AKAYESU JUDGMENT PDF
The judgment was appealed before the Appeals Chamber, which issued its judgment on 1 June THE PROSECUTOR v. JEAN-PAUL AKAYESU Case No. ICTRT. JUDGEMENT [ ] 1. INTRODUCTION [ ] 6. [ ] “The Prosecutor of the International. I Translation certified by LCSS, ICTR. HAG(A)Ol (E) v. JEAN-PAUL AKA YESU. JUDGMENT. ENGLISH. Original: ENGLISH/ FRENCH.
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Violations of Article 3 common to the Geneva Conventions. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part paragraph c: In that latter respect, the Security Council has elected to take a more expansive approach to the choice of the applicable law than the one underlying the Statute of the Yugoslav Tribunal, and included within the subject-matter jurisdiction of the Rwanda 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 of the Statute, accordingly, includes violations of Additional Protocol II, which, as a whole, has not yet been universally recognized as part of customary international law, for the first time criminalizes common article 3 of the four Geneva Conventions. The definition of genocide set out in paras of the judgement of Trial Chamber I was not revised in the present Appeals Chamber judgement.
It marks a new step forward in the unceasing development of the idea on which the Red Cross is based, and in the embodiment of that idea in the form of international obligations. Extending its solicitude little by little to other categories of war victims, in logical application of its fundamental principle [the Red Cross] pointed the way, first to the revision of the original Convention, and then to the extension of legal judgmetn in turn to prisoners of war and civilians.
Refworld | The Prosecutor v. Jean-Paul Akayesu (Trial Judgement)
Trial Chamber – Paras 3 to [ Source: Prior to his appointment as bourgmestrehe was a teacher and school inspector in Taba.
As bourgmestreJean Paul AKAYESU was charged with the performance of executive functions and the maintenance of public order within his commune, subject to the authority of the prefect. He had exclusive control over the communal police, as well as any gendarmes put at the disposition of the commune.
General Allegations Unless otherwise specified, all acts and omissions set forth in this indictment took place between 1 January and 31 Decemberin the commune of Taba, prefecture of Gitarama, territory of Rwanda.
In each paragraph charging genocide, a crime recognized by Article 2 of the Statute of the Tribunal, the alleged acts or omissions were committed with intent to destroy, in whole or in part, a national, ethnic or racial group. The victims in each paragraph charging genocide were members of a national, ethnic, racial or religious group.
At all times relevant to this indictment, a state of internal armed conflict existed in Rwanda. The victims referred to in this indictment were, at all relevant times, persons not taking an active part in the hostilities. The accused is individually responsible for the crimes alleged in this indictment. Under Article 6 1 of the Statute of the Tribunal, individual criminal responsibility is attributable to one who plans, instigates, orders, commits or otherwise aids and abets in the planning, preparation or execution of any of the crimes referred to in Articles 2 to 4 of the Statute of the Tribunal.
At least Tutsis were killed in Taba between April 7 and the end of June,while he was still in power. Although he had the authority and responsibility to do so, Jean Paul AKAYESU never attempted to prevent the killing of Tutsis in the commune in any way or called for assistance from regional or national authorities to quell the violence.
The majority of these displaced civilians were Tutsi. Displaced civilians were also murdered frequently on or near the bureau communal premises. Many women were forced to endure multiple acts of sexual violence which were at times committed by more than one assailant. These acts of sexual violence were generally accompanied by explicit threats of death or bodily harm. The female displaced civilians lived in constant fear and their physical and psychological health deteriorated as a result of the sexual violence and beatings and killings.
Jean Paul AKAYESU facilitated the commission of the sexual violence, beatings and murders by allowing the sexual violence and beatings and murders to occur on or near the bureau communal premises.
By virtue of his presence during the commission of the sexual violence, beatings and murders and by failing to prevent the sexual violence, beatings and murders, Jean Paul AKAYESU encouraged these activities.
The militia killed them with clubs, machetes, small axes and sticks. Five teachers from the secondary school of Taba were killed on his instructions. The local people and militia killed them with machetes and agricultural tools in front of the Taba bureau communal.
Genocide Article 2 of the Statute 6.
Genocide Article 2 of the Statute stipulates that the Tribunal shall have the power to prosecute persons responsible for genocide, complicity to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide. Killing members of the group; Causing serious bodily or mental harm to members of the group; Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Imposing measures intended to prevent births within the group; Forcibly transferring children of the group to another group.
