Philippine International Law

The Prosecutor v.
Emmanuel Ndindabahizi
FACTS:
The Accused had visited Gitwa Hill on two occasions, urging the attackers to kill the Tutsi refugees, and
distributing machetes and other weapons. As a Minister, his words and actions would certainly have had
a substantial motivating impact on the attackers. The Trial Chamber underscored that only two days
after the Accused’s final visit, there was a massive attack on the Hill which led to the death of thousands
of Tutsi. In addition, the Chamber concluded that a person known as Nors, alias Nturusu, had been killed
immediately after the departure of the Accused from the Gaseke roadblock.
The Accused was charged with three counts pursuant to Articles 2 and 3 of the Statute: genocide;
extermination and murder as crimes against humanity. The Accused was charged with individual
criminal responsibility under Article 6(1) of the Statute.
RULING:
The Trial Chamber held that, by his words, the Accused had instigated genocide at Gitwa Hill. By his acts
of material assistance, including the distribution of weapons and the transportation of attackers..
With regard to Mr. Nors’ death, the Chamber argued that the fact that only a single person had been
killed on this occasion did not negate the perpetrators’ clear intent to destroy the Tutsi population of
Kibuye and of Rwanda, in whole or in part. Consequently, the killers of Mr. Nors had committed
genocide. The Chamber further concluded that the Accused had instigated, and aided and abetted
genocide by his acts of assistance and encouragement to the killers of Mr. Nors.
The Trial Chamber held that the Accused himself had committed extermination as a crime against
humanity. He had participated in creating, and contributed to, the conditions for the massacre of Tutsi
on Gitwa Hill on 26 April 1994. Alternatively, the Chamber found that by his words and deeds, the
Accused had directly and substantially contributed to the crime of extermination committed by the
attackers at Gitwa Hill, and was thereby guilty of both instigating, and of aiding and abetting, the crime.
ATHANASE SEROMBA
Facts:
Athanase Seromba was born in 1963 in the commune of Rutziro, Rwanda. At the time of the events, he
was a catholic priest in the parish of Nyange in the Kibuye prefecture.
From April 1994, Athanase Seromba was accused of having planned, organised and supervised several
attacks, against Tutsi refugees by the Interahamwe militia, as well as by the Rwandan gendarmerie and
the communal police, in the commune of Kiwuma.
In particular, he was reported to have been an active participant in the massacre of around 2’000
civilians who had taken refuge in his church in Nyange,for which Gaspard Kanyarukiga (see “related
cases”) was also indicted by the International Criminal Tribunal for Rwanda (ICTR)
On 13 December 2006, the Third Trial Chamber of the ICTR found Seromba guilty of aiding and abetting
genocide and extermination as a crime against humanity. He was acquitted of the count of conspiracy to
commit genocide. Seromba was then sentenced to a single term of fifteen years imprisonment.
Ruling:
The Appeals Chamber recalls that
[i]n the context of genocide, however, “direct and physical perpetration” need not mean physical killing;
other acts can constitute direct participation in the actus reus of the crime.
The jurisprudence makes clear that “committing” is not limited to direct and physical perpetration and
that other acts can constitute direct participation in the actus reus of the crime. The question of
whether an accused acts with his own hands, e.g. when killing people, is not the only relevant
criterion. The Appeals Chamber therefore finds, Judge Liu dissenting, that the Trial Chamber erred in
law by holding that “committing” requires direct and physical perpetration of the crime by the offender.
On the basis of these underlying factual findings, the Appeals Chamber finds that Athanase Seromba
approved and embraced as his own the decision of Kayishema, Ndahimana, Kanyarukiga, Habarugira,
and other persons to destroy the church in order to kill the Tutsi refugees. It is irrelevant that Athanase
Seromba did not personally drive the bulldozer that destroyed the church. What is important is that
Athanase Seromba fully exercised his influence over the bulldozer driver who, as the Trial Chamber’s
findings demonstrate, accepted Athanase Seromba as the only authority, and whose directions he
followed. The Appeals Chamber finds, Judge Liu dissenting, that Athanase Seromba’s acts, which cannot
be adequately described by any other mode of liability pursuant to Article 6(1) of the Statute than
“committing”, indeed were as much as an integral part of the crime of genocide as the killings of the
Tutsi refugees.[1] Athanase Seromba was not merely an aider and abetter but became a principal
perpetrator in the crime itself.
The Appeals Chamber observes, Judge Liu dissenting, that Athanase Seromba’s conduct was not limited
to giving practical assistance, encouragement or moral support to the principal perpetrators of the
crime, which would merely constitute the actus reus of aiding and abetting.[2] Quite the contrary, the
findings of the Trial Chamber allow for only one conclusion, namely, that Athanase Seromba was a
principal perpetrator in the killing of the refugees in Nyange church. The Appeals Chamber therefore
finds that Athanase Seromba’s conduct can only be characterized as “committing” these crimes.
The Appeals Chamber recalls that an accused evinces the requisite mens rea for committing a crime
when he acts with an intent to commit that crime.[3] This stands in contrast to the mens rea for aiding
and abetting, which “is indicated by the requirement that the act of participation be performed with
knowledge that it will assist the principal in the commission of the criminal act.”

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The Prosecutor v.

The Appeals Chamber recalls that

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