Summary of Judgments ICTR

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.”
b) Generally
i) elements
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
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
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
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.”
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.
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).”
II) CRIMES AGAINST HUMANITY (Article

3)
a) Statute
“The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the
following crimes when committed as part of a widespread or systematic attack against any civilian
population on national, political, ethnic, racial or religious grounds:
a) Murder;
b) Extermination;
c) Enslavement;
d) Deportation;
e) Imprisonment;
f) Torture;
g) Rape;
h) Persecutions on political, racial and religious grounds;
i) Other inhumane acts.”
b) Elements
Akayesu, (Trial Chamber), September 2, 1998, para. 578: Crimes against humanity can be broken down
into four essential elements, namely: “(i) the act must be inhumane in nature and character, causing great
suffering, or serious injury to body or to mental or physical health; (ii) the act must be committed as part of
a wide spread [sic] or systematic attack; (iii) the act must be committed against members of the civilian
population; (iv) the act must be committed on one or more discriminatory grounds, namely, national,
political, ethnic, racial or religious grounds.” (emphasis added)
Compare Akayesu, (Trial Chamber), September 2, 1998, para. 595: “a) [the underlying act] must be
perpetrated as part of a widespread or systematic attack; b) the attack must be against the civilian
population; c) the attack must be launched on discriminatory grounds, namely: national, ethnic, racial,
religious and political grounds.” (emphasis added)
Semanza, (Trial Chamber), May 15, 2003, para. 326: “A crime against humanity must have been
committed as part of a widespread or systematic attack against any civilian population on discriminatory
grounds.”1 (emphasis added)
i) the act must be inhumane in nature and character, causing great

suffering, or serious injury to body or to mental or physical health
(element 1)
Akayesu, (Trial Chamber), September 2, 1998, para. 578: “[T]he act must be inhumane in nature and
character, causing great suffering, or serious injury to body or to mental or physical health.” See also
para. 201.
ii) the act must be committed as part of a “widespread or systematic

attack” (element 2)
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.”
(1) attack
Akayesu, (Trial Chamber), September 2, 1998, para. 581: An “attack” is an “unlawful act of the kind
enumerated in Article 3(a) to (i) of the Statute . . . . An attack may also be non violent in nature, like
imposing a system of apartheid . . . or exerting pressure on the population to act in a particular manner.”
See also Rutaganda, (Trial Chamber), December 6, 1999, para. 70; Musema, (Trial Chamber), January
27, 2000, para. 205; Semanza, (Trial Chamber), May 15, 2003, para. 327.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 122: The Chamber defined “attack” as
“the event in which the enumerated crimes must form part,” noting that “within a single attack, there may
exist a combination of the enumerated crimes, for example murder, rape, and deportation.”
(2) random acts or acts committed for personal reasons excluded
Akayesu, (Trial Chamber), September 2, 1998, para. 578-579: The act must be committed as “part of a
wide spread [sic] or systematic attack and not just a random act of violence.” See also Rutaganda (Trial
Chamber), December 6, 1999, para. 67.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 122-123, n.28: “The elements of the
attack effectively exclude . . . acts carried out for purely personal motives and those outside of a broader
policy or plan.” “Either of these conditions [widespread or systematic] will serve to exclude isolated or
random inhumane acts committed for purely personal reasons.”
(3) “widespread or systematic” not both
Akayesu, (Trial Chamber), September 2, 1998, para. 579, n. 144: The attack must contain one of the
alternate conditions of being widespread or systematic, not both, as in the French text of the Statute.
“Customary international law requires only that the attack be either widespread or systematic.” See also
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 123 & n. 26; Rutaganda, (Trial
Chamber), December 6, 1999, para. 68; Musema, (Trial Chamber), January 27, 2000, para. 203;
Bagilishema, (Trial Chamber), June 7, 2001, para. 77; Ntakirutimana and Ntakirutimana, (Trial Chamber),
February 21, 2003, para. 804; Semanza, (Trial Chamber), May 15, 2003, para. 328; Niyitegeka, (Trial
(4) widespread
Akayesu, (Trial Chamber), September 2, 1998, para. 580: “The concept of ‘widespread’ may be defined
as massive, frequent, large scale action, carried out collectively with considerable seriousness and
directed against a multiplicity of victims.” See also Rutaganda, (Trial Chamber), December 6, 1999, para.
69; Musema, (Trial Chamber), January 27, 2000, para. 204; Ntakirutimana and Ntakirutimana, (Trial
Chamber), February 21, 2003, para. 804.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 123: “A widespread attack is one that is
directed against a multiplicity of victims.” See also Bagilishema (Trial Chamber), June 7, 2001, para. 77.
(5) systematic
(a) whether plan or policy required
Akayesu, (Trial Chamber), September 2, 1998, para. 580: “The concept of ‘systematic’ may be defined as
thoroughly organised and following a regular pattern on the basis of a common policy involving
substantial public or private resources. There is no requirement that this policy must be adopted formally
as the policy of a state. There must however be some kind of preconceived plan or policy.” See also
para. 204.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 123: “A systematic attack means an
attack carried out pursuant to a preconceived policy or plan.” See also Bagilishema, (Trial Chamber),
June 7, 2001, para. 77.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 124, 581: “For an act of mass
victimisation to be a crime against humanity, it must include a policy element. [T]he requirements of
widespread or systematic are enough to exclude acts not committed as part of a broader policy or plan.
Additionally, the requirement that the attack must be committed against a ‘civilian population’ . . .
demands some kind of plan and, the discriminatory element of the attack is . . . only possible as a
consequence of a policy.”
But see Semanza, (Trial Chamber), May 15, 2003, para. 329: “‘Systematic’ describes the organized
nature of the attack. [T]he . . . 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.”
(6) application
Akayesu, (Trial Chamber), September 2, 1998, para. 173: The “widespread” requirement was met, in part,
because of the scale of the events that took place. “Around the country, a massive number of killings
took place within a very short time frame. Tutsi were clearly the target of the attack.” The systematic
nature of the attack was evidenced by the “unusually large shipments of machetes into the country shortly
before it occurred;” “the structured manner in which the attack took place;” the fact that “[t]eachers and
intellectuals were targeted first;” and the fact that through the “media and other propaganda, Hutu were
encouraged systematically to attack Tutsi.”
iii) the act/attack must be committed against members of the civilian

population (element 3)
(1) confusion whether term is “act” or “attack”

grounds.” (emphasis added). See also Akayesu, (Trial Chamber), September 2, 1998, para. 595.
But see Akayesu, (Trial Chamber), September 2, 1998, para. 578: “[T]he act must be committed against
members of the civilian population.” (emphasis added). See also Akayesu, (Trial Chamber), September
2, 1998, para. 582; Bagilishema, (Trial Chamber), June 7, 2001, para. 80.
See also Section (II)(b) above.
(2) civilian defined
Akayesu, (Trial Chamber), September 2, 1998, para. 582: “Members of the civilian population are people
who are not taking any active part in the hostilities, including members of the armed forces who laid down
their arms and those persons placed hors de combat by sickness, wounds, detention or any other
cause.” See also Rutaganda, (Trial Chamber), December 6, 1999, para. 72; Musema, (Trial Chamber),
January 27, 2000, para. 207.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 127-129: Because crimes against
humanity may be committed “inside or outside the context of an armed conflict,” “the term civilian must be
understood within the context of war as well as relative peace.” Thus, “a wide definition of civilian is
applicable and, in the context of the situation of Kibuye Prefecture where there was no armed conflict,
includes all persons except those who have the duty to maintain public order and have the legitimate
means to exercise force.”
Bagilishema, (Trial Chamber), June 7, 2001, para. 80: “The requirement that the prohibited acts must be
directed against a civilian ‘population’ does not mean that the entire population of a given State or territory
must be victimised by these acts in order for the acts to constitute a crime against humanity.” “Instead the
‘population’ element is intended to imply crimes of a collective nature and thus excludes single or isolated
acts which, although possibly constituting crimes under national penal legislation, do not rise to the level
of crimes against humanity.”
Semanza, (Trial Chamber), May 15, 2003, para. 330: “A civilian population must be the primary object of
the attack.”
(3) presence of non-civilians does not strip population of its civilian character
Akayesu, (Trial Chamber), September 2, 1998, para. 582: “Where there are certain individuals within the
civilian population who do not come within the definition of civilians, this does not deprive the population
of its civilian character.” See also Rutaganda, (Trial Chamber), December 6, 1999, para. 72; Musema,
(Trial Chamber), January 27, 2000, para. 207.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 128: “[T]he targeted population must be
predominantly civilian in nature but the presence of certain non-civilians in their midst does not change
the character of that population.” Bagilishema, (Trial Chamber), June 7, 2001, para. 79; Semanza, (Trial
(4) population
Semanza, (Trial Chamber), May 15, 2003, para. 330: “The term ‘population’ does not require that crimes
against humanity be directed against the entire population of a geographic territory or area. 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.”
iv) the attack must be on national, political, ethnic, racial or religious

grounds (discriminatory grounds) (element 4)
Bagilishema, (Trial Chamber), June 7, 2001, para. 81: “[T]he qualifier ‘on national, political, ethnic, racial
or religious grounds,’ which is peculiar to the ICTR Statute should, as a matter of construction, be read as
a characterisation of the nature of the ‘attack’ rather than of the mens rea of the perpetrator. The
perpetrator may well have committed an underlying offence on discriminatory grounds identical to those
of the broader attack; but neither this, nor for that matter any discriminatory intent whatsoever, are
prerequisites of the crime, so long as it was committed as part of the broader attack.”
Semanza, (Trial Chamber), May 15, 2003, para. 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.”
But see Akayesu, (Trial Chamber), September 2, 1998, para. 578: “[T]he act must be committed on one
or more discriminatory grounds, namely, national, political, ethnic, racial or religious grounds.”
Compare Akayesu, (Trial Chamber), September 2, 1998, para. 595: “[T]he attack must be launched on
discriminatory grounds, namely: national, ethnic, racial, religious and political grounds.” (emphasis added)
(1) political grounds
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 130: “Political grounds include party
political beliefs and political ideology.”
(2) national, ethnical, racial, religious grounds
See Sections (I)(c)(iii)(3) – (6) above.
v) mental state (mens rea) (element 5)
(1) knowledge that the accused’s act is part of a widespread or systematic attack
on a civilian population
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 133-134: “The perpetrator must
knowingly commit crimes against humanity in the sense that he must understand the overall context of his
act . . . .” “[T]he accused must have acted with knowledge of the broader context of the attack . . . . Part of
what transforms an individual’s act(s) into a crime against humanity is the inclusion of the act within a
greater dimension of criminal conduct; therefore an accused should be aware of this greater dimension in
order to be culpable. Accordingly, actual or constructive knowledge of the broader context of the attack,
meaning that the accused must know that his act(s) is part of a widespread or systematic attack on a
civilian population and pursuant to some kind of policy or plan, is necessary to satisfy the requisite mens
rea element of the accused.” See also Ruggiu, (Trial Chamber), June 1, 2000, para. 19-20; Bagilishema,
(Trial Chamber), June 7, 2001, para. 94.
Niyitegeka, (Trial Chamber), May 16, 2003, para. 442: “[T]he crime must be committed as part of a
widespread or systematic attack against a civilian population on national, political, ethnic, racial or
religious grounds. The Accused need not act with discriminatory intent, but he must know that his act is
part of this widespread or systematic attack.”
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 133-134: To be held liable, the
perpetrator must have “actual or constructive knowledge of the broader context of the attack, meaning
that the accused must know that his act(s) is part of a widespread or systematic attack on a civilian
population and pursuant to some kind of policy or plan.” See also Rutaganda, (Trial Chamber),
December 6, 1999, para. 71; Musema, (Trial Chamber), January 27, 2000, para. 206.
But see Section (II)(b)(ii)(5)(a) above, discussing whether a plan or policy is required.
(2) discriminatory intent not required for acts other than persecution
Prosecutor v. Akayesu, Case No. ICTR-96-4-A (Appeals Chamber), June 1, 2001, para. 447-469: The
Appeals Chamber ruled that the Trial Chamber had committed an error of law in finding that intent to
discriminate on national, political, ethnic, racial or religious grounds was an essential element for crimes
against humanity. “Article 3 . . . does not require that all crimes against humanity . . . be committed with a
discriminatory intent.” The Appeals Chamber held that “Article 3 restricts the jurisdiction of the Tribunal to
crimes against humanity committed in a specific situation, that is, ‘as part of a widespread or systematic
attack against any civilian population’ on discriminatory grounds.”
Semanza, (Trial Chamber), May 15, 2003, para. 332: “There is no requirement that the enumerated acts
other than persecution be committed with discriminatory intent.”
vi) both state and non-state actors covered

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 125-126: Stating that “crimes against
humanity are . . . ‘instigated or directed by a Government or by any organization or group,’” the Chamber
held that the “Tribunal’s jurisdiction covers both State and non-State actors.”
c) Underlying offenses
i) the individual acts contain their own elements and need not contain
the elements of crimes against humanity
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 135: “The crimes themselves need not
contain the three elements of the attack (i.e. widespread or systematic, against any civilian population, on
discriminatory grounds), but must form part of such an attack. Indeed, the individual crimes contain their
own specific elements.”
For discussion of the requirement that the acts be committed as part of a “widespread or systematic
attack,” see Section (II)(b)(ii), ICTR Digest.
ii) murder
(1) defined
Akayesu, (Trial Chamber), September 2, 1998, para. 589: “The Chamber defines murder as the unlawful,
intentional killing of a human being. The requisite elements of murder are:
1. the victim is dead;
2. the death resulted from an unlawful act or omission of the accused or a subordinate;
3. at the time of the killing the accused or a subordinate had the intention to kill or inflict grievous bodily
harm on the deceased having known that such bodily harm is likely to cause the victim's death, and is
reckless whether death ensures or not.”
See also Rutaganda, (Trial Chamber), December 6, 1999, para. 80-81; Musema, (Trial Chamber),
January 27, 2000, para. 215.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 136-140: “The accused is guilty of
murder if the accused, engaging in conduct which is unlawful:
1. causes the death of another;
2. by a premeditated act or omission;
3. intending to kill any person or,
4. intending to cause grievous bodily harm to any person.”
See also Bagilishema, (Trial Chamber), June 7, 2001, para. 84.
Semanza, (Trial Chamber), May 15, 2003, para. 334-339: “[T]he Chamber considers that it is
premeditated murder (assassinat) that constitutes a crime against humanity in Article 3(a) . . . .
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. [T]he 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. [T]he 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.”
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 137-140: The Chamber disagreed with
the Trial Chamber holding in Akayesu, and stated that “Assassinat” in the French version of the Statute,
and not “Murder,” (in the English version of the Statute) was the correct term. The Chamber noted that
“premeditation is always required for assassinat” whereas it is not with “murder.” “If in doubt, a matter of
interpretation should be decided in favour of the accused; in this case, the inclusion of premeditation is
favourable to the accused.” The Chamber thus held that “murder and assassinat should be considered
together in order to ascertain the standard of mens rea.” “When murder is considered along with
assassinat the Chamber finds that the standard of mens rea required is intentional and premeditated
killing.” The Chamber held that “[t]he result is premeditated when the actor formulated his intent to kill
after a cool moment of reflection,” and that “[t]he result is intended when it is the actor's purpose, or the
actor is aware that it will occur in the ordinary course of events.” See also Bagilishema, (Trial Chamber),
June 7, 2001, para. 84.
But see Akayesu, (Trial Chamber), September 2, 1998, para. 588: “Customary International Law dictates
that it is the act of ‘Murder’ that constitutes a crime against humanity and not ‘Assassinat.’ There are
therefore sufficient reasons to assume that the French version of the Statute suffers from an error in
translation.” See also Rutaganda, (Trial Chamber), December 6, 1999, para. 79; Musema, (Trial
Chamber), January 27, 2000, para. 214.
See also discussion of murder under Article 4, Section (III)(d)(i)(1), ICTR Digest.
iii) extermination
(1) defined
Akayesu, (Trial Chamber), September 2, 1998, para. 591-592: “Extermination is . . . directed against a
group of individuals” and it “differs from murder in that it requires an element of mass destruction which is
not required for murder.” The Chamber defined the following as essential elements of extermination:
(1) “the accused or his subordinate participated in the killing of certain named or described persons; (2)
the act or omission was unlawful and intentional; (3) the unlawful act or omission must be part of a
widespread or systematic attack; (4) the attack must be against the civilian population; (5) the attack must
be on discriminatory grounds, namely: national, political, ethnic, racial, or religious grounds.”
See also Rutaganda, (Trial Chamber), December 6, 1999, para. 83-84; Musema, (Trial Chamber),
January 27, 2000, para. 218; Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para.
812-813.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 144: The Chamber defined the
requisite elements of extermination: (1) “[t]he actor participates in the mass killing of others or in the
creation of conditions of life that lead to the mass killing of others, through his act(s) or omission(s);” (2)
“having intended the killing, or being reckless, or grossly negligent as to whether the killing would result
and;” (3) “being aware that his act(s) or omission(s) forms part of a mass killing event;” (4) “where, his
act(s) or omission(s) forms part of a widespread or systematic attack against any civilian population on
national, political, ethnic, racial or religious grounds.” See also Bagilishema, (Trial Chamber), June 7,
2001, para. 89.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, n. 8. to para. 645: “It is important to note that
an accused may be guilty of extermination . . . when sufficient evidence is produced that he or she killed a
single person as long as this killing was a part of a mass killing event.”
Rutaganda, (Trial Chamber), December 6, 1999, para. 84: “[T]his act or omission includes, but is not
limited to the direct act of killing. It can be any act or omission, or cumulative acts or omissions, that
cause the death of the targeted group of individuals.”
Niyitegeka, (Trial Chamber), May 16, 2003, para. 450: “[T]he material element of extermination ‘consists
of any one act or combination of acts which contributes to the killing of a large number of individuals.’”
agrees that in order to be guilty of the crime of extermination, the Accused must have been involved in
killings of civilians on a large scale but considers that the distinction is not entirely related to numbers.
The distinction between extermination and murder is a conceptual one that relates to the victims of the
crime and the manner in which they were targeted.”

