Semanza Judgement 15 May 2003

308. Count 1 of the Indictment charges the Accused with committing genocide. Count 2 charges the Accused with direct and public incitement to commit genocide. Count 3 charges him with complicity to commit genocide. Direct and public incitement to commit genocide and complicity in genocide are discussed in the Individual Criminal Responsibility section below.

310. The Indictment charges the Accused with genocide by killing and causing serious bodily or mental harm, including rapes and other forms of sexual violence, against members of the Tutsi ethnical or racial group. The Chamber will discuss only those elements that are applicable to determining liability for the crime of genocide in this case.

311. In order to find an accused guilty of the crime of genocide it must be proved that he possessed the requisite mens rea of the genocidal acts listed in Article 2 of the Statue. Accordingly, it must be demonstrated that the alleged perpetrator committed any of the enumerated acts with the intent to destroy, in whole or in part, a group, as such, that is defined by one of the protected categories, nationality, race, ethnicity or religion. [533]

312. The determination of mens rea in the case of genocide requires the following: firstly, it must be established that a person, who killed or caused serious bodily or mental harm to another person, did so on the basis of the victim’s membership in a protected group; secondly, it must be established that the perpetrator’s intent was to destroy that group as such in whole or in part.

313. A perpetrator’s mens rea may be inferred from his actions. While noting the inherent difficulty of finding an accused’s genocidal intent in the absence of a confession or other admissions, the Akayesu Judgement presents various factors that a Chamber may examine to infer the accused’s mental state:

314. The Chamber adopts the methods enumerated in Akayesu for assessing the specific genocidal intent of an accused.

315. Article 2 of the Statute indicates that the perpetrator must be shown to have committed the enumerated prohibited acts with the intent to “destroy” a group. The drafters of the Genocide Convention, from which the Tribunal’s Statute borrows the definition of genocide verbatim, unequivocally chose to restrict the meaning of “destroy” to encompass only acts that amount to physical or biological genocide. [535]

316. Although there is no numeric threshold of victims necessary to establish genocide, the Prosecutor must prove beyond a reasonable doubt that the perpetrator acted with the intent to destroy the group as such, in whole or in part. [536] The intention to destroy must be, at least, to destroy a substantial part of the group. [537]

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 created by Article 2 of the Statute 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. [538] 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.

318. Article 2(2) of the Statute lists the conduct that constitutes the actus reus of the crime of genocide.

319. In order to be held criminally liable for genocide by killing members of a group, in 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; [539] and (2) such victim or victims belonged to the targeted ethnical, racial, national, or religious group. [540]

320. The term “serious bodily harm” is not defined in the Statute. Nevertheless, the Chamber finds that the Statute seeks to punish serious acts of physical violence, including sexual violence, falling short of killing. In the Kayishema and Ruzindana Judgement, the Tribunal ruled that serious bodily harm is “harm that seriously injures the health, causes disfigurement or causes any serious injury to the external, internal organs or senses”. [541] Moreover, the Tribunal has ruled that “serious harm” need not be an injury that is permanent or irremediable. [542]

321. Similarly, the term “serious mental harm” is not defined in the Statute. This Tribunal has held “serious mental harm” to mean more than minor or temporary impairment of mental faculties. [543]

322. The Chamber adopts the foregoing standards pronounced in Akayesu and Kayishema and Ruzindana as to the determination of serious bodily or mental harm. In addition, the Chamber finds that serious mental harm need not be permanent or irremediable.

323. In addition to showing that an accused possessed an intent to destroy a protected group, in whole or in part, as such, the following elements must be proved in order to show that the accused committed the crime of genocide by causing serious bodily or mental harm to members of the group: (1) the perpetrator intentionally caused serious bodily or mental harm to one or more members of the group; [544] and (2) such person or persons belonged to the targeted national, ethnical, racial, or religious group. [545]

324. Counts 4, 5, 6, 8, 10, 11, 12, and 14 of the Indictment charge the Accused with crimes against humanity.

326. A crime against humanity must have been committed as part of a widespread or systematic attack against any civilian population on discriminatory grounds. Although the act need not be committed at the same time and place as the attack or share all of the features of the attack, it must, by its characteristics, aims, nature, or consequence objectively form part of the discriminatory attack.

327. An “attack” is generally defined as an unlawful act, event, or series of events of the kind listed in Article 3(a) through (i) of the Statute. [546] An “attack” does not necessarily require the use of armed force, it could also involve other forms of inhumane mistreatment of the civilian population. [547]

328. This Tribunal has consistently held that, in line with customary international law, the requirements of “widespread” and “systematic” should be read disjunctively in accordance with the English version of the Statute, rather than cumulatively in accordance with the French text. [548] The Chamber observes that this jurisprudence does not fully articulate the basis of such a custom. However, the Chamber notes that a Trial Chamber of the International Tribunal for the Former Yugoslavia (“ICTY”) reviewed the limited practice on this issue in the Tadic Judgement and concluded that widespread or systematic was an element of crimes against humanity in customary international law. [549] The Chamber does not see any reason to depart from the uniform practice of the two Tribunals.

329. “Widespread” refers to the large scale of the attack. [550] “Systematic” describes the organized nature of the attack. [551] The Appeals Chamber of the ICTY recently clarified that the existence of a policy or plan may be evidentially relevant, in that it may be useful in establishing that the attack was directed against a civilian population and that it was widespread or systematic, but that the existence of such a plan is not a separate legal element of the crime. [552]

330. A civilian population must be the primary object of the attack. [553] A population remains civilian in nature even if there are individuals within it who are not civilians and even if the members of the population at one time bore arms, so long as the population is “predominantly civilian”. [554] The term “population” does not require that crimes against humanity be directed against the entire population of a geographic territory or area. [555] The victim(s) of the enumerated act need not necessarily share geographic or other defining features with the civilian population that forms the primary target of the underlying attack, but such characteristics may be used to demonstrate that the enumerated act forms part of the attack.

331. Article 3 of the Statute requires that the attack against the civilian population be committed “on national, political, ethnical, racial or religious grounds”. Acts committed against persons outside the discriminatory categories may nevertheless form part of the attack where the act against the outsider supports or furthers or is intended to support or further the attack on the group discriminated against on one of the enumerated grounds. [556]

332. The accused must have acted with knowledge of the broader context of the attack and knowledge that his act formed part of the attack on the civilian population. [557] However, the accused need not necessarily share the purpose or goals behind the broader attack. There is no requirement that the enumerated acts other than persecution be committed with discriminatory intent. [558]

333. The Accused is charged with committing crimes against humanity of murder, extermination, torture, rape, and persecution. The Chamber will therefore limit its discussion to these offences.

334. The English version of Article 3(a) of the Statute refers to “murder”, which is a broad legal term encompassing premeditated, intentional, and certain types of reckless homicide. [559] The French version of Article 3(a) of the Statute refers only to the premeditated form of murder: “assassinat”. [560]

335. In Akayesu, Rutaganda, and Musema, the Trial Chambers concluded that the reference to the broader term “murder” in the English text of Article 3 was more consistent with customary international law, but did not fully articulate the evidence for the existence of this custom. [561] In contrast, the Trial Chambers in Bagilishema and Kayishema and Ruzindana adopted the higher standard of premeditation because it is more consistent with a bilingual interpretation of the Statute and because, where there is any doubt, matters of interpretation should be decided in favour of the Accused. [562] Faced with this divergence, the Chamber has undertaken a review of this issue.

