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

82 Chapter 3
Chamber had itself found in paragraph 440 of its judgment that,
considering the position of authority of the accused over the Interahamwe,
and the role that the Interahamwe served in supporting the RAF against the
RPF, there was nexus between the crimes committed and the armed
conflict. Moreover, the Chamber accepted the Prosecutor’s submissions
that the Interahamwe were the instrument of the military in extending the
scope of the massacres. Furthermore, the Interahamwe, alongside soldiers
of the Presidential Guard, attacked and massacred non-combatants at
ETO school, namely internally displaced persons. Rutaganda personally
participated in the ETO school attack with the Interahamwe over whom he
exercised de facto influence and authority. The victims were persons
protected under common article 3 of the Geneva Conventions and
Additional Protocol II. 83
With respect to forced diversion of refugees to Nyanza and their
murder there, in overturning Rutaganda’s acquittal by the Trial Chamber,
the Appeals Chamber considered more or less the same factors as above,
notably: the Trial Chamber’s finding of a nexus between the crimes and the
armed conflict; how the Rwanda Armed Forces and Interahamwe
threatened and killed the refugees on their way to Nyanza; how Rutaganda
personally participated in ordering and directing the attacks, besides
transporting the Interahamwe as reinforcements; and how Rwandan Armed
Forces participated in the massacres alongside the Interahamwe. Further,
the Chamber considered that the Rwandan Armed Forces also told the
Interahamwe to murder and look for those who were not dead and finish
them off. It also considered that the victims were persons protected under
common article 3 of the Geneva Conventions and Additional Protocol
II. 84 The Tribunal’s approach reflects an endeavour to closely construe and
give content to novel elements of crimes, and to apply them in respect of
complex factual scenarios. Its approaches give meaning and practicality to
theoretical notions and further the development of international law.
7 Scope of ‘commission’ as a mode of criminal
participation
The ICTR’s Statute incorporates genocide, crimes against humanity, war
crimes and the different modes of criminal participation, that is to say, the
methods by which such crimes may be perpetrated. Commission is one of
these methods. Earlier cases, particularly by the Appeals Chamber of the
ICTY (which also serves the ICTR) notably the case of Tadić, defined
‘commission’ as covering ‘first and foremost the physical perpetration of a
crime by the offender himself, or the culpable omission of an act that was
83 Rutaganda v Prosecutor paras 577 & 580.
84 Rutaganda v Prosecutor paras 578-580.