Semanza, (Trial Chamber), May 15, 2003, para. 341: “[I]n 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. [T]he mental element for extermination is the intent to perpetrate or participate in a
mass killing.”
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 144: The mental state for extermination
is that the accused “intended the killing” or was “reckless or grossly negligent as to whether the killing
would result,” and was “aware that his act(s) or omission(s) form[] part of a mass killing event.”
(3) application
Niyitegeka, (Trial Chamber), May 16, 2003, para. 454: “[B]y his participation in attacks against Tutsi, and
his acts of shooting at Tutsi refugees, which contributed to the killing of a large number of individuals, and
his killing of the three persons, the Accused is . . . responsible . . . for extermination committed as part of
a widespread and systematic attack on the civilian Tutsi population on ethnic grounds . . . .”
Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1062: “Both [the]
Kangura [newspaper] and RTLM [radio station] instigated killings on a large-scale. The nature of media,
particularly radio, is such that the impact of the communication has a broad reach, which greatly
magnifies the harm that it causes. The activities of the CDR [political party that depicted the Tutsi
population as the enemy] and its Impuzamugambi [the youth wing of CDR], being by nature group
rampages of violence, also caused killing on a large-scale, often following meetings and
demonstrations.” The Chamber concluded that this constituted extermination.
iv) enslavement
v) deportation
vi) imprisonment
vii) torture
(1) defined
Akayesu, (Trial Chamber), September 2, 1998, para. 593-595, 681: “The Tribunal interprets the word
‘torture’. . . in accordance with the definition of torture set forth in the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” “The Chamber defines the
essential elements of torture as:
(i) The perpetrator must intentionally inflict severe physical or mental pain or suffering upon the victim for
one or more of the following purposes:
(a) to obtain information or a confession from the victim or a third person;
(b) to punish the victim or a third person for an act committed or suspected of having been committed by
either of them;
(c) for the purpose of intimidating or coercing the victim or the third person;
(d) for any reason based on discrimination of any kind.

(ii) The perpetrator was himself an official, or acted at the instigation of, or with the consent or
acquiescence of, an official or person acting in an official capacity.” 2
“The Chamber finds that torture is a crime against humanity if the following further elements are satisfied:
a) Torture must be perpetrated as part of a widespread or systematic attack;
b) the attack must be against the civilian population;
c) the attack must be launched on discriminatory grounds, namely: national, ethnic, racial, religious and
political grounds.”
(2) rape can be torture
Akayesu, (Trial Chamber), September 2, 1998, para. 597, 687: “Like torture, rape is used for such
purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a
person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when
inflicted by or at the instigation of or with the consent of acquiescence of a public official or other person
acting in an official capacity.”3
(3) no “public official requirement”
Semanza, (Trial Chamber), May 15, 2003, para. 342-343: “In Akayesu, the Trial Chamber relied on the
definition of torture found in the . . . Convention Against Torture . . . . The ICTY Appeals Chamber has
since explained that while the definition contained in the Convention Against Torture is reflective of
customary international law . . . , it is not identical to the definition of torture as a crime against humanity.
[T]he 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.” Thus, the Chamber rejected
the ‘public official’ requirement.
See also discussion of torture under Article 4, Section (III)(d)(i)(2), ICTR Digest.
viii) rape and sexual violence
(1) defined
Akayesu, (Trial Chamber), September 2, 1998, para. 596-598, 686-688: “[R]ape is a form of aggression
and . . . the central elements of the crime of rape cannot be captured in a mechanical description of object
and body parts . . . . Like torture, rape is used for such purposes as intimidation, degradation, humiliation,
discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal
dignity. . . .” “The Chamber defines rape as a physical invasion of a sexual nature, committed on a person
under circumstances which are coercive. Sexual violence which includes rape, is considered to be any
act of a sexual nature which is committed on a person under circumstances which are coercive.” “Sexual
violence is not limited to physical invasion of the human body and may include acts which do not involve
penetration or even physical contact. [For example,] [t]he incident described by Witness KK in which the
Accused ordered the Interahamwe to undress a student and force her to do gymnastics naked in the
public courtyard . . . in front of a crowd, constitutes sexual violence.” “[C]oercive circumstances need not
be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress
which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain
circumstances . . . . ”
Musema, (Trial Chamber), January 27, 2000, para. 220-221, 226-229: The Chamber adopted the
definition of rape and sexual violence set forth in Akayesu, and further stated that “variations on the acts
of rape may include acts which involve the insertions of objects and/or the use of bodily orifices not
considered to be intrinsically sexual.” Concurring with the approach set forth in Akayesu, the Chamber
stated that the “essence of rape is not the particular details of the body parts and objects involved, but
rather the aggression that is expressed in a sexual manner under conditions of coercion.” Since “there is
a trend in national legislation to broaden the definition of rape” and an ongoing evolution and
incorporation of the understanding of rape into principles of international law, “a conceptual definition is
preferable to a mechanical definition of rape” because it will “better accommodate evolving norms of
criminal justice.”
Compare Semanza, (Trial Chamber), May 15, 2003, para. 344-345: “The Akayesu Judgement enunciated
a broad definition of rape . . . . The Appeals Chamber of the ICTY . . . affirmed a narrower interpretation
defining the material element of rape . . . 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. Consent for this purpose must be given voluntarily
and freely and is assessed within the context of the surrounding circumstances.” “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. [T]he Chamber recognises that other acts of sexual violence that do not satisfy this narrow
definition may be prosecuted as other crimes against humanity . . . such as torture, persecution,
enslavement, or other inhumane acts.”
Semanza, (Trial Chamber), May 15, 2003, para. 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.”
See also discussion of rape and sexual violence as causing serious bodily or mental harm to members of
the group under Article 2, Section (I)(d)(ii)(3), rape as torture under Article 3, Section (II)(c)(vii)(2), sexual
violence as other inhumane acts under Article 3, Section (II)(c)(x)(1)(b), sexual violence as an outrage
upon personal dignity under Article 4, Section (III)(d)(v)(1), and rape as an outrage upon personal dignity
under Article 4, Section (III)(d)(v)(3), ICTR Digest.
ix) persecutions on political, racial and religious grounds
(1) elements
Ruggiu, (Trial Chamber), June 1, 2000, para. 21: Quoting the ICTY, the Trial Chamber “summarized the
elements that comprise the crime of persecution as follows: a) those elements required for all crimes
against humanity under the Statute, b) a gross or blatant denial of a fundamental right reaching the same
level of gravity as the other acts prohibited under Article 5, c) discriminatory grounds.”
Semanza, (Trial Chamber), May 15, 2003, para. 347-350: “Persecution may take diverse forms and does
not necessarily require a physical act.” “[P]ersecution may include acts enumerated under other sub-
headings of crimes against humanity, such as murder or deportation, when they are committed on
discriminatory grounds. Persecution may also involve a variety of other discriminatory acts, not
enumerated elsewhere in the Statute, involving serious deprivations of human rights.” “[T]he enumerated
grounds of discrimination for persecution in Article 3(h) . . . 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.”
(2) intent/mental state (mens rea)
persecution specifically requires a finding of discriminatory intent on racial, religious or political grounds.
The Chamber notes that this requirement has been broadly interpreted by the International Criminal
Tribunal for the Former Yugoslavia (ICTY) to include discriminatory acts against all those who do not
belong to a particular group.”
(3) persecution also defined in terms of impact
persecution is defined also in terms of impact. It is not a provocation to cause harm. It is itself the harm.
Accordingly, there need not be a call to action in communications that constitute persecution. For the
same reason, there need be no link between persecution and acts of violence.”
(4) persecution is broader than incitement
Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1078: “[P]ersecution is
broader than direct and public incitement, including advocacy of ethnic hatred in other forms.”
(5) perpetrator can be held accountable for both persecution and extermination
notes that persecution when it takes the form of killings is a lesser included offence of extermination. The
nature of broadcasts, writings, and the activities of CDR is such, however, that the same communication
would have caused harm of varying degrees to different individuals. An RTLM broadcast, Kangura article,
or CDR demonstration that led to the extermination of certain Tutsi civilians inflicted lesser forms of harm
on others, constituting persecution. The Chamber considers that these actions by the Accused therefore
constitute multiple and different crimes, for which they can be held separately accountable.”
(6) application
Ruggiu, (Trial Chamber), June 1, 2000, para. 22: In the case at hand, the Trial Chamber discerned “a
common element” when examining the acts of persecution admitted to by the accused. “Those acts were
direct and public radio broadcasts all aimed at singling out and attacking the Tutsi ethnic group and
Belgians on discriminatory grounds, by depriving them of the fundamental rights to life, liberty and basic
humanity enjoyed by members of wider society. The deprivation of these rights can be said to have as its
aim the death and removal of those persons from the society in which they live alongside the
perpetrators, or eventually from humanity itself.”
Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1071: “[I]n Rwanda the
targets of attack were the Tutsi ethnic group and the so-called ‘moderate’ Hutu political opponents who
supported the Tutsi ethnic group. The Chamber considers that the group against which discriminatory
attacks were perpetrated can be defined by its political component as well as its ethnic component.”
“RTLM, Kangura and CDR . . . essentially merged political and ethnic identity, defining their political target
on the basis of ethnicity and political positions relating to ethnicity. [T]he discriminatory intent of the
Accused falls within the scope of the crime against humanity of persecution on political grounds of an
ethnic character.”
(a) application to hate speech

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1072: In citing the
elements of persecution as held by Ruggiu, the Trial Chamber held that “hate speech targeting a
population on the basis of ethnicity, or other discriminatory grounds, reaches this level of gravity and
constitutes persecution under Article 3(h) of its Statute.” “Hate speech is a discriminatory form of
aggression that destroys the dignity of those in the group under attack. It creates a lesser status not only
in the eyes of the group members themselves but also in the eyes of others who perceive and treat them
as less than human. The denigration of persons on the basis of their ethnic identity or other group
membership in and of itself, as well as in its other consequences, can be an irreversible harm.”
x) other inhumane acts
(1) defined
(a) generally
Akayesu, (Trial Chamber), September 2, 1998, para. 585: The list of acts enumerated in Article 3(a)-(h) of
the Statute is not exhaustive. “Any act which is inhumane in nature and character may constitute a crime
against humanity, provided the other elements are met. This is evident in (i) which caters for all other
inhumane acts not stipulated in (a) to (h) of Article 3.” See also Rutaganda, (Trial Chamber), December
6, 1999, para. 77.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 148-151: “Other inhumane acts include
those crimes against humanity that are not otherwise specified in Article 3 . . . but are of comparable
seriousness” and “comparable gravity” to the other enumerated acts. “These will be acts or omissions
that deliberately cause serious mental or physical suffering or injury or constitute a serious attack on
human dignity. The Prosecution must prove a nexus between the inhumane act and the great suffering
or serious injury to mental or physical health of the victim.” Whether an act “rise[s] to the level of
inhumane acts should be determined on a case-by-case basis.” See also Bagilishema, (Trial Chamber),
June 7, 2001, para. 92.
Musema, (Trial Chamber), January 27, 2000, para. 232: “[T]he inhumane act or omission must: (a) [b]e
directed against member(s) of the civilian population; (b)[t]he perpetrator must have discriminated against
the victim(s), on one or more of the enumerated discriminatory grounds; (c) [t]he perpetrator’s act or
omission must form part of a widespread or systematic attack and the perpetrator must have knowledge
of this attack.”
Niyitegeka, (Trial Chamber), May 16, 2003, para. 460: “[T]he Accused must be found to have participated
in the commission of inhumane acts on individuals, being acts of similar gravity to the other acts
enumerated in the Article, such as would cause serious physical or mental suffering or constitute a
serious attack on human dignity.”
(b) sexual violence included
Akayesu, (Trial Chamber), September 2, 1998, para. 688, 697: “Sexual violence falls within the scope of
‘other inhumane acts,’ set forth [in] Article 3(i) of the Tribunal’s Statute.” Akayesu was “judged criminally
responsible under Article 3(i) for the following other inhumane acts: (i) the forced undressing of [a woman]
outside the bureau communal, after making her sit in the mud . . . ; (ii) the forced undressing and public
marching of [a woman] naked at the bureau communal; (iii) the forced undressing of [three women] and
the forcing of the women to perform exercises naked in public near the bureau communal.”
the group under Article 2, Section (I)(d)(ii)(3), rape and sexual violence under Article 3, Section (II)(c)(viii),
sexual violence as an outrage upon personal dignity under Article 4, Section (III)(d)(v)(1), ICTR Digest.
(c) third party suffering
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 153: The Chamber acknowledged that
“a third party could suffer serious mental harm by witnessing acts committed against others, particularly
against family or friends.”
(a) generally
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 154, 583: “[F]or an accused to be found
guilty of crimes against humanity for other inhumane acts, he must commit an act of similar gravity and
seriousness to the other enumerated crimes, with the intention to cause the other inhumane act, and with
knowledge that the act is perpetrated within the overall context of the attack.”
(b) mental state for third party suffering
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 153: “[T]o find an accused responsible
for [third party suffering] under crimes against humanity, it is incumbent on the Prosecutor to prove the
mens rea on the part of the accused.” “[I]nhumane acts are . . . those which deliberately cause serious
mental suffering.” The mens rea is “the intention to inflict serious mental suffering on the third party, or
where the accused knew that his act was likely to cause serious mental suffering and was reckless as to
whether such suffering would result.” Consequently, “if at the time of the act, the accused was unaware
of the third party bearing witness to his act, then he cannot be held responsible for the mental suffering of
the third party.”
(3) application
Niyitegeka, (Trial Chamber), May 16, 2003, para. 465, 467: “[T]he acts committed with respect to
Kabanda [decapitation, castration and piercing his skull with a spike] and the sexual violence to the dead
woman’s body [insertion of a sharpened piece of wood into her genitalia] are acts of seriousness
comparable to other acts enumerated in the Article, and would cause mental suffering to civilians, in
particular, Tutsi civilians, and constitute a serious attack on the human dignity of the Tutsi community as a
whole.”
“[B]y his act of encouragement during the killing, decapitation and castration of Kabanda, and the piercing
of his skull, and his association with the attackers who carried out these acts, and his ordering of
Interahamwe to perpetrate the sexual violence on the body of the dead woman, the Accused is . . .
responsible for inhumane acts committed as part of a widespread and systematic attack on the civilian
Tutsi population on ethnic grounds.”
III) WAR CRIMES (Article 4)

