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

The contribution of the International Criminal Tribunal for Rwanda 83
mandated by a rule of criminal law’. 85 Tadić also recognised that
‘commission’ encompassed participation in the realisation of a common
design, or purpose – or what subsequent jurisprudence, including from the
ICTR, refers to a ‘joint criminal enterprise’ liability (JCE). 86
Overall, the concept of ‘commission’ was understood to be limited to
direct and physical perpetration of the crime by the accused using his own
hands, or the accused’s participation in a joint criminal enterprise. 87 The
ICTR, in the Gacumbitsi and the Seromba appeal judgments, however,
provided an important elucidation of the scope of the concept. They held
that a person may be held criminally liable for commission in
circumstances beyond the two just mentioned, and where other modes of
criminal participation enshrined in article 6(1) of the ICTR’s Statute, such
as aiding and abetting or ordering, do not fully capture the accused’s
criminal conduct.
In the Gacumbitsi case, evidence established that the accused – a
bourgmestre who exercised effective control as a superior over different
categories of persons – physically killed only one victim (Mr Murefu) at the
Nyarubuye Church. Tens of thousands of other Tutsi victims were,
however, physically murdered by assailants who included many that
Gacumbitsi had brought to the church. These murders were immediately
carried out following Gacumbitsi’s murder of Murefu. In the Trial
Chamber’s view, Gacumbitsi’s murder of Murefu ‘gave a signal for the
massacres to commence’. 88 On appeal, Gacumbitsi challenged his
conviction for genocide based on the Trial Chamber’s finding that he
murdered Murefu. He argued that the incident had not been pleaded in the
indictment, and as such should not have formed the basis for his
conviction.
The Appeals Chamber dismissed his appeal, finding that the alleged
defect in the pleadings had been cured by post-indictment communication
of timely, clear and consistent information. 89 In fact, in the view of Judge
Shahabuddeen in his separate opinion, 90 the majority had imposed too
formulaic pleading requirements on the Prosecutor and should not have
85 Prosecutor v Tadić (Case IT-94-1-A) Appeal judgment 15 July 1999 para 188.
86
Prosecutor v Tadić para 188.
87 Joint criminal enterprise, which is equivalent to the notions of acting in concert with
others, or common purpose, arises when a group or a plurality of persons having a
common criminal purpose (eg the perpetration of genocide) embark on a criminal
activity that is then implemented either jointly or by some members of the group or
persons outside the group. Criminal culpability of the members of the JCE also arises
when a member of the JCE engages persons outside the JCE to implement the criminal
activity. See Prosecutor v Gacumbitsi (Case ICTR-2001-64-A) Judgment 7 July 2006 para
158; Prosecutor v Vaslajević (Case IT-98-32-A) Appeal judgment 25 February 2004 para
100.
88 Prosecutor v Gacumbitsi (Case ICTR-2001-64-T) Judgment 19 June 2004 para 168.
89 Prosecutor v Gacumbitsi (n 87 above) paras 49-58.
90
Prosecutor v Gacumbitsi (n 87 above) Separate Opinion of Judge Shahabuddeen, paras 6-
10.