Actus Reus of Genocide
Brief Jurisprudence collection
The judicial understanding of the genocidal Actus Reus is thus not solely constituted of the nature of the act perpetrated: the identity of the victim and the intent of the perpetrator also play a qualifying role in the determination of an act as genocidal. According to consistent case law, and admittedly in full respect of the conventional text, it is the specific intent to destroy which will ultimately characterize an act as genocidal. In the absence of such intent, the act will not be qualified as genocide.
The allegations submitted by South Africa is against expansive interpretations of the crime of genocide, leading to abuses and running the risk of trivializing one of the most heinous international crimes.
The authoritative definition of the crime of genocide, as contained in the Genocide Convention, prohibits five enumerated acts – and these five acts only – but it does not define them. When the time came for the crime of genocide to be tried under international criminal law, the international criminal tribunals thus had no reasonable option other than to fill this gap. Following the path drawn by the ad hoc tribunals, the ICJ adopted a similar approach in the Croatia v. Serbia Judgment. To assess the admissibility of the allegations of genocide made by both parties, it first established whether one or more of the acts listed under Article II of the Genocide Convention had indeed been committed. In its analysis of the applicable law relating to the acts of genocide, 9 the ICJ essentially relied on its 2007 Judgment 10 and on the case law of the ICTY. It also referred to the travaux preparatoires of the Genocide Convention as well as to the International Law Commission’s 1996 Draft Code of Crimes against the Peace and Security of Mankind. (See Croatia v. Serbia, supra note 1, paras. 149–66.). On the Crime of Genocide case between Croatia and Serbia after lengthy considerations on the genocidal Actus Reus, the Court dismissed all the claims of genocide, based on the lack of genocidal intent. After a review of the facts of the case, and notwithstanding their qualification as potentially genocidal, the ICJ turned to the decisive element in the characterization of an act as genocide namely, genocidal intent. Having found that this intent had not been established, the ICJ dismissed the claims of genocide in their entirety.
Jurisprudence collection embrancing all types of actions and actus reus applicable against South Africa accusations.
FILING CASE Conspiracy to commit genocide – Actus Reus - Appeal Judgement 28.11.2007.
https://cld.irmct.org/assets/filings/90-ICTR-99-52-2079-4-MEDIA-NAHIMANA-ET-AL-APPEALS-JUDGEMENT.pdf
896. The Appeals Chamber recalls that the actus reus of the crime of conspiracy to commit genocide is a concerted agreement to act for the purpose of committing genocide. While such Actus Reus can be proved by evidence of meetings to plan genocide, it can also be inferred from other evidence.[1] In particular, a concerted agreement to commit genocide may be inferred from the conduct of the conspirators .[2] However, as in any case where the Prosecutor seeks, on the basis of circumstantial evidence, to prove a particular fact upon which the guilt of the accused depends,[3] the existence of a conspiracy to commit genocide must be the only reasonable inference based on the totality of the evidence.
897. The Appeals Chamber takes the view that the concerted or coordinated action of a group of individuals can constitute evidence of an agreement. The qualifiers “concerted or coordinated” are important: as the Trial Chamber recognized, these words are “the central element that distinguishes conspiracy from ‘conscious parallelism’, the concept put forward by the Defense to explain the evidence in this case”.[4] The Appeals Chamber thus considers that the Appellants were not found guilty by association or by reason of the similarity of their conduct: rather, the Trial Chamber found that there had been a concerted or coordinated action and, on the basis inter alia of this factual finding, it inferred the existence of a conspiracy. […]
898. Turning to Appellant Barayagwiza’s argument, the Appeals Chamber considers that the agreement need not be a formal one.[5] It stresses in this respect that the United States Supreme Court has also recognized that the agreement required for conspiracy “need not be shown to have been explicit”.[6] The Appellant is thus mistaken in his submission that a tacit agreement is not sufficient as evidence of conspiracy to commit genocide. The Appeals Chamber recalls, however, that the evidence must establish beyond reasonable doubt a concerted agreement to act, and not mere similar conduct.
906. The Appeals Chamber finds that, even if this evidence is capable of demonstrating the existence of a conspiracy to commit genocide among the Appellants, on its own it is not sufficient to establish the existence of such a conspiracy beyond reasonable doubt. It would also have been reasonable to find, on the basis of this evidence, that the Appellants had collaborated and entered into an agreement with a view to promoting the ideology of “Hutu power” in the context of the political struggle between Hutu and Tutsi, or even to disseminate ethnic hatred against the Tutsi, without, however, going as far as their destruction in whole or in part. Consequently, a reasonable trier of facts could not conclude that the only reasonable inference was that the Appellants had conspired together to commit genocide.