a) Statute
“The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering
to be committed 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. These violations shall
include, but shall not be limited to:
a) Violence to life, health and physical or mental well-being of persons, in particular murder as well as
cruel treatment such as torture, mutilation or any form of corporal punishment;
b) Collective punishments;
c) Taking of hostages;
d) Acts of terrorism;
e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced
prostitution and any form of indecent assault;
f) Pillage;
g) The passing of sentences and the carrying out of executions without previous judgement pronounced
by a regularly constituted court, affording all the judicial guarantees which are recognized as
indispensable by civilised peoples;
h) Threats to commit any of the foregoing acts.”
b) Generally
i) applicability needs to be assessed
Akayesu, (Trial Chamber), September 2, 1998, para. 604-607: The Security Council took a more
expansive approach in drafting the ICTR Statute than the ICTY Statute, insofar as they “included within
the subject-matter jurisdiction of the . . . Tribunal international instruments regardless of whether they
were considered part of customary international law or whether they have customarily entailed the
individual criminal responsibility of the perpetrator of the crime. Article 4 . . . includes violations of
Additional Protocol II, which, as a whole, has not yet been universally recognized as part of customary
international law, [and] for the first time criminalizes common article 3 of the four Geneva Conventions.”
“[A]n essential question which should be addressed . . . is whether Article 4 of the Statute includes norms
which did not, at the time the crimes alleged in the Indictment were committed, form part of existing
international customary law.” The Chamber also noted the Secretary General’s statement at the
establishment of the ICTY that “in application of the principle of nullum crimen sine lege the International
Tribunal should apply rules of International Humanitarian law which are beyond any doubt part of
customary law.” The Chamber found it necessary to assess the applicability of Common Article 3 and
Additional Protocol II individually.
ii) Common Article 3 and list of prohibited acts in Statute are part of
customary international law; alternatively, Rwanda was party to the
Geneva Conventions and Protocols, and criminalized the enumerated
acts
Akayesu, (Trial Chamber), September 2, 1998, para. 608-609, 616: The Chamber concluded that
Common Article 3 is customary law, noting that most states’ penal codes “have criminalized acts which if
committed during internal armed conflict, would constitute violations of Common Article 3.” The Chamber
also noted that the ICTY Trial Chamber in the Tadic judgment4 held that Common Article 3 was customary
international humanitarian law, as did the ICTY Appeals Chamber. 5 However, the Chamber also noted
the Secretary General’s statement that Additional Protocol II “as a whole was not deemed . . . to have
been universally recognized as customary international law,” and stated that the Appeals Chamber in
Tadic “concurred with this view inasmuch as many provisions of . . . Protocol [II] can now be regarded as
declaratory of existing rules or as having crystallized in emerging rules of customary law, but not all.”
However, it did conclude that “[t]he list in Article 4 of the Statute . . . comprises serious violations of the
fundamental humanitarian guarantees which . . . are recognized as part of international customary law.”
But see Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 156-158, 597-598: It was
unnecessary to consider whether the instruments were “considered customary international law that
imposes criminal liability for their serious breaches.” Rwanda was a party to the Conventions and they
were in force prior to the events. Furthermore, “all the offences enumerated in Article 4 of the Statute,
also constituted crimes under the laws of Rwanda.” Also, the Rwandan Patriotic Front (RPF) “had stated
to the International Committee of the Red Cross (ICRC) that it was bound by the rules of international
humanitarian law.”
Rutaganda, (Trial Chamber), December 6, 1999, para. 86-90: The Court relied on the judgments in
Akayesu and Kayishema and Ruzindana in holding that, “at the time the crimes alleged in the Indictment
were perpetrated, persons were bound to respect the guarantees provided for by the 1949 Geneva
Conventions and their 1977 Additional Protocols, as incorporated in Article 4 of the Statute.” See also
Musema, (Trial Chamber), January 27, 2000, para. 242; Semanza, (Trial Chamber), May 15, 2003, para.
353.
iii) individual criminal responsibility applies

Akayesu, (Trial Chamber), September 2, 1998, para. 611-617: “[I]t is clear that the authors of such
egregious violations must incur individual criminal responsibility for their deeds.”
iv) “serious violation” required; list of prohibited acts in Article 4 of the

Statute are serious violations
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 184: “The competence of the Chamber
is limited to serious violations of Common Article 3 and Protocol II.” The Chamber held that “‘serious
violations’ should be interpreted as breaches involving grave consequences” and that the list of prohibited
acts in Article 4 “undeniably should be recognised as serious violations entailing individual criminal
responsibility.”
Akayesu, (Trial Chamber), September 2, 1998, para. 616: “The Chamber understands the phrase ‘serious
violation’ to mean ‘a breach of rule protecting important values [which] must involve grave consequences
for the victim.’” See also Musema, (Trial Chamber), January 27, 2000, para. 286; Bagilishema, (Trial
Chamber), June 7, 2001, para. 102; Semanza, (Trial Chamber), May 15, 2003, para. 370.
Rutaganda, (Trial Chamber), December 6, 1999, para. 106: A “‘serious violation’ is one which breaches a
rule protecting important values with grave consequences for the victim. The fundamental guarantees
included in Article 4 of the Statute represent elementary considerations of humanity. Violations thereof
would, by their very nature, be deemed serious.” See also Musema, (Trial Chamber), January 27, 2000,
para. 288.
c) Elements
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 169: “[I]n order for an act to breach
Common Article 3 and Protocol II,” the following elements must be shown: (1) “armed conflict . . . of a
non-international character,” (2) a “link between the accused and the armed forces,” (3) “the crimes must
be committed ratione loci and ratione personae,” and (4) “there must be a nexus between the crime and
the armed conflict.”
But see Akayesu, (Appeals Chamber), June 1, 2001, para. 425-445 holding that the second element is
not required. See also Section (III)(c)(ii) below, for discussion of cases rejecting the link between the
accused and the armed forces.
i) armed conflict requirement (element 1)
(1) armed conflict of a non-international character required
Akayesu, (Trial Chamber), September 2, 1998, para. 601-602: “Common Article 3 applies to ‘armed
conflicts not of an international character.’” Internal disturbances are not covered. See also Bagilishema,
(Trial Chamber), June 7, 2001, para. 99.
Rutaganda, (Trial Chamber), December 6, 1999, para. 91: “Offences alleged to be covered by Article 4 of
the Statute must, as a preliminary matter, have been committed in the context of a conflict of a non-
international character satisfying the requirements of Common Article 3, which applies to ‘armed conflict
not of an international character’….”
(a) “armed conflict of a non-international nature” defined
Akayesu, (Trial Chamber), September 2, 1998, para. 619-621, 625: The Chamber quoted the ICTY
Appeals Chamber in Tadic stating that “an armed conflict exists whenever there is [ . . . ] protracted
armed violence between governmental authorities and organized armed groups or between such groups
within a State. International humanitarian law applies from the initiation of such armed conflicts and
extends beyond the cessation of hostilities until [ . . . ] in the case of internal conflicts, a peaceful
settlement is reached.”6 “[A]n armed conflict is distinguished from internal disturbances by the level of
intensity of the conflict and the degree of organization of the parties to the conflict.”
The Chamber also noted the ICRC commentary on Common Article 3 which suggests useful criteria for
determining armed conflicts:
“That the Party in revolt against the de jure Government possesses an organized military force, an
authority responsible for its acts, acting within a determinate territory and having the means of respecting
and ensuring the respect for the Convention. That the legal Government is obliged to have recourse to
the regular military forces against insurgents organized as military in possession of a part of the national
territory.
(a) That the de jure Government has recognized the insurgents as belligerents; or
(b) that it has claimed for itself the rights of a belligerent; or
(c) that it has accorded the insurgents recognition as belligerents for the
purposes only of the present Convention; or
(d) that the dispute has been admitted to the agenda of the Security Council or the General Assembly of
the United Nations as being a threat to international peace, a breach of peace, or an act of aggression.”
Citing International Committee of the Red Cross, Commentary I Geneva Convention, Article 3, Para. 1 -
Applicable Provisions.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 170: “An armed conflict which takes
place in the territory of a High Contracting Party between its armed forces and dissident armed forces or
other organised armed groups, in accordance with Protocol II, should be considered as a non-
international armed conflict.”
Rutaganda, (Trial Chamber), December 6, 1999, para. 92-93: “[C]onflicts referred to in Common Article 3
are armed conflicts with armed forces on either side engaged in hostilities: conflicts, in short, which are in
many respects similar to an international conflict, but take place within the confines of a single country.”
“[W]hether or not a situation can be described as an ‘armed conflict,’ meeting the criteria of Common
Article 3, is to be decided upon on a case-by-case basis. Hence, in dealing with this issue, the Akayesu
Judgement suggested an ‘evaluation test,’ whereby it is necessary to evaluate the intensity and the
organization of the parties to the conflict to make a finding on the existence of an armed conflict. This
approach also finds favour with the Trial Chamber in this instance.”
Musema, (Trial Chamber), January 27, 2000, para. 247-248: “[A] non-international conflict is distinct from
an international armed conflict because of the legal status of the entities opposing each other: the parties
to the conflict are not sovereign States, but the government of a single State in conflict with one or more
armed factions within its territory.” “The expression ‘armed conflicts’ introduces a material criterion: the
existence of open hostilities between armed forces which are organized to a greater or lesser degree.
Within these limits, non-international armed conflicts are situations in which hostilities break out between
armed forces or organized armed groups within the territory of a single State.”
(b) internal disturbances excluded
Akayesu, (Trial Chamber), September 2, 1998, para. 620: The term “armed conflict” “suggests the
existence of hostilities between armed forces organized to a greater or lesser extent,” which necessarily
“rules out situations of internal disturbances and tensions.” “For a finding to be made on the existence of
an internal armed conflict, . . . it will therefore be necessary to evaluate both the intensity and organization
of the parties to the conflict.”
Rutaganda, (Trial Chamber), December 6, 1999, para. 92: “[I]t is clear that mere acts of banditry, internal
disturbances and tensions, and unorganized and short-lived insurrections are to be ruled out.”
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 171: “Certain types of internal conflicts,
which fall below a minimum threshold, are not recognised by Article 1(2) of Protocol II as non-
international armed conflict, namely, ‘situations of internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence and other acts of a similar nature.’” See also Musema, (Trial
(2) application of Common Article 3 and Additional Protocol II depend on

objective criteria
Akayesu, (Trial Chamber), September 2, 1998, para. 603: “[T]he ascertainment of the intensity of a non-
international conflict does not depend on the subjective judgment of the parties to the conflict . . . . [O]n
the basis of objective criteria, both Common Article 3 and Additional Protocol II will apply once it has been
established there exists an internal armed conflict which fulfills respective pre-determined criteria.”
Akayesu, (Trial Chamber), September 2, 1998, para. 624: Conditions required to apply Additional
Protocol II “have to be applied objectively, irrespective of the subjective conclusions of the parties
involved in the conflict.”
Bagilishema, (Trial Chamber), June 7, 2001, para. 101: “Whether a conflict meets the material
requirements of [Common Article 3 and Additional Protocol II] is a matter of objective evaluation of the
organization and intensity of the conflict and of the forces opposing one and another.”
Semanza, (Trial Chamber), May 15, 2003, para. 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.”
(3) type of conflict required for Additional Protocol II - additional requirements
Rutaganda, (Trial Chamber), December 6, 1999, para. 91: “Offences alleged to be covered by Article 4 of
the Statute must, as a preliminary matter, have been committed in the context of a conflict of a non-
international character satisfying the requirements of Common Article 3, which applies to ‘armed conflict
not of an international character.’” “Additional Protocol II [applies] to 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.’”
Akayesu, (Trial Chamber), September 2, 1998, para. 601-602, 622-623: The following conditions must be
met for Additional Protocol II to apply:
“(i) an armed conflict took place in the territory of a High Contracting Party . . . between its armed forces
and dissident armed forces or other organized armed groups;
(ii) the dissident armed forces or other organized armed groups were under responsible command;
(iii) the dissident armed forces or other organized armed groups were able to exercise such control over a
part of their territory as to enable them to carry out sustained and concerted military operations; and
(iv) the dissident armed forces or other organized armed groups were able to implement Additional
Protocol II.”
(emphasis added). See also Rutaganda, (Trial Chamber), December 6, 1999, para. 95; Bagilishema,
(Trial Chamber), June 7, 2001, para. 100; Kayishema and Ruzindana, (Trial Chamber), May 21, 1999,
para. 171.
Rutaganda, (Trial Chamber), December 6, 1999, para. 94: “[C]onflicts covered by Additional Protocol II
have a higher intensity threshold than Common Article 3 . . . . If an internal armed conflict meets the
material conditions of Additional Protocol II, it then also automatically satisfies the threshold requirements
of the broader Common Article 3.”
(a) armed forces
Akayesu, (Trial Chamber), September 2, 1998, para. 625: “Under Additional Protocol II, the parties to the
conflict will usually either be the government confronting dissident armed forces, or the government
fighting insurgent organized armed groups. The term, ‘armed forces’ of the High Contracting Party is to
be defined broadly so as to cover all armed forces as described within national legislations.” See also
Musema, (Trial Chamber), January 27, 2000, para. 256.
(b) responsible command
Akayesu, (Trial Chamber), September 2, 1998, para. 626: “[R]esponsible command . . . entails a degree
of organization within the armed group or dissident armed forces. This degree of organization should be
such so as to enable the armed group or dissident forces to plan and carry out concerted military
operations, and to impose discipline in the name of a de facto authority.” See also Musema, (Trial
(c) “sustained and concerted military operations” and implementing Additional Protocol II
Akayesu, (Trial Chamber), September 2, 1998, para. 626: The “armed forces must be able to dominate a
sufficient part of the territory so as to maintain sustained and concerted military operations and to apply
Additional Protocol II. In essence, the operations must be continuous and planned. The territory in their
control is usually that which has eluded the control of the government forces.” See also Musema, (Trial
ii) link between the accused and the armed forces - rejected
Akayesu, (Appeals Chamber), June 1, 2001, para. 425-445: The Appeals Chamber held that the Trial
Chamber erred as a matter of law by (a) applying the “public agent or government representative test” in
interpreting Article 4 and (b) holding that “the category of persons likely to be held responsible for
violations of Article 4 . . . includes ‘only . . . individuals . . . belonging to the armed forces under the
military command of either of the belligerent parties, or to 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 fulfill the war efforts.’”
“[T]he Trial Chamber erred on a point of law in restricting the application of common Article 3 to a certain
category of persons.” “[I]n actuality authors of violations of common Article 3 will likely fall into one of
these categories” since “common Article 3 requires a close nexus between violations and the armed
conflict.”7 “This nexus between violations and the armed conflict implies that, in most cases, the
perpetrator of the crime will probably have a special relationship with one party to the conflict. However,
such a relationship is not a condition precedent to the application of common Article 3 and, hence of
Article 4 of the Statute.”
Semanza, (Trial Chamber), May 15, 2003, para. 358-362: “Common Article 3 and Additional Protocol II . .
. do not specify classes of potential perpetrators, rather they indicate who is bound by the obligations
imposed thereby.” “[F]urther 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.
[T]he protections of Common Article 3 imply effective punishment of perpetrators, whoever they may be.”
“[C]riminal responsibility for acts covered by Article 4 of the Statute does not depend on any particular
classification of the alleged perpetrator.”
(1) civilians can be liable for war crimes
Musema, (Trial Chamber), January 27, 2000, para. 274-275: It is “well-established that the post-World
War II Trials unequivocally support the imposition of individual criminal liability for war crimes on civilians
where they have a link or connection with a Party to the conflict. The principle of holding civilians liable
for breaches of the laws of war is, moreover, favoured by a consideration of the humanitarian object and
purpose of the Geneva Conventions and the Additional Protocols, which is to protect war victims from
atrocities.” Thus, the Accused, as a civilian, “could fall in the class of individuals who may be held
responsible for serious violations of international humanitarian law, in particular serious violations of
Common Article 3 and Additional Protocol II.”
iii) geographic jurisdiction (ratione loci) (element 2)

