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

94 Chapter 3
international crimes. For instance, in Muhimana 127 the Appeals Chamber
could have drawn, inter alia, on the Gacumbitsi jurisprudence to uphold the
Trial Chamber’s finding that Muhimana was guilty of committing rape as
a crime against humanity. Even if it was not clear that Muhimana (other
than other persons who were with him in the house at the time of the rapes)
had personally with his own private parts raped the Tutsi victims, the
following facts (all of which had been pleaded in the indictment and
proven at trial) sufficiently established that Muhimana was a direct
participant in the rapes: it was Muhimana who brought the victims to his
house where they were raped; Muhimana was present throughout the
rapes; after their rape, it was Muhimana who drove the victims out of the
house stark naked and walking with their legs apart; he invited the militias
and other civilians to come and see what naked Tutsi women looked like;
and he directed the militias to part the victims’ legs to provide onlookers
with a clear view of their private parts. In the totality of the circumstances,
Muhimana was responsible for committing the rapes.
The ICTR’s jurisprudence, like that of the ICTY, has emphasised that
in charging international crimes indictments must spell out the material
facts underpinning the charges, as well as the specific modes of criminal
responsibility by which the accused perpetrated the crimes (ie commission,
ordering, instigation, aiding and abetting or command responsibility). 128
The Tribunal’s jurisprudence that defects may be cured by post-indictment
communication of clear, timely and consistent information promotes
substantive justice.
Nevertheless, more needs to be done. In the Muhimana case mentioned
above, even if the indictment had only pleaded the accused’s ‘commission’
of the rapes, arguably the Appeals Chamber could have entered, at the very
least, a conviction for aiding and abetting the rapes based on the facts
summarised above that were specifically alleged in the indictment. Clearly
the accused would not have suffered any prejudice in the preparation of his
defence because the material facts alleged in the indictment at least
supported aiding and abetting. Based on those facts the accused was
sufficiently placed to mount a defence, including by disputing the alleged
facts.
The Appeals Chamber could have advanced the ‘pleading’
jurisprudence by taking the position that in circumstances as that in
Muhimana, the emphasis would not be on the specific inclusion or mention
of a given mode of criminal responsibility in the indictment. Instead, in the
interests of substantive justice, emphasis would be on the holistic reading
of the material facts alleged in the indictment to determine whether the
127 Muhimana v Prosecutor (Case ICTR-95-1B-A) Judgment 21 May 2007 (AC).
128 Prosecutor v Ntakirutimana and Gerard Ntakirutimana (Case ICTR-96-10-A and ICTR-96-
17-A) 13 December 2004 paras 25; 469-476. For the ICTY see Prosecutor v Kupreškić et al
(Case IT-95-16) 14 January 2000 (AC) para 88.