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

The contribution of the International Criminal Tribunal for Rwanda 85
The Appeals Chamber is persuaded that in the circumstances of this case, the
modes of liability used by the Trial Chamber to categorize this conduct –
‘ordering’ and ‘instigation,’ – do not, taken alone, fully capture the
Appellant’s criminal responsibility. The Appellant did not simply ‘order’ or
‘plan’ genocide from a distance and leave it to others to ensure that his orders
and plans were carried out; nor did he merely ‘instigate’ the killings. Rather,
he was present at the crime scene to supervise and direct the massacre, and
participating in it actively by separating the Tutsi refugees so that they could
be killed. The Appeals Chamber finds by majority, Judge Guney dissenting,
that this constitutes ‘committing’ genocide’.
In a subsequent judgment, Seromba, 94 the Appeals Chamber (Judge Liu
dissenting) applied the Gacumbitsi precedent to find that Seromba was
guilty not merely of aiding and abetting genocide as the Trial Chamber had
found, but of ‘committing’ the crime. Like Gacumbitsi, Seromba did not
personally, by his own hands, perpetrate the massacres at Nyange church
in which approximately 1500 victims were murdered. In finding that
Seromba was guilty of ‘committing’ genocide, the Appeals Chamber
considered that given Seromba’s several acts and other relevant factors, he
became a principal perpetrator of the crime by approving and embracing
as his own act, the decision to commit the massacres at the church. These
included the following: when the other authorities realised that it was
impossible to destroy the church by using bullets and grenades in order to
massacre the Tutsis, they decided to use bulldozers. They turned to
Seromba, who sanctioned their use of bulldozers. Seromba was the acting
Priest at the Nyange Church. He was well known and respected in the
Catholic community. When the bulldozer driver arrived, the authorities
ordered him to destroy the church. He did not immediately destroy it, but
turned to Seromba to receive instructions from him. The driver asked
Seromba three times, and in all instances, Seromba sanctioned the
destruction. Having received Seromba’s agreement with the decision of the
authorities to destroy the Church, the bulldozer driver immediately
destroyed it, killing approximately 1500 victims. Seromba was present at
the scene of the massacre. He pointed to the bulldozer driver to the most
fragile part of the Church where he should start. In the view of the Appeals
Chamber, Judge Liu dissenting, on the basis of these factual findings, 95
Athanase Seromba approved and embraced as his own the decision of
Kayishema, Ndahimana, Kanyarukiga, Habarugira and other persons to
destroy the church in order to kill Tutsi refugees. It is irrelevant that Athanase
Seromba did not personally drive the bulldozer that destroyed the church.
What is important is that Athanase Seromba fully exercised influence over the
bulldozer driver who, as the Trial Chamber’s findings demonstrate, accepted
Athanase Seromba as the only authority, and whose directions he followed.
The Appeals Chamber finds […] that Athanase Seromba’s acts, which cannot
be adequately described by any other mode of liability pursuant to Article 6(1)
94
Seromba v Prosecutor (Case ICTR-2001-66-A) Appeal judgment 12 March 2008.
95 Seromba v Prosecutor para 171.