The Chamber notes that Rwanda acceded, by legislative decree, to the Convention on Genocide on 12 February Thus, punishment of the crime of genocide did exist in Rwanda inat the time of the acts alleged in the Indictment, and the perpetrator was liable to be brought before the competent courts of Rwanda to answer for this crime. Genocide is distinct from other crimes inasmuch 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, for a crime of genocide to have been committed, it is necessary that one of the acts listed under Article 2 2 of the Statute be committed, that the particular act be committed against a specifically targeted group, it being a national, ethnical, racial or religious group. Consequently, in order to clarify the constitutive elements of the crime of genocide, the Chamber will first state its findings on the acts provided for under Article 2 2 a through Article 2 2 e of the Statute, the groups protected by the Genocide Convention, and the special intent or dolus specialis necessary for genocide to take place.
Killing members of the group paragraph a: Causing serious bodily or mental harm to members of the group paragraph b Causing serious bodily or mental harm to members of the group does not necessarily mean that the harm is permanent and irremediable. The Chamber holds that the expression deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, should be construed as the methods of destruction by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction.
For purposes of interpreting Article 2 2 c of the Statute, the Chamber is of the opinion that the means of deliberate inflicting on the group conditions of life calculated to bring about its physical destruction, in whole or part, include, 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.
Imposing measures intended to prevent births within the group paragraph d: For purposes of interpreting Article 2 2 d of the Statute, the Chamber holds that the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages.
Furthermore, the Chamber notes that measures intended to prevent births within the group may be physical, but can also be mental. 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.
Forcibly transferring children of the group to another group paragraph e With respect to forcibly transferring children of the group to another group, the Chamber is of the opinion that, as in the case of measures intended to prevent births, the objective 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.
Article 2 of the Statute, just like the Genocide Convention, stipulates four types of victim groups, namely national, ethnical, racial or religious groups. Therefore, a common criterion in the four types of groups protected by the Genocide Convention is 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.
An ethnic group is generally defined as a group whose members akqyesu a akayes language or culture. 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.
The religious group is one whose members share the same religion, denomination or mode jdgment worship. Special intent is a well-known criminal law concept in the Roman-continental legal systems. It is required as a constituent element of certain offences and demands that the perpetrator have the clear intent to cause the offence charged. According to this meaning, special intent is the key element of an intentional offence, which offence is characterized by a psychological relationship between the physical result and the mental state of the perpetrator.
Thus, the victim is chosen not because of his individual identity, but rather on account of his membership of a national, ethnical, racial or religious group. The victim of the act zkayesu therefore a member of a group, chosen as such, which, hence, means that the victim of the crime of genocide is the group itself and not only the individual. This is the reason why, in the absence of a confession from the accused, his intent can be inferred jdugment a certain number of presumptions of fact.
The Chamber considers that it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of jjudgment culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, juddgment excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act.
These violations shall include, but shall not be limited to: Paras to Applicability of Common Article 3 and Additional Protocol II The four Geneva Conventions and the Additional Protocol I thereto generally apply to international armed conflicts only, whereas Article 3 common to the Geneva Conventions extends a minimum threshold of akatesu protection as well to all persons jdugment by a non-international conflict, a protection which was further developed and enhanced in the Additional Protocol II.
In the field of international humanitarian law, a clear distinction as to the thresholds of application has been made akayes situations of international armed conflicts, in which the law of armed conflicts is applicable as a whole, situations of non-international internal armed conflicts, where Common Article 3 and Additional Protocol II are applicable, and non-international armed conflicts where only Common Article 3 is applicable. Situations of internal disturbances are not covered by international humanitarian law.
The distinction pertaining to situations of conflicts of a non-international character emanates from the differing intensity of the conflicts. Such distinction is inherent to the conditions of applicability specified for Common Akaywsu 3 or Additional Protocol II respectively.
Additional Protocol II does not in itself establish a criterion for a non-international conflict, rather it merely develops and supplements the rules contained in Common Article 3 without modifying its conditions of application. It should be stressed that the ascertainment of the intensity of a non-international conflict does not depend on the subjective judgment of the parties to the conflict.
It should be recalled that the four Geneva Conventions, as well as akatesu two Protocols, were adopted primarily to protect the victims, as well as potential victims, of armed conflicts. If the application of international humanitarian law depended judgemnt on the discretionary judgment of the parties to the conflict, in most cases there would be a tendency for the conflict to be minimized by the parties thereto.