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 169: “[T]he crimes must be committed
ratione loci . . . . ”
(1) once criteria are met, apply to whole state, not just “theatre of combat”
Rutaganda, (Trial Chamber), December 6, 1999, para. 102-103: “[T]he requirements of Common Article 3
and Additional Protocol II apply in the whole territory where the conflict is occurring and are not limited to
the ‘war front’ or to the ‘narrow geographical context of the actual theater of combat operations.’” See
also Akayesu, (Trial Chamber), September 2, 1998, para. 635; Kayishema and Ruzindana, (Trial
Chamber), May 21, 1999, para. 182-183; Musema, (Trial Chamber), January 27, 2000, para. 284;
Semanza, (Trial Chamber), May 15, 2003, para. 367.
Bagilishema, (Trial Chamber), June 7, 2001, para. 101: “Once the material requirements of Common
Article 3 or Additional Protocol II have been met, these instruments will immediately be applicable not
only within the limited theatre of combat but also in the whole territory of the State engaged in the
conflict. Consequently, the parties engaged in the hostilities are bound to respect the provisions of these
instruments throughout the relevant territory.”
iv) personal jurisdiction (ratione personae) (element 3)

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 169: “[T]he crimes must be committed .
. . ratione personae . . . . ”
(1) class of victims - civilians protected
Semanza, (Trial Chamber), May 15, 2003, para. 363-366: “[B]oth Common Article 3 and Additional
Protocol II protect persons not taking an active part in the hostilities. The ICTY Appeals Chamber
emphasised that Common Article 3 covers ‘any individual not taking part in the hostilities.’ This is also
the position taken by this Tribunal.”
Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 859: “The provision [Article
4(a)] seeks to protect persons not taking an active part in the hostilities in armed conflicts not of an
international character.”
Akayesu, (Trial Chamber), September 2, 1998, para. 629: The Chamber held that “persons taking no
active part in the hostilities,” (from Common Article 3(1)), and “all persons who do not take a direct part or
who have ceased to take part in hostilities,” (from Article 4 of Additional Protocol II) may be treated
synonymously.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 605-608: The enumerated Articles of
Protocol II would protect “interned or detained persons, deprived of their liberty for reasons related to the
armed conflict,” “wounded, sick and shipwrecked persons,” “religious and medical personnel,” as well as
the civilian population and individual civilians.
(2) the presence of non-civilians does not deprive the population of its civilian
character
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 179-180: “[A]ll persons who are not
combatants might be considered civilians.” The Chamber noted “that there is a certain distinction
between the terms ‘civilians’ and ‘civilian population.’ There are civilians who accompany the armed
forces or are attached to them. Civilians could even be among combatants who take a direct part in the
hostilities. There is clear confirmation of this fact in Protocol II which stipulates that, ‘civilians shall enjoy
the protection afforded by this part unless and for such time as they take a direct part in the hostilities.’
However, the civilian population as such does not participate in the armed conflict. Article 50 of Protocol I
emphasises, ‘the presence within the civilian population of individuals who do not come within the
definition of civilian does not deprive the population of its civilian character.’”
(3) analyze whether the victim was directly taking part in the hostilities
Rutaganda, (Trial Chamber), December 6, 1999, para. 100-101, n. 32: “[T]he civilian population
comprises all persons who are civilians,” which is to say that the “civilian population is made up of
persons who are not combatants or persons placed hors de combat, in other words, who are not
members of the armed forces.” “[I]f civilians take a direct part in the hostilities, they then lose their right to
protection as civilians per se and could fall within the class of combatant. To take a ‘direct’ part in the
hostilities means acts of war which by their nature or purpose are likely to cause actual harm to the
personnel and equipment of the enemy armed forces.” Since the class of civilians is broadly defined “it
will be a matter of evidence on a case-by-case basis to determine whether a victim has the status of
civilian.”
Semanza, (Trial Chamber), May 15, 2003, para. 363-366: “The question to be answered… is whether, at
the time of the alleged offence, the alleged victim was directly taking part in the hostilities. If the answer
is negative, the alleged victim was a person protected by Common Article 3 and Additional Protocol II. 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.”
v) nexus between the crime and the armed conflict (element 4)

Akayesu, (Appeals Chamber), June 1, 2001, para. 438, n. 807: The ICTY Appeals Chamber has
developed the test that “[t]here must be a nexus between the violations and the armed conflict.” See also
Bagilishema, (Trial Chamber), June 7, 2001, para. 105.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 169: “[T]here must be a nexus between
the crime and the armed conflict.”
(1) direct connection required/offense must be closely related to the hostilities
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 185-190: “[O]nly offences, which have
a nexus with the armed conflict,” are covered. “[T]he term ‘nexus’ should not be understood as
something vague and indefinite. A direct connection between the alleged crimes . . . and the armed
conflict should be established factually. No test, therefore, can be defined in abstracto. It is for the Trial
Chamber, on a case-by-case basis, to adjudge on the facts submitted as to whether a nexus existed.”
Rutaganda, (Trial Chamber), December 6, 1999, para. 104-105: The Chamber held that “there must be a
nexus between the offence and the armed conflict” and “[b]y this it should be understood that the offence
must be closely related to the hostilities or committed in conjunction with the armed conflict.” The
Prosecutor has the burden of proving beyond a reasonable doubt that, “on the basis of the facts, such a
nexus exists between the crime committed and the armed conflict.” See also Musema, (Trial Chamber),
January 27, 2000, para. 259-262; Bagilishema, (Trial Chamber), June 7, 2001, para. 105; Semanza,
(Trial Chamber), May 15, 2003, para. 368-369.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 598-604: The Prosecution failed to
establish a nexus between the armed conflict and the alleged offense. The “allegations show only that
the armed conflict had been used as pretext to unleash an official policy of genocide.” “[S]uch allegations
cannot be considered as evidence of a direct link between the alleged crimes and the armed conflict.”
(2) actual hostilities not required in area of crimes; actual hostilities not required
at exact time of crimes
Bagilishema, (Trial Chamber), June 7, 2001, para. 105: “[I]t is not necessary that actual armed hostilities
have broken out in Mabanza commune and Kibuye Prefecture for Article 4 of the Statute to be
applicable. Moreover, it is not a requirement that fighting was taking place in the exact time-period when
the acts the offences alleged occurred were perpetrated.”
vi) mental state (mens rea) (element 5)

For discussion of mental state, see Section (III)(d)(i)(1) (murder) and Section (III)(d)(i)(2) (torture), ICTR
Digest.
d) Underlying offenses
i) violence to life, health and physical or mental well-being of persons, in
particular, murder as well as cruel treatment such as torture, mutilation
or any form of corporal punishment
(1) murder
Musema, (Trial Chamber), January 27, 2000, para. 215: The elements of murder under Article 4(a) of the
Statute are: “(a) [t]he victim is dead; (b) [t]he death resulted from an unlawful act or omission of the
Accused or a subordinate; (c) [a]t the time of the killing the Accused or a subordinate had the intention to
kill or inflict grievous bodily harm on the deceased having known that such bodily harm is likely to cause
the victim’s death, and is reckless as to whether or not death ensures.”
Semanza, (Trial Chamber), May 15, 2003, para. 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.”
See also discussion of murder under Article 3, Section (II)(c)(ii), ICTR Digest.
(2) torture
Musema, (Trial Chamber), January 27, 2000, para. 285: The elements of torture under Article 4(a) of the
Statute are: “Intentionally inflicting severe pain or suffering, whether physical or mental, on a person for
such purposes as obtaining from him or a third person information or a confession, or punishing him for
an act he or a third person has committed, or intimidating or coercing him or a third person or for any
reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation
of, or with the consent or acquiescence of a public official or other person acting in an official capacity. It
does not include pain or suffering only arising from, inherent to or incidental to, lawful sanctions.”
See also discussion of torture under Article 3, Section (II)(c)(vii), ICTR Digest.
ii) collective punishments
iii) taking of hostages
iv) acts of terrorism
v) outrages upon personal dignity, in particular humiliating and

degrading treatment, rape, enforced prostitution and any form of
indecent assault
(1) outrages upon personal dignity includes sexual violence
Akayesu, (Trial Chamber), September 2, 1998, para. 688: “Sexual violence falls within the scope of . . .
‘outrages upon personal dignity,’ set forth in Article 4(e) of the Statute.”
the group under Article 2, Section (I)(d)(ii)(3), and rape and sexual violence under Article 3, Section
(II)(c)(viii), sexual violence as other inhumane acts under Article 3, Section (II)(c)(x)(1)(b), ICTR Digest.
(2) humiliating and degrading treatment
Musema, (Trial Chamber), January 27, 2000, para. 285: The elements of “humiliating or degrading
treatment” under Article 4(e) are: “Subjecting victims to treatment designed to subvert their self-regard.
Like outrages upon personal dignity, these offences may be regarded as a lesser forms of torture;
moreover ones in which the motives required for torture would not be required, nor would it be required
that the acts be committed under state authority.”
(3) rape
Musema, (Trial Chamber), January 27, 2000, para. 285, 220-221, 226: The elements of rape under
Article 4(e) of the Statute are: “[A] physical invasion of a sexual nature, committed on a person under
circumstances which are coercive . . . . [V]ariations on the acts of rape may include acts which involve the
insertions of objects and/or the use of bodily orifices not considered to be intrinsically sexual . . . . [T]he
essence of rape is not the particular details of the body parts and objects involved, but rather the
aggression that is expressed in a sexual manner under conditions of coercion.”
the group under Article 2, Section (I)(d)(ii)(3), rape as torture under Article 3, Section (II)(c)(vii)(2), and
rape and sexual violence under Article 3, Section (II)(c)(viii), ICTR Digest.
(4) indecent assault
Musema, (Trial Chamber), January 27, 2000, para. 285: The elements of “indecent assault” under Article
4(e) of the Statute are: “The accused caused the infliction of pain or injury by an act which was of a
sexual nature and inflicted by means of coercion, force, threat or intimidation and was non-consensual.”
vi) pillage
vii) the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court,
affording all the judicial guarantees which are recognized as
indispensable by civilized peoples
viii) threats to commit any of the foregoing acts
IV) INDIVIDUAL CRIMINAL

RESPONSIBILITY (Article 6(1))
a) Statute
“1. 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, shall be individually
responsible for the crime.
2. The official position of any accused person, whether as Head of State or Government or as a
responsible Government official, shall not relieve such person of criminal responsibility nor mitigate
punishment.”
b) Generally
i) required elements
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 198: There is a “two stage test which
must be satisfied in order to establish individual criminal responsibility under Article 6(1). This test
required the demonstration of (i) participation . . . that the accused’s conduct contributed to the
commission of an illegal act, and (ii) knowledge or intent, that is awareness by the actor of his
participation in a crime.”
ii) crime must have actually occurred for Article 6(1) liability, but not for
genocide
Akayesu, (Trial Chamber), September 2, 1998, para. 473: “[T]he principle of individual criminal
responsibility . . . implies that the planning or preparation of the crime actually leads to its commission.”
Thus, a person can only be liable under Article 6(1) covering “Individual Criminal Responsibility,” if the
offense was actually committed, except in the case of the crime of genocide, for which there can be
attempt liability. See also Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, n. 80; Rutaganda,
(Trial Chamber), December 6, 1999, para. 34; Musema, (Trial Chamber), January 27, 2000, para. 115.
Rutaganda, (Trial Chamber), December 6, 1999, para. 34: “However, . . . Article 2(3) . . . on the crime of
genocide, provides for prosecution for attempted genocide.”
Semanza, (Trial Chamber), May 15, 2003, para. 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. 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).”
iii) individual and command responsibility distinguished

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 202: The Chamber distinguished
individual, from command responsibility, saying that individual responsibility is based “not on the duty to
act, but from the encouragement and support that might be afforded to the principals of the crime from
such an omission.”
iv) planning, instigating, ordering, committing, aiding, abetting read

disjunctively
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 193-197, 207: The Chamber rejected
the defense’s argument that “‘planning, instigation, ordering, committing,’ should be read cumulatively,
but separately from, ‘aiding and abetting,’” and “that ‘aiding and abetting’ should also be read
cumulatively.” The Chamber instead chose to read the phrases disjunctively, holding that individual
criminal responsibility only requires that “any one of the modes of participation delineated in Article 6(1) . .
. be shown.” “[E]ach of the modes of participation may, independently, give rise to criminal responsibility.”
Akayesu, (Trial Chamber), September 2, 1998, para. 484: “[E]ither aiding or abetting alone is sufficient to
render the perpetrator criminally liable.”
v) can be liable for acts committed by others

Rutaganda, (Trial Chamber), December 6, 1999, para. 35: The Chamber found that “the Accused may . .
. be held criminally liable for criminal acts committed by others if, for example, he planned such acts,
instigated another to commit them, ordered that they be committed or aided and abetted another in the
commission of such acts.” See also Musema, (Trial Chamber), January 27, 2000, para. 117.
c) Participation: that the accused’s conduct

contributed to the commission of an illegal act
(element 1)
i) generally - contribution must be substantial
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 199: “What constitutes the actus reus
and the requisite contribution inevitably varies with each mode of participation set out in Article 6(1).
What is clear is that the contribution to the undertaking be a substantial one, and this is a question of fact
for the Trial Chamber to consider.”
Semanza, (Trial Chamber), May 15, 2003, para. 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.”
ii) planning
Akayesu, (Trial Chamber), September 2, 1998, para. 480: “[P]lanning, unlike complicity or plotting, can be
an act committed by one person. Planning can thus be defined as implying that one or several persons
contemplate designing the commission of a crime at both the preparatory and execution phases.” See
also Rutaganda, (Trial Chamber), December 6, 1999, para. 37; Musema, (Trial Chamber), January 27,
2000, para. 119.
Bagilishema, (Trial Chamber), June 7, 2001, para. 30: “An individual who participates directly in planning
to commit a crime under the Statute incurs responsibility for that crime even when it is actually committed
by another person. The level of participation must be substantial, such as formulating a criminal plan or
endorsing a plan proposed by another.”
Semanza, (Trial Chamber), May 15, 2003, para. 380: “‘Planning’ envisions one or more persons
formulating a method of design or action, procedure, or arrangement for the accomplishment of a
particular crime. The level of participation in the planning must be substantial such as actually
formulating the criminal plan or endorsing a plan proposed by another.”
iii) instigating/inciting
(1) generally
Bagilishema, (Trial Chamber), June 7, 2001, para. 30: “An individual who instigates another person to
commit a crime incurs responsibility for that crime. By urging or encouraging another person to commit a
crime, the instigator may contribute substantially to the commission of the crime. Proof is required of a
causal connection between the instigation and the actus reus of the crime.” See also Semanza, (Trial
(2) no “direct and public” requirement
Akayesu, (Appeals Chamber), June 1, 2001, para. 474-483: The Appeals Chamber ruled that the
Akayesu Trial Chamber erred as a matter of law in finding that the term “instigated” under Article 6(1)
must be “direct and public.” The Appeals Chamber noted the discrepancy between the English and
French versions of the statute, both original, which use “instigated” and “incite” respectively, and held that
the two terms are synonymous. “Direct and public” instigation was not required.
iv) ordering
Akayesu, (Trial Chamber), September 2, 1998, para. 483: “Ordering implies a superior-subordinate
relationship between the person giving the order and the one executing it. In other words, the person in a
position of authority uses it to convince another to commit an offence. In certain legal systems, including
that of Rwanda, ordering is a form of complicity through instructions given to the direct perpetrator of an
offence.” See also Rutaganda, (Trial Chamber), December 6, 1999, para. 39; Musema, (Trial Chamber),
January 27, 2000, para. 121.
v) committing
Rutaganda, (Trial Chamber), December 6, 1999, para. 41: “[A]n accused may participate in the
commission of a crime either through direct commission of an unlawful act or by omission, where he has
a duty to act.” See also Musema, (Trial Chamber), January 27, 2000, para. 123.
Semanza, (Trial Chamber), May 15, 2003, para. 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.”
vi) aiding and abetting
(1) defined
Akayesu, (Trial Chamber), September 2, 1998, para. 484: “Aiding” and “abetting” are not synonymous.
“Aiding means giving assistance to someone.” “Abetting . . . would involve facilitating the commission of
an act by being sympathetic thereto.” See also Ntakirutimana and Ntakirutimana, (Trial Chamber),
February 21, 2003, para. 787.
Semanza, (Trial Chamber), May 15, 2003, para. 384: “The terms ‘aiding’ and ‘abetting’ refer to distinct
legal concepts. 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.”
(2) either aiding or abetting alone suffices
Akayesu, (Trial Chamber), September 2, 1998, para. 484: “[E]ither aiding or abetting alone is sufficient to
render the perpetrator criminally liable.”
Bagilishema, (Trial Chamber), June 7, 2001, para. 32: “An accomplice must knowingly provide assistance
to the perpetrator of the crime, that is, he or she must know that it will contribute to the criminal act of the
principal. Additionally, the accomplice must have intended to provide assistance, or as a minimum,
accepted that such assistance would be a possible and foreseeable consequence of his conduct.”
(a) specific intent required for aiding and abetting genocide
Akayesu, (Trial Chamber), September 2, 1998, para. 485: “[W]hen dealing with a person [a]ccused of
having aided and abetted in the planning, preparation and execution of genocide, it must be proven that
such a person did have the specific intent to commit genocide, namely that, he or she acted with the
intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such; whereas . . .
the same requirement is not needed for complicity in genocide.”
See also discussion of mental state (mens rea) for Article 6(1) generally, Section (IV)(d), ICTR Digest.
(4) assistance must substantially contribute/have substantial effect
Rutaganda, (Trial Chamber), December 6, 1999, para. 43: “[A]iding and abetting include all acts of
assistance in either physical form or in the form of moral support; nevertheless, . . . any act of
participation must substantially contribute to the commission of the crime. The aider and abettor assists
or facilitates another in the accomplishment of a substantive offence.” See also Musema, (Trial
Chamber), January 27, 2000, para. 126; Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21,
2003, para. 787.
Bagilishema, (Trial Chamber), June 7, 2001, para. 33: “For an accomplice to be found responsible for a
crime under the Statute, he or she must assist the commission of the crime; the assistance must have a
substantial effect on the commission of the crimes.”
(5) assistance need not be indispensable

