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

The contribution of the International Criminal Tribunal for Rwanda 87
beyond the two forms of commission discussed earlier, appears to also
identify ways to address some of the concerns. The judge argues that
critical criteria for ‘commission,’ are ‘direct and physical perpetration’ and
the ‘immediacy of the relationship between the accused and the results of
his actions’. 102 Based on these, he takes the position that there should be
no contestation why a person is not guilty of ‘commission’ where he
perpetrates his crime through the instrumentality of another. In such
situation, the proper charge cannot be ordering, or anthing else than
‘commission’. 103
Furthermore, in order to avoid blurring the distinction among the
different article 6(1) modes of liability (ie commission, ordering,
instigating, aiding and abetting) or ‘subsuming’ some into ‘commission’, in
situations such as those in Seromba and Gacumbitsi, every Chamber needs
to examine closely every case on its own merits so as to ensure that the
majority’s approach is only applied in exceptional cases where clearly
characterising an accused’s conduct as aiding and abetting does not
realistically capture the accused’s criminal conduct. Faced with situations
such as those in Gacumbitsi and Seromba, judges need to closely examine
whether or not the disputed acts constitute direct participation in the
perpetration of the crimes, as opposed to mere aiding and abetting or
ordering and instigation.
102 Prosecutor v Gacumbitsi (n 87 above) Separate opinion of J Shahabuddeen para 24.
103 J Shahabuddeen argues as follows: ‘Questions have been raised on the Trial Chamber’s
observation that ‘committing’ refers generally to the direct and physical perpetration of
the crime by the offender himself. Two glosses may be put on the Trial Chamber’s
observation. First, attention is invited to the word ‘generally’ in the Trial Chamber’s
statement. It is accepted that the statement does not deny that there can be
‘committing’ where the accused acts through a joint criminal enterprise. However, there
are no two rules, but one; it is not the position that non-JCE cases are governed by the
‘direct and physical perpetration’ rule and JCE cases by another rule which,
mysteriously, exempts them from the application of the ‘direct and physical
perpetration’ rule. The matter always turns on whether there is ‘direct and physical
perpetration’. What happens is that, in the circumstances of a case of JCE, there is a
‘direct and physical perpetration’ even though the accused is not in personal contact
with the victims: the JCE is his instrument. But I see no reason why the rationale of
that view has to be limited to that situation. Why, for example, can there not be ‘direct
and physical perpetration’ where the accused perpetrates his crime through the
instrumentality of another, even though no JCE is involved and even though there is no
personal contact between the accused and the victim? To say that in such a case the
proper charge is one of ‘ordering’ and not of ‘committing’ imposes too great a strain on
the legal apparatus. That may be defensible in some circumstances but not in all; it
depends on the immediacy of the relationship between the accused and the result of his
action. In any event, it is to be observed that in this case the Trial Chamber found that
the applicant ‘personally took part’ in the attacks and in other ways directly participated
in them. Why that should give difficulty in finding that he engaged in the ‘direct and
physical perpetration:’ of the crime of genocide resulting in the attacks is not clear to
me. Second, I agree with the Appeals Chamber that proof of personal killing is not
required to show ‘the direct and physical perpetration of the crime by the offender
himself’. To hold the contrary will be too narrow. Even in relation to the charge of
genocide by ‘killing members of the group,’ the ‘direct and physical perpetration’ test
can be fulfilled even if it is not proved that the appellant himself killed anyone.’ See
Prosecutor v Gacumbitsi (n 87 above) Separate opinion of J Shahabuddeen paras 24-25.