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

The contribution of the International Criminal Tribunal for Rwanda 81
The ICTR’s Rutaganda appeal judgment provided vital elaboration of
some aspects of the ‘war nexus’ as elucidated in the Kunarać judgment, and
also applied the notion to a complex factual situation. Firstly, Rutaganda
clarified the meaning of the expression ‘under the guise of the armed
conflict’. Its approach suggests that the expression may not be construed
restrictively, but must also be carefully approached: 79
It does not mean simply ‘at the same time as an armed conflict’ and/or ‘in
any circumstances created in part by the armed conflict’. For example, if a
non-combatant takes advantage of the lessened effectiveness of the police in
conditions of disorder created by an armed conflict to murder a neighbour he
has hated for years, that would not, without more, constitute a war crime
under Article 4 of the Statute. By contrast, the accused in Kunarać, for
example, were combatants who took advantage of their positions of military
authority to rape individuals whose displacement was an express goal of the
military campaign in which they took part.
Secondly, and related to the approach explained above, Rutaganda
underscores that proof of the ‘war nexus’ element is case-by-case, and like
Kunarać, stated that proof of the element will usually require a holistic
consideration of several factors. 80 It however cautioned that particular
care is needed when the accused is a non-combatant. 81
The Appeals Chamber’s application of the ‘war nexus’ to the facts of
the case, including the fact that Rutaganda was in a strict sense neither a
member of the Rwandan Army (RAF) nor a combatant directly engaged
in combat against the RPF, is also instructive. Rutaganda was a vicechairman
of the Interahamwe militias and he participated in the killings in
which the Interahamwe alongside Rwanda Armed Forces perpetrated
killings of non-combatants at the ETO school and Nyanza. The Trial
Chamber had acquitted the accused of war crimes, and the Prosecutor
appealed.
In overturning the acquittals and entering a guilty verdict, the Appeals
Chamber closely examined the totality of the evidence adduced and
accepted by the Trial Chamber. Noting that the Trial Chamber had itself
found that the Prosecutor had established a nexus between killings at the
ETO school and the armed conflict, coupled with several other factors also
accepted by the Trial Chamber, the Appeals Chamber held that the Trial
Chamber had erred in acquitting the Accused of war crimes. 82 In the
Appeals Chamber’s view, on the basis, inter alia, of the following factors,
no reasonable trier of fact could have failed to find that a nexus between
the armed conflict and Rutaganda’s participation in the killings at ETO
school had been established beyond reasonable doubt: Firstly, the Trial
79 Rutaganda v Prosecutor para 570.
80 As above.
81 As above.
82 Rutaganda v Prosecutor para 577.