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IV) INDIVIDUAL CRIMINAL RESPONSIBILITY (Article 6(1))

a) Statute

ICTR Statute, Article 6:

“1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present Statute, shall be individually responsible for the crime.

 2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.”

b) Generally

i) required elements

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 198: There is a “two stage test which must be satisfied in order to establish individual criminal responsibility under Article 6(1).  This test required the demonstration of (i) participation . . . that the accused’s conduct contributed to the commission of an illegal act, and (ii) knowledge or intent, that is awareness by the actor of his participation in a crime.”

ii) crime must have actually occurred for Article 6(1) liability, but not for genocide

Akayesu, (Trial Chamber), September 2, 1998, para. 473: “[T]he principle of individual criminal responsibility . . . implies that the planning or preparation of the crime actually leads to its commission.”   Thus, a person can only be liable under Article 6(1) covering “Individual Criminal Responsibility,” if the offense was actually committed, except in the case of the crime of genocide, for which there can be attempt liability.  See also Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, n. 80; Rutaganda, (Trial Chamber), December 6, 1999, para. 34; Musema, (Trial Chamber), January 27, 2000, para. 115. 

Rutaganda, (Trial Chamber), December 6, 1999, para. 34: “However, . . . Article 2(3) . . . on the crime of genocide, provides for prosecution for attempted genocide.”

Semanza, (Trial Chamber), May 15, 2003, para. 378: “Pursuant to Article 6(1), a crime within the Tribunal’s jurisdiction must have been completed before an individual’s participation in that crime will give rise to criminal responsibility.  Article 6(1) does not criminalize inchoate offences, which are punishable only for the crime of genocide pursuant to Article 2(3)(b), (c), and (d).”

iii) individual and command responsibility distinguished

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

iv) planning, instigating, ordering, committing, aiding, abetting read disjunctively

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 193-197, 207: The Chamber rejected the defense’s argument that “‘planning, instigation, ordering, committing,’ should be read cumulatively, but separately from, ‘aiding and abetting,’” and “that ‘aiding and abetting’ should also be read cumulatively.”  The Chamber instead chose to read the phrases disjunctively, holding that individual criminal responsibility only requires that “any one of the modes of participation delineated in Article 6(1) . . . be shown.”  “[E]ach of the modes of participation may, independently, give rise to criminal responsibility.”

Akayesu, (Trial Chamber), September 2, 1998, para. 484: “[E]ither aiding or abetting alone is sufficient to render the perpetrator criminally liable.”

v) can be liable for acts committed by others

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

c) Participation: that the accused’s conduct contributed to the commission of an illegal act (element 1)

i) generally - contribution must be substantial

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 199: “What constitutes the actus reus and the requisite contribution inevitably varies with each mode of participation set out in Article 6(1).  What is clear is that the contribution to the undertaking be a substantial one, and this is a question of fact for the Trial Chamber to consider.”

Semanza, (Trial Chamber), May 15, 2003, para. 379: “To satisfy Article 6(1), an individual’s participation must have substantially contributed to, or have had a substantial effect on, the completion of a crime.”

ii) planning

Akayesu, (Trial Chamber), September 2, 1998, para. 480: “[P]lanning, unlike complicity or plotting, can be an act committed by one person.  Planning can thus be defined as implying that one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases.”  See also Rutaganda, (Trial Chamber), December 6, 1999, para. 37; Musema, (Trial Chamber), January 27, 2000, para. 119. 

Bagilishema, (Trial Chamber), June 7, 2001, para. 30: “An individual who participates directly in planning to commit a crime under the Statute incurs responsibility for that crime even when it is actually committed by another person.  The level of participation must be substantial, such as formulating a criminal plan or endorsing a plan proposed by another.”

