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II) CRIMES AGAINST HUMANITY (Article 3)

a) Statute

ICTR Statute, Article 3:

“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 Rutaganda, (Trial Chamber), December 6, 1999, para. 66; Musema, (Trial Chamber), January 27, 2000, para. 201.

 

ii) the act must be committed as part of a “widespread or systematic attack” (element 2)

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.  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 Chamber), May 16, 2003, para. 439.

(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 Rutaganda, (Trial Chamber), December 6, 1999, para. 69; Musema, (Trial Chamber), January 27, 2000, 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”

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.” (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 Chamber), May 15, 2003, para. 330.

(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.

(2) mental state (mens rea)

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.’”

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1061: “The Chamber 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.”

(2) mental state (mens rea)

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.”

(2) mental state (mens rea)

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)

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1071: “[T]he crime of 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

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1073: “[T]he crime of  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

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 1080: “The Chamber 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.”

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 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.”

  

(2) mental state (mens rea)

(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.”



1 Note that the latter formulation in Akayesu and the formulation in Semanza where “attack” is used rather than “act” more closely follow the Statute.

2 But see case law discussed in Section (II)(c)(vii)(3) ICTR Digest, eliminating the public official requirement.

3 Id.


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February 2004