Bagilishema, (Trial Chamber), June 7, 2001, para. 33: “The Chamber . . . agrees with the view expressed
in Furundzija, that the assistance given by the accomplice need not constitute an indispensable element,
i.e. a conditio sine qua non, of the acts of the perpetrator.”
(6) assistance need not be at same time offense committed
Bagilishema, (Trial Chamber), June 7, 2001, para. 33: “The assistance need not be provided at the same
time that the offence is committed.”
Semanza, (Trial Chamber), May 15, 2003, para. 385: “[T]he assistance may be provided before or during
the commission of the crime.”
(7) presence not required
Akayesu, (Trial Chamber), September 2, 1998, para. 484: “[I]t is not necessary for the person aiding or
abetting another to commit the offence to be present during the commission of the crime.”
Rutaganda, (Trial Chamber), December 6, 1999, para. 43: “[I]t is not necessary that the person aiding
and abetting another to commit an offence be present during the commission of the crime. The relevant
act of assistance may be geographically and temporally unconnected to the actual commission of the
offence.” See also Musema, (Trial Chamber), January 27, 2000, para. 125.
Bagilishema, (Trial Chamber), June 7, 2001, para. 33: “[T]he participation in the commission of the crime
does not require actual physical presence or physical assistance.”
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 200: “It is not presupposed that the
accused must be present at the scene of the crime, nor that his contribution be a direct one. That is to
say . . . the role of the individual in the commission of the offence need not always be a tangible one.
This is particularly pertinent where the accused is charged with ‘aiding’ or ‘abetting’ of a crime.”
(8) mere encouragement can suffice
Bagilishema, (Trial Chamber), June 7, 2001, para. 33: “Mere encouragement or moral support by an aider
and abettor may amount to ‘assistance.’ The accomplice need only be ‘concerned with the killing.’”
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 200-201: “‘[A]n approving spectator
who is held in such respect by the other perpetrators that his presence encourages them in their conduct’”
may be held liable.
Semanza, (Trial Chamber), May 15, 2003, para. 385, 386: “This encouragement or support may consist
of physical acts, verbal statements, or, in some cases, mere presence as an ‘approving spectator.’”
“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.”
(9) presence combined with authority can constitute assistance
Bagilishema, (Trial Chamber), June 7, 2001, para. 34: The Chamber held that “presence, when combined
with authority, may constitute assistance (the actus reus of the offence) in the form of moral support” and
that “‘an approving spectator who is held in such respect by other perpetrators that his presence
encourages them in their conduct, may be guilty in a crime against humanity.’” The Chamber noted that
“[i]nsignificant status may, however, put the ‘silent approval’ below the threshold necessary for the actus
reus.” See also Niyitegeka, (Trial Chamber), May 16, 2003, para. 461.
vii) acting with common criminal purpose: may give rise to liability for
“committing” or “aiding and abetting”
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 203-205: Where “‘a plan exists, or
where there otherwise is evidence that members of a group are acting with a common criminal purpose,
all those who knowingly participate in, and directly and substantially contribute to, the realization of this
purpose may be held criminally responsible . . . and . . . [d]epending upon the facts of a given situation,
the culpable individual may, under such circumstances, be held criminally responsible either as a direct
perpetrator of, or as an aider and abettor to, the crime in question.’” The Chamber concluded that “the
members of such a group would be responsible for the result of any acts done in furtherance of the
common design where such furtherance would be probable from those acts,” and stated that “the
accused need not necessarily have the same mens rea as the principal offender.”
d) Mental state (mens rea) (element 2)

Akayesu, (Trial Chamber), September 2, 1998, para. 479: “[T]he forms of participation referred to in
Article 6(1), cannot render their perpetrator criminally liable where he did not act knowingly, and even
where he should have had such knowledge.”
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 198: “[K]nowledge or intent” requires
“awareness by the actor of his participation in a crime.”
Semanza, (Trial Chamber), May 15, 2003, para. 388: “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.”
Semanza, (Trial Chamber), May 15, 2003, para. 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. The requisite mens rea may be established from the circumstances including prior like
behaviour, failure to punish, or verbal encouragement.”
See also Section (IV)(c)(vi)(3), ICTR Digest, discussing mental state for aiding and abetting.
e) Application
notes Nahimana’s particular role as the founder and principal ideologist of RTLM [radio station].”
“Nahimana was less actively involved in the daily affairs of RTLM after 6 April 1994, but RTLM did not
deviate from the course he had set for it before 6 April 1994. [T]he broadcasts intensified after 6 April and
called explicitly for the extermination of the Tutsi population. The programming of RTLM after 6 April built
on the foundations created for it before 6 April. RTLM did what Nahimana wanted it to do. It was
‘instrumental in awakening the majority population’ and in mobilizing the population to stand up against
the Tutsi enemy. RTLM was Nahimana’s weapon of choice, which he used to instigate the killing of Tutsi
civilians. For this reason the Chamber finds Nahimana guilty of genocide pursuant to Article 6(1).”
Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 954, 975: “Barayagwiza
was one of the principal founders of CDR [political party that depicted the Tutsi population as the enemy]
and played a leading role in its formation and development. He was a decision-maker for the party. The
CDR had a youth wing, called the Impuzamugambi, which undertook acts of violence, often together with
the Interahamwe . . . against the Tutsi population. The killing of Tutsi civilians was promoted by the CDR,
as evidenced by the chanting of ‘tubatsembatsembe’ or ‘let’s exterminate them’ by Barayagwiza himself
and by CDR members in his presence at public meetings and demonstrations. The reference to ‘them’
was understood to mean the Tutsi population. Barayagwiza supervised roadblocks manned by the
Impuzamugambi, established to stop and kill Tutsi. The Chamber notes the direct involvement of
Barayagwiza in the expression of genocidal intent and in genocidal acts undertaken by members of the
CDR and its Impuzamugambi. Barayagwiza was at the organizational helm. He was also on site at the
meetings, demonstrations and roadblocks that created an infrastructure for and caused the killing of Tutsi
civilians. [T]he Chamber finds . . . Barayagwiza guilty of instigating acts of genocide committed by CDR
members and Impuzamugambi, pursuant to Article 6(1).”
Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 955-956, 977A: “Ngeze .
. . ordered the Interahamwe in Gisenyi to kill Tutsi civilians. Many were killed in the attacks that
happened immediately thereafter and later on the same day. . . . [T]he Chamber finds that Ngeze
ordered the killing of Tutsi civilians.” “Ngeze helped secure and distribute, stored, and transported
weapons to be used against the Tutsi population. He set up, manned and supervised roadblocks . . . that
identified targeted Tutsi civilians who were subsequently taken to and killed. . . . [T]he Chamber finds
that Ngeze aided and abetted the killing of Tutsi civilians.” “As founder, owner and editor of Kangura, a
publication that instigated the killing of Tutsi civilians, and for his individual acts in ordering and aiding and
abetting the killing of Tutsi civilians, the Chamber finds… Ngeze guilty of genocide, pursuant to Article
6(1).”
V) COMMAND RESPONSIBILITY (Article

6(3))
a) Statute
Article 6:
“3. The fact that any of the acts referred to in articles 2 to 4 of the present Statute was committed by a
subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason
to know that the subordinate was about to commit such acts or had done so and the superior failed to
take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”
“4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not
relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the
International Tribunal for Rwanda determines that justice so requires.”
b) Generally
i) liability for both individual criminal responsibility and command
responsibility possible
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 210: “The finding of responsibility under
Article 6(1) of the Statute does not prevent the Chamber from finding responsibility additionally, or in the
alternative, under Article 6(3). The two forms of responsibility are not mutually exclusive. The Chamber
must, therefore, consider both forms of responsibility charged in order to fully reflect the culpability of the
accused in light of the facts.”
c) Elements
Bagilishema, (Trial Chamber), June 7, 2001, para. 38: The Chamber held that the “three essential
elements of command responsibility” are: “(i) the existence of a superior-subordinate relationship of
effective control between the accused and the perpetrator of the crime; and, (ii) the knowledge, or
constructive knowledge, of the accused that the crime was about to be, was being, or had been
committed; and, (iii) the failure of the accused to take the necessary and reasonable measures to prevent
or stop the crime, or to punish the perpetrator.”
i) the existence of a superior-subordinate relationship of effective

control (element 1)
(1) superior-subordinate relationship
Semanza, (Trial Chamber), May 15, 2003, para. 401: “A superior-subordinate relationship requires a
formal or informal hierarchical relationship where a superior is senior to a subordinate. The relationship is
not limited to a strict military command style structure.”
(2) effective control
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 229-231: “The principle of command
responsibility must only apply to those superiors who exercise effective control over their subordinates.
This material ability to control the actions of subordinates is the touchstone of individual responsibility
under Article 6(3).” The Chamber agreed with the ICTY’s decision in Prosecutor v. Mucic et al., where it
was held that “the superior have [sic] effective control over the persons committing the [crimes], in the
sense of having the material ability to prevent and punish the commission of these offences.” “[T]he
ability to prevent and punish a crime is a question that is inherently linked with the given factual
situation.”
Bagilishema, (Trial Chamber), June 7, 2001, para. 45: “[T]he essential element is not whether a superior
had authority over a certain geographical area, but whether he or she had effective control over the
individuals who committed the crimes . . . . ”
Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 819: “Article 6(3) provides
that civilian leaders may incur criminal responsibility for acts committed by their subordinates or others
under their ‘effective control.’”
(3) consider de facto as well as de jure control/formal status alone not

determinative
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 217-223: The Chamber held that it is
“under a duty . . . to consider the responsibility of all individuals who exercised effective control, whether
that control be de jure or de facto.” “The doctrine of command responsibility is ultimately predicated upon
the power of the superior to control the acts of his subordinates.” The Chamber must “be prepared to
pierce such veils of formalism that may shield those individuals carrying the greatest responsibility.” The
Chamber noted that concentrating upon the de jure powers of the accused would improperly represent
the situation at the time, and could prejudice either side by improperly representing the authority of the
accused. “Where it can be shown that the accused was the de jure or de facto superior and that pursuant
to his orders the atrocities were committed, then the Chamber considers that this must suffice to [find]
command responsibility.”
Bagilishema, (Trial Chamber), June 7, 2001, para. 39: “A position of command is a necessary condition
for the imposition of command responsibility, but the existence of such a position cannot be determined
by reference to formal status alone.” “The factor that determines liability is the actual possession, or non-
possession, of a position of command over subordinates.” “[A]lthough a person’s de jure position as a
commander in certain circumstances may be sufficient to invoke responsibility under Article 6(3),
ultimately it is the actual relationship of command (whether de jure or de facto) that is required for
command responsibility.” “[D]ecisive criterion in determining who is a superior is his or her ability, as
demonstrated by duties and competence, to effectively control his or her subordinates.”
Musema, (Trial Chamber), January 27, 2000, para. 141: “[A] civilian superior may be charged with
superior responsibility only where he has effective control, be it de jure or merely de facto, over the
persons committing violations of international humanitarian law.” See also Niyitegeka, (Trial Chamber),
May 16, 2003, para. 472.
(4) applies to civilian as well as military commanders
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 213-215: “[T]he application of criminal
responsibility to those civilians who wield the requisite authority is not a contentious one.” The Statute
“makes no limited reference to the responsibility to be incurred by military commanders alone; [r]ather the
more generic term of ‘superior’ is used.” The use of “‘Head[s] of State or Government’ or ‘responsible
Government officials’ in Article 6(2), clearly reflects the intention of the drafters to extend this provision of
superior responsibility beyond military commanders.” The Chamber stated that “[t]he jurisprudence also
supports this interpretation” and cited the Kambanda and Serushago cases at the ICTR which involved
the former prime minister and a “prominent local civilian” and militia leader pleading guilty to charges
under 6(3).
Musema, (Trial Chamber), January 27, 2000, para. 148: The Chamber held that the “definition of
individual criminal responsibility . . . applies not only to the military but also to persons exercising civilian
authority as superiors.”
notes that in Musema, the Tribunal found that superior responsibility extended to non-military settings. . .
.”
Compare Akayesu, (Trial Chamber), September 2, 1998, para. 491: “[I]n the case of civilians, the
application of the principle of individual criminal responsibility, enshrined in Article 6(3), to civilians
remains contentious . . . . [I]t is appropriate to assess on a case by case basis the power of authority
actually devolved upon the Accused in order to determine whether or not he had the power to take all
necessary and reasonable measures to prevent the commission of the alleged crimes or to punish the
perpetrators thereof.”
(5) whether civilians require control similar to military for culpability
Bagilishema, (Trial Chamber), June 7, 2001, para. 42-43: The Chamber held that while the “doctrine of
command responsibility extends beyond the responsibility of military commanders to encompass civilian
superiors in positions of authority,” it agreed with the approach articulated by the International Law
Commission and the ICTY’s decision in Prosecutor v. Mucic et al., that “the doctrine of command
responsibility ‘extends to civilian superiors only to the extent that they exercise a degree of control over
their subordinates which is similar to that of military commanders.’” “[F]or a civilian superior’s degree of
control to be ‘similar to’ that of a military commander, the control over subordinates must be ‘effective,’
and the superior must, have the ‘material ability’ to prevent and punish any offences.” “[T]he exercise of
de facto authority must be accompanied by ‘the trappings of the exercise of de jure authority.’” The
Chamber also held that “these trappings of authority include, for example, awareness of a chain of
command, the practice of issuing and obeying orders, and the expectation that insubordination may lead
to disciplinary action,” and that “[i]t is by these trappings that the law distinguishes civilian superiors from
mere rabble-rousers or other persons of influence.”
But see Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 819: “Article 6(3)
provides that civilian leaders may incur criminal responsibility for acts committed by their subordinates or
others under their ‘effective control,’ although the control exercised need not be of the same nature as
that exercised by a military commander.”
ii) mental state (mens rea) (element 2)
(1) knowledge or constructive knowledge that the crime was about to be or was
being, or had been committed
Akayesu, (Trial Chamber), September 2, 1998, para. 479, 489: It is not required “that the superior acted
knowingly to render him criminally liable; it suffices that he had reason to know that his subordinates were
about to commit or had committed a crime and failed to take the necessary or reasonable measures to
prevent such acts or punish the perpetrators thereof. In a way, this is liability by omission or abstention.”
“[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.”
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 225: “The mens rea . . . requires that
for a superior to be held criminally responsible for the conduct of his subordinates he must have known,
or had reason to know, of their criminal activities.”
Bagilishema, (Trial Chamber), June 7, 2001, para. 46: The Chamber held that “a superior possesses or
will be imputed the mens rea required to incur criminal liability where: he or she had actual knowledge,
established through direct or circumstantial evidence, that his or her subordinates were about to commit,
were committing, or had committed, a crime under the Statutes; or, he or she had information which put
him or her on 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; or, the absence of knowledge is the result of negligence in the discharge of
the superior’s duties; that is, where the superior failed to exercise the means available to him or her to
learn of the offences, and under the circumstances he or she should have known.” See also Semanza,
(Trial Chamber), May 15, 2003, para. 405.
(2) responsibility is not based on strict liability
Bagilishema, (Trial Chamber), June 7, 2001, para. 44: “As to the mens rea, the standard that the doctrine
of command responsibility establishes for superiors who fail to prevent or punish crimes committed by
their subordinates is not one of strict liability.”
Semanza, (Trial Chamber), May 15, 2003, para. 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. 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.”
Bagilishema, (Trial Chamber), June 7, 2001, para. 45: “Although an individual’s command position may
be a significant indicator that he or she knew about the crimes, such knowledge may not be presumed on
the basis of his or her position alone.”
(3) different test for mental state of civilian and military commanders
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 227-228: The Chamber differentiates
between “military commanders and other superiors.” A military commander has a “more active duty . . . to
inform himself of the activities of his subordinates when he ‘knew or, owing to the circumstances at the
time, should have known that the forces were committing or about to commit such crimes.’” For all other
superiors, they must have “known, or consciously disregarded information which clearly indicated, that
the subordinates were committing or about to commit such crimes.” The Chamber stipulated that this
does not “demand a prima facie duty upon a non-military commander to be seized of every activity of all
persons under his or her control.”
iii) the failure to take necessary and reasonable measures to prevent or