FILING CASE planning, general issues, instigating, definition, ordering, Mens Rea, and Actus Reus - Appeal Judgement 17.12.2004
26. The actus reus of “planning” requires that one or more persons design the criminal conduct constituting one or more statutory crimes that are later perpetrated.[2] It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.
27. The actus reus of “instigating” means to prompt another pers on to commit an offence.[3] While it is not necessary to prove that the crime would not have been perpetrated without the involvement of the accus ed, it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another pers on committing the crime.[4]
28. The actus reus of “ordering” means that a pers on in a position of authority instructs another person to commit an offence.[5] A formal superior-subordinate relations hip between the accus ed and the perpetrator is not required.[6]
29. The mens rea for these modes of responsibility is established if the perpetrator acted with direct intent in relation to his own planning, instigating, or ordering.
30. In addition, the Appeals Chamber has held that a standard of mens rea that is lower than direct intent may apply in relation to ordering under Article 7(1) of the Statute. The Appeals Chamber held that a pers on who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.[7]
31. A person who plans an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that plan, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to planning. Planning with such awareness has to be regarded as accepting that crime.
32. A pers on who instigates another pers on to commit an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that instigation, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to instigating. Instigating with such awareness has to be regarded as accepting that crime.
FILING CASE Extermination – Actus Reus - Appeal Judgement 30.06.2016
1021. The Appeals Chamber recalls that the actus reus of extermination is “the act of killing on a large scale”.[1] It is this element of “massiveness” that distinguishes the crime of extermination from the crime of murder.[2] However, the expression “on a large scale” does not suggest a strict numerical approach with a minimum number of victims.[3] While extermination as a crime against humanity has been found in relation to the killing of thousands , it has also been found in relation to far fewer killings.[4]
1022. The assessment of “large scale” is made on a case-by-case basis, taking into account the circumstances in which the killings occurred.[5] The Appeals Chamber has found that relevant factors include but are not limited to: (i) the time and place of the killings;[6] (ii) the selection of the victims and the manner in which they were targeted;[7] (iii) the type of victims;[8] (iv) whether the killings were aimed at the collective group rather than victims in their individual capacity;[9] and (v) the population density of the victims’ area of origin.[10] These factors do not constitute elements of the crime of extermination as a crime against humanity, but rather are factors which a trier of facts may take into account when assessing whether or not the “large scale” element is satisfied.[11] Moreover, separate killing incidents may be aggregated for the purpose of meeting the “large scale requirement” if the killings are considered to be part of one and the same operation.[12] Whether killings are part of the same operation must be assessed on a case-by-case bas is taking into account the circumstances in which they occurred.[13] As held by the ICTR Appeals Chamber, collective consideration of distinct events committed in different locations, in different circumstances, by different perpetrators, over an extended period of time cannot satisfy the requirement of killing on a large scale.[14).
1027. […] [T]he Appeals Chamber considers that while a trial chamber may take into consideration the time frame when assessing whether killings are part of the same operation,[15] the juris prudence does not establish specific time limits as a requirement for extermination.[16] Rather, as set out above, it is the collective consideration of factors, including the time frame, which should be taken into account in determining whether the killings formed part of the same operation and thus whether they may be aggregated.[17] […]
1028. Further, the Appeals Chamber notes that ?upljanin offers no support for his statement that killings may only be aggregated when at least one of the incidents in itself is considered large scale, [18] and it finds no support for this proposition in the Tribunal’s case law.[19] […).
FILING CASE Joint Criminal Enterprise – Actus Reus - Appeal Judgement 15.07.1999.
227. In sum, the objective elements (actus reus) of this mode of participation in one of the crimes provided for in the Statute (with regard to each of the three categories of cases) are as follows:
1. A plurality of persons. They need not be organized in a military, political or administrative structure, as is clearly shown by the Essen Lynching and the Kurt Goebell cases.
2. The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute. There is no necessity for this plan, design, or purpose to have been previously arranged or formulated. The common plan or purpose may materialize extemporaneously and be inferred from the fact that a plurality of persons acts in unis on to put into effect a joint criminal enterprise.
3. Participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of those provisions (for example, murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common plan or purpose.