336. When interpreting a term in the Statute, the Chamber begins with its ordinary meaning. [563] Where a difference in meaning exists between the two equally authoritative versions of the Statute, the Chamber applies the well-established principle of interpretation embodied in Article 33(4) of the Vienna Convention on the Law of Treaties, which directs that when interpreting a bilingual or multilingual instrument the meaning which best reconciles the equally authoritative texts shall be adopted. [564]

337. The Chamber notes that assassinat is a specific form of murder requiring premeditation, and thus is more precise than the English reference to “murder”. The Chamber finds that it is possible to harmonise the meaning of the two texts by requiring premeditation. This result is in accord with the general principles that criminal statutes should be strictly construed and that any ambiguity should be interpreted in favour of the accused. [565]

338. A contextual analysis of the Statute further supports this conclusion, because both the English and French versions of the Statute employ terms in Article 3(a) that denote a higher level of intention than is required for the crimes in Article 2(2)(a). By their ordinary meaning, the English term murder (crime against humanity) has a higher intent than killing (genocide), just as the French term assassinat (crime against humanity) requires a higher intention than meurtre (genocide). In Article 4(a) the term “murder” is paired with “meurtre”, again suggesting that on the basis of the French text, murder as a crime against humanity requires a higher mental element.

339. For these reasons, the Chamber considers that it is premeditated murder (assassinat) that constitutes a crime against humanity in Article 3(a) of the Statute. Premeditation requires that, at a minimum, the accused held a deliberate plan to kill prior to the act causing death, rather than forming the intention simultaneously with the act. The prior intention need not be held for very long; a cool moment of reflection is sufficient. The Chamber observes that the requirement that the accused must have known that his acts formed part of a wider attack on the civilian population generally suggests that the murder was pre-planned. The Chamber emphasises that the accused need not have premeditated the murder of a particular individual; for crimes against humanity it is sufficient that the accused had a premeditated intention to murder civilians as part of the widespread or systematic attack on discriminatory grounds.

340. Extermination may be differentiated from murder in that it is directed against a population rather than individuals. The material element of extermination is killing that constitutes or is part of a mass killing of members of a civilian population. The scale of the killing required for extermination must be substantial. Responsibility for a single or a limited number of killings is insufficient. [566]

341. This Tribunal has held that extermination may encompass intentional, reckless, or grossly negligent killing. [567] The ICTY approach, in contrast, has been to equate the mental elements of murder (not premeditated) and extermination. [568] Neither the ICTR or ICTY Appeals Chamber has yet addressed this inconsistency. This Trial Chamber is of the view that, in the absence of express authority in the Statute or in customary international law, international criminal liability should be ascribed only on the basis of intentional conduct. [569] Accordingly, the Chamber finds that the mental element for extermination is the intent to perpetrate or participate in a mass killing.

342. In Akayesu, the Trial Chamber relied on the definition of torture found in the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. [570] The ICTY Appeals Chamber has since explained that while the definition contained in the Convention Against Torture is reflective of customary international law in relation to the obligations of states, it is not identical to the definition of torture as a crime against humanity. [571] In particular, the ICTY Appeals Chamber has confirmed that, outside the framework of the Convention Against Torture, the “public official” requirement is not a requirement under customary international law in relation to individual criminal responsibility for torture as a crime against humanity. [572]

343. Therefore, the Chamber concludes that torture as a crime against humanity is the intentional infliction of severe physical or mental pain or suffering for prohibited purposes including: obtaining information or a confession; punishing, intimidating or coercing the victim or a third person; or discriminating against the victim or a third person. [573] There is no requirement that the conduct be perpetrated solely for one of the prohibited aims. [574]

344. The Akayesu Judgement enunciated a broad definition of rape which included any physical invasion of a sexual nature in coercive circumstance and which was not limited to forcible sexual intercourse. [575] The Appeals Chamber of the ICTY, in contrast, affirmed a narrower interpretation defining the material element of rape as a crime against humanity as the non-consensual penetration, however slight, of the vagina or anus of the victim by the penis of the perpetrator or by any other object used by the perpetrator, or of the mouth of the victim by the penis of the perpetrator. [576] Consent for this purpose must be given voluntarily and freely and is assessed within the context of the surrounding circumstances. [577]

345. While this mechanical style of defining rape was originally rejected by this Tribunal, the Chamber finds the comparative analysis in Kunarac to be persuasive and thus will adopt the definition of rape approved by the ICTY Appeals Chamber. In doing so, the Chamber recognises that other acts of sexual violence that do not satisfy this narrow definition may be prosecuted as other crimes against humanity within the jurisdiction of this Tribunal such as torture, persecution, enslavement, or other inhumane acts.

346. The mental element for rape as a crime against humanity is the intention to effect the prohibited sexual penetration with the knowledge that it occurs without the consent of the victim. [578]

347. In Kupreskic, a Trial Chamber of the ICTY summarised the material element of persecution as “the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5.” [579] This definition was adopted and applied by an ICTR Trial Chamber in Ruggiu. [580]

348. Persecution may take diverse forms and does not necessarily require a physical act. [581] Article 7(2)(g) of the ICC Statute explains that “‘[p]ersecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”. [582] The ICC Elements of Crimes states, similarly, that the relevant part of the material element of persecution is:

349. Acts of persecution must be evaluated in context, by looking at their overall cumulative effects. [584] In accordance with customary international law, persecution may include acts enumerated under other sub-headings of crimes against humanity, such as murder or deportation, when they are committed on discriminatory grounds. [585] Persecution may also involve a variety of other discriminatory acts, not enumerated elsewhere in the Statute, involving serious deprivations of human rights. [586]

350. The act of persecution must have been committed on political, racial, or religious grounds. Unlike the other enumerated crimes against humanity, persecution requires a discriminatory intent. [587] This Chamber observes that the enumerated grounds of discrimination for persecution in Article 3(h) of the Statute do not include national or ethnic grounds, which are included in the list of discriminatory grounds for the attack contained in the chapeau of Article 3.

351. Counts 7, 9, and 13 of the Indictment charge the Accused with serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims and of Additional Protocol II thereto of 8 June 1977.

352. Pursuant to Article 4 of the Statute of the Tribunal, the Tribunal has the power to prosecute persons who “committed or ordered to be committed” serious violations of Common Article 3 and of Additional Protocol II. According to Article 4 of the Statute, such violations include, but are not limited to:

353. This Tribunal has already determined that Common Article 3 and Additional Protocol II were applicable in Rwanda in 1994 as a matter of convention and custom. [588] Rwanda became a party to the Geneva Conventions of 1949 on 5 May 1964 through succession [589] and, through ratification, to the Additional Protocol II thereto on 19 November 1984. [590] Moreover, the Article 4 offences named in the Indictment constituted crimes under the laws of Rwanda in 1994. [591] The Chamber therefore finds that Common Article 3 and Additional Protocol II were in force in Rwanda in 1994 and that the application of Article 4 of the Statute to the situation in Rwanda during the Tribunal’s temporal jurisdiction would not violate the nullum crimen sine lege principle.

354. Common Article 3 and Additional Protocol II are expressly applicable to conflicts of a non-international character. The Chamber, therefore, must answer whether the conflict in Rwanda in 1994 was of such a character as to fall within the scope of application of these provisions and, consequently, within the ambit of Article 4 of the Statute of the Tribunal.

