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

80 Chapter 3
conflict – the ‘war nexus’. This is a principal element that distinguishes war
crimes from crimes against humanity and genocide. The ICTR, in the
Rutaganda appeal judgment, 73 may be credited for providing further
elaboration to earlier jurisprudence, particularly from the ICTY, on the
‘war nexus’ requirement. According to earlier jurisprudence, notably
Tadic, 74 Kunarać 75 and indeed from ICTR Chambers, 76 the ‘war nexus’
generally requires proof that the offence or violation in question was
‘closely related’ to the armed conflict.
Apart from the ICTY’s Kunarać appeal judgment, which preceded the
Rutaganda appeal judgment, and to a limited extent, the Akayesu appeal
judgment, 77 overall, earlier jurisprudence did not provide detailed
elucidation of the standard ‘closely related’ to the armed conflict. In other
words, the jurisprudence did not detail the nature of the required relation
between the violation and the armed conflict. Kunarać laid a vital
foundation in this effort. In that case, the Appeals Chamber held that: 78
What ultimately distinguishes a war crime from a purely domestic offence is
that a war crime is shaped by or dependent upon the environment – the armed
conflict – in which it is committed. It need not have been planned or
supported by some form of policy. The armed conflict need not have been
causal to the commission of the crime, but the existence of an armed conflict
must, at a minimum, have played a substantial part in the perpetrator’s ability
to commit it, his decision to commit it, the manner in which it was committed
or the purpose for which it was committed. Hence, if it can be established, as
in the present case, that the perpetrator acted in furtherance of or under the
guise of the armed conflict, it would be sufficient to conclude that his acts
were closely related to the armed conflict. The Trial Chamber’s finding on
that point is unimpeachable.
In determining whether or not the act in question is sufficiently related to the
armed conflict, the Trial Chamber may take into account, inter alia, the
following factors: the fact that the perpetrator is a combatant; the fact that the
victim is a non-combatant; the fact that the victim is a member of the
opposing party; the fact that the act may be said to serve the ultimate goal of a
military campaign; and the fact that the crime is committed as part of or in
the context of the perpetrator’s official duties.
73
Rutaganda v Prosecutor (Case ICTR-96-3-A) Judgment 26 May 2003 (AC).
74 Prosecutor v Tadić (Case IT-94 1 A-R72) Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, 2 October 1995 para 70.
75
Prosecutor v Kunarac paras 58-59.
76 Prosecutor v Akeyesu para 444; Prosecutor v Akayesu para 643; Prosecutor v Musema para
260.
77
Prosecutor v Akayesu para 444 (holding generally, that culpability for violations of
common article 3 requires proof of a close nexus between the violation and the armed
conflict. The Chamber also stressed that this nexus implies that, in most cases, the
perpetrator will probably have a special relationship with one party to the conflict, but
that such special relationship is not a condition precedent to the application of common
art 3 and hence art 4 of the Statute). See also Prosecutor v Akayesu para 643; Prosecutor v.
Musema para 260.
78 Prosecutor v Kunarac paras 58-59.