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

228 Chapter 10
As well, the ICTR interestingly held in Muhimana that: 17
The perpetrator’s specific genocidal intent may be inferred from ... the general
context of the perpetration, in consideration of factors such as: the systematic
manner of killing; the methodical way of planning; the general nature of the
atrocities, including their scale and geographical location, weapons employed
in an attack, and the extent of bodily injuries; the targeting of property
belonging to members of the group; the use of derogatory language towards
members of the group; and other culpable acts systematically directed against
the same group, whether committed by the perpetrator or others.
6.2 Individual responsibility
In the case of genocide, obeying a superior’s order cannot be used as an
excuse; the emphasis falls on individual accountability. 18 Under article
6(1) of the ICTR Statute, individual criminal responsibility is attributable
to one who plans, instigates orders, commits or otherwise aids and abets in
the planning, preparation or execution of any of the crimes referred to in
articles 2 to 4 of the ICTR Statute. In addition, article 6(2) of the ICTR
Statute provides that the official position of any accused person, whether
as head of state or government or as a responsible government official,
does not relieve that person of criminal responsibility nor does it mititgate
punishment.
Though gacaca law is silent on individual criminal responsibility, in
practice this principle is applicable in the proceedings. It is worth noting
that individuals are prosecuted under categories as far as cases in gacaca
jurisdictions are concerned. Article 51 of Organic Law 13/2008 of 19 May
2008 outlines three categories of criminal responsibility. 19 In light of the
above, an individual’s sentences will vary according to the category in
which he or she falls.
17
Prosecutor v Micah Muhimana (Case ICTR-95-1B-T) para 496.
18 See L Leibman ‘From Nuremberg to Bosnia: Consistent application of international
law’ 42 Cleveland State Law Review (1994) 12 Cleveland State Review 705.
19
First Category:
(1) any person who committed or was an accomplice in the commission of an
offence that puts him or her in the category of planners or organisers of the
genocide or crimes against humanity.
(2) any person who was at a national leadership level and that of the
prefecture level: public administration, political parties, army, gendarmerie,
religious denominations or in militia group, and committed crimes of genocide
or crimes against humanity or encouraged others to participate in such crimes,
together with his or her accomplice;
(3) any person who committed or was an accomplice in the commission of an
offence that puts him or her among the category of people who incited ,
supervised and ringleaders of the genocide or crimes against humanity;
(4) any person who was at the leadership level at the Sub-Prefecture and
Commune: public administration, political parties, army, gendarmerie,
communal police, religious denominations or in militia, who committed any
crimes of genocide or other crimes against humanity or encouraged others to
commit similar offences, together with his or her accomplice;