stop the crime, or to punish the perpetrator (element 3)
Bagilishema, (Trial Chamber), June 7, 2001, para. 38: The third element is “the failure of the accused to
take the necessary and reasonable measures to prevent or stop the crime, or to punish the perpetrator.”
Bagilishema, (Trial Chamber), June 7, 2001, para. 47-50: Noting that Article 6(3) states that a superior is
expected to take “necessary and reasonable measures” to prevent or punish crimes under the Statutes,
the Chamber held “‘necessary’ to be those measures required to discharge the obligation to prevent or
punish in the circumstances prevailing at the time; and, ‘reasonable’ to be those measures which the
commander was in a position to take in the circumstances.”
The Chamber held that a “superior may be held responsible for failing to take only such measures that
were within his or her powers,” and that “it is the commander’s degree of effective control – his or her
material ability to control subordinates – which will guide the Chamber in determining whether he or she
took reasonable measures to prevent, stop, or punish the subordinates’ crimes.” “Such a material ability
must not be considered abstractly, but must be evaluated on a case-by-case basis, considering all the
circumstances.”
The Chamber noted that “the obligation to prevent or punish does not provide the Accused with
alternative options,” and that “[f]or example, where the Accused knew or had reason to know that his or
her subordinates were about to commit crimes and failed to prevent them, the Accused cannot make up
for the failure to act by punishing the subordinates afterwards.”
The Chamber held that “in the case of failure to punish, a superior’s responsibility may arise from
his or her failure to create or sustain among the persons under his or her control, an environment of
discipline and respect for the law,” and that “command responsibility for failure to punish may be triggered
by a broadly based pattern of conduct by a superior, which in effect encourages the commission of
atrocities by his or her subordinates.” See also Semanza, (Trial Chamber), May 15, 2003, para. 406-
407.
(1) attempts to prevent or punish must be considered except where the accused
ordered the crimes
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 223-224: The Chamber held that it is
only necessary to consider whether the accused “knew or had reason to know and failed to prevent or
punish the commission of the crimes” when he did not in fact order them. When the accused ordered the
crimes, “then it becomes unnecessary to consider whether he tried to prevent; and irrelevant whether he
tried to punish.” “However, in all other circumstances, the Chamber must give full consideration to the
elements of ‘knowledge’ and ‘failure to prevent and punish.’”
d) Application
Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 970-973: “Nahimana and
Barayagwiza were, respectively, ‘number one’ and ‘number two’ in the top management of the radio.
They represented the radio at the highest level in meetings with the Ministry of Information; they
controlled the finances of the company; and they were both members of the Steering Committee, which
functioned in effect as a board of directors for RTLM [radio station].” “While the Chamber recognizes that
Nahimana and Barayagwiza did not make decisions in the first instance with regard to each particular
broadcast of RTLM, these decisions reflected an editorial policy for which they were responsible.” “After 6
April 1994, although the evidence does not establish the same level of active support, it is . . . clear that
Nahimana and Barayagwiza knew what was happening at RTLM and failed to exercise the authority
vested in them as office-holding members of the governing body of RTLM, to prevent the genocidal harm
that was caused by RTLM programming.” “Nahimana and Barayagwiza had superior responsibility for the
broadcasts of RTLM,” however “Nahimana has not been charged for genocide pursuant to Article 6(3)”
and “[o]nly Barayagwiza is so charged.” “For his active engagement in the management of RTLM prior to
6 April, and his failure to take necessary and reasonable measures to prevent the killing of Tutsi civilians
instigated by RTLM, the Chamber finds . . . Barayagwiza guilty of genocide pursuant to Article 6(3).”
Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 976-977: “Barayagwiza
had superior responsibility over members of the CDR [political party that depicted the Tutsi population as
the enemy] and its militia, the Impuzamugambi, as President of CDR at Gisenyi Prefecture and from
February 1994 as President of CDR at the national level. He promoted the policy of CDR for the
extermination of the Tutsi population and supervised his subordinates, the CDR members and
Impuzamugambi militia, in carrying out the killings and other violent acts. For his active engagement in
CDR, and his failure to take necessary and reasonable measures to prevent the killing of Tutsi civilians by
CDR members and Impuzamugambi, the Chamber finds Barayagwiza guilty of genocide pursuant to
Article 6(3).”
VI) DEFENSES
a) Alibi and special defenses
i) excerpts from Rule 67, ICTR Rules of Procedure and Evidence:
reciprocal disclosure of evidence
“(A) As early as reasonably possible and in any event prior to the commencement of the trial:
ii) the defence shall notify the Prosecutor of its intent to enter:
(a) The defence of alibi; in which case the notification shall specify the place or places at which the
accused claims to have been present at the time of the alleged crime and the names and addresses of
witnesses and any other evidence upon which the accused intends to rely to establish the alibi;
(b) Any special defence, including that of diminished or lack of mental responsibility; in which case the
notification shall specify the names and addresses of witnesses and any other evidence upon which the
accused intends to rely to establish the special defence.
(B) Failure of the defence to provide such notice under this Rule shall not limit the right of the accused to
rely on any of the above defences.”
ii) burden of proof for alibi defense

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 234: “[T]he burden of proof rests upon
the Prosecution to prove its case beyond a reasonable doubt in all aspects notwithstanding that the
Defence raised alibi. After all, the accused is presumed innocent until the Prosecution has proved his
guilt under Article 20(3) of the Statute. The accused is only required to raise the defence of alibi and fulfil
the specific requirements of Rule 67(A)(ii) of the Rules.”
iii) notice for alibi defense

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 235-239: Rule 67 required the Defense
“to notify the Prosecution about their intent to rely upon the defence of alibi.” In the case at hand, the
defense did not inform the prosecutor prior to the commencement of trial and the prosecutor filed a
motion requesting compliance with Rule 67(A)(ii). The Chamber held that “where good cause is not
shown, for the application of Rule 67(B), the Trial Chamber is entitled to take into account this failure
when weighing the credibility of the defence of alibi and/or any special defences presented.” In the case
at hand, the Chamber held that “despite the non-compliance with its order” it would “consider the defence
of alibi.”
iv) rebuttal for alibi defense

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 239-240: Rule 85 permits the
Prosecution to bring evidence to rebut the alibi. The Chamber noted that they “will accord no extra weight
to the accused's defence of alibi merely because the Prosecution did not call witnesses in rebuttal.”
VII) CHARGING, CONVICTING AND

SENTENCING
a) Cumulative charges and convictions
i) cumulative charges permitted
Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 863-864: “Cumulative
charging is generally permissible, as it is not possible to determine which charges will be proven against
an Accused prior to the presentation of the evidence.” See also Nahimana, Barayagwiza and Ngeze,
(Trial Chamber), December 3, 2003, para. 1089.
Rutaganda, (Trial Chamber), December 6, 1999, para. 117: The Chamber held that genocide, crimes
against humanity, and war crimes “have disparate ingredients and . . . their punishment is aimed at
protecting discrete interests [and thus] multiple offenses may be charged on the basis of the same acts in
order to capture the full extent of the crimes committed by an accused.” See also Musema, (Trial
ii) cumulative convictions based on same conduct permitted only where

crimes involve a materially distinct element
Prosecutor v. Musema, Case No. ICTR-96-13-A (Appeals Chamber), November 16, 2001, para. 358-370:
The Appeals Chamber affirmed the test laid out in the Celebici Appeal Judgment as the one to be applied
“in determining when multiple convictions based on the same set of facts may be entered or affirmed”:
“reasons of fairness to the accused and the consideration that only distinct crimes may justify multiple
convictions, lead to the conclusion that multiple criminal convictions entered under different statutory
provisions but based on the same conduct are permissible only if each statutory provision involved has a
materially distinct element not contained in the other. An element is materially distinct from another if it
requires proof of a fact not required by the other . . . . Where this test is not met, the Chamber must
decide in relation to which offence it will enter a conviction. This should be done on the basis of the
principle that the conviction under the more specific provision should be upheld. Thus, if a set of facts is
regulated by two provisions, one of which contains an additionally materially distinct element, then a
conviction should be entered only under that provision.”
“In applying this test, all the legal elements of the offences, including those contained in the provisions’
introductory paragraph must be taken into account.” In response to a request by the prosecutor to the
Appeals Chamber “to confirm that multiple convictions under different Articles of the Statute are always
permitted,” the Appeals Chamber “decline[d] to give its opinion on the issue and limit[ed] its findings to the
issues raised on appeal.”
Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 863-864: “Cumulative
convictions are permissible only if the crimes involved comprise materially distinct elements.” See also
Rutaganda, (Trial Chamber), December 6, 1999, para. 110-119: The Chamber re-affirmed the test set out
by the Trial Chamber in Akayesu, establishing when a person can be charged and convicted for two or
more offenses in relation to the same facts. The Chamber disagreed with the majority finding in
Kayishema and Ruzindana which held that the cumulative charges were improper because the crimes
involved some of the same elements, the evidence relied upon to prove them was the same, and the
protected social interests were the same.
iii) application – multiple convictions
(1) permitted for genocide and crimes against humanity
Musema, (Appeals Chamber), November 16, 2001, para. 369-370: The Appeals Chamber held that
“convictions for genocide and extermination as a crime against humanity, based on the same set of facts,
are permissible,” and held that “cumulative charging is generally permitted.”
Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 864: “[T]he two offences
[genocide and a crime against humanity (murder)] comprise materially distinct elements. For example,
the mens rea of genocide is the intent to destroy, in whole or in part, an ethnic or racial group, which
element is not required for a crime against humanity. The mens rea of a crime against humanity (murder)
is the knowledge that the murder is part of a widespread or systematic attack against a civilian population
on discriminatory grounds.”
Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1090: “[T]he three
Accused are guilty of conspiracy to commit genocide, genocide, direct and public incitement to commit
genocide and crimes against humanity (persecution and extermination). As these offences comprise
materially distinct elements . . . convictions on these counts will be entered against the three Accused.”
But see Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 577-578, 590: In this particular
case, the accused persons could not be convicted “for genocide as well as for crimes against humanity
based on murder and extermination because the later two offences are subsumed fully by the counts of
genocide.” Although all the necessary elements for both exist, “the crimes against humanity in question
are completely absorbed by the crime of genocide. All counts for these crimes are based on the same
facts and the same criminal conduct. These crimes were committed at the same massacre sites, against
the same people, belonging to the Tutsi ethnic group with the same intent to destroy this group in whole
or in part.”
(2) permitted for genocide, crimes against humanity and war crimes
Akayesu, (Trial Chamber), September 2, 1998, para. 468-470: “[G]enocide, crimes against humanity, and
violations of article 3 common to the Geneva Conventions and of Additional Protocol II have different
[constituent] elements and, are intended to protect different interests. The crime of genocide exists to
protect certain groups from extermination or protected extermination. The concept of crimes against
humanity exists to protect civilian populations from persecution. The idea of violations of article 3
common to the Geneva Conventions and of Additional Protocol II is to protect non-combatants from war
crimes in civil war. These crimes have different purposes and are . . . never co-extensive. [I]t is
legitimate to charge these crimes in relation to the same set of facts. [I]t may . . . be necessary to record
a conviction for more than one of these in order to fully reflect what crimes an accused committed.”
These crimes are not “lesser included offences of each other.” Thus, “multiple convictions for these
offences in relation to the same set of facts [are] permissible.”
b) Sentencing/penalties
i) instruments governing penalties
(1) Article 23, ICTR Statute: Penalties
“1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms
of imprisonment, the Trial Chamber shall have recourse to the general practice regarding prison
sentences in the courts of Rwanda.
2. In imposing the sentences, the Trial Chamber should take into account such factors as the gravity of
the offence and the individual circumstances of the convicted person.
3. In addition to imprisonment, the Trial Chamber may order the return of any property and proceeds
acquired by criminal conduct, including by means of duress, to their rightful owners.”
(2) Rule 101 of the Rules of Procedure and Evidence, ICTR
“(A) A person convicted by the Tribunal may be sentenced to imprisonment for a fixed term or the
remainder of his life.
(B) In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article
23(2) of the Statute, as well as such factors as
(i) Any aggravating circumstances;
(ii) Any mitigating circumstances including the substantial cooperation with the Prosecutor by the
convicted person before or after conviction;
(iii) The general practice regarding prison sentences in the courts of Rwanda;
(v) The extent to which any penalty imposed by a court of any State on the convicted person for the same
act has already been served, as referred to in Article 9(3) of the Statute.
(C) The Trial Chamber shall indicate whether multiple sentences shall be served consecutively or
concurrently.
(D) Credit shall be given to the convicted person for the period, if any, during which the convicted person
was detained in custody pending his surrender to the Tribunal or pending trial or appeal.”
ii) generally
(1) considerations in Statute and Rules not mandatory nor exhaustive
Rutaganda, (Trial Chamber), December 6, 1999, para. 458-459: “[A]s far as the individualization of
penalties is concerned, the judges of the Chamber cannot limit themselves to the factors mentioned in the
Statute and the Rules. Here again, their unfettered discretion in assessing the facts and attendant
circumstances should enable them to take into account any other factor that they deem pertinent . . . .
Similarly, the factors referred to in the Statute and in the Rules cannot be interpreted as having to be
applied cumulatively in the determination of the sentence.” See also Ruggiu, (Trial Chamber), June 1,
2000, para. 34; Prosecutor v. Kambanda, Case No. ICTR-97-23 (Trial Chamber), September 4, 1998,
para. 29-31.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, Sentencing Judgment para. 3-4: The
enumerated circumstances set out in the Statute and the Rules “are not necessarily mandatory or
exhaustive. It is a matter of individualising the penalty considering the totality of the circumstances.” The
Chamber also held that it had “unfettered discretion to go beyond the circumstances stated in the Statute
and Rules to ensure justice in matters of sentencing.” See also Ruggiu, (Trial Chamber), June 1, 2000,
para. 35.
(2) only prison sentences dispensed
Kambanda, (Trial Chamber), September 4, 1998, para. 10: “[T]he only penalties the Tribunal can impose
on an accused who pleads guilty or is convicted as such are prison terms up to and including life
imprisonment . . . . The Statute of the Tribunal excludes other forms of punishment such as the death
sentence, penal servitude or a fine.” See also Prosecutor v. Serushago, Case No. ICTR-98-39 (Trial
Chamber), February 5, 1999, Sentence para. 12; Rutaganda, (Trial Chamber), December 6, 1999, para.
448.
(3) restitution
Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 880: “[T]he Tribunal may
impose . . . the restitution of property or proceeds acquired by criminal conduct.” See also Kambanda,
(Trial Chamber), September 4, 1998, para. 22.
(4) goal of penalties: retribution, deterrence, rehabilitation, protecting society,

