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

The contribution of the International Criminal Tribunal for Rwanda 95
accused was sufficiently informed of the charges to prepare his defence. By
so doing, the Tribunal would buttress international jurisprudence by
transcending ‘technicalities’ (for instance, the overemphasis on the
mention of certain modes of criminal responsibility in the indictment) 129
to examining substantive questions that should underpin inquiries into
alleged failing to respect the right of an accused to be informed of the
charges, namely, whether in the totality of the circumstances, the accused’s
right to prepare his defence was materially impaired and whether the trial
was rendered unfair by the failure to specifically mention the mode of
participation in question.
The Appeals Chamber’s recent clarification in the Seromba judgment
that the Gacumbitsi dictum on the scope of commission transcends the crime
of genocide, among other instances, is a welcome development. In
applying the jurisprudence elucidated in its earlier cases, such approaches
as that developed in Seromba are critical in the progression and maturation
of jurisprudence. Arguably, even during the current stage characterised by
the application of jurisprudence developed in its earlier cases, the approach
just mentioned would enable the Tribunal to contribute to the further
solidification of international jurisprudence.
In other instances, the ICTR needs to revisit certain aspects of its
jurisprudence that appear controversial or unconvincing. This chapter has
identified some of these. They include the Tribunal’s approach to the crime
of conspiracy to commit genocide. Undisputedly, proof of this crime
(which is consummated by an agreement to commit genocide) will in most
instances turn on circumstantial evidence, as finding a written agreement
or other forms of direct evidence is basically impossible.
While the finding of guilt will in such a situation require that an
agreement to commit genocide be the only reasonable inference, the
ICTR’s approach, including in the Nahimana Appeal judgment and
subsequent cases such as Bagosora, will raise serious contestations. In
particular, in light of the totality of the evidence accepted by the Trial
Chamber in the Nahimana case, the Appeals Chamber’s vacation of the
conviction does not adequately explain why conspiracy to commit
genocide was not the only reasonable inference, or why the alleged other
alternative inferences were reasonable in the totality of the circumstances
of the case. A detailed elaboration by the Appeals Chamber was
particularly warranted given that the Chamber had no doubt that a
genocidal purpose was compatible with a joint agenda of the appellants.
Moreover, it was insufficient for the Chamber to hold, without detail, that
the genocidal purpose was not the only inference to be drawn from the
totality of the circumstances in a situation where the defendants neither
129 In a number of national jurisdictions, once it is proven that an accused is responsible for
a crime, there is no requirement for a detailed account of the manner in which the
accused participated in the crimes; see A Ashworth Principles of criminal law (1999) 421.