niyitegeka, (Trial Chamber), May 16, 2003, para. 431.

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

Akayesu, (Trial Chamber), September 2, 1998, para. 560: The crime of inciting genocide requires “the intent to directly prompt or provoke another to commit genocide,” and this “implies a desire on the part of the perpetrator to create by his actions a particular state of mind necessary to commit such a crime in the minds of the person(s) he is so engaging.” This means that “the person who is inciting to commit genocide must himself have the special intent to commit genocide, namely, to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” See also Ruggiu, (Trial Chamber), June 1, 2000, para. 14; Niyitegeka, (Trial Chamber), May 16, 2003, para. 431; Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1012.

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1001: “Editors and publishers have generally been held responsible for the media they control. In determining the scope of this responsibility, the importance of intent, that is the purpose of the communications they channel, emerges from the jurisprudence – whether or not the purpose in publicly transmitting the material was of a bona fide nature (e.g. historical research, the dissemination of news and information, the public accountability of government authorities). The actual language used in the media has often been cited as an indicator of intent.”

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

Akayesu, (Trial Chamber), September 2, 1998, para. 562: Even where “incitement failed to produce the result expected by the perpetrator,” unsuccessful acts of incitement can be punished. See also Ruggiu, (Trial Chamber), June 1, 2000, para. 16; Niyitegeka, (Trial Chamber), May 16, 2003, para. 431; Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1013.

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1015 and 1029: “In Akayesu, the Tribunal considered in its legal findings on the charge of direct and public incitement to genocide that ‘there was a causal relationship between the Defendant’s speech to [the] crowd and the ensuing widespread massacres of Tutsis in the community.’ The Chamber notes that this causal relationship is not requisite to a finding of incitement. It is the potential of the communication to cause genocide that makes it incitement. [W]hen this potential is realized, a crime of genocide as well as incitement to genocide has occurred.” “With regard to causation . . . incitement is a crime regardless of whether it has the effect it intends to have. In determining whether communications represent an intent to cause genocide and thereby constitute incitement, the Chamber considers it significant that in fact genocide occurred. That the media intended to have this effect is evidenced in part by the fact that it did have this effect.”

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1007: “In considering whether particular expression constitutes a form of incitement on which restrictions would be justified, the international jurisprudence does not include any specific causation requirement linking the expression at issue with the demonstration of a direct effect.”

(5) application

Niyitegeka, (Trial Chamber), May 16, 2003, para. 436-437: “Considering the Accused’s spoken words, urging the attackers to work, thanking, encouraging and commending them for the ‘work’ they had done, ‘work’ being a reference to killing Tutsi . . . the Chamber finds that the Accused had the requisite intent to destroy, in whole or in part, the Tutsi ethnic group” and found him responsible for “inciting attackers to cause the death and serious bodily and mental harm of Tutsi refugees.”

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1031-1034: “RTLM [radio station] broadcasting was a drumbeat, calling on listeners to take action against the enemy and enemy accomplices, equated with the Tutsi population. The phrase ‘heating up heads’ captures the process of incitement systematically engaged in by RTLM, which after 6 April 1994 was also known as ‘Radio Machete.’ The nature of radio transmission made RTLM particularly dangerous and harmful, as did the breadth of its reach. Unlike print media, radio is immediately present and active.”

“[T]he Chamber notes the broadcast of 4 June 1994, by Kantano Habimana, as illustrative of the incitement engaged in by RTLM. Calling on listeners to exterminate the Inkotanyi, who would be known by height and physical appearance, Habimana told his followers, ‘Just look at his small nose and then break it.’ The identification of the enemy by his nose and the longing to break it vividly symbolize the intent to destroy the Tutsi ethnic group.”

The Chamber “found beyond a reasonable doubt that Nahimana was responsible for RTLM programming” and found him “guilty of direct and public incitement to genocide . . . pursuant to Article 6(1) and Article 6(3) of the Statute.”

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1035: “The killing of Tutsi civilians was promoted by the CDR [a political party that depicted the Tutsi population as the enemy], as evidenced by the chanting of ‘tubatsembatsembe’ or ‘let’s exterminate them,’ by Barayagwiza himself and by CDR members and Impuzamugambi in his presence at public meetings and demonstrations. The reference to ‘them’ was understood to mean the Tutsi population. The killing of Tutsi civilians was also promoted by the CDR through the publication of communiqués and other writings that called for the extermination of the enemy and defined the enemy as the Tutsi population. The Chamber notes the direct involvement of Barayagwiza in this call for genocide. Barayagwiza was at the organizational helm of CDR. He was also on site at the meetings, demonstrations and roadblocks that created an infrastructure for the killing of Tutsi civilians.” The Chamber found “Barayagwiza guilty of direct and public incitement to genocide” pursuant to Article 6(1) and Article 6(3) of the Statute.

