GENOCIDE, WAR CRIMES AGAINST HUMANITY

GENOCIDE, WAR CRIMESAND CRIMESAGAINST HUMANITYA Digest of the Case Law of theInternational Criminal Tribunal for RwandaH U M A NR I G H T SW A T C H

Genocide, War Crimes andCrimes Against HumanityA Digest of the Case Law of theInternational Criminal Tribunal for Rwanda

Copyright 2010 Human Rights WatchAll rights reserved.Printed in the United States of AmericaISBN: 1-56432-586-5Cover design by Rafael JimenezHuman Rights Watch350 Fifth Avenue, 34th floorNew York, NY 10118-3299 USATel: 1 212 290 4700, Fax: 1 212 736 1300hrwnyc@hrw.orgPoststraße 4-510178 Berlin, GermanyTel: 49 30 2593 06-10, Fax: 49 30 2593 0629berlin@hrw.orgAvenue des Gaulois, 71040 Brussels, BelgiumTel: 32 (2) 732 2009, Fax: 32 (2) 732 0471hrwbe@hrw.org64-66 Rue de Lausanne1202 Geneva, SwitzerlandTel: 41 22 738 0481, Fax: 41 22 738 1791hrwgva@hrw.org2-12 Pentonville Road, 2nd FloorLondon N1 9HF, UKTel: 44 20 7713 1995, Fax: 44 20 7713 1800hrwuk@hrw.org27 Rue de Lisbonne75008 Paris, FranceTel: 33 (1)43 59 55 35, Fax: 33 (1) 43 59 55 22paris@hrw.org1630 Connecticut Avenue, N.W., Suite 500Washington, DC 20009 USATel: 1 202 612 4321, Fax: 1 202 612 4333hrwdc@hrw.orgWeb Site Address: http://www.hrw.orgii

GENOCIDE, WAR CRIMES AND CRIMES AGAINST HUMANITY:A DIGEST OF THE CASE LAW OF THE INTERNATIONAL CRIMINALTRIBUNAL FOR RWANDAACKNOWLEDGEMENTS.ivDEDICATION .vFOREWORD .viSUMMARY TABLE OF CONTENTS . viiFULL TABLE OF CONTENTS . ixSUMMARY OF JUDGMENTS AGAINST THE ACCUSED . 1LISTING OF CASES INCLUDED . 12TOPICAL DIGEST . 15GLOSSARY OF DEFINED TERMS. 479iii

ACKNOWLEDGEMENTSThe author of this digest is Jennifer Trahan, Consultant, Of Counsel, to the InternationalJustice Program at Human Rights Watch, and an Independent Expert and Consultant inthe field of International Justice. Ms. Trahan is also Assistant Clinical Professor ofGlobal Affairs at N.Y.U. Richard Dicker, Director of the International Justice Program,provided overall guidance. Aisling Reidy, Senior Legal Advisor, provided the legalreview. Leslie Haskell, a researcher in the Africa Division, provided additional review bythe Africa Division. Mia Psorn and Linda Louie, Associates in the International JusticeProgram, and Anna Lopriore, Creative Manager and Photo Editor, provided additionalassistance. Professor Trahan also appreciates the assistance of students and colleagues:Erica Aghedo, Carla De Ycaza, Donivan Barton, Sumit Galhotra, Kristin Gallagher, LisaGambone, Devyani Kacker, Alec Knight, Stephen Koppel, Maria Kyriacou, ShayaLerner, Amber Lewis, Victoria Macchi, Lindsay Ryder, Jaclyn Shettler, David Stoelting,Scarlett Van-Syoc and Alison Welski. The digest builds on the earlier work of JenniferTrahan (then Counsel to the International Justice Program) and Anne Ferrari (then anintern to the International Justice Program), who compiled Human Rights Watch’s 2004publication: “Genocide, War Crimes and Crimes Against Humanity: A Digest of theCase Law of the International Criminal Tribunal for Rwanda and the InternationalCriminal Tribunal for the former Yugoslavia.” Ms. Trahan is also responsible forcompiling Human Rights Watch’s 2006 publication: “Genocide, War Crimes andCrimes Against Humanity: A Digest of the Case Law of the International CriminalTribunal for the former Yugoslavia.”Professor Trahan wishes to acknowledge her late mother, Elizabeth Welt Trahan, ascholar, professor, writer and Holocaust survivor, as a source of inspiration for thisvolume.Human Rights Watch is grateful to The Planethood Foundation and another donor forproviding funding for this digest. Human Rights Watch is also grateful to the law firmof Schulte Roth & Zabel, LLP for providing assistance in formatting the digest.Human Rights Watch above all acknowledges and appreciates the diligent work of thejudges and their staff at the ICTR and the Appeals Chamber of the ad hoc tribunals inproducing this extremely significant body of case law.iv