领英推荐
FILING CASE Aiding and abetting – Actus Reus Specific Direction - Appeal Judgement 23.01.2014.
1649. Based on the foregoing, the Appeals Chamber, Judge Tuzmukhamedov dissenting, comes to the compelling conclusion that “specific direction” is not an element of aiding and abetting liability under customary international law. Rather, as correctly stated in the Furund?ija Trial Judgement and confirmed by the Bla?ki? Appeal Judgement, under customary international law, the actus reus of aiding and abetting “consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”[4] The required means rea is “the knowledge that these acts as s is t the commission of the offense”.[5] The Appeals Chamber reaffirms the position taken by the Bla?ki? Appeal Judgement in this regard.
1650. Accordingly, the Appeals Chamber confirms that the Mrk?i? and ?ljivan?anin and Luki? and Luki? Appeal Judgements stated the prevailing law in holding that “‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting”,[6] accurately reflecting customary international law and the legal standard that has been constantly and consistently applied in determining aiding and abetting liability.[7] Consequently, the Appeals Chamber, Judge Tuzmukhamedov dissenting, unequivocally rejects the approach adopted in the Peri?i? Appeal Judgement as it is in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law in this regard.[8].
Appeal Judgement 14.02.2011.
216. The Appeals Chamber considers that it was reasonable for the Trial Chamber to conclude that Ntawukulilyayo substantially contributed to the Kabuye hill killings by encouraging Tuts is to seek refuge there and then providing reinforcements to those attempting to kill them. These acts alone suffice to constitute the actus reus of aiding and abetting. […].
52. The Appeals Chamber has explained that an “aider and abettor commit[s]] acts specifically aimed at assisting, encouraging, or lending moral support for the perpetration of a specific crime, and that this support had a substantial effect on the perpetration of the crime.” [1] It recalls that there is no requirement of a cause-effect relations hip between the conduct of the aider and abettor and the commission of the crime nor that such conduct served as a condition precedent to the commission of the crime.[2] It is sufficient for the aider and abettor’s assistance or encouragement to have had a substantial effect on the realization of that crime,[3] the establishment of which is a “fact-bas ed inquiry”.[4] […]
?
FILING CASE Conspiracy to commit genocide - Actus Reus - Appeal Judgement - 30.01.2015 POPOVI? et al. (IT-05-88-A).
544. The Appeals Chamber recalls that “a concerted agreement to commit genocide may be inferred from the conduct of the conspirators” and can be based on circumstantial evidence.[1] Further, the concerted or coordinated action of a group of individuals can constitute evidence of an agreement. [2] […]
553. […] In this respect, the Appeals Chamber recalls that “[w]hile [the] actus reus [of conspiracy to commit genocide] can be proved by evidence of meetings to plan genocide, it can also be inferred from other evidence. In particular, a concerted agreement to commit genocide may be inferred from the conduct of the conspirators”.[3]
?
FILING CASE Crime of Terror – Actus Reus – Means Rea - Appeal Judgement 30.11.200
69. The crime charged under Count 1 of the Indictment pursuant to Article 3 of the Statute and on the basis of Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II is the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population. It encompasses the intent to spread terror when committed by combatants [1] in a period of armed conflict. The findings of the Appeals Chamber with respect to grounds five, sixteen and seven will therefore not envisage any other form of terror.
FILING CASE Persecution – Actus Reus - Appeal Judgement 30.01.2015 - al. (IT-05-88-A).
2. To establish the actus reus of persecution in the present case, the Trial Chamber was required to establish that the underlying acts of terrorizing civilians: dicriminated in fact, denied or infringed upon a fundamental right laid down in international customary or treaty law,[1] and were “of equal gravity to the crimes listed in Article 5 whether considered in isolation or in conjunction with other acts .”[2] […]
81. Bearing in mind that the basic elements of the mode of liability of aiding and abetting apply regardless s of whether this form of liability is charged as “omission”,[1] the Appeals Chamber recalls that the actus reus of aiding and abetting consists of acts or omissions [2] which assist, encourage or lend moral support to the perpetration of a specific crime, and which have a substantial effect upon the perpetration of the crime.[3] There is no requirement of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime or that such conduct served as a condition precedent to the commission of the crime.[4] The actus reus of aiding and abetting a crime may occur before, during, or after the principal crime has been perpetrated, and the location at which the actus reus takes place may be removed from the location of the principal crime.[5] Accordingly, in order to determine whether ?ljivan?anin possessed the requisite actus reus for aiding and abetting murder, the Appeals Chamber must be satisfied beyond reasonable doubt that the Prosecution has demonstrated that [ljivan?anin substantially contributed to their killing by his inaction[6] and that, when account is taken of the errors committed by the Trial Chamber, all reasonable doubt concerning [ljivan?anin’s guilt has been eliminated.[7].