355. Common Article 3 prescribes: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, … [certain] provisions….” Therefore, Common Article 3 is applicable to any non-international armed conflict within the territory of a state party. In general, non-international armed conflicts referred to in Common Article 3 are conflicts with armed forces on either side engaged in hostilities that are, according to the International Committee of the Red Cross (“ICRC”), “in many respects similar to an international war, but take place within the confines of a single country.” [592]

356. Additional Protocol II, by its own terms, develops and supplements Common Article 3 “without modifying its existing conditions of application”. [593] Its Article 1, however, expands on Common Article 3 in as much as it sets out that Additional Protocol II covers non-international armed conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” [594]

357. Classification of a conflict as one to which Common Article 3 and/or Additional Protocol II applies depends on an analysis of the objective factors set out in the respective provisions. [595]

358. Article 4 of the Statute provides that the Tribunal “shall have the power to prosecute persons committing or ordering to be committed serious violations of [Common Article 3 and Additional Protocol II].” The Appeals Chamber of this Tribunal recently pointed out that “Article 4 makes no mention of a possible delimitation of classes of persons likely to be prosecuted under this provision.” [596]

359. Common Article 3 and Additional Protocol II similarly do not specify classes of potential perpetrators, rather they indicate who is bound by the obligations imposed thereby. In the case of Common Article 3, that is “each Party to the conflict”. [597] The ICRC Commentary on Additional Protocol II simply says that the field of application ratione personae includes “those who must, within the meaning of the Protocol, conform to certain rules of conduct with respect to the adversary and the civilian population.” [598]

360. Indeed, further clarification in respect of the class of potential perpetrators is not necessary in view of the core purpose of Common Article 3 and Additional Protocol II: the protection of victims. [599] In the view of the ICTR Appeals Chamber, the protections of Common Article 3 imply effective punishment of perpetrators, whoever they may be. [600] In its Judgement in the Akayesu case, the Appeals Chamber held that the Trial Chamber erred on a point of law when it restricted the application of Common Article 3 to a certain category of perpetrators. [601] Specifically, the category of persons in question in the Trial Chamber’s Judgement consisted of members of the armed forces “under the military command of either of the belligerent parties, [and] … individuals who were legitimately mandated and expected, as public officials or agents or persons otherwise holding public authority or de facto representing the Government, to support or fulfil the war efforts.” [602]

361. The ICTR Appeals Chamber rejected the notion of a requisite link between the perpetrator and one of the parties to the conflict: “… such a special relationship is not a condition precedent to the application of Common Article 3 and, hence, of Article 4 of the Statute.” [603] The Appeals Chamber expounded its reasoning as follows:

The Appeals Chamber is of the view that the minimum protection provided for victims under common Article 3 implies necessarily effective punishment on persons who violate it. Now, such punishment must be applicable to everyone without discrimination, as required by the principles governing individual criminal responsibility as laid down by the Nuremberg Tribunal in particular. The Appeals Chamber is therefore of the opinion that international humanitarian law would be lessened and called into question if it were to be admitted that certain persons be exonerated from individual criminal responsibility for a violation of common Article 3 under the pretext that they did not belong to a specific category. [604]

362. In view of the foregoing, criminal responsibility for acts covered by Article 4 of the Statute does not depend on any particular classification of the alleged perpetrator.

363. Common Article 3 extends its protection to “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause”. [605] The ICRC Commentary explains this provision as follows:

364. Additional Protocol II applies to “all persons affected by an armed conflict”. [607] The ICRC Commentary includes in this category “persons who do not, or no longer take part in hostilities”. [608] Article 4(1) of Additional Protocol II further specifies that its guarantees extend to “[a]ll persons who do not take a direct part or who have ceased to take part in hostilities”. [609]

365. In essence, both Common Article 3 and Additional Protocol II protect persons not taking an active part in the hostilities. [610] The ICTY Appeals Chamber emphasised that Common Article 3 covers “any individual not taking part in the hostilities”. [611] This is also the position taken by this Tribunal. [612]

366. The question to be answered simply is whether, at the time of the alleged offence, the alleged victim was directly taking part in the hostilities. [613] If the answer is negative, the alleged victim was a person protected by Common Article 3 and Additional Protocol II. [614] To take a direct part in hostilities means, for the purposes of these provisions, to engage in acts of war that strike at personnel or equipment of the enemy armed forces. [615]

367. Once the conditions for applicability of Common Article 3 and Additional Protocol II are satisfied, their scope extends throughout the territory of the state where the hostilities are taking place without limitation to the “war front” or to the “narrow geographical context of the actual theatre of combat operations”. [616]

368. For an offence to fall within the scope of Article 4 of the Statute of the Tribunal, the Chamber must find that there existed a nexus between the alleged breach of Common Article 3 or Additional Protocol II and the underlying armed conflict. [617] This requirement is best understood upon appreciation of the purpose of Common Article 3 and Additional Protocol II. The purpose of the said provisions is the protection of people as victims of internal armed conflicts, [618] not the protection of people against crimes unrelated to the conflict, however reprehensible such crimes may be.

369. Whether the requisite nexus existed at the time of the alleged offence is a matter for determination on the evidence presented. It has been the position of this Tribunal and of the ICTY that the nexus requirement is met if the alleged offence is “closely related to the hostilities” or is “committed in conjunction with” them. [619]

370. Article 4 of the Statute grants the Tribunal jurisdiction over serious violations of Common Article 3 and Additional Protocol II. This Tribunal has stated that a serious violation within the meaning of Article 4 is a breach of a rule protecting important values with grave consequences for the victim. [620] On this basis, the Tribunal has determined that the acts enumerated in Article 4 of the Statute constitute serious violations of Common Article 3 and Additional Protocol II, entailing individual criminal responsibility. [621] This Trial Chamber concurs with this position.

371. Consequently, should the Prosecutor prove that any of the acts set out in Article 4 of the Statute occurred, the Chamber will consider such act to constitute a serious violation within the meaning of Article 4.

372. The Indictment charges the Accused with causing violence to life, health and physical or mental well-being of persons, including murder and torture, and causing outrages upon personal dignity of women, including rape and sexual assault, acts covered by Article 4(a) and (e) of the Statute, respectively. In light of its factual findings, the Chamber will limit its discussion of the specific violations to murder and torture.

373. Murder under Article 4 refers to the intentional killing of another which need not be accompanied by a showing of premeditation. The Chamber reaches this conclusion having considered the use of the term “meurtre” as opposed to “assassinat” in the French version of the Statute. [622]

374. Torture under Article 4 has the same essential elements as those set forth for torture as a crime against humanity. [623]

375. The Indictment charges the Accused with criminal responsibility under Article 6(1) and Article 6(3) of the Statute for genocide, crimes against humanity, and serious violations of Common Article 3 and Additional Protocol II. In addition, the Indictment charges the Accused with criminal responsibility for the crime of genocide under Article 2(3) of the Statute.

