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

The contribution of the International Criminal Tribunal for Rwanda 79
humanitarian law. The Appeal Chamber’s approach carefully examined
the provisions of the Statute as a starting point in line with the
requirements of the Vienna Convention on the Law of Treaties, 1969. It
found that the provisions of article 4, as well as those on individual
criminal responsibility (article 1) as articulated by the Nuremberg Tribunal
and on the ICTR’s personal jurisdiction (article 5), did not explicitly
provide that individual criminal responsibility was restricted to any
particular class of individuals. 68
The Appeals Chamber also examined the objects and purposes of
article 3 of the Geneva Conventions, which called for a broader application
of the law without distinction. It held that the objects and purposes of
Common article 3 were ‘to broaden the application of international
humanitarian law by defining what constitutes minimum humane
treatment and the rules applicable under all circumstances’. 69
Furthermore, in the view of the International Committee of the Red
Cross 70
the purpose of common Article 3 [is] to ensure respect for the few essential
rules of humanity which all civilized nations consider valid everywhere and
under all circumstances and as being above and outside war itself. These rules
may thus be considered as the quintessence of humanitarian rules found in
the Geneva Conventions as a whole.
In the view of the Appeals Chamber, the effective punishment of persons
culpable for serious violations above demands that ‘punishment must be
applicable to everyone without discrimination, as required by principles
governing individual criminal responsibility as laid down by the
Nuremberg Tribunal in particular’. 71 The Appeals Chamber’s purposive
approach ensures the effective punishment of all serious violations with a
nexus to an armed conflict, regardless of the class of the perpetrator. This
also ensures the effective protection of victims. As the Appeals Chamber
has explained, ‘international humanitarian law would be lessened and
called into question if it were to be admitted that certain persons be
exonerated from individual criminal responsibility for violations of
Common Article 3 under the pretext that they did not belong to a specific
category’. 72
Additionally, the ICTR may be credited for its clarification of the ‘war
nexus’ requirement, the proof of which is a mandatory element of war
crimes. For any violation to constitute a war crime, whether committed in
an international or non-international armed conflict, the Prosecutor must
prove that such a violation was committed in conjunction with the armed
68
Prosecutor v Akayesu paras 434-439.
69 Prosecutor v Akayesu para 442.
70 Prosecutor v Akayesu para 442.
71
Prosecutor v Akayesu para 443.
72 As above.