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

Genocide as prosecuted by the ICTR and Gacaca Courts in Rwanda 227
and requested the government of Rwanda to transfer an individual accused
before both the gacaca courts and conventional courts. It would have been
difficult to get plausible reasons which might justify this reluctance from
the Office of the Prosecutor of the ICTR due to the fact that this office has
the discretionary power on deciding who to prosecute or not.
6 Prosecution of genocide in the ICTR and gacaca
courts
As previously discussed, both the ICTR and gacaca courts have jurisdiction
to try and prosecute genocide.
6.1 Mental element (mens rea) of the crime of genocide
Since the Gacaca Law does not define genocide, this section focuses only
on case law-related elements of the crime of genocide as developed by the
ICTR with regard to mens rea. In fact, the mental element is very important
in determining whether an act constitutes genocide or not. Interestingly,
the Trial Chamber held as follows in Akayesu: 15
Genocide is distinct from other crimes inasmuch as it embodies a special
intent or dolus specialis. Special intent of a crime is the specific intention,
required as a constitutive element of the crime, which demands that the
perpetrator clearly seeks to produce the act charged. Thus, the special intent
in the crime of genocide lies in ‘the intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such.’ [T]he offender is
culpable only when he has committed one of the offences charged under
Article 2(2) ... with the clear intent to destroy, in whole or in part, a particular
group. The offender is culpable because he knew or should have known that
the act committed would destroy, in whole or in part, a group.
In addition, it is worth noting that when confronted with the absence of
direct evidence related to mens rea, the ICTR held in Nshamihigo that 16
[i]n the absence of direct evidence, the following circumstances have been
found, among others, to be relevant for establishing intent: the overall context
in which the crime occurred, the systematic targeting of the victims on
account of their membership in a protected group, the fact that the perpetrator
may have targeted the same group during the commission of other criminal
acts, the scale and scope of the atrocities committed, the frequency of
destructive and discriminatory acts, whether the perpetrator acted on the
basis of the victim’s membership in a protected group and the perpetration of
acts which violate the very foundation of the group or considered as such by
their perpetrators.
15
Prosecutor v Jean Paul Akayesu (Case ICTR-96-4-T) paras 498 -520.
16 Prosecutor v Siméon Nchamihigo (Case ICTR-01-63-T) para 331.