376. Article 6(1) addresses criminal responsibility for unlawful conduct of an accused and is applicable to all three crimes. [624] Article 6(1) provides as follows:

377. Article 6(1) reflects the principle that criminal liability is not incurred solely by individuals who physically commit a crime, but also extends to those who participate in and contribute to a crime in other ways, following principles of accomplice liability. [625]

378. Pursuant to Article 6(1), a crime within the Tribunal’s jurisdiction must have been completed before an individual’s participation in that crime will give rise to criminal responsibility. [626] Article 6(1) does not criminalize inchoate offences, which are punishable only for the crime of genocide pursuant to Article 2(3)(b), (c), and (d). [627]

379. To satisfy Article 6(1), an individual’s participation must have substantially contributed to, or have had a substantial effect on, the completion of a crime. [628]

380. “Planning” envisions one or more persons formulating a method of design or action, procedure, or arrangement for the accomplishment of a particular crime. [629] The level of participation in the planning must be substantial such as actually formulating the criminal plan or endorsing a plan proposed by another. [630]

381. “Instigating” refers to urging, encouraging, or prompting another person to commit a crime. [631] Instigation need not be direct and public. [632] Proof is required of a causal connection between the instigation and the commission of the crime. [633]

382. “Ordering” refers to a situation where an individual has a position of authority and uses that authority to order – and thus compel – another individual, who is subject to that authority, to commit a crime. [634] Criminal responsibility for ordering the commission of a crime under the Statute implies the existence of a superior-subordinate relationship between the individual who gives the order and the one who executes it. [635]

383. “Committing” refers to the direct personal or physical participation of an accused in the actual acts which constitute the material elements of a crime under the Statute. [636]

384. The terms “aiding” and “abetting” refer to distinct legal concepts. [637] The term “aiding” means assisting or helping another to commit a crime, and the term “abetting” means encouraging, advising, or instigating the commission of a crime. [638] However, the terms “aiding” and “abetting” are frequently employed together as a single broad legal concept, [639] as is the case in this Tribunal.

385. In the Tribunal’s jurisprudence, “aiding and abetting” refers to all acts of assistance that lend encouragement or support to the commission of a crime. [640] This encouragement or support may consist of physical acts, verbal statements, or, in some cases, mere presence as an “approving spectator”. [641] Except in the case of the “approving spectator,” the assistance may be provided before or during the commission of the crime, and an accused need not necessarily be present at the time of the criminal act. [642]

386. Criminal responsibility as an “approving spectator” does require actual presence during the commission of the crime or at least presence in the immediate vicinity of the scene of the crime, which is perceived by the actual perpetrator as approval of his conduct. [643] The authority of an individual is frequently a strong indication that the principal perpetrators will perceive his presence as an act of encouragement. [644] Responsibility, however, is not automatic, and the nature of the accused’s presence must be considered against the background of the factual circumstances. [645]

387. An individual who “commits” a crime as a principal perpetrator must possess the requisite mens rea for the underlying crime. [646]

388. In cases involving a form of accomplice liability, the mens rea requirement will be satisfied where an individual acts intentionally and with the awareness that he is influencing or assisting the principal perpetrator to commit the crime. [647] The accused need not necessarily share the mens rea of the principal perpetrator; the accused must be aware, however, of the essential elements of the principal’s crime including the mens rea. [648]

389. In the case of the “approving spectator”, the individual must know that his presence would be seen by the perpetrator of the crime as encouragement or support. [649] The requisite mens rea may be established from the circumstances including prior like behaviour, failure to punish, or verbal encouragement. [650]

390. Article 2(3) lists the forms of criminal responsibility that are applicable to the crime of genocide under the Statute, namely genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide.

391. The Chamber notes that an overlap exists between “genocide” in Article 2(3)(a) and “committing” in Article 6(1), and between “complicity” in Article 2(3)(e) and forms of accomplice liability in Article 6(1). [651] This redundancy can be explained by the drafters’ verbatim incorporation into the Statute of Article III of the Genocide Convention. [652]

392. The Prosecutor charged the Accused with committing genocide, as discussed in section V.A. hereof, as well as with direct and public incitement to commit genocide and with complicity in genocide. The Chamber will limit its present discussion to complicity in light of its decision to disregard for vagueness the paragraphs supporting the direct and public incitement count. [653]

393. Having taken into consideration the general meaning of complicity in the common and civil law, as well as the domestic law of Rwanda, prior jurisprudence has defined the term complicity as aiding and abetting, instigating, and procuring. [654]

394. In the view of the Chamber, there is no material distinction between complicity in Article 2(3)(e) of the Statute and the broad definition accorded to aiding and abetting in Article 6(1). [655] The Chamber further notes that the mens rea requirement for complicity to commit genocide in Article 2(3)(e) [656] mirrors that for aiding and abetting and the other forms of accomplice liability in Article 6(1). [657]

395. Therefore, complicity 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. The accused must have acted intentionally and with the awareness that he was contributing to the crime of genocide, including all its material elements.

396. In this case, Count 1 charges the Accused with criminal responsibility for committing genocide on the basis of Articles 6(1) and 6(3) of the Statute. This count seeks to hold the Accused responsible as a principal perpetrator, an accomplice, and a superior. If Count 1 is understood to encompass a charge of accomplice liability, Count 3 of the Indictment would be superfluous, as it charges the identical underlying criminal conduct as complicity to commit genocide under Article 2(3)(e).

397. Where a count does not specify a particular form of criminal participation under Article 6(1), the Chamber may consider the charge under the appropriate form within the limits of the Indictment and fair notice. [658] The Chamber is mindful that the commission of a crime and complicity in that crime are alternative charges. [659] Where a count seemingly charges both direct and accomplice liability under Article 6(1) and another count specifically alleges complicity for the identical criminal acts, the Chamber will narrow the scope of the broader count so as to eliminate any overlap.

398. Therefore, the Chamber finds that the reference to Article 6(1) in Count 1 of the Indictment refers only to direct criminal participation by “committing” and that all other forms of accomplice liability should be properly considered under Count 3, which charges complicity to commit genocide for the identical underlying criminal conduct.

399. Article 6(3) of the Statute concerns the criminal responsibility of a superior for failure to prevent or punish the criminal acts of his subordinates and is broadly applicable to all three crimes. Article 6(3) provides as follows:

400. Under Article 6(3), a civilian or military superior, with or without official status, may be held criminally responsible for crimes committed by subordinates under his effective control. [660] The following three elements must be satisfied to establish this form of criminal responsibility: (a) the existence of a superior-subordinate relationship; (b) the superior’s knowledge or reason to know that the criminal act was about to be or had been committed; and (c) the superior’s failure to take necessary and reasonable measures to prevent the criminal act or punish the perpetrator. [661]

401. A superior-subordinate relationship requires a formal or informal hierarchical relationship where a superior is senior to a subordinate. [662] The relationship is not limited to a strict military command style structure. [663]

402. The superior must possess the power or authority, either de jure or de facto, to prevent or punish an offence committed by his subordinates. [664] The Trial Chamber must be satisfied that the superior had effective control over the subordinates at the time the offence was committed. [665] Effective control means the material ability to prevent the commission of the offence or to punish the principal offenders. [666] This requirement is not satisfied by a simple showing of an accused individual’s general influence. [667]

403. The imposition of criminal responsibility under Article 6(3) requires proof that the superior knew or had reason to know that his subordinates were committing or had committed a crime within the jurisdiction of the Tribunal. [668]

404. Criminal liability based on superior responsibility will not attach on the basis of strict liability simply because an individual is in a chain of command with authority over a given geographic area. [669] While the individual’s position in the command hierarchy is considered a significant indicator that the superior knew or had reason to know about the actions of his subordinates, knowledge will not be presumed from the status alone. [670]

405. A superior will be found to possess or will be imputed with the requisite mens rea sufficient to incur criminal responsibility where: (i) the superior had actual knowledge, established through direct or circumstantial evidence, that his subordinates were about to commit, were committing, or had committed, a crime under the Statute; [671] or (ii) the superior possessed information providing notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such offences were about to be committed, were being committed, or had been committed, by subordinates. [672]

406. A superior incurs criminal responsibility only for failing to take “necessary and reasonable measures” to prevent or punish crimes under the Statute committed by subordinates. These measures have been described as those that are within a superior’s “material possibility” even if the superior lacks the “formal legal competence” to take such measures. [673] The degree of the superior’s effective control guides the assessment of whether the individual took reasonable measures to prevent, stop, or punish a subordinate’s crimes. [674]

