Case No. ICTR-96-4-T - International Criminal Tribunal for Rwanda

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cannot thereby be inferred that the intent of the drafters was not to punish unsuccessfulacts of incitement. In light of the overall travaux, the Chamber holds the view that thedrafters of the Convention simply decided not to specifically mention that such a form ofincitement could be punished.562. There are under Common law so-called inchoate offences, which are punishable byvirtue of the criminal act alone, irrespective of the result thereof, which may or may nothave been achieved. The Civil law counterparts of inchoate offences are known as[infractions formelles] (acts constituting an offence per se irrespective of their results), asopposed to [infractions matérielles] (strict liability offences). Indeed, as is the case withinchoate offenses, in [infractions formelles], the method alone is punishable. Put anotherway, such offenses are "deemed to have been consummated regardless of the resultachieved [unofficial translation]"132 contrary to [infractions matérielles]. Indeed,Rwandan lawmakers appear to characterize the acts defined under Article 91(4) of theRwandan Penal Code as so-called [infractions formelles], since provision is made fortheir punishment even where they proved unsuccessful. It should be noted, however, thatsuch offences are the exception, the rule being that in theory, an offence can only bepunished in relation to the result envisaged by the lawmakers. In the opinion of theChamber, the fact that such acts are in themselves particularly dangerous because of thehigh risk they carry for society, even if they fail to produce results, warrants that they bepunished as an exceptional measure. The Chamber holds that genocide clearly fallswithin the category of crimes so serious that direct and public incitement to commit sucha crime must be punished as such, even where such incitement failed to produce the resultexpected by the perpetrator.6.4. Crimes against Humanity (Article 3 of the Statute)Crimes against Humanity - Historical development563. Crimes against humanity were recognized in the Charter and Judgment of theNuremberg Tribunal, as well as in Law No. 10 of the Control Council for Germany.Article 6(c) of the Charter of Nuremberg Tribunal defines crimes against humanity as"..murder, extermination, enslavement, deportation, and other inhumane acts committedagainst any civilian population, before or during the war, or persecutions on political,racial or religious grounds in execution of or in connexion with any crime within thejurisdiction of the Chamber, whether or not in violation of the domestic law of thecountry where perpetrated."564. Article II of Law No. 10 of the Control Council Law defined crimes againsthumanity as:"Atrocities and Offenses, including but not limited to murder, extermination,enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committedagainst any civilian population or persecution on political, racial or religious grounds,whether or not in violation of the domestic laws of the country where perpetrated."133565. Crimes against humanity are aimed at any civilian population and are prohibitedregardless of whether they are committed in an armed conflict, international or internal in
character134. In fact, the concept of crimes against humanity had been recognised longbefore Nuremberg. On 28 May 1915, the Governments of France, Great Britain andRussia made a declaration regarding the massacres of the Armenian population inTurkey, denouncing them as "crimes against humanity and civilisation for which all themembers of the Turkish government will be held responsible together with its agentsimplicated in the massacres".135 The 1919 Report of the Commission on theResponsibility of the Authors of the War and on Enforcement of Penalties formulated byrepresentatives from several States and presented to the Paris Peace Conference alsoreferred to "offences against ... the laws of humanity".136566. These World War I notions derived, in part, from the Martens clause of the HagueConvention (IV) of 1907, which referred to "the usages established among civilisedpeoples, from the laws of humanity, and the dictates of the public conscience". In 1874,George Curtis called slavery a "crime against humanity". Other such phrases as "crimesagainst mankind" and "crimes against the human family" appear far earlier in humanhistory (see 12 N.Y.L. Sch. J. Hum. Rts 545 (1995)).567. The Chamber notes that, following the Nuremberg and Tokyo trials, the concept ofcrimes against humanity underwent a gradual evolution in the Eichmann, Barbie, Touvierand Papon cases.568. In the Eichmann case, the accused, Otto Adolf Eichmann, was charged withoffences under Nazi and Nazi Collaborators (punishment) Law, 5710/1950, for hisparticipation in the implementation of the plan know as the Final Solution of the Jewishproblem'. Pursuant to Section I (b) of the said law:"Crime against humanity means any of the following acts: murder, extermination,enslavement, starvation or deportation and other inhumane acts committed against anycivilian population , and persecution on national, racial, religious or politicalgrounds."137The district court in the Eichmann stated that crimes against humanity differs fromgenocide in that for the commission of genocide special intent is required. This specialintent is not required for crimes against humanity138. Eichmann was convicted by theDistrict court and sentenced to death. Eichmann appealed against his conviction and hisappeal was dismissed by the supreme court.569. In the Barbie case, the accused, Klaus Barbie, who was the head of the Gestapo inLyons from November 1942 to August 1944, during the wartime occupation of France,was convicted in 1987 of crimes against humanity for his role in the deportation andextermination of civilians. Barbie appealed in cassation, but the appeal was dismissed.For the purposes of the present Judgment, what is of interest is the definition of crimesagainst humanity employed by the Court. The French Court of Cassation, in a Judgmentrendered on 20 December 1985, stated:Crimes against humanity, within the meaning of Article 6(c) of the Charter of theInternational Military Tribunal annexed to the London Agreement of 8 August 1945,
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1.2. The Indictment1.3. Jurisdictio
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eports2 which indicated that acts o