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1036-1038: “Many of the writings published in [the] Kangura [newspaper] combined ethnic hatred and fear-mongering with a call to violence to be directed against the Tutsi population, who were characterized as the enemy or enemy accomplices. The [article entitled] Appeal to the Conscience of the Hutu and the cover of Kangura No. 26 are two notable examples in which the message clearly conveyed to the readers of Kangura was that the Hutu population should ‘wake up’ and take the measures necessary to deter the Tutsi enemy from decimating the Hutu. The Chamber notes that the name Kangura itself means ‘to wake up others.’ What it intended to wake the Hutu up to is evidenced by its content, a litany of ethnic denigration presenting the Tutsi population as inherently evil and calling for the extermination of the Tutsi as a preventive measure. The Chamber notes the increased attention in 1994 issues of Kangura to the fear of an RPF attack and the threat that killing of innocent Tutsi civilians that would follow as a consequence.” “As founder, owner and editor of Kangura, Hassan Ngeze directly controlled the publication and all of its contents . . . Ngeze used the publication to instill hatred, promote fear, and incite genocide. It is evident that Kangura played a significant role, and was seen to have played a significant role, in creating the conditions that led to acts of genocide.” The Chamber found Ngeze, for his role as founder, owner and editor of Kangura, guilty of direct and public incitement to genocide pursuant to Article 6(1) of the Statute.

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1039: “Hassan Ngeze often drove around with a megaphone in his vehicle, mobilizing the Hutu population to come to CDR meetings and spreading the message that the Inyenzi would be exterminated, Inyenzi meaning, and being understood to mean, the Tutsi ethnic minority. For these acts, which called for the extermination of the Tutsi population, the Chamber finds Hassan Ngeze guilty of direct and public incitement to genocide” pursuant to Article 6(1) of the Statute.

(a) distinguishing incitement from legitimate use of media

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1020-1021: “[I]t is critical to distinguish between the discussion of ethnic consciousness and the promotion of ethnic hatred.” “[S]peech constituting ethnic hatred results from the stereotyping of ethnicity combined with its denigration.”

a. importance of tone

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1022: “[T]he accuracy of the statement is only one factor to be considered in the determination of whether a statement is intended to provoke rather than to educate those who receive it. The tone of the statement is as relevant to this determination as is its content.”

b. importance of context

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1022: “The Chamber also considers the context in which the statement is made to be important. A statement of ethnic generalization provoking resentment against members of that ethnicity would have a heightened impact in the context of a genocidal environment. It would be more likely to lead to violence. At the same time the environment would be an indicator that incitement to violence was the intent of the statement.”

c. distinguish informative use

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1024: “The Chamber recognizes that some media are advocacy-oriented and considers that the issue of importance to its findings is not whether the media played an advocacy role but rather the content of what it was actually advocating. In cases where the media disseminates views that constitute ethnic hatred and calls to violence for informative or educational purposes, a clear distancing from these is necessary to avoid conveying an endorsement of the message and in fact to convey a counter-message to ensure that no harm results from the broadcast. The positioning of the media with regard to the message indicates the real intent of the message, and to some degree the real message itself.”

d. distinguish legitimate civil defense

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1025: “The Chamber accepts that the media has a role to play in the protection of democracy and where necessary the mobilization of civil defence for the protection of a nation and its people. What distinguishes both Kangura and RTLM from an initiative to this end is the consistent identification made by the publication and the radio broadcasts of the enemy as the Tutsi population. Readers and listeners were not directed against individuals who were clearly defined to be armed and dangerous. Instead, Tutsi civilians and in fact the Tutsi population as a whole were targeted as the threat.”

e. ethnic expressions should receive more scrutiny

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1008: “The special protections for this kind of speech [speech of the so-called ‘majority population,’ in support of the government] should accordingly be adapted, in the Chamber’s view, so that ethnically specific expression would be more rather than less carefully scrutinized to ensure that minorities without equal means of defence are not endangered.”

f. international law is point of reference

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1010: “The Chamber considers international law, which has been well developed in the areas of freedom from discrimination and freedom of expression, to be the point of reference for its consideration of these issues, noting that domestic law varies widely while international law codifies evolving universal standards.”

iv) attempt to commit genocide

v) complicity in genocide

(1) definition

Semanza, (Trial Chamber), May 15, 2003, para. 393, 395: “[P]rior jurisprudence has defined the term complicity as aiding and abetting, instigating, and procuring.” “[C]omplicity to commit genocide in Article 2(3)(e) refers to all acts of assistance or encouragement that have substantially contributed to, or have had a substantial effect on, the completion of the crime of genocide.”