407. The obligation to prevent or punish is not a set of alternative options. [675] If a superior is aware of the impending or on-going commission of a crime, necessary and reasonable measures must be taken to stop or prevent it. [676] A superior with such knowledge and the material ability to prevent the commission of the crime does not discharge his responsibility by opting simply to punish his subordinates in the aftermath. [677]

408. The Defence asserted that the Accused was improperly cumulatively charged for conduct arising out of a single incident. [678] The propriety of cumulative charges was confirmed by the Appeals Chamber in Musema. [679]

409. In Musema, the Appeals Chamber also held that multiple criminal convictions under different statutory provisions, but based on the same conduct, are permissible if each statutory provision involved has a materially distinct element not contained in the other. [680] The Appeals Chamber explained that an element is materially distinct from another if it requires proof of a fact not required by the other. [681]

[532] The definition of genocide in the Statute of the Tribunal is identical to the definitions of genocide in the Convention on the Prevention and Punishment of the Crime of Genocide, 18 December 1948, art. II, 78 U.N.T.S. 277 [“Genocide Convention”], and the Statute of the International Criminal Court, 17 July 1998, art. 6, UN Doc. A/Conf.183/9 [“ICC Statute”].

[533] Statute, art. 2(2). See Ntakirutimana, Judgement, TC, para. 784; Bagilishema, Judgement, TC, paras. 60-61; Musema, Judgement, TC, para. 164; Rutaganda, Judgement, TC, para. 49; Kayishema and Ruzindana, Judgement, TC, para. 91; Akayesu, Judgement, TC, para. 517.

[534] Akayesu, Judgement, TC, para. 523. See also Bagilishema, Judgement, TC, paras. 62-63; Musema, Judgement, TC, paras. 166-167; Rutaganda, Judgement, TC, paras. 61-63; Kayishema and Ruzindana, Judgement, TC, para. 93; Jelisic, Judgement, TC, para. 73.

[535] 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. 90, UN Doc. A/51/10 (1996) (“As clearly shown by the preparatory work for the Convention, the destruction in question is the material destruction of a group either by physical or by biological means, not the destruction of the national, linguistic, religious, cultural or other identity of a particular group.”).

[536] Bagilishema, Judgement, TC, para. 58; Musema, Judgement, TC, para. 165; Rutaganda, Judgement, TC, para. 60; Kayishema and Ruzindana, Judgement, TC, paras. 95, 96, 98; Akayesu, Judgement, TC, para. 521.

[538] See, e.g., Bagilishema, Judgement, TC, para. 65; Musema, Judgement, TC, paras. 161-163; Rutaganda, Judgement, TC, paras. 56-58; Kayishema and Ruzindana, Judgement, TC, para. 98; Akayesu, Judgement, TC, para. 702. See also Jelisic, Judgement, TC, paras. 69-72 (using a subjective approach to determine definition of a group while holding that the intent of the drafters of the Genocide convention was that groups were to be defined objectively).

[539] Bagilishema, Judgement, TC, paras. 55, 57-58; Musema, Judgement, TC, para. 155; Rutaganda, Judgement, TC, paras. 49, 50; Kayishema and Ruzindana, Judgement, TC, para. 103; Akayesu, Judgement, TC, para. 501. See also Kayishema and Ruzindana, Judgement, AC, para. 151.

[540] Bagilishema, Judgement, TC, para. 55; Musema, Judgement, TC, paras. 154-155; Rutaganda, Judgement, TC, para. 60; Kayishema and Ruzindana, Judgement, TC, para. 99; Akayesu, Judgement, TC, para. 499.

[541] Kayishema and Ruzindana, Judgement, TC, para. 109. But see 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) (“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.”).

[542] Bagilishema, Judgement, TC, para. 59; Musema, Judgement, TC, para. 156; Rutaganda, Judgement, TC, para. 51; Kayishema and Ruzindana, Judgement, TC, para. 108; Akayesu, Judgement, TC, para. 502.

[543] Kayishema and Ruzindana, Judgement, TC, para. 110.

[544] Bagilishema, Judgement, TC, paras. 55, 59; Musema, Judgement, TC, paras. 154, 156; Rutaganda, Judgement, TC, paras. 49, 51; Kayishema and Ruzindana, Judgement, TC, paras. 100, 108-110, 112-113.

[545] Bagilishema, Judgement, TC, para. 55; Musema, Judgement, TC, para. 154; Rutaganda, Judgement, TC, para. 60; Akayesu, Judgement, TC, paras. 502, 712, 721.

[546] Musema, Judgement, TC, para. 205; Rutaganda, Judgement, TC, para. 70; Kayishema and Ruzindana, Judgement, TC, para. 122; Akayesu, Judgement, TC, para. 581.

[547] Musema, Judgement, TC, para. 205; Rutaganda, Judgement, TC, para. 70; Akayesu, Judgement, TC, para. 581.

[548] Ntakirutimana, Judgement, TC, para. 804; Bagilishema, Judgement, TC, para. 77; Musema, Judgement, TC, paras. 202-203; Rutaganda, Judgement, TC, para. 68; Kayishema and Ruzindana, Judgement, TC, para. 123, footnote 26; Akayesu, Judgement, TC, para. 579.

[549] Tadic, Judgement, TC, paras. 646-648. See also Kunarac, Judgement, AC, para. 93; Tadic, Judgement, AC, para. 248; Krnojelac, Judgement, TC, para. 55; Krstic, Judgement, TC, para. 480; Kordic and Cerkez, Judgement, TC, para. 178; Blaskic, Judgement, TC, para. 202; Kupreskic, Judgement, TC, para. 544; Jelisic, Judgement, TC, para. 53.

[550] Akayesu, Judgement, TC, para. 580. See also Ntakirutimana, Judgement, TC, para. 804; Bagilishema, Judgement, TC, para. 77; Musema, Judgement, TC, para. 204; Rutaganda, Judgement, TC, para. 69.

[551] Ntakirutimana, Judgement, TC, para. 804; Musema, Judgement, TC, para. 204; Rutaganda, Judgement, TC, para. 69; Kayishema and Ruzindana, Judgement, TC, para. 123; Akayesu, Judgement, TC, para. 580.

[553] Bagilishema, Judgement, TC, para. 79; Musema, Judgement, TC, para. 207; Rutaganda, Judgement, TC, para. 72; Kayishema and Ruzindana, Judgement, TC, paras. 127, 128; Akayesu, Judgement, TC, para. 582.

[554] Bagilishema, Judgement, TC, para. 79; Rutaganda, Judgement, TC, para. 72; Kayishema and Ruzindana, Judgement, TC, para. 128; Akayesu, Judgement, TC, para. 582.

[555] Bagilishema, Judgement, TC, para. 80; Kunarac, Judgement, AC, para. 90.

[556] Musema, Judgement, TC, para. 209; Rutaganda, Judgement, TC, para. 74.

[557] Ntakirutimana, Judgement, TC, para. 803; Bagilishema, Judgement, TC, para. 94; Musema, Judgement, TC, para. 206; Kayishema and Ruzindana, Judgement, TC, para. 134.

[559] See, e.g., Black’s Law Dictionary p. 1019 (6^th ed. 1990); United States Model Penal Code § 210.2 (“…criminal homicide constitutes murder when: (a) it is committed purposely or knowingly; or (b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.”); Canada Criminal Code R.S.C. 1985, Ch. C-46 s. 229 (“Culpable homicide is murder (a) where the person who causes the death of a human being (i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.”); New South Wales Crimes Act (1900) s. 18 (“(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.”).