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3. Jean Paul AKAYESU, born in 1953
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16. Jean Paul AKAYESU, on or about
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Counts 7-8(Crimes Against Humanity)
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c) Deliberately inflicting on the g
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1.4. The Trial1.4.1. Procedural Bac
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y the opening statement for the Def
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y the Tribunal for crimes related t
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38. Regarding the Gishyeshye meetin
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witness was lying because he or she
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in the commune. His de facto author
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70. Apart from asking the prefect t
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84. According to the testimony of D
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Scores of political leaders were im
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his listeners to avoid the error of
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111. The killing of Tutsi which hen
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killed on the grounds that the foet
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128. In conclusion, it should be st
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Witness statements137. During the t
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protection of witnesses issued by t
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covered anyone who had anti-Tutsi t
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Tutsi and the Tutsi were accused of
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as "two armies", "two belligerents"
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"The primary criterion for [definin
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180. Many witnesses testified regar
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stated in that Decision, it did not
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deeds. For these reasons, the Chamb
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Concerning the allegation that at l
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turned over alive to Akayesu, and t
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younger brothers. He stated that he
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237. Karangwa testified under cross
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three brothers lie on their stomach
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known as Usuri (phonetic spelling)
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Karangwa's explanation for the inco
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Count 3, Crimes against Humanity (e
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those killed were professors from R
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290. Witness DCC for the Defence, d
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children, and old people. The Chamb
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further that he had not heard of Ak
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to fetch the one who remains', a pr
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sector councillors called on the cr
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According to witness A, the bourgme
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present took it to mean that the Tu
Page 91 and 92: 355. The Accused himself confirmed
Page 93 and 94: 364. Paragraph 15 of the Indictment
Page 95 and 96: The witness said a certain Françoi
Page 97 and 98: has not been proved beyond reasonab
Page 99 and 100: who had come to his house. He said
Page 101 and 102: Interahamwe at the entrance, carryi
Page 103 and 104: ack to the bureau communal and on t
Page 105 and 106: Victim Y (Witness N), a [68] year o
Page 107 and 108: which were at times committed by mo
Page 109 and 110: communal into a forest in the area
Page 111 and 112: clubbing a young teacher who had be
Page 113 and 114: 434. Two days after arriving at the
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Page 117 and 118: ureau communal, but he insisted tha
Page 119 and 120: taken away from the bureau communal
Page 121 and 122: The Accused himself testified that
Page 123 and 124: 464. In that case, when the matter
Page 125 and 126: "A person who planned, instigated,
Page 127 and 128: involve facilitating the commission
Page 129 and 130: 493. In accordance with the said pr
Page 131 and 132: Deliberately inflicting on the grou
Page 133 and 134: y a psychological relationship betw
Page 135 and 136: Chamber notes that, as stated above
Page 137 and 138: • complicity by procuring means,
Page 139 and 140: 547. Consequently, where a person i
Page 141: underscoring their commitment to se
Page 145 and 146: 575. The definition of crimes again
Page 147 and 148: grounds mentioned in Article 3 of t
Page 149 and 150: accepted definition of this term in
Page 151 and 152: adopted primarily to protect the vi
Page 153 and 154: 610. Whilst the Chamber is very muc
Page 155 and 156: description, namely, what constitut
Page 157 and 158: forces to plan and carry out concer
Page 159 and 160: 635. There is no clear provision on
Page 161 and 162: 7.2. Count 5 - Crimes against human
Page 163 and 164: 663. The definition of crimes again
Page 165 and 166: 677. The Tribunal notes that eviden
Page 167 and 168: 685. In the light of its factual fi
Page 169 and 170: 692. The Tribunal finds, under Arti
Page 171 and 172: determine, as far as each proven fa
Page 173 and 174: the Tutsi in general. Akayesu who h
Page 175 and 176: 722. As regards the allegations in
Page 177 and 178: 732. The rape of Tutsi women was sy
Page 179 and 180: Chamber finds beyond a reasonable d
Page 181 and 182: Footnote 11. Decision: Order for Co
Page 183 and 184: Footnote 41. Article 104 of the Loi
Page 185 and 186: Footnote 68. Dictionnaire Rwandais-
Page 187 and 188: Footnote 103. "Principles of Intern
Page 189 and 190: Footnote 134. Secretary General's R
Page 191: Footnote 171. See General Legal Fin
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Case No. ICTR-96-4-T - International Criminal Tribunal for Rwanda

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