Semanza, (Trial Chamber), May 15, 2003, para. 380: “‘Planning’ envisions one or more persons formulating a method of design or action, procedure, or arrangement for the accomplishment of a particular crime.  The level of participation in the planning must be substantial such as actually formulating the criminal plan or endorsing a plan proposed by another.”

iii) instigating/inciting

(1) generally

Bagilishema, (Trial Chamber), June 7, 2001, para. 30: “An individual who instigates another person to commit a crime incurs responsibility for that crime.  By urging or encouraging another person to commit a crime, the instigator may contribute substantially to the commission of the crime.  Proof is required of a causal connection between the instigation and the actus reus of the crime.”  See also Semanza, (Trial Chamber), May 15, 2003, para. 381. 

(2) no “direct and public” requirement

Akayesu, (Appeals Chamber), June 1, 2001, para. 474-483: The Appeals Chamber ruled that the Akayesu Trial Chamber erred as a matter of law in finding that the term “instigated” under Article 6(1) must be “direct and public.”  The Appeals Chamber noted the discrepancy between the English and French versions of the statute, both original, which use “instigated” and “incite” respectively, and held that the two terms are synonymous.  “Direct and public” instigation was not required. 

iv) ordering

Akayesu, (Trial Chamber), September 2, 1998, para. 483: “Ordering implies a superior-subordinate relationship between the person giving the order and the one executing it.  In other words, the person in a position of authority uses it to convince another to commit an offence.  In certain legal systems, including that of Rwanda, ordering is a form of complicity through instructions given to the direct perpetrator of an offence.”  See also Rutaganda, (Trial Chamber), December 6, 1999, para. 39; Musema, (Trial Chamber), January 27, 2000, para. 121.

v) committing

Rutaganda, (Trial Chamber), December 6, 1999, para. 41: “[A]n accused may participate in the commission of a crime either through direct commission of an unlawful act or by omission, where he has a duty to act.”  See also Musema, (Trial Chamber), January 27, 2000, para. 123.

Semanza, (Trial Chamber), May 15, 2003, para. 383: “‘Committing’ refers to the direct personal or physical participation of an accused in the actual acts which constitute the material elements of a crime under the Statute.”

vi) aiding and abetting

(1) defined

Akayesu, (Trial Chamber), September 2, 1998, para. 484: “Aiding” and “abetting” are not synonymous.  “Aiding means giving assistance to someone.”  “Abetting . . . would involve facilitating the commission of an act by being sympathetic thereto.”  See also Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 787.

Semanza, (Trial Chamber), May 15, 2003, para. 384: “The terms ‘aiding’ and ‘abetting’ refer to distinct legal concepts.  The term ‘aiding’ means assisting or helping another to commit a crime, and the term ‘abetting’ means encouraging, advising, or instigating the commission of a crime.”

(2) either aiding or abetting alone suffices

Akayesu, (Trial Chamber), September 2, 1998, para. 484: “[E]ither aiding or abetting alone is sufficient to render the perpetrator criminally liable.”

(3) mental state (mens rea)

Bagilishema, (Trial Chamber), June 7, 2001, para. 32: “An accomplice must knowingly provide assistance to the perpetrator of the crime, that is, he or she must know that it will contribute to the criminal act of the principal.  Additionally, the accomplice must have intended to provide assistance, or as a minimum, accepted that such assistance would be a possible and foreseeable consequence of his conduct.”

(a) specific intent required for aiding and abetting genocide

Akayesu, (Trial Chamber), September 2, 1998, para. 485: “[W]hen dealing with a person [a]ccused of having aided and abetted in the planning, preparation and execution of genocide, it must be proven that such a person did have the specific intent to commit genocide, namely that, he or she acted with the intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such; whereas . . . the same requirement is not needed for complicity in genocide.”

See also discussion of mental state (mens rea) for Article 6(1) generally, Section (IV)(d), ICTR Digest.

(4) assistance must substantially contribute/have substantial effect

Rutaganda, (Trial Chamber), December 6, 1999, para. 43: “[A]iding and abetting include all acts of assistance in either physical form or in the form of moral support; nevertheless, . . . any act of participation must substantially contribute to the commission of the crime.  The aider and abettor assists or facilitates another in the accomplishment of a substantive offence.”  See also Musema, (Trial Chamber), January 27, 2000, para. 126; Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 787.