[560] See, e.g., France Nouveau Code Pénal, art. 221-3 (Le meurtre commis avec préméditation constitue un assassinat) ; Rwanda Code Pénal, art. 312 (Le meurtre commis avec préméditation ou guet-apens est qualifié assassinat); Code Pénal de Burkina Faso 1996, art. 318 (L’homicide commis volontairement est qualifié meurtre. Tout meurtre commis avec préméditation ou guet-apens est qualifié assassinat.); Nouveau Code Pénal du Sénégal, art. 281 (Tout meurtre commis avec préméditation ou guet-apens est qualifié assassinat.); Belgium Code Penal, art. 394 (Le meurtre commis avec préméditation est qualifié assassinat.); Code Penal de Haiti, art. 241 (Tout meurtre commis avec préméditation ou guet-apens est qualifié assassinat.).

[561] Musema, Judgement, TC, para. 214; Rutaganda, Judgement, TC, para. 79; Akayesu, Judgement, TC, para. 588.

[562] Bagilishema, Judgement, TC, paras. 84-85; Kayishema and Ruzindana, Judgement, TC, paras. 138-139. See also Ntakirutimana, Judgement, TC, footnote 1151, para. 808 (citing to Bagilishema and Akayesu for the “requisite intent”).

[563] See generally Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, art. 31(1) [“Vienna Convention”]; Akayesu, Judgement, AC, para. 478; Prosecutor v. Bagosora, Case No. ICTR-98-37-A, Decision on the Admissibility of the Prosecutor’s Appeal from the Decision of a Confirming Judge Dismissing an Indictment Against Theoneste Bagasora and 28 Others, AC, 8 June 1998, paras. 28-29; Kayishema and Ruzindana, Judgement, TC, para. 139; Aleksovski, Judgement, AC, para. 98; Jelisic, Judgement, AC, para. 35; Tadic, Judgement, AC, para. 282.

[564] See generally Vienna Convention, art. 33(4) (“Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.”). Blaskic, Judgement, TC, para. 326 (applying Vienna Convention, art. 33(4)); Kayishema and Ruzindana, Judgement, TC, para. 139 (considering the two versions of the Statute together to ascertain the meaning). The Chamber notes that this interpretive rule is also applied in bilingual domestic systems. See, e.g., Hong Kong Interpretation and General Clauses Ordinance Cap. 1 Section 10B (3) (“Where a comparison of the authentic texts of an Ordinance discloses a difference of meaning which the rules of statutory interpretation ordinarily applicable do not resolve, the meaning which best reconciles the texts, having regard to the object and purposes of the Ordinance, shall be adopted.”); R. v. Proulx, [2000] 1 S.C.R. 61 (Canada), para. 95 (“In conformity with a long-standing principle of interpretation, to resolve the conflict between the two official versions, we have to look for the meaning common to both.”).

[565] This is consistent with the Tribunal’s approach to the difference in meaning between “killing” and “meurtre” in Article 2(2)(a) of the Statute. Kayishema and Ruzindana, Judgement, AC, para. 151; Bagilishema, Judgement, TC, para. 57; Musema, Judgement, TC, para. 155; Rutaganda, Judgement, TC, para. 50; Kayishema and Ruzindana, Judgement, TC, para. 103; Akayesu, Judgement, TC, para. 501.

[566] Ntakirutimana, Judgement, TC, paras. 813-814; Vasiljevic, TC, paras. 227, 232.

[567] Bagilishema, Judgement, TC, para. 89; Kayishema and Ruzindana, Judgement, TC, para. 144.

[568] See, e.g., Krstic, Judgement, TC, para. 495.

[569] The Chamber notes that the perpetrator’s intention may be inferred from his conduct or the surrounding circumstances.

[570] Akayesu, Judgement, TC, paras. 593-595. See UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/RES/39/46 (1984), 1465 U.N.T.S. 85 [“Convention Against Torture”].

[571] Kunarac, Judgement, AC, paras. 146-148.

[573] Kvocka, Judgement, TC, para. 140; Furundzija, Judgement, TC, para. 162; Celebici, Judgement, TC, para. 470.

[574] Celebici, Judgement, TC, para. 470. See also Kunarac, Judgement, TC, para. 486.

[575] Akayesu, Judgement, TC, para. 598. See also Musema, Judgement, TC, para. 226.

[576] Kunarac, Judgement, AC, paras. 127-128.

[577] Kunarac, Judgement, AC, paras. 127, 128, 130.

[578] Kunarac, Judgement, AC, paras. 127-128.

[579] Kupreskic, Judgement, TC, para. 621. See also Kordic and Cerkez, Judgement, TC, para. 195.

[581] Kupreskic, Judgement, TC, para. 568; Tadic, Judgement, TC, para. 707.

[583] Report, First Session 3-10 September 2002, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court (ICC-ASP/1/3 and Corr.1), Part II B, art. 7(1)(h)(1) and (2) (footnote omitted).

[584] Krstic, Judgement, TC, para. 535; Kordic and Cerkez, Judgement, TC, para. 199; Kupreskic, Judgement, TC, para. 622.

[585] Kupreskic, Judgement, TC, paras. 607, 615.

[586] Kordic and Cerkez, Judgement, TC, para. 194; Kupreskic, Judgement, TC, para. 615.

[587] Akayesu, Judgement, AC, paras. 464, 468.

[588] Bagilishema, Judgement, TC, para. 98; Musema, Judgement, TC, para. 242; Rutaganda, Judgement, TC, para. 90; Kayishema and Ruzindana, Judgement, TC, paras. 156-157, Akayesu, Judgement, TC, para. 617.

[589] The Geneva Conventions of 1949 entered into force for Rwanda with a retroactive effect as from 1 July 1962, the date of Rwanda’s independence. See www.icrc.org/ihl.nsf.

[591] See, e.g., Kayishema and Ruzindana, Judgement, TC, para. 157; Akayesu, Judgement, TC, para. 617.

[592] International Committee of the Red Cross, The Geneva Conventions of 12 August 1949 Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War p. 36 (1958) [“Geneva Conventions Commentary”].

[593] See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), art. 1 [“Additional Protocol II”].

[595] See, e.g., Bagilishema, Judgement, TC, para. 101; International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 p. 1351 (1987) [“Additional Protocol II Commentary”].

[598] Additional Protocol II Commentary p. 1359.

[599] See Akayesu, Judgement, AC, para. 442.

[600] See Akayesu, Judgement, AC, para. 443.

[601] Akayesu, Judgement, AC, paras. 444-445.

[602] See Akayesu, Judgement, AC, para. 444; Akayesu, Judgement, TC, para. 631.

[603] See Akayesu, Judgement, AC, para. 444.

[606] Geneva Conventions Commentary p. 40 (emphasis added).

[608] Additional Protocol II Commentary p. 1359.

[610] See Akayesu, Judgement, TC, para. 629.

[611] Celebici, Judgement, AC, para. 420 (emphasis in original).

[612] See Bagilishema, Judgement, TC, paras. 103-104; Musema, Judgement, TC, para. 280; Rutaganda, Judgement, TC, para. 101; Kayishema and Ruzindana, Judgement, TC, para. 179; Akayesu, Judgement, TC, para. 629. See also L.C. Green, The Contemporary Law of Armed Conflict p. 231 (2d ed. 2000) (“In a non-international conflict civilians are protected by [Common] Article 3 … which … applies to civilians as well as those hors de combat.”).