justice, ending impunity, promoting reconciliation, and restoring peace
Rutaganda, (Trial Chamber), December 6, 1999, para. 456: “[I]t is clear that the penalties imposed on
accused persons found guilty . . . must be directed, on the one hand, at retribution of the said accused,
who must see their crimes punished, and over and above that, on [the] other hand, at deterrence, namely
to dissuade for ever, others who may be tempted in the future to perpetrate such atrocities by showing
them that the international community shall not tolerate the serious violations of international
humanitarian law and human rights.” See also Kambanda, (Trial Chamber), September 4, 1998, para.
28; Musema, (Trial Chamber), January 27, 2000, para. 986.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, Sentencing Judgment para. 2: “The Chamber
must impose sentences on convicted persons for retribution, deterrence, rehabilitation, and to protect
society.” See also Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 882 and
887.
Niyitegeka, (Trial Chamber), May 16, 2003, para. 484: “Specific emphasis is placed on general
deterrence, so as to demonstrate ‘that the international community [is] not ready to tolerate serious
violations of international humanitarian law and human rights.’”
Ruggiu, (Trial Chamber), June 1, 2000, para. 32-33: “The objective in creating the Tribunal is to
prosecute and punish the perpetrators of the atrocities in Rwanda, to put an end to impunity, and thereby
to promote national reconciliation and restoration of peace. The jurisprudence of the ICTR with regard to
penalties has addressed the principal aims of sentencing, namely retribution, deterrence, rehabilitation
and justice.”
iii) determining penalties
(1) taking account of Rwandan law/practice
Kambanda, (Trial Chamber), September 4, 1998, para. 11, 18, 22-24, 41: “Neither . . . the Statute nor . . .
the Rules determine any specific penalty for each of the crimes. The determination of sentences is left to
the discretion of the Chamber, which should take into account . . . the general practice regarding prison
sentences in the courts of Rwanda.” The Trial Chamber “has recourse only to prison sentences
applicable in Rwanda” and not the death penalty. “Reference to the Rwandan sentencing practice is
intended as a guide to determining an appropriate sentence and does not fetter the discretion of the
judges of the Trial Chamber to determine the sentence.” See also Serushago, (Trial Chamber), February
5, 1999, Sentence para. 18.
Prosecutor v. Serushago, Case No. ICTR-98-39-A (Appeals Chamber), April 6, 2000, para. 30: “It is
settled jurisprudence of the ICTR that the requirement that ‘the Trial Chambers shall have recourse to the
general practice regarding prison sentences in the courts of Rwanda’ does not oblige the Trial Chambers
to conform to that practice; it only obliges the Trial Chambers to take account of that practice.” See also
Ruggiu, (Trial Chamber), June 1, 2000, para. 31.
Rutaganda, (Trial Chamber), December 6, 1999, para. 454: The Chamber held that “[r]eference to the
practice of sentencing in Rwanda and to the Organic law is for purposes of guidance. While referring as
much as practicable to such practice of sentencing, the Chamber maintains its unfettered discretion to
pass sentence on persons found guilty.”8 See also Musema, (Trial Chamber), January 27, 2000, para.
984.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, Sentencing Judgment para. 6-7: “Rwandan
law empowers its courts to impose the death penalty for persons convicted . . . of [g]enocide . . . and to
impose a life sentence for persons convicted of . . . intentional homicide or . . . serious assault against the
person causing death.” The Chamber held that “the general practice regarding prison sentences in
Rwanda represents one factor supporting this Chamber's imposition of the maximum and very severe
sentences, respectively” on Kayishema and Ruzindana.
(2) ranking of crimes: genocide is “crime of crimes,” then crimes against
humanity; war crimes are lesser
Kambanda, (Trial Chamber), September 4, 1998, para. 12-14, 16: “[T]he Statute does not rank the
various crimes . . . and thereby, the sentence to be handed down.” “In theory, the sentences are the
same for each of the three crimes, namely a maximum term of life imprisonment.” However, “[t]he
Chamber has no doubt that despite the gravity of the violations of Article 3 common to the Geneva
Conventions and of the Additional Protocol II thereto, they are considered as lesser crimes than genocide
or crimes against humanity.” The Chamber found it difficult “to rank genocide and crimes against
humanity in terms of their respective gravity” and held that crimes against humanity and genocide are
“crimes which particularly shock the collective conscience.” However, the Chamber stated that the “crime
of genocide is unique because of its element of dolus specialis (special intent)” and held that “genocide
constitutes the crime of crimes, which must be taken into account when deciding the sentence.” See also
Serushago, (Trial Chamber), February 5, 1999, Sentence para. 13-15; Musema, (Trial Chamber), January
27, 2000, para. 979-981.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, Sentence para. 8-9: Genocide is “an offence
of the most extreme gravity.” Previous ICTR judgments held “that genocide constitutes the ‘crime of
crimes.’”
(3) gradation in sentencing: imposing highest penalties on those who planned or

ordered atrocities, or those who committed crimes with especial zeal or sadism
Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 884: “[T]he principle of
gradation in sentencing . . . enables the Tribunals to distinguish between crimes which are of the most
heinous nature, and those which, although reprehensible and deserving severe penalty, should not
receive the highest penalties. The imposition of the highest penalties upon those at the upper end of the
sentencing scale, such as those who planned or ordered atrocities, or those who committed crimes with
especial zeal or sadism, enables the Chamber to punish, deter, and consequently stigmatize those
crimes at a level that corresponds to their overall magnitude and reflects the extent of the suffering
inflicted upon the victims.” See also Niyitegeka, (Trial Chamber), May 16, 2003, para. 486.
(4) range of sentences
Semanza, (Trial Chamber), May 15, 2003, para. 562-564: “The . . . practice of awarding a single sentence
for the totality of an accused’s conduct makes it difficult to determine the range of sentences for each
specific crime. [Yet] it is possible to ascertain general ranges of sentences . . . . Principal perpetrators
convicted of either genocide or extermination as a crime against humanity, or both, have been punished
with sentences ranging from fifteen years’ imprisonment to life imprisonment. Secondary or indirect forms
of participation have generally resulted [sic] a lower sentence.” “[R]ape as a crime against humanity has
resulted in specific sentences between twelve years and fifteen years. Torture as a crime against
humanity has been punished with specific sentences between five years and twelve years. Murder as a
crime against humanity has been punished by specific fixed term sentences ranging from twelve years to
twenty years. In other cases, convictions for these crimes have formed part of a single sentence of a
fixed term or of life imprisonment for the totality of the conduct of the Accused.”
Semanza, (Trial Chamber), May 15, 2003, para. 559: “The penalty of life imprisonment, the highest
penalty available at this Tribunal, should be reserved for the most serious offenders.”
(5) single sentence: discretionary
Prosecutor v. Kambanda, Case No. ICTR-97-23-A (Appeals Chamber), October 19, 2000, para 101-102:
“[N]othing in the Statute or Rules expressly states that a Chamber must impose a separate sentence for
each count on which an accused is convicted.” “[T]he Statute is sufficiently liberally worded to allow for a
single sentence to be imposed. Whether or not this practice is adopted is within the discretion of the
Chamber . . . . [A] Chamber is not prevented from imposing a global sentence in respect of all counts for
which an accused has been found guilty.”
Musema, (Trial Chamber), January 27, 2000, para. 989: The Chamber noted that “nothing in the Statute
or the Rules requires a separate penalty for each proven count” and that “the Chamber may impose one
penalty for all the counts on which the accused has been found guilty.”
Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 917: “[E]ven where the
crimes may be characterized in different ways, the imposition of a single sentence will usually be
appropriate in cases in which the offences may be recognized as belonging to a single criminal
transaction. However, the decision whether to impose a single sentence is left entirely to the discretion of
the Chamber, so long as the fundamental consideration in imposing sentence is the totality of the criminal
conduct of the accused.”
Niyitegeka, (Trial Chamber), May 16, 2003, para. 483: “In the case of an accused convicted of multiple
crimes . . . the Chamber may, in its discretion, impose a single sentence or one sentence for each of the
crimes. The imposition of a single sentence will usually be appropriate in cases in which the offences
may be recognized as belonging to a single criminal transaction. In the case of multiple sentences, the
Chamber will determine whether the sentences shall be served consecutively or concurrently.” See also
iv) individualization of penalties