Thus, on the basis of objective criteria, both Common Article 3 and Additional Protocol II will apply once it has been established there exists an akyesu armed conflict which fulfills their respective pre-determined criteria.
ICTR, The Prosecutor v. Jean-Paul Akayesu
The Security Council, when delimiting the subject-matter jurisdiction of the ICTR, incorporated violations of international humanitarian law which may be committed in the context of both an international and an internal armed conflict: Moreover, the Chamber recalls the establishment of the ICTY, during which the UN Secretary General asserted that in application of the principle of nullum crimen judgmeny lege the International Tribunal should apply kudgment of International Humanitarian law which are beyond any doubt part of customary law.
Notwithstanding the above, a possible approach would be for the Chamber not to look at the nature of the building blocks of Article 4 of the Statute nor for it to categorize the conflict as such but, judgkent, to look only at the relevant parts of Common Article 3 and Additional Protocol II in the context of this trial.
Akyesu, the Security Council has itself never explicitly determined how an armed conflict should be characterised. Yet it would appear that, in the case of the ICTY, the Security Council, by making reference to the four Geneva Conventions, considered that the conflict in the former Juxgment was an international armed conflict, although it did not suggest the criteria by which it reached this finding.
Thus, it would not be necessary for the Chamber to determine the precise nature of the conflict, this having already been pre-determined by the Security Council. Article 4 of the Statute would be applicable irrespective of the Additional Protocol II question, so long as the conflict were covered, at the very least, judgmenh the customary norms of Common Article 3. Findings would thus be made on the basis of whether or not it were proved beyond a reasonable doubt that akaeysu has been a serious violation in the form of one or more of the acts enumerated in Article 4 of the Statute.
However, the Chamber recalls the way in which the Prosecutor has brought some of the counts against the accused, namely counts 6, 8, 10, 12 and For the first four of these, there is mention only of Common Article 3 as the subject matter jurisdiction of the particular alleged offences, whereas count 15 makes an additional reference to Additional Protocol II.
To so add Additional Protocol II should not, in the opinion of the Chamber, be dealt with as a mere expansive enunciation of a ratione materiae which has been pre-determined by the Security Council.
Rather, the Chamber finds it necessary and reasonable to establish the applicability of both Common Article 3 and Additional Protocol II individually. Thus, if an offence, as per count 15, is charged under both Common Article 3 and Additional Protocol II, it will not suffice to apply Common Article 3 and take for granted that Article 4 of the Statute, hence Additional Protocol II, is therefore automatically applicable. It is today clear that the norms of Common Article 3 have acquired the status of customary law in that most States, by their domestic penal codes, have criminalized acts which if committed during internal armed conflict, would constitute violations of Common Article 3.
This was in line with the view of the ICTY Appeals Chamber stipulating that Common Article 3 beyond doubt formed part of customary international law, and further that there exists a corpus of general principles and norms on internal armed conflict embracing Common Article 3 but having a much greater scope.
However, as aforesaid, Additional Protocol II as a whole was not deemed by the Secretary-General to have been universally recognized as part of customary international law. All of the guarantees, as enumerated in Article 4 reaffirm and supplement Common Article 3 and, as discussed above, Common Article 3 being customary in nature, the Chamber is of the opinion that these guarantees did also at the time of the events alleged in the Indictment form part of existing international customary law.
Individual Criminal Responsibility For the purposes of an international criminal Tribunal which is trying individuals, it is not sufficient merely to affirm that Common Article 3 and parts of Article 4 of Additional Protocol II — which comprise the subject-matter jurisdiction of Article 4 of the Statute — form part of international customary law. Otherwise, it might be argued that these instruments only state norms applicable to States and Parties to a conflict, and that they do not create crimes for which individuals may be tried.
As regards individual criminal responsibility for serious violations of Common Article 3, the ICTY has already affirmed this principle in the Tadic case. The list in Article 4 of the Statute thus comprises serious violations of the fundamental humanitarian guarantees which, as has been stated above, are recognized as part of international customary law.
In the opinion of the Chamber, it is clear that the authors of such egregious violations must incur individual criminal responsibility for their deeds. The Chamber, therefore, concludes the violation of these norms entails, as a matter of customary international law, individual responsibility for the perpetrator. In addition to this argument from custom, there is the fact that the Geneva Conventions of and thus Common Article 3 were ratified by Rwanda on 5 May and Additional Protocol II on 19 Novemberand were therefore in force on the territory of Rwanda at the time of the alleged offences.