[613] See Bagilishema, Judgement, TC, para. 104; Musema, Judgement, TC, para. 279; Rutaganda, Judgement, TC, para. 100; Kayishema and Ruzindana, Judgement, TC, para. 179; Akayesu, Judgement, TC, para. 629. See also Tadic, Judgement, TC, para. 615.

[615] Bagilishema, Judgement, TC, para. 104; Musema, Judgement, TC, para. 279; Rutaganda, Judgement, TC, para. 100. See also Additional Protocol II Commentary p. 1453.

[616] See Bagilishema, Judgement, TC, para. 101; Musema, Judgement, TC, paras. 283-284; Rutaganda, Judgement, TC, paras. 102-103; Kayishema and Ruzindana, Judgement, TC, paras. 182-183; Akayesu, Judgement, TC, paras. 635-636. See also Prosecutor v. Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, AC, 2 October 1995, para. 69; Additional Protocol II Commentary pp. 1359-1360.

[617] See Bagilishema, Judgement, TC, para. 105; Musema, Judgement, TC, para. 259; Rutaganda, Judgement, TC, para. 104; Kayishema and Ruzindana, Judgement, TC, para. 185; Akayesu, Judgement, TC, para. 643. This is also the position taken by the ICTY. See, e.g., Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, AC, para. 70.

[618] See Kayishema and Ruzindana, Judgement, TC, para. 189.

[619] See Bagilishema, Judgement, TC, para. 105; Musema, Judgement, TC, para. 260; Rutaganda, Judgement, TC, para. 104; Kayishema and Ruzindana, Judgement, TC, para. 186; Akayesu, Judgement, TC, para. 643 (…[I]t has not been proved beyond reasonable doubt that the acts … were committed in conjunction with the armed conflict.”). This is also the position taken by the ICTY. See, e.g., Kunarac, Judgement, AC, para. 58; Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, AC, para. 70 (“It is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict.”).

[620] See Bagilishema, Judgement, TC, para. 102; Musema, Judgement, TC, para. 286; Rutaganda, Judgement, TC, para. 106; Kayishema and Ruzindana, Judgement, TC, para. 184; Akayesu, Judgement, TC, para. 616. This position is based on a decision of the ICTY Appeals Chamber where the Tribunal stated that “the violation must be serious, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim.” Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, AC, para. 94.

[621] See Musema, Judgement, TC, para. 288; Rutaganda, Judgement, TC, para. 106; Kayishema and Ruzindana, Judgement, TC, para. 184; Akayesu, Judgement, TC, para. 616.

[623] Kunarac, Judgement, TC, paras. 465, 497, aff’d Kunarac, Judgement, AC, paras. 144, 156. For the elements of torture see supra paras. 342-343.

[624] The Chamber finds that all forms of criminal participation and responsibility under Article 6 are applicable to violations of Article 4 of the Statute even though that provision states that the Tribunal shall have the power to prosecute persons “committing or ordering to be committed” serious violations of Common Article 3 and Additional Protocol II. This language in Article 4 can be explained by its verbatim incorporation from Common Article 3 of the four Geneva Conventions. Article 6(1) and Article 6(3) both expressly apply to Articles 2 through 4 and reflect that an individual is criminally responsible if he plans, instigates, orders, commits, aids and abets, or as a superior fails to prevent or punish the violations of international criminal law codified in the Statute. Article 1 also states that the Tribunal has the power to prosecute persons criminally responsible for the violations in accordance with the provisions of the Statute. Thus, in light of Articles 1 and 6, the Tribunal has the authority to prosecute all forms of criminal responsibility for violations of Article 4.

[625] Kayishema and Ruzindana, Judgement, AC, para. 185. See also Musema, Judgement, TC, para. 114; Rutaganda, Judgement, TC, para. 33; Kayishema and Ruzindana, Judgement, TC, paras. 196-197; Akayesu, Judgement, TC, para. 473.

[626] Kayishema and Ruzindana, Judgement, AC, paras. 186, 187; Musema, Judgement, TC, paras. 115-116; Rutaganda, Judgement, TC, paras. 34, 35, 43; Akayesu, Judgement, TC, paras. 473, 482.

[627] Musema, Judgement, TC, para. 115; Rutaganda, Judgement, TC, para. 34; Akayesu, Judgement, TC, para. 473.

[628] Kayishema and Ruzindana, Judgement, AC, paras. 186, 198; Ntakirutimana, Judgement, TC, para. 787; Bagilishema, Judgement, TC, paras. 30, 33; Musema, Judgement, TC, para. 126; Rutaganda, Judgement, TC, para. 43; Kayishema and Ruzindana, Judgement, TC, paras. 199, 207; Akayesu, Judgement, TC, para. 477.

[629] Black’s Law Dictionary p. 1150 (6^th ed. 1990) (defining “plan”); Rutaganda, Judgement, TC, para. 37.

[631] Bagilishema, Judgement, TC, para. 30; Akayesu, Judgement, TC, para. 482.

[632] Akayesu, Judgement, AC, paras. 478-482.

[634] Bagilishema, Judgement, TC, para. 30; Rutaganda, Judgement, TC, para. 39; Akayesu, Judgement, TC, para. 483.

[635] Bagilishema, Judgement, TC, para. 30; Rutaganda, Judgement, TC, para. 39; Akayesu, Judgement, TC, para. 483.

[636] Kayishema and Ruzindana, Judgement, AC, para. 187; Tadic, Judgement, AC, para. 188.

[637] See Akayesu, Judgement, TC, para. 484. See generally Mewett & Manning on Criminal Law p.272 (3^rd ed. 1994); Black’s Law Dictionary p. 69 (7^th ed. 1999) (defining “aid and abet”), quoting Wharton’s Criminal Law § 29 (15^th ed. 1993). See, e.g., The Criminal Code, R.S.C. 1985, ch. C-46, § 21(b),(c) (Canada) (treating aiding and abetting separately).

[638] See Ntakirutimana, Judgement, TC, para. 787; Akayesu, Judgement, TC, para. 484; Smith & Hogan, Criminal Law p. 144 (10^th ed. 2002) (quoting Oxford English Dictionary); Mewett & Manning on Criminal Law p.272 (3^rd ed. 1994); Black’s Law Dictionary p. 69 (7^th ed. 1999) (defining “aid and abet”), quoting Wharton’s Criminal Law § 29 (15^th ed. 1993).

[639] Mewett & Manning on Criminal Law p.272 (3^rd ed. 1994) (noting that aiding and abetting are “almost universally used conjunctively”).

[640] Kayishema and Ruzindana, Judgement, AC, para. 186; Ntakirutimana, Judgement, TC, para. 787; Bagilishema, Judgement, TC, paras. 33, 36; Musema, Judgement, TC, paras. 125-126; Kayishema and Ruzindana, Judgement, TC, paras. 200-202; cf. Akayesu, Judgement, TC, para. 484.

[641] Kayishema and Ruzindana, Judgement, AC, paras. 201-202; Kayishema and Ruzindana, Judgement, TC, para. 198; Aleksovski, Judgement, TC, para. 63.

[642] Bagilishema, Judgement, TC, para. 33; Rutaganda, Judgement, TC, para. 43; Kayishema and Ruzindana, Judgement, TC, para. 200; Akayesu, Judgement, TC, para. 484. Physical presence during the commission of the crime was traditionally the distinguishing factor between aiding and abetting, which required presence, and other forms of complicity such as counselling and procuring. See generally Andrew Ashworth, Principles of Criminal Law p. 429 (3^rd ed. 1999).

[643] Bagilishema, Judgement, TC, para. 36; Aleksovski, Judgement, TC paras. 64-65.