Akayesu, (Trial Chamber), September 2, 1998, para. 533-537: The Chamber defined complicity “per the Rwandan Penal Code,” listing the following as elements of complicity in genocide:

“complicity by procuring means, such as weapons, instruments or any other means, used to commit genocide, with the accomplice knowing that such means would be used for such a purpose;
complicity by knowingly aiding or abetting a perpetrator of a genocide in the planning or enabling acts thereof;
complicity by instigation, for which a person is liable who, though not directly participating in the crime of genocide crime, gave instructions to commit genocide, through gifts, promises, threats, abuse of authority or power, machinations or culpable artifice, or who directly incited to commit genocide.”

See also Musema, (Trial Chamber), January 27, 2000, para. 179; Bagilishema, (Trial Chamber), June 7, 2001, para. 69-70.

(a) complicity requires a positive act

Akayesu, (Trial Chamber), September 2, 1998, para. 485, 546-548: “[C]omplicity requires a positive act, i.e., an act of commission, whereas aiding and abetting may consist in failing to act or refraining from action.”

(2) mental state (mens rea)

Akayesu, (Trial Chamber), September 2, 1998, para. 538-539, 544: “The intent or mental element of complicity implies . . . that, at the moment he acted, the accomplice knew of the assistance he was providing in the commission of the principal offence. In other words, the accomplice must have acted knowingly.” He is not required to “wish that the principal offence be committed.” “[A]nyone who knowing of another's criminal purpose, voluntarily aids him or her in it, can be convicted of complicity even though he regretted the outcome of the offence.” Thus, “the mens rea . . . required for complicity in genocide is knowledge of the genocidal plan.”

Semanza, (Trial Chamber), May 15, 2003, para. 395: “The accused must have acted intentionally and with the awareness that he was contributing to the crime of genocide, including all its material elements.”

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

Akayesu, (Trial Chamber), September 2, 1998, para. 540-545: “[T]he intent of the accomplice is . . . to knowingly aid or abet one or more persons to commit the crime of genocide.” “Therefore . . . an accomplice to genocide need not necessarily possess the dolus specialis of genocide, namely the specific intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such.” Thus, “an accused is liable as an accomplice to genocide if he knowingly aided or abetted or instigated one or more persons in the commission of genocide, while knowing that such a person or persons were committing genocide, even though the accused himself did not have the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” Musema, (Trial Chamber), January 27, 2000, para. 183; Bagilishema, (Trial Chamber), June 7, 2001, para. 71.

(3) genocide required

Akayesu, (Trial Chamber), September 2, 1998, para. 527-531: “[C]omplicity can only exist when there is a punishable, principal act, in the commission of which the accomplice has associated himself. Complicity, therefore, implies a predicate offence committed by someone other than the accomplice.” “[F]or an accused to be found guilty of complicity of genocide, it must, first of all, be proven . . . that the crime of genocide has, indeed, been committed.” See also Musema, (Trial Chamber), January 27, 2000, para. 170-173.

(4) principal perpetrator need not be identified or convicted

Akayesu, (Trial Chamber), September 2, 1998, para. 531: A person can be tried for complicity in genocide “even where the principal perpetrator of the crime has not been identified, or where, for any other reasons, guilt could not be proven.” See also Musema, (Trial Chamber), January 27, 2000, para. 174.

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

Akayesu, (Trial Chamber), September 2, 1998, para. 532: “[A]n individual cannot . . . be both the principal perpetrator of a particular act and the accomplice thereto.” “[T]he same individual cannot be convicted of both crimes for the same act.” Musema, (Trial Chamber), January 27, 2000, para. 175; Bagilishema (Trial Chamber), June 7, 2001, para. 67.

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1056: “[T]he crime of complicity in genocide and the crime of genocide are mutually exclusive, as one cannot be guilty as a principal perpetrator and as an accomplice with respect to the same offence.”

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

Akayesu, (Trial Chamber), September 2, 1998, para. 546-548: Individual criminal responsibility under Article 6(1) of the ICTR Statute covers “[a] person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present Statute.” These require specific genocidal intent, namely, “the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such,” whereas complicity in genocide does not. Another difference is that, “complicity requires a positive act, i.e., an act of commission . . . .”

But see Semanza, (Trial Chamber), May 15, 2003, para. 394: “[T]here is no material distinction between complicity in Article 2(3)(e) [complicity in genocide] of the Statute and the broad definition accorded to aiding and abetting in Article 6(1). The Chamber further notes that the mens rea requirement for complicity to commit genocide in Article 2(3)(e) mirrors that for aiding and abetting and the other forms of accomplice liability in Article 6(1).”

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February 2004