Bagilishema, (Trial Chamber), June 7, 2001, para. 33: “For an accomplice to be found responsible for a crime under the Statute, he or she must assist the commission of the crime; the assistance must have a substantial effect on the commission of the crimes.”

(5) assistance need not be indispensable

Bagilishema, (Trial Chamber), June 7, 2001, para. 33: “The Chamber . . . agrees with the view expressed in Furundzija, that the assistance given by the accomplice need not constitute an indispensable element, i.e. a conditio sine qua non, of the acts of the perpetrator.”

(6) assistance need not be at same time offense committed

Bagilishema, (Trial Chamber), June 7, 2001, para. 33: “The assistance need not be provided at the same time that the offence is committed.”

Semanza, (Trial Chamber), May 15, 2003, para. 385: “[T]he assistance may be provided before or during the commission of the crime.”

(7) presence not required

Akayesu, (Trial Chamber), September 2, 1998, para. 484: “[I]t is not necessary for the person aiding or abetting another to commit the offence to be present during the commission of the crime.”

Rutaganda, (Trial Chamber), December 6, 1999, para. 43: “[I]t is not necessary that the person aiding and abetting another to commit an offence be present during the commission of the crime.  The relevant act of assistance may be geographically and temporally unconnected to the actual commission of the offence.”  See also Musema, (Trial Chamber), January 27, 2000, para. 125.

Bagilishema, (Trial Chamber), June 7, 2001, para. 33: “[T]he participation in the commission of the crime does not require actual physical presence or physical assistance.”

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 200: “It is not presupposed that the accused must be present at the scene of the crime, nor that his contribution be a direct one.  That is to say . . . the role of the individual in the commission of the offence need not always be a tangible one.  This is particularly pertinent where the accused is charged with ‘aiding’ or ‘abetting’ of a crime.”

(8) mere encouragement can suffice

Bagilishema, (Trial Chamber), June 7, 2001, para. 33: “Mere encouragement or moral support by an aider and abettor may amount to ‘assistance.’  The accomplice need only be ‘concerned with the killing.’”

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 200-201: “‘[A]n approving spectator who is held in such respect by the other perpetrators that his presence encourages them in their conduct’” may be held liable.

Semanza, (Trial Chamber), May 15, 2003, para. 385, 386: “This encouragement or support may consist of physical acts, verbal statements, or, in some cases, mere presence as an ‘approving spectator.’”  “Criminal responsibility as an ‘approving spectator’ does require actual presence during the commission of the crime or at least presence in the immediate vicinity of the scene of the crime, which is perceived by the actual perpetrator as approval of his conduct.”

 

(9) presence combined with authority can constitute assistance

Bagilishema, (Trial Chamber), June 7, 2001, para. 34: The Chamber held that “presence, when combined with authority, may constitute assistance (the actus reus of the offence) in the form of moral support” and that “‘an approving spectator who is held in such respect by other perpetrators that his presence encourages them in their conduct, may be guilty in a crime against humanity.’”  The Chamber noted that “[i]nsignificant status may, however, put the ‘silent approval’ below the threshold necessary for the actus reus.”  See also Niyitegeka, (Trial Chamber), May 16, 2003, para. 461.

 

vii) acting with common criminal purpose: may give rise to liability for “committing” or “aiding and abetting”

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 203-205: Where “‘a plan exists, or where there otherwise is evidence that members of a group are acting with a common criminal purpose, all those who knowingly participate in, and directly and substantially contribute to, the realization of this purpose may be held criminally responsible . . . and . . . [d]epending upon the facts of a given situation, the culpable individual may, under such circumstances, be held criminally responsible either as a direct perpetrator of, or as an aider and abettor to, the crime in question.’”  The Chamber concluded that “the members of such a group would be responsible for the result of any acts done in furtherance of the common design where such furtherance would be probable from those acts,” and stated that “the accused need not necessarily have the same mens rea as the principal offender.”

d) Mental state (mens rea) (element 2)

Akayesu, (Trial Chamber), September 2, 1998, para. 479: “[T]he forms of participation referred to in Article 6(1), cannot render their perpetrator criminally liable where he did not act knowingly, and even where he should have had such knowledge.”