Kambanda, (Trial Chamber), September 4, 1998, para. 29: “[I]t is true that ‘among the joint perpetrators of
an offence or among the persons guilty of the same type of offence, there is only one common element:
the target offence which they committed with its inherent gravity. Apart from this common trait, there are,
of necessity fundamental differences in their respective personalities and responsibilities: their age, their
background, their education, their intelligence, their mental structure . . . . It is not true that they are a
priori subject to the same intensity of punishment.’”
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, Sentence para. 10-12: “Article 23(2) of the
Statute provides that the Trial Chamber should take into account the individual circumstances of the
convicted person in determining the sentence.” In this case, the Chamber considered “previous criminal
convictions” with respect to the two accused persons, and “the possibility of . . . rehabilitation” and
“relatively young age” with respect to Ruzindana.
Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 883: “Application of these
principles [Article 23 of the Statute and Rule 101(B) of the Rules] allows the Chamber to fulfill its
‘overriding obligation to individualize [the] penalty,’ with the aim that the sentence be proportional to the
gravity of the offence and the degree of responsibility of the offender.”
Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Trial Chamber), October 2, 1998: “[A]s far as the
individualisation of penalties is concerned, the Judges cannot limit themselves to the factors mentioned in
the statutes and the Rules. Here again their unfettered discretion to evaluate the facts and attendance
circumstances should enable them to take into account any other factor that they deem pertinent.”
Akayesu, (Appeals Chamber), June 1, 2001, para. 416: “The right to take into account other pertinent
factors goes hand in hand with the overriding obligation to individualize a penalty to fit the individual
circumstances of the accused, the overall scope of his guilt and the gravity of the crime the overriding
consideration being that the sentence to be imposed must reflect the totality of the accused’s criminal
conduct.”
Semanza, (Trial Chamber), May 15, 2003, para. 560: The Chamber’s “overarching obligation [is] to tailor
the sentence to the gravity of the crime and to the individual circumstances of the offender.”
(1) aggravating circumstances
Kambanda, (Trial Chamber), September 4, 1998, para. 42-44: “The heinous nature of the crime of
genocide and its absolute prohibition makes its commission inherently aggravating. The magnitude of the
crimes involving the killing of an estimated 500,000 civilians in Rwanda, in a short span of 100 days
constitutes an aggravating fact.” “Abuse of positions of authority or trust is generally considered an
aggravating factor.”
Kambanda, (Trial Chamber), September 4, 1998, para. 61-62: The Chamber considered the following as
aggravating circumstances: the “intrinsic gravity” of the crimes for which Kambanda is responsible, and
“their widespread, atrocious and systematic character, [which] is particularly shocking to the human
conscience;” the fact that he committed the crimes “knowingly and with premeditation;” and that he
abused the “duty and authority” entrusted to him as Prime Minister “to protect the population.” The
Chamber held that the “aggravating circumstances . . . negate the mitigating circumstances, especially
since . . . Kambanda occupied a high ministerial post, at the time he committed the . . . crimes.”
Serushago, (Trial Chamber), February 5, 1999, Sentencing Judgment para. 27-30: The Chamber
considered the following as aggravating circumstances: the “extreme gravity” of the offenses because
genocide is considered the “crime of crimes;” Serushago’s individual criminal responsibility because he
played a leading role in the commission of the crimes and because he personally murdered four Tutsi; the
fact that he gave orders as a de facto leader and several victims were executed on his orders; his
voluntary participation; and the fact that he “committed the crimes knowingly and with premeditation.”
Chamber considered the following to be aggravating circumstances: voluntary commission of and
participation in the offenses; the “zeal” with which the crimes were committed (i.e., attacking places
traditionally regarded as safe havens); the “heinous means” by which killings were committed; the
“methodical and systematic execution of . . . [the] crimes;” “the behaviour . . . after the criminal act, . . .
notably [the] inaction to punish the perpetrators” or smiling or laughing as survivors testified during trial;
the irreparable harm suffered by victims and their families; the assertion of an alibi defence and the denial
of guilt at all times; and most significantly, “the abuse of power and betrayal of . . . high level office.”
Rutaganda, (Trial Chamber), December 6, 1999, para. 468-470: The Chamber considered the following
to be aggravating circumstances: the gravity of the crimes because genocide is the “crime of crimes;” the
abuse of Rutaganda’s position of authority; and the “important leading role” he played in the execution of
the crimes (which included weapon distribution, positioning of the Interahamwe at Nyanza and inciting
and ordering the killings of Tutsis, and killing someone by striking him on the head with a machete).
Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 900-905: The Chamber
considered the following to be aggravating circumstances: that as a highly respected personality and a
man wielding certain authority within the Seventh Day Adventist Church, Elizaphan Ntakirutimana
“abused the trust placed in him;” he “distanced himself from his Tutsi pastors and his flock in the hour of
their need;” and his presence at the scenes of attack could only be construed by attackers as an approval
of their actions.
considered the following to be aggravating circumstances: Gerard Ntakirutimana was a prominent
personality, one of the few individuals in his area of origin to have achieved a higher education; as a
medical doctor, “he took lives instead of saving them;” he “abused the trust placed in him;” his crimes
were committed over a lengthy period of time; “he personally shot at Tutsi refugees;” “he participated in
the attack against a safe haven;” and in several instances, he was found to have led attackers against
Tutsi refugees.
Ruggiu, (Trial Chamber), June 1, 2000, para. 47-51: The Chamber considered the following to be
aggravating circumstances: the gravity of the offenses (genocide and crimes against humanity); the role
of the accused in the commission of the offenses (the accused, who was a journalist and broadcaster,
played a crucial role in the incitement of ethnic hatred and violence and his broadcasts incited massacres
of the Tutsi population); and the fact that even once the accused became aware that the broadcasts were
contributing to the massacres, he made a deliberate choice to continue his employment with the radio
station.
Musema, (Trial Chamber), January 27, 2000, para. 1001-1004: The Chamber considered the following to
be aggravating circumstances: that the offenses for which Musema was found guilty are “extremely
serious” (genocide); “he led attackers who killed a large number of Tutsi refugees;” he “was armed with a
rifle and used the weapon during the attacks;” he “took no steps to prevent tea factory employees or
vehicles from taking part in the attacks” (as Director of the Gisovu Tea Factory, Musema exercised legal
and financial control over its employees); as a figure of authority who wielded considerable power in the
region, he “was in a position to take reasonable measures to help in the prevention of crimes;” he “did
nothing to prevent the commission of the crimes;” and he “took no steps to punish the perpetrators over
whom he had control.”
Akayesu, (Trial Chamber), October 2, 1998: The Chamber considered the following to be aggravating
factors: Akayesu “consciously chose to participate in the systematic killings in Taba;” his status as
burgomaster made him the most senior government personality in Taba and in this capacity he was
responsible for protecting the population, which he failed to do; he “publicly incited people to kill;” he
ordered the killing of a number of persons; he participated in the killings; and he supported the rape of
many women in the bureau communal through his presence and acts.
Semanza, (Trial Chamber), May 15, 2003, para. 566-573: The Chamber considered the following to be
aggravating factors: the number of victims killed as a result of Semanza’s conduct with respect to the
appropriate sentence for complicity in genocide; and the “influence and relative importance” of Semanza
in his commune.
Niyitegeka, (Trial Chamber), May 16, 2003, para. 499: The Chamber considered the following to be
aggravating circumstances: Niyitegeka was a “well-known and influential figure in his native prefecture of
Kibuye, where his crimes were committed,” and he “abused the trust placed in him by the population;” he
held an official position at the national level at the time the crimes were committed and instead of
promoting peace and reconciliation in his capacity as Minister of Information, he actively participated in
the commission of massacres and influenced others to commit crimes while also, in some instances,
giving instructions to attackers or acting as one of their leaders; the callous nature of some of the
murders; the fact that he “joined in the jubilation over the killing, decapitation and castration of Kabanda,
and the piercing of his skull through the ears with a spike;” the cruel and insensitive disregard for human
life and dignity shown by the order he gave for a sharpened piece of wood to be inserted into the genitalia
of a dead Tutsi woman; and the “prolonged nature of his participation in widespread and systematic
attacks against defenseless civilians.”
Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1099: The Chamber
considered the following to be aggravating circumstances: Nahimana “was fully aware of the power of
words, and he used the radio – the medium of communication with the widest public reach – to
disseminate hatred and violence;” “[h]e was motivated by his sense of patriotism and the need he
perceived for equity for the Hutu population [b]ut instead of following legitimate avenues of recourse, he
chose a path of genocide;” “he betrayed the trust placed in him as an intellectual and a leader;” and
“[w]ithout a firearm, machete or any physical weapon, he caused the deaths of thousands of innocent
civilians.”
considered the following to be aggravating circumstances: Barayagwiza “is a lawyer by training and in his
book professes a commitment to international human rights standards;” “he deviated from these
standards and violated the most fundamental human right, the right to life;” “[h]e did so both through the
institutions he created, and through his own personal acts of participation in the genocide;” and “[h]e was
the lynchpin of the conspiracy, collaborating closely with both Nahimana and Ngeze.”
considered the following to be aggravating circumstances: “as owner and editor of a well-known
newspaper in Rwanda, [Ngeze] was in a position to inform the public and shape public opinion towards
achieving democracy and peace for all Rwandans;” “[i]nstead of using the media to promote human
rights, he used it to attack and destroy human rights;” “Ngeze did not respect the responsibility that
comes with” the freedom of expression; “[h]e abused the trust of the public by using his newspaper to
instigate genocide;” although “Ngeze saved Tutsi civilians from death by transporting them across the
border out of Rwanda,” “[h]is power to save was more than matched by his power to kill;” and “[h]e
poisoned the minds of his readers, and by words and deeds caused the death of thousands of innocent
civilians.”
(2) mitigating circumstances
(a) generally
Kambanda, (Trial Chamber), September 4, 1998, para. 36-37, 56-58: The Chamber held that “substantial
co-operation by the accused with the Prosecutor could only be one mitigating circumstance, among
others, when the accused pleads guilty plea [sic] or shows sincere repentance.” The Chamber stressed
that “the principle must always remain that the reduction of the penalty stemming from the application of
mitigating circumstances must not in any way diminish the gravity of the offence.” The Chamber held that
“a finding of mitigating circumstances relates to assessment of sentence and in no way derogates from
the gravity of the crime. It mitigates punishment, not the crime.” “The degree of magnitude of the crime is
still an essential criterion for evaluation of sentence.” “A sentence must reflect the predominant standard
of proportionality between the gravity of the offence and the degree of responsibility of the offender.”
(b) application
Kambanda, (Trial Chamber), September 4, 1998, para. 61-62: The Chamber considered the following as
mitigating circumstances: Kambanda’s past and present cooperation with the Prosecutor; the fact that his
guilty plea “is likely to encourage other individuals to recognize their responsibilities during the tragic
events;” and that guilty pleas are “generally considered, in most national jurisdictions, including Rwanda,
as a mitigating circumstance.” The Chamber held that the “aggravating circumstances surrounding the
crimes committed by . . . Kambanda negate the mitigating circumstances especially since . . . Kambanda
occupied a high ministerial post, at the time he committed the . . . crimes.”
Serushago, (Trial Chamber), February 5, 1999, Sentencing Judgment para. 31-42: The Chamber
considered the following as mitigating circumstances: Serushago’s “cooperation with the Prosecutor;” his
“voluntary surrender;” his “guilty plea;” “his family and social background” (i.e., “the political background of
his family played a crucial role in his involvement with the . . . militia” and strong ties of friendship between
his father and the president led him to “play a prominent role in Interahamwe circles”); assistance given to
certain Tutsis victims; individual circumstances, including his young age, his six children, two of whom are
very young, and the possibility of his rehabilitation; and his “[p]ublic expression of remorse and
contrition.” The Chamber held “that exceptional circumstances in mitigation surrounding the crimes . . .
may afford him some clemency.”
Chamber held that “mitigating circumstances may include: cooperating with the Prosecutor; surrendering
to authorities; admitting guilt . . . ; demonstrating remorse for victims,” and the fact that the accused was
not a “de jure official.”
Rutaganda, (Trial Chamber), December 6, 1999, para. 471-473: The Chamber considered the following
to be mitigating circumstances: assistance given by Rutaganda to certain individuals (helping people to
evacuate and providing food and shelter to some refugees), and his poor health. The Chamber held that
the “aggravating factors outweigh the mitigating factors” especially since “Rutaganda occupied a high
position in the Interahamwe” and he “knowingly and consciously participated in the commission of such
crimes and never showed remorse for what he inflicted upon the victims.”
considered the following to be mitigating circumstances: Elizaphan Ntakirutimana was “a highly respected
personality within the Seventh Day Adventist Church of the West-Rwanda Field” and until 1994 he, as a
pastor, led an “exemplary life as a church leader;” he was a “highly religious and tolerant person,” who
showed no ethnic bias, including in times of unrest and ethnic tension, for over half a century; during the
events of 1994, he did not personally participate in killings, nor was he found to have fired on refugees or
even carried a weapon; his age of 78 years; and his frail health.
considered the following to be mitigating circumstances: Gerard Ntakirutimana was a person of good
character and he did not profess or show any ethnic bias until April 1994; and he provided or offered
shelter to several Tutsi, including a colleague and friends, a house-help and orphaned children.
Ruggiu, (Trial Chamber), June 1, 2000, para. 53-80: The Chamber considered the following to be
mitigating circumstances: Ruggiu’s guilty plea; the accused’s cooperation with the prosecutor; the
absence of a criminal record; the character of the accused; his regret and remorse; the accused’s
assistance to victims; the accused’s position with Radio Television Libres des Milles Collines and in
political life (i.e., he was a subordinate at the radio station and played no part in formulating editorial
policy); and the fact that he did not personally participate in the killings. The Chamber held that these
“circumstances . . . operate as mitigatory factors to warrant some clemency,” but still stated that
“[m]itigation of punishment in no way reduces the gravity of the crime or the guilty verdict against a
convicted person.”
Musema, (Trial Chamber), January 27, 2000, para. 1005-1008: The Chamber considered the following to
be mitigating circumstances: Musema “admitted the genocide against the Tutsi people in Rwanda in
1994;” he “expressed his distress about the deaths of so many innocent people and paid tribute to all
victims of the tragic events;” he expressed deep regret that the facilities of the Gisovu Tea Factory (of
which he was Director) may have been used by the perpetrators of atrocities; his co-operation through his
admission of facts pertaining to the case facilitated an expeditious trial; and his continuous co-operation
throughout the trial which contributed to proceedings without undue delay. The Chamber held that “the
aggravating circumstances outweigh the mitigating circumstances, especially as on several occasions
Musema personally led attackers to attack large numbers of Tutsi refugees.” The Chamber further held
that Musema “knowingly and consciously participated in the commission of crimes and never showed
remorse for his personal role in the atrocities.”
Akayesu, (Trial Chamber), October 2, 1998: The Chamber considered the following to be mitigating
factors: Akayesu was “not a very high official in the government hierarchy in Rwanda;” his influence and
power was not commensurate with the events; he expressed sympathy for the victims of the genocide;
and he identified himself with the survivors of the events.
Semanza, (Trial Chamber), May 15, 2003, para. 579-584: The Chamber considered the following to be
mitigating factors: prior character and accomplishments of Semanza (bringing prosperity and
development to his region).
Niyitegeka, (Trial Chamber), May 16, 2003, para. 495-498: The Chamber considered as mitigating
circumstances the fact that Niyitegeka intervened and saved from the Interahamwe militia, the lives of a
group of refugees. However, the Chamber held that this carried limited weight since he also took the
lives of others. The Chamber also considered that Niyitegeka was “a person of good character prior to
the events” and as a public figure and a member of the Mouvement Democratique Republicain (MDR), he
advocated democracy and opposed ethnic discrimination. Again, however, the Chamber held that this
carried little weight because when faced with the choice between participating in massacres of civilians or
holding fast to his principles, Niyitegeka chose the path of ethnic bias and participated in the massacres.
VIII) MISCELLANEOUS
a) “Equality of arms” between the parties is not the
same as equality of means and resources
Kayishema and Ruzindana, (Appeals Chamber), June 1, 2001, para. 63-71: During proceedings before
the Trial Chamber, Kayishema filed a motion calling for full equality of arms between the prosecution and
the defence in terms of the means and facilities placed at their disposal. The Appeals Chamber held that
the Trial Chamber did not commit an error in law in dismissing the motion. “The right of an accused to a
fair trial implies the principle of equality of arms between the Prosecution and Defence” and “the Trial
Chamber rightly held that [t]he notion of equality of arms is laid down in Article 20 of the Statute,”
specifically Article 20(2) and Article 20(4). However, “equality of arms . . . does not necessarily amount to
the material equality of possessing the same financial and/or personal resources.” The Appeals Chamber
quoted the ICTY Appeals Chamber in Tadic which held that “equality of arms obligates a judicial body to
ensure that neither party is put at a disadvantage when presenting its case.” 9 The Appeals Chamber also
endorsed the ruling by the Trial Chamber in the Kayishema case which held that the rights of the accused
and equality between the parties should not be confused with the equality of means and resources, and
that the rights of the accused should not be interpreted to mean that the defence is entitled to the same
means and resources as the prosecution. See also Kayishema and Ruzindana, (Trial Chamber), May 21,
1999, para. 20, 55-60.
b) Presumption of impartiality attaches to judge and

tribunal
Akayesu, (Appeals Chamber), June 1, 2001, para. 91: “[T]here is a presumption of impartiality that
attaches to a Judge or a Tribunal and, consequently, partiality must be established on the basis of
adequate and reliable evidence. ‘[I]n the absence of evidence to the contrary, it must be assumed that
the judges of the International Tribunal can disabuse their minds of any irrelevant personal beliefs or
predispositions. It is for the Appellant to adduce sufficient evidence to satisfy the Appeals Chamber that
[the Judge in question] was not impartial in his case. There is a high threshold to reach in order to rebut
the presumption of impartiality.’”
c) Selective prosecution
Akayesu, (Appeals Chamber), June 1, 2001, para. 94-96: “‘[I]nvestigation and prosecution’ of persons
responsible for serious violations within the jurisdiction of the Tribunal fall to the Prosecutor and . . . it is
her responsibility to ‘assess the information received or obtained and decide whether there is sufficient
basis to proceed.’” “‘[I]n many criminal justice systems, the entity responsible for prosecutions has finite
financial and human resources and cannot realistically be expected to prosecute every offender which
may fall within the strict terms of its jurisdiction. It must of necessity make decisions as to the nature of
the crimes and the offenders to be prosecuted. [T]he Prosecutor has a broad discretion in relation to the
initiation of investigations and in the preparation in indictments.’” To show the Prosecutor is proceeding
on a selective basis, “‘the evidence of discriminatory intent must be coupled with the evidence that the
Prosecutor’s policy has a discriminatory effect, so that other similarly situated individuals of other ethnic or
religious backgrounds were not prosecuted.’”
Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 870-871: “Article 15(2) of the
Statute requires the Prosecutor to act independently and prevents her from seeking or receiving
instructions from a government or any other source. According to the standard articulated by the ICTY
Appeals Chamber in Delalic, where an appellant alleged selective prosecution, he or she must
demonstrate that the Prosecutor improperly exercised her prosecutorial discretion in relation to the
appellant himself or herself. It follows that the Accused . . . must show that the Prosecutor’s decision to
prosecute them or to continue their prosecution was based on impermissible motives, such as ethnicity or
political affiliation, and that she failed to prosecute similarly situated suspects of different ethnicity or
political affiliation. In view of the failure of the Defence to adduce any evidence to establish that the
Prosecutor had a discriminatory or otherwise unlawful or improper motive in indicting or continuing to
prosecute the Accused, the Chamber does not find it necessary to consider the additional question of
whether there were other similarly situated persons who were not prosecuted or against whom
prosecutions were discontinued.”
d) Guilty plea: conditions for accepting a plea

agreement
i) guilty plea must be voluntary
Kambanda, (Appeals Chamber), October 19, 2000, para. 61: “[A] voluntary plea requires two elements,
namely that ‘an accused person must have been mentally competent to understand the consequences of
his actions when pleading guilty’ and ‘the plea must not have been the result of any threat or inducement
other than the expectation of receiving credit for a guilty plea by way of some reduction of sentences.’”
ii) guilty plea must be informed

Kambanda, (Appeals Chamber), October 19, 2000, para. 75: “[T]he standard for determining whether a
guilty plea is informed is . . . that the accused must understand the nature of a guilty plea and the
consequences of pleading guilty in general, the nature of the charges against him, and the distinction
between any alternative charges and the consequences of pleading guilty to one rather than the other.”
iii) guilty plea must be unequivocal

Kambanda, (Appeals Chamber), October 19, 2000, para. 84-86: “‘[W]hether a plea of guilty is equivocal
must depend on a consideration, in limine, of the question whether the plea was accompanied or qualified
by words describing facts which establish a defence in law.’” A guilty plea is unequivocal when the
accused is aware that the plea could not be refuted by any line of defence.
LISTING OF CASES INCLUDED

This compendium was completed on October 1, 2003, and includes the following cases:
Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Trial Chamber), September 2, 1998.
Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Trial Chamber), October 2, 1998.
Prosecutor v. Akayesu, Case No. ICTR-96-4-A (Appeals Chamber), June 1, 2001.
Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T (Trial Chamber), June 7, 2001.
Prosecutor v. Kambanda, Case No. ICTR-97-23 (Trial Chamber), September 4, 1998.
Prosecutor v. Kambanda, Case No. ICTR-97-23-A (Appeals Chamber), October 19, 2000.
Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T (Trial Chamber), May 21, 1999.
Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-A (Appeals Chamber), June 1, 2001.
Prosecutor v. Musema, Case No. ICTR-96-13-A (Trial Chamber), January 27, 2000.
Prosecutor v. Musema, Case No. ICTR-96-13-A (Appeals Chamber), November 16, 2001.
3, 2003.*
Prosecutor v. Niyitegeka, Case No. ICTR-96-14 (Trial Chamber), May 16, 2003.
Prosecutor v. Ntakirutimana and Ntakirutimana, Case No. ICTR-96-10 & ICTR-96-17-T (Trial Chamber),
February 21, 2003.
Prosecutor v. Ruggiu, Case No. ICTR-97-32-I (Trial Chamber), June 1, 2000.
Prosecutor v. Rutaganda, Case No. ICTR-96-3 (Trial Chamber), December 6, 1999.
Prosecutor v. Semanza, Case No. ICTR-97-20 (Trial Chamber), May 15, 2003.
Prosecutor v. Serushago, Case No. ICTR-98-39 (Trial Chamber), February 5, 1999.
Prosecutor v. Serushago, Case No. ICTR-98-39-A (Appeals Chamber), April 6, 2000.
* Although this case was issued after October 2003, it was added to the ICTR Digest due to its
jurisprudential importance.

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Summary of Judgments ICTR

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I) GENOCIDE (Article 2)

a) Killing members of the group;

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

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:

b) Conspiracy to commit genocide;

c) Direct and public incitement to commit genocide;

d) Attempt to commit genocide;

ii) genocide is international customary law and jus cogens

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

(2) intent required prior to commission of acts

(3) intent can be inferred

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

 “the scale of atrocities committed;”

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

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

 “the repetition of destructive and discriminatory acts;” or

 “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

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

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

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

(2) actual extermination of entire group not required

(3) not necessary to establish genocide throughout country

(a) sexual violence as destruction

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

(1) meant to cover any stable and permanent group

(a) whether group membership is subjective or objective

(2) interpretation of “as such”

(3) national group

(4) ethnical/ethnic group

 individuals’ self-identification as either Hutu or Tutsi.

(b) association of ethnic group with political agenda

(5) racial group

(6) religious group

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

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

 testimony on the killing of newborns;

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

(1) general definition

(2) no requirement of permanency or irremediability

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

(3) rape and sexual violence can qualify

(4) threats during interrogation can qualify

iii) deliberately inflicting on the group conditions of life calculated to

iv) imposing measures intended to prevent births within the group

v) forcibly transferring children of the group to another group

ii) conspiracy to commit genocide

(2) mental state (mens rea)

(3) conspiracy need not be successful

(4) a formal agreement is not needed

(5) conspiracy can be inferred/knowledge requirement

(6) institutional coordination

(7) conspiracy is an inchoate offense