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

86 Chapter 3
of the Statute than ‘committing,’ indeed were as much an integral part of the
crime of genocide as the killing of the Tutsi refugees. Athanase Seromba was
not merely an aider and abetter but became a principal perpetrator in the
crime itself.
The Seromba Appeal judgment additionly illustrates that, notwithstanding
the fact that Gacumbitsi’s dictum was confined to genocide, the reasoning
equally applies to the crime of extermination. This is because ‘the key
question raised by the Gacumbitsi dictum is what other acts constitute
direct participation in the actus reus of the crime’. 96
Judges Guney and Liu raised reservations to the approach of the
majority in the Gacumbitsi and Seromba judgments. 97 For instance, in
Gacumbitsi, Judge Guney criticised the majority for not providing reasons
or authorities for the new form of commission that departs from existing
jurisprudence. 98 While conceding that various municipal legal systems
may recognise forms of commission other than the two identified here,
Judge Guney argued that the majority offered no discussion to show that
any of those other forms of commission are recognised under customary
international law. 99 Moreover, contrary to the majority’s view that
Gacumbitsi’s action of directing the Tutsi and Hutu to separate is not
adequately described by any other mode of Article 6(1) liability, this action
‘certainly constitute[d] a contribution to the commission of acts of
genocide by others, in other words, participating in a joint criminal
enterprise’. 100
While the approach pursued by the majority enriches international
jurisprudence, the views of the dissenting judges also create room for
further development and clarification of the law. Arguably, the concerns
raised by Judges Guney and Liu could be addressed in different ways.
There is a need to expand the inquiry beyond the limited case-law cited by
the majority, 101 to examine the practices of various municipal legal
systems and establish the status of customary law. As noted above, Judge
Guney argues that many legal systems may define ‘commission’ more
broadly. Nevertheless, the ICTR needs to pursue the inquiry further to
articulate more clearly and concretely the status of customary international
law. For his part, Judge Shahabuddeen, one of the members of the
majority in Gacumbitsi supporting the construction of ‘commission’
96
Seromba v Prosecutor para 190.
97 See also FZ Guistiniani ‘Stretching the boundaries of commission liability’ (2008) 6
Journal of International Criminal Justice 783-799.
98
Prosecutor v Gacumbitsi (n 87 above) Partially dissenting opinion of J Guney para 5.
99 Prosecutor v Gacumbitsi (n 87 above) Partially dissenting opinion of J Guney para 6.
100 Prosecutor v Gacumbitsi (n 87 above) Partially dissenting opinion of J Guney para 7.
101
For instance, the majority in Gacumbitsi drew on the Nuremberg precedent, noting that
the selection of prisoners for extermination played an integral role in the Nazi genocide
(Judgment of the International Military Tribunal for the Trial of German Major War
Criminals, Nuremberg, 30 September and 1 October, 1946, 63); Prosecutor v Gacumbitsi
(n 87 above) fn 145.