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 198: “[K]nowledge or intent” requires “awareness by the actor of his participation in a crime.”

Semanza, (Trial Chamber), May 15, 2003, para. 388: “The accused need not necessarily share the mens rea of the principal perpetrator; the accused must be aware, however, of the essential elements of the principal’s crime including the mens rea.” 

Semanza, (Trial Chamber), May 15, 2003, para. 389: “In the case of the ‘approving spectator,’ the individual must know that his presence would be seen by the perpetrator of the crime as encouragement or support.  The requisite mens rea may be established from the circumstances including prior like behaviour, failure to punish, or verbal encouragement.” 

See also Section (IV)(c)(vi)(3), ICTR Digest, discussing mental state for aiding and abetting.

e) Application

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 974: “The Chamber notes Nahimana’s particular role as the founder and principal ideologist of RTLM [radio station].”  “Nahimana was less actively involved in the daily affairs of RTLM after 6 April 1994, but RTLM did not deviate from the course he had set for it before 6 April 1994.  [T]he broadcasts intensified after 6 April and called explicitly for the extermination of  the Tutsi population.  The programming of RTLM after 6 April built on the foundations created for it before 6 April.  RTLM did what Nahimana wanted it to do.  It was ‘instrumental in awakening the majority population’ and in mobilizing the population to stand up against the Tutsi enemy.  RTLM was Nahimana’s weapon of choice, which he used to instigate the killing of Tutsi civilians.  For this reason the Chamber finds Nahimana guilty of genocide pursuant to Article 6(1).”

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 954, 975: “Barayagwiza was one of the principal founders of CDR [political party that depicted the Tutsi population as the enemy] and played a leading role in its formation and development.  He was a decision-maker for the party.  The CDR had a youth wing, called the Impuzamugambi, which undertook acts of violence, often together with the Interahamwe . . . against the Tutsi population.  The killing of Tutsi civilians was promoted by the CDR, as evidenced by the chanting of ‘tubatsembatsembe’ or ‘let’s exterminate them’ by Barayagwiza himself and by CDR members in his presence at public meetings and demonstrations.  The reference to ‘them’ was understood to mean the Tutsi population.  Barayagwiza supervised roadblocks manned by the Impuzamugambi, established to stop and kill Tutsi.  The Chamber notes the direct involvement of Barayagwiza in the expression of genocidal intent and in genocidal acts undertaken by members of the CDR and its Impuzamugambi.  Barayagwiza was at the organizational helm.  He was also on site at the meetings, demonstrations and roadblocks that created an infrastructure for and caused the killing of Tutsi civilians.  [T]he Chamber finds . . . Barayagwiza guilty of instigating acts of genocide  committed by CDR members and Impuzamugambi, pursuant to Article 6(1).”

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 955-956, 977A: “Ngeze . . . ordered the Interahamwe in Gisenyi to kill Tutsi civilians.  Many were killed in the attacks that happened immediately thereafter and later on the same day. . . .  [T]he Chamber finds that Ngeze ordered the killing of Tutsi civilians.”  “Ngeze helped secure and distribute, stored, and transported weapons to be used against the Tutsi population.  He set up, manned and supervised roadblocks . . . that identified targeted Tutsi civilians who were subsequently taken to and killed. . . .  [T]he  Chamber finds that Ngeze aided and abetted the killing of Tutsi civilians.”  “As founder, owner and editor of Kangura, a publication that instigated the killing of Tutsi civilians, and for his individual acts in ordering and aiding and abetting the killing of Tutsi civilians, the Chamber finds… Ngeze guilty of genocide, pursuant to Article 6(1).”


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February 2004