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

84 Chapter 3
found in the first place that the indictment was defective with respect to
Gacumbitsi’s murder of Murefu as far as the crime of genocide is
concerned. He argued that the crime of genocide, as distinguished from
murder (as a crime against humanity) does not require the pleading of
every individual killing. Murder as a crime against humanity consists of
the killing of individuals, and therefore, the deaths of individual victims are
elements of the crime and must be referred to in the indictment. 91
In contrast, the crime of genocide is different. It requires proof of
specific intent to destroy a protected group. Like in the case of mass killing,
where each individual murder need not be specifically pleaded, for the
crime of genocide it is not required that each individual murder be
specifically pleaded. 92
Furthermore, the Gacumbitsi appeals judgment by the majority (Judge
Guney dissenting), took the position that even if Murefu’s killing were to
be set aside, Gacumbitsi would nevertheless be culpable for the tens of
thousands of deaths at the church, not merely for ordering or instigating
them, but for ‘committing’ them. The majority explained that, in the
totality of the circumstances, even though Gacumbitsi did not personally
kill the victims, the totality of his criminal acts were much an integral part
of the genocide as were the massacres which they enabled. In reaching the
conclusion that Gacumbitsi was guilty of ‘committing’ genocide, the
majority held as follows: 93
[In] the context of genocide, […], ‘direct and physical perpetration’ need not
mean physical killing; other acts can constitute direct participation in the actus
reus of the crime. Here, the accused was physically present at the scene of the
Nyarubuye Parish massacre, which he ‘directed’ and ‘played a leading role in
conducting and, especially supervising. It was he who personally directed the
Tutsi and Hutu refugees to separate – and that action, which is not adequately
described by any other mode of Article 6(1) liability, was as much an integral
part of the genocide as were the killings which it enabled. Moreover, these
findings of fact were based on allegations that were without question clearly
pleaded in the Indictment.
91
Prosecutor v Gacumbitsi (n 87 above) Separate Opinion of Judge Shahabuddeen, para 7.
92 Judge Shahabuddeen argued as follows: ‘The essence of the crime of genocide is an
intent to destroy a protected group. The persons in the group may be legion. It is settled
jurisprudence that, in the case of a mass killing, individual victims do not have to be
specifically referred to in the indictment. If the indictment does refer to them, it is only
by way of illustration of the crime; there may be hundreds of illustrations […] What
must be born in mind is the distinction between the material facts necessary to establish
an offence and the evidence adduced to prove those material facts. The material facts
must be pleaded. The material facts must be pleaded, the evidence need not. When an
indictment alleged genocide, proof of any one killing is not a material fact as it would be
in the case of murder; it is evidence of a material fact, namely, that the intent of the
accused was the destruction of a group, as a group. Each individual killing does not
have to be specifically referred to in the indictment’.
93 Prosecutor v Gacumbitsi (n 87 above) paras 60-61.