TC-26

5TH SURANA & SURANA AND RGNUL

INTERNATIONAL LAW MOOT COMPETITION, 2022

Before

THE INTERNATIONAL CRIMINAL COURT

FOR THE PRE-TRIAL

IN THE MATTER OF

The Prosecution (PETITIONER)

vs

Karata & ors (RESPONDENTS)

[COMPENDIUM ON BEHALF OF THE RESPONDENT]

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TABLE OF CONTENTS

Prosecutor v. Akayesu, Case No. ICTR 96 4, Judgment ( 2, 1998)………………………………2

Prosecutor vs. Nahimana ,et al, Case No. ICTR 99 52 T (ICTR Trial Chamber, December 3,
2003) (“Nahimana)
…………………………………………………………………………………….6

Prosecutor v. Katanga, (Case No. ICC-01/04-01/07) …………………………………………..11

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Prosecutor v. Akayesu, Case No. ICTR 96 4, Judgment ( 2, 1998).

(Before Judge Laïty Kama, Presiding Judge Lennart Aspegren ,Judge Navanethem
Pillay)

This Extract is taken up from Prosecutor v. Akayesu, Case No. ICTR 96 4,

Judgment ( 2, 1998), United Nations International Residual Mechanism for
Criminal Tribunals.

10. On 13 February 1996, the then Prosecutor, Richard Goldstone8, submitted an Indictment
against Akayesu, which was subsequently amended on 17 June 1997. It contains a total of 15
counts covering genocide, crimes against humanity and violations of Article 3 Common to the
1949 Geneva Conventions and Additional Protocol II of 1977 thereto. More specifically,
Akayesu was individually charged with genocide, complicity in genocide, direct and public
incitement to commit genocide, extermination, murder, torture, cruel treatment, rape, other
inhumane acts and outrages upon personal dignity, which he allegedly committed in Taba
commune of which he was the bourgmestre at the time of the alleged acts.

316. It is alleged that by the acts with which he is charged in this paragraph, the Accused is
guilty of offences covered under four counts: Count 1 of the Indictment charges him with the
crime of genocide, punishable under Article 2 (3)(a) of the Statute; Count 2 charges him with the
crime of complicity in genocide, punishable under Article 2 (3)(e) of the Statute; Count 3
charges him with the crime of extermination which constitutes a crime against humanity,
punishable under Article 3 (b) of the Statute; and Count 4 charges him with the crime of direct
and public incitement to commit genocide, punishable under Article 2 (3)(c) of the Statute.

451. In considering the role of the Accused in the sexual violence which took place and the
extent of his direct knowledge of incidents of sexual violence, the Chamber has taken into
account only evidence which is direct and unequivocal. Witness H testified that the Accused was
present during the rape of Tutsi women outside the compound of the bureau communal, but as

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she could not confirm that he was aware that the rapes were taking place, the Chamber discounts
this testimony in its assessment of the evidence. Witness PP recalled the Accused directing the
Interahamwe to take Alexia and her two nieces to Kinihira, saying "Don't you know where
killings take place, where the others have been killed?" The three women were raped before they
were killed, but the statement of the Accused does not refer to sexual violence and there is no
evidence that the Accused was present at Kinihira. For this reason, the Chamber also discounts
this testimony in its assessment of the evidence.

452. On the basis of the evidence set forth herein, the Chamber finds beyond a reasonable doubt
that the Accused had reason to know and in fact knew that sexual violence was taking place on
or near the premises of the bureau communal, and that women were being taken away from the
bureau communal and sexually violated. There is no evidence that the Accused took any
measures to prevent acts of sexual violence or to punish the perpetrators of sexual violence. In
fact there is evidence that the Accused ordered, instigated and otherwise aided and abetted sexual
violence. The Accused watched two Interahamwe drag a woman to be raped between the bureau
communal and the cultural center. The two commune policemen in front of his office witnessed
the rape but did nothing to prevent it. On the two occasions Witness JJ was brought to the
cultural center of the bureau communal to be raped, she and the group of girls and women with
her were taken past the Accused, on the way. On the first occasion he was looking at them, and
on the second occasion he was standing at the entrance to the cultural center. On this second
occasion, he said, "Never ask me again what a Tutsi woman tastes like." Witness JJ described the
Accused in making these statements as "talking as if someone were encouraging a player." More
generally she stated that the Accused was the one "supervising" the acts of rape. When Witness
OO and two other girls were apprehended by Interahamwe in flight from the bureau communal,
the Interahamwe went to the Accused and told him that they were taking the girls away to sleep
with them. The Accused said "take them." The Accused told the Interahamwe to undress Chantal
and march her around. He was laughing and happy to be watching and afterwards told the
Interahamwe to take her away and said "you should first of all make sure that you sleep with this
girl." The Chamber considers this statement as evidence that the Accused ordered and instigated
sexual violence, although insufficient evidence was presented to establish beyond a reasonable
doubt that Chantal was in fact raped.

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468. On the basis of national and international law and jurisprudence, the Chamber concludes
that it is acceptable to convict the accused of two offences in relation to the same set of facts in
the following circumstances: (1) where the offences have different elements; or (2) where the
provisions creating the offences protect different interests; or (3) where it is necessary to record a
conviction for both offences in order fully to describe what the accused did. However, the
Chamber finds that it is not justifiable to convict an accused of two offences in relation to the
same set of facts where (a) one offence is a lesser included offence of the other, for example,
murder and grievous bodily harm, robbery and theft, or rape and indecent assault; or (b) where
one offence charges accomplice liability and the other offence charges liability as a principal,
e.g. genocide and complicity in genocide. 469. Having regard to its Statute, the Chamber
believes that the offences under the Statute - genocide, crimes against humanity, and violations
of article 3 common to the Geneva Conventions and of Additional Protocol II - have different
elements and, moreover, are intended to protect different interests. The crime of genocide exists
to protect certain groups from extermination or attempted extermination. The concept of crimes
against humanity exists to protect civilian populations from persecution. The idea of violations of
article 3 common to the Geneva Conventions and of Additional Protocol II is to protect non-
combatants from war crimes in civil war. These crimes have different purposes and are,
therefore, never co-extensive. Thus it is legitimate to charge these crimes in relation to the same
set of facts. It may, additionally, depending on the case, be necessary to record a conviction for
more than one of these offences in order to reflect what crimes an accused committed. If, for
example, a general ordered that all prisoners of war belonging to a particular ethnic group should
be killed, with the intent thereby to eliminate the group, this would be both genocide and a
violation of common article 3, although not necessarily a crime against humanity. Convictions
for genocide and violations of common article 3 would accurately reflect the accused general's
course of conduct. 470. Conversely, the Chamber does not consider that any of genocide, crimes
against humanity, and violations of article 3 common to the Geneva Conventions and of
Additional Protocol II are lesser included forms of each other. The ICTR Statute does not
establish a hierarchy of norms, but rather all three offences are presented on an equal footing.
While genocide may be considered the gravest crime, there is no justification in the Statute for
finding that crimes against humanity or violations of common article 3 and additional protocol II
are in all cricumstances alternative charges to genocide and thus lesser included offences. As

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stated, and it is a related point, these offences have different constituent elements. Again, this
consideration renders multiple convictions for these offences in relation to the same set of facts
permissible.

477. In this respect, the International Criminal Tribunal for the former Yugoslavia