DEDICATIONHuman Rights Watch dedicates this digest to the memory of Dr. Alison DesForges, avalued and trusted colleague and friend, who as senior advisor at Human Rights Watchwas one of the world’s leading authorities on the Rwandan genocide. After decadingmore than 40 years to the country and the Great Lakes region, she died on February 12,2009, in a plane crash near Buffalo, New York.Alison was the author of the 800-page award-winning account of the genocide, “LeaveNone to Tell the Story.” In 1999, she received a “genius award” from the MacArthurFoundation for her work documenting the slaughter in Rwanda.Alison appeared as an expert witness in 11 trials at the ICTR. She also appeared injudicial proceedings involving genocide suspects in four other national jurisdictions,including three trials in Belgium as well as trials in Switzerland, the Netherlands, andCanada. When she believed that individuals were falsely accused of involvement in thegenocide, she worked for their freedom.Despite having documented the killings of hundreds of thousands of Rwandans duringthe genocide, Alison drew the wrath of the current Rwandan government by insisting onjustice not only for those responsible for the genocide but also for those in the RwandanPatriotic Forces (RPF), the precursor to today’s government, who were themselvesresponsible for serious crimes. Although the RPF defeated the genocidal regime, Alisonbelieved passionately that senior RPF officials should also be held to account for thecrimes that they directed or tolerated, including the murder of up to 30,000 peopleduring and just after the genocide. To date, the ICTR and Rwandan authorities haverarely pursued these cases and even then only in a way that downplayed the nature of thecrime and the involvement of senior level officials.In 2008, the government banned Alison from the country after Human Rights Watchpublished an extensive analysis of judicial reforms in Rwanda, highlighting its progresswhile at the same time drawing attention to fair trial issues, identifying the lack of judicialindependence as a major concern, and pointing to the failure to provide justice forvictims of crimes commited by the Rwandan Patriotic Front.A Human Rights Watch employee for nearly two decades, Alison oversaw all of theorganization’s work on the Great Lakes region of Africa and provided counsel tocolleagues across the region and beyond. She also worked closely with Human RightsWatch’s International Justice Program.Alison was admired and adored by her colleagues for her extraordinary commitment tohuman rights principles and her tremendous generosity as a mentor and a friend. Wewill always miss her and will never forget the example that she provided.v

FOREWORDThis book contains a digest of highlights of the jurisprudence of the InternationalCriminal Tribunal For the Prosecution of Persons Responsible for Genocide and OtherSerious Violations Of International Humanitarian Law Committed In The Territory OfRwanda And Rwandan Citizens Responsible For Genocide And Other Such ViolationsCommitted In The Territory Of Neighbouring States between 1 January 1994 and 31December 1994 (the “ICTR”).The book provides quick summaries or actual quotes from the Tribunal’s judgments,which are organized topically. The digest focuses on case law regarding genocide, crimesagainst humanity, war crimes, individual responsibility, command responsibility,sentencing, fair trial requirements, appellate review, and entering guilty pleas. The digestdoes not address all issues arising in a case, such as evidentiary rulings or other motionpractice, and only includes judgments publicly available through December 31, 2008.Many of the judgments quoted contain citations to other judgments or documents.Human Rights Watch has not reproduced those here. Please refer to the officialjudgments for these additional citations.This book does not contain analysis of, or commentary on, the decisions themselves.The headings contained in the digest and the organization of the digest have beencreated by the Author, not the ICTR. For reader accessibility, in some instances,“application” sections have been added, so that the reader may see how the law has beenapplied.The digest is a reference tool to assist practitioners and researchers as they familiarizethemselves with the case law interpreting the Statute of the International CriminalTribunal for Rwanda (“ICTR Statute”).* The digest is not designed to substitute forreading the actual decisions, which can be found on the website of the ICTR athttp://www.ictr.org/.* Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 955, U.N. Doc.S/Res/955 (1994), as amended, found 07.pdf.vi

SUMMARY TABLE OF CONTENTSACKNOWLEDGEMENTS.ivDEDICATION .vFOREWORD .viSUMMARY TABLE OF CONTENTS . viiFULL TABLE OF CONTENTS . ixSUMMARY OF JUDGMENTS AGAINST THE ACCUSED . 1LISTING OF CASES INCLUDED . 12TOPICAL DIGEST . 15I)GENOCIDE (Article 2) . 15a) Statute .15b) Generally .15c) Mental state (mens rea): genocidal intent, specific intent, special intent, ordolus specialis.17d) Underlying crimes/actus reus .48e) Punishable acts .58II)CRIMES AGAINST HUMANITY (Article 3) . 82a) Statute .82b) Overall requirements/chapeau .83c) Underlying offenses . 103III) WAR CRIMES (Article 4) . 146a) Statute . 146b) Generally . 147c) Overall requirements/chapeau . 149d) Underlying offenses . 162IV) INDIVIDUAL CRIMINAL RESPONSIBILITY (Article 6(1)) . 167a) Statute . 167b) Generally . 168c) Planning . 172d) Instigating . 174e) Ordering . 180vii

f) Committing . 187g) Aiding and abetting . 202V)COMMAND RESPONSIBILITY (Article 6(3)) . 223a) Statute . 223b) Generally . 224c) Elements . 225d) Article 6(3) applies to civilian superiors. 236e) Application . 240VI) ALIBI AND SPECIAL DEFENSES . 245a) Rule . 245b) Alibi . 246VII) CHARGING, CUMULATIVE CONVICTIONS AND SENTENCING 253a) Cumulative charges, alternative and cumulative convictions . 253b) Sentencing . 265VIII) MISCELLANEOUS. 330a) General considerations regarding legal interpretation . 330b) Jurisdiction . 331c) Fair trial rights. 335d) General considerations regarding the evaluation of evidence . 417e) Precedent and appellate review . 457f) Accepting guilty pleas . 474GLOSSARY OF DEFINED TERMS. 479viii