?
FILING CASE Joint Criminal Enterprise Actus Reus - Commission Through participation on JCE Appeal Judgement 28.09.2011.
160. The Appeals Chamber recalls that the actus reus for participation in a joint criminal enterprise requires: (i) a plurality of persons; (ii) the existence of a common purpose (or plan) which amounts to or involves the commission of a crime encompass ed by the Statute; and (iii) the participation of the accused in this common purpose. The basic form of joint criminal enterprise, which is at issue in this case, requires that the accus ed must both intend the commission of the crime and intend to participate in a common plan aimed at its commission. 163. […] The Trial Chamber concluded that “Munyakazi was as much an integral part of [the] killings as those he enabled” and thus convicted him bas ed on his role in the attacks at Shangi and Mibilizi parishes under Article 6(1) of the Statute for committing genocide and extermination as a crime against humanity. Participation in a joint criminal enterprise is a form of committing under Article 6(1) of the Statute. Therefore, a finding that Munyakazi participated in a joint criminal enterprise in connection with the crimes for which he was convicted would have no bearing on the verdict. Munyakazi’s conviction is based on his committing the crimes, which fully encapsulates his criminal conduct.
Ordering - Actus Reus – Insufficient Findings - Appeal Judgement 01.04.2011.
320. The Appeals Chamber further notes that the conclusion that Renzaho gave an order to kill at roadblocks is, standing alone, an insufficient basis to find that Renzaho is criminally responsible under Article 6(1) of the Statute for ordering any such killings. In the present case, the Trial Chamber made no findings concerning when or where Renzaho gave the order,[1] to whom or to what category of perpetrators he gave the order,[2] and whether Renzaho was in a position of authority vis -à-vis the recipient.[3] The Appeals Chamber recalls that a Trial Chamber is required to provide clear, reasoned findings of fact as to each element of the crime charged.[4] Taken together, the paucity of findings in relation to the conclusion that Renzaho ordered killings at roadblocks convinces the Appeals Chamber, Judge Pocar dissenting, that the Trial Chamber erred in failing to provide a reasoned opinion.
277. The Appeals Chamber recalls that ordering under Article 6(1) of the Statute requires that a person in a position of authority instruct another person to commit an offence.[1] As previously held, “the actus reus of ordering cannot be established in the absence of a prior positive act because the very notion of ‘instructing’, pivotal to the understanding of the question of ‘ordering’, requires ‘a positive action by the pers on in a position of authority’”.[2]
283. The Appeals Chamber considers that, in the absence of any evidence that Nsengiyumva gave any instructions,[3] the mere involvement of three soldiers in civilian attire under his command[4] and the existence of a pattern of crimes being committed in and around his area of control immediately after the death of the Pres ident could not lead a reasonable trier of fact to find that the only reasonable inference was that Nsengiyumva ordered the killings perpetrated in Gisenyi town on 7 April 1994.
323. The Appeals Chamber finds that in the absence of evidence of military involvement and coordination between the military and the civilian attackers, the mere fact that the killing took place in Gisenyi town the day following Pres ident Habyarimana’s death is insufficient for a reasonable trier of fact to find that the only reasonable inference was that the unidentified civilian assailants acted upon Ns engiyumva’s orders. […].
571. Turning to the Trial Chamber’s finding that Bagosora ordered the killing of Maharangari, the Appeals Chamber observes that the Trial Chamber’s factual findings do not support its legal conclusion. In its factual findings, the Trial Chamber concluded that:
Bagosora had authority over the Rwandan army at the time of the attack […]. There is no credible evidence directly showing that Bagosora was aware of the murder of Maharangari. However, given the widespread killing throughout Kigali perpetrated by or with the assistance of military personnel, including the targeted killings on the morning of 7 April […], the Chamber is satisfied that Bagosora was aware that personnel under his authority were participating in killings.[5].
While the Trial Chamber discuss ed Bagosora’s awareness of the killing of Maharangari and Bagosora’s superior position, at no point did it discuss evidence that Bagosora ordered the crimes. The Trial Chamber’s factual findings therefore appear to correspond only to those which would normally be entered in relation to superior responsibility.