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III) WAR CRIMES (Article 4)

a) Statute

ICTR Statute, Article 4:

“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 Chamber), January 27, 2000, para. 248.

(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 Chamber), January 27, 2000, para. 257.

(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 Chamber), January 27, 2000, para. 258.

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.” 

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), 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.”

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), 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



4 Prosecutor v. Tadic, Case No. IT-94-1 (Trial Chamber), May 7, 1997, para. 609.

5 Prosecutor v. Tadic, Case No. IT-94-1 (Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, para. 116, 134.

6 Prosecutor v. Tadic, Case No. IT-94-1 (Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, para. 70.

7 For discussion of the nexus requirement, see Section (III)(c)(v), ICTR Digest.


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February 2004