[645] Kvocka, Judgement, TC, para. 257; Aleksovski, Judgement, TC, paras. 64-65. See, e.g., Akayesu, Judgement, TC, para. 693 (authority and prior words of encouragement); Tadic, Judgement, TC, para. 690 (presence and previous active role in similar acts by the same group).

[646] Kayishema and Ruzindana, Judgement, AC, para. 187.

[647] Kayishema and Ruzindana, Judgement, AC, para. 186; Bagilishema, Judgement, TC, para. 32; Kayishema and Ruzindana, Judgement, TC, para. 201.

[648] Kayishema and Ruzindana, Judgement, TC, para. 205. See also Aleksovski, Judgement, AC, para. 162; Vasiljevic, Judgement, TC, para. 71; Krnojelac, Judgement, TC, paras. 75, 90; Kvocka, Judgement, TC, paras. 255, 262; Kunarac, Judgement, TC, para. 392; Furundzija, Judgement, TC, para. 249. But see Ntakirutimana, Judgement, TC, para. 787 (stating that aiding and abetting under Article 6(1) required proof that an accused possessed the mens rea of the underlying crime, for example, the specific intent of genocide); Akayesu, TC, paras. 485, 547. The Chamber notes that these cases do not provide any justification for treating the mens rea requirement for aiding and abetting under Article 6(1) differently than that for complicity in genocide, which does not require proof of the mens rea of the underlying crime.

[649] Bagilishema, Judgement, TC, para. 36.

[650] Bagilishema, Judgement, TC, para. 36.

[652] Krstic, Judgement, TC, para. 640. This overlap was notably eliminated in the ICC Statute where all forms of criminal responsibility, even those uniquely applicable to genocide, are listed in Article 25. See ICC Statute, art. 25.

[654] Bagilishema, Judgement, TC, paras. 69-70; Musema, Judgement, TC, paras. 177, 179; Akayesu, Judgement, TC, paras. 533, 535, 537. Reference to the Rwandan Penal Code is relevant in determining whether the principle of nullum crimen sine lege has been violated. However, the Chamber finds no compelling reason for explicitly defining a legal term in its Statute, which is drawn verbatim from an international instrument, by reference to a particular national code.

[655] Akayesu, Judgement, TC, para. 546 (noting that “aiding and abetting” in Article 6(1) “are similar to the material elements of complicity”). See also Krstic, Judgement, TC, para. 640; Report of the Ad Hoc Committee on Genocide 5 April to 10 May 1948, UN GAOR, Economic and Social Council, 7^th Sess., Supp. No. 6, Doc. E 794 (26 May 1948), p. 8 (“The United States representative stated that, in agreeing to the inclusion of ‘complicity’ in this Article, he understood it to refer to accessoryship before and after the fact and to aiding and abetting in the commission of crimes enumerated in this Article”).

[656] See Bagilishema, Judgement, TC, para. 71; Musema, Judgement, TC, paras. 180-181; Akayesu, Judgement, TC, para. 545.

[657] Kayishema and Ruzindana, Judgement, AC, para. 186; Bagilishema, Judgement, TC, para. 32; Kayishema and Ruzindana, Judgement, TC, paras. 201, 205. See also Aleksovski, Judgement, AC, para. 162; Vasiljevic, Judgement, TC, para. 71; Krnojelac, Judgement, TC, paras. 75, 90; Kvocka, Judgement, TC, paras. 255, 262; Kunarac, Judgement, TC, para. 392; Furundzija, Judgement, TC, para. 249.

[659] Bagilishema, Judgement, TC, para. 67; Musema Judgement, TC, para. 175; Akayesu, Judgement, TC, para. 532.

[660] Bagilishema, Motifs de l’Arrêt, AC, paras. 50, 51; Kayishema and Ruzindana, Judgement, AC, para. 294; Musema, Judgement, TC, para. 148. See also Celebici, Judgement, AC, paras. 192-196.

[661] Bagilishema, Judgement, TC, para. 38; Celebici, Judgement, AC, paras. 189-198, 225-226, 238-239, 256, 263. See also Kunarac, Judgement, TC, para. 395.

[662] Celebici, Judgement, AC, para. 303 (“The Appeals Chamber understands the necessity to prove that the perpetrator was the ‘subordinate’ of the accused, not to import a requirement of direct or formal subordination but to mean the relevant accused is, by virtue of his or her position, senior in some sort of formal or informal hierarchy to the perpetrator.”).

[663] Bagilishema, Motifs de l’Arrêt, AC, para. 56 (rejecting the notion that there must be a “de jure-like” relationship).

[664] Bagilishema, Motifs de l’Arrêt, AC, para. 50; Kayishema and Ruzindana, Judgement, AC, para. 294; Celebici, Judgement, AC, para. 192.

[665] Bagilishema, Motifs de l’Arrêt, AC, para. 50; Kayishema and Ruzindana, Judgement, AC, para. 294; Celebici, Judgement, AC, para. 266.

[666] Bagilishema, Motifs de l’Arrêt, AC, para. 50; Celebici, Judgement, AC, para. 266.

[667] Celebici, Judgement, AC, paras. 266, 303.

[668] Bagilishema, Judgement, TC, para. 45; Kayishema and Ruzindana, Judgement, TC, para. 225.

[669] Bagilishema, Judgement, TC, paras. 44-45; Akayesu, Judgement, TC, para. 489 (“[I]t is certainly proper to ensure that there has been malicious intent, or, at least, ensure that negligence was so serious as to be tantamount to acquiescence or even malicious intent.”).

[671] Bagilishema, Judgement, TC, para. 46; Celebici, Judgement, TC, paras. 384-386.

[672] Bagilishema, Motifs de l’Arrêt, AC, para. 28; Celebici, Judgement, AC, paras. 239, 241. See also Bagilishema, Judgement, TC, para. 46, citing Celebici, Judgement, TC, paras. 390-393; Kayishema and Ruzindana, Judgement, TC, para. 228. The Appeals Chamber in Celebici explained that the information must simply be in “the possession of” the superior, and that “it is not required that he actually acquainted himself with the information.” Celebici, Judgement, AC, para. 239. Moreover, the information may be of a general nature such as the violent nature of a subordinate. Id., para. 238. The information may also be written or oral and need not be a particular format or a formal report. Id.

[673] Kayishema and Ruzindana, Judgement, AC, para. 302, citing Celebici, Judgement, TC, para. 395.

[674] Bagilishema, Judgement, TC, para. 48; Kayishema and Ruzindana, Judgement, TC, para. 228.

[676] Bagilishema, Judgement, TC, para. 49.

[677] Bagilishema, Judgement, TC, para. 49.

[678] Defence Closing Brief pp. 19-21, 73, 74.

[679] Musema, Judgement, AC, para. 369, quoting Celebici, Judgement, AC, para. 400 (“Cumulative charging is to be allowed in light of the fact that, prior to the presentation of all of the evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be proven.”). See also Bagilishema, Judgement, TC, paras. 108-109.

[680] Musema, Judgement, AC, paras. 361, 363. In formulating this approach, the Appeals Chamber adopted the test and reasoning announced by the ICTY Appeals Chamber in Celebici. See Musema, Judgement, AC, para. 363 (“The Appeals Chamber confirms that this is the test to be applied with respect to multiple convictions arising under ICTR Statute. The Appeals Chamber further endorses the approach of the Celebici Appeal Judgement, with regard to the elements of the offences to be taken into consideration in the application of this test. ”) (citing Celebici, Judgement, AC, paras. 412-413).