Prosecuting International Crimes in Africa - PULP - University of ...

88 Chapter 3
The majority’s approach not only ensures the appropriate
characterisation of the accused’s participation in certain circumstances
where other modes of liability do not fully capture his/her participation,
but also effectively punishes the criminality of persons who seek to hide
behind and use others as their instruments in the perpetration of crimes.
The ICTR’s jurisprudence effectively ensures the punishment as
‘principal perpetrators’, other than ‘secondary perpetrators’, of those who
implement crimes through the instrumentality of others. As underscored
by Judge Shahabuddeen in his separate (and concurring) opinion in the
Gacumbitsi appeal judgment, a characterisation of the following acts of the
accused in any other way than ‘commission’ would not serve the interests
of justice: the accused was not at any time removed from the crime scene;
he was physically present at the action; he gave the signal for the massacres
to commence, and he ordered Hutu refugees to separate themselves from
the Tutsi – a step indicating an intention to commit genocide which
immediately followed. Gacumbitsi directed the attacks. He personally
took part in them. He led the attacks against Tutsi civilians by example. He
played a leading role in conducting and, especially, supervising the
attacks. 104 A different characterisation of this conduct would be ‘a
misunderstanding and misapplication of the law’. 105 Therefore,
notwithstanding the concerns raised above, the ICTR’s elucidation of
‘commission’ as a mode of criminal responsibility provides vital
inspiration and moves international law forward.
8 Superior responsibility is not mere negligence and
extends to non-military superiors
Article 6(3) of the ICTR’s Statute governs command or superior
responsibility by which superiors are held culpable for failing to prevent or
punish their subordinates’ crimes, despite knowing that or having reason
to know that their subordinates were about to commit or had committed
these crimes, and failing to take measures to prevent or punish the
subordinates.
The principle of command or superior responsibility has received
extensive elaboration in the jurisprudence of the ICTR. It has also been
developed in the ICTY’s jurisprudence. However, the ICTR may be
credited for its elaboration and application of some of the elements of
superior responsibility. To be convicted under command or superior
responsibility the following must be proven, namely: (a) a superiorsubordinate
relationship – i.e. that the accused was the superior of
subordinates sufficiently identified over whom he had effective control.
104 Prosecutor v Gacumbitsi (n 87 above) Separate opinion of J Shahabuddeen para 21.
105 Prosecutor v Gacumbitsi (n 87 above) Separate opinion of J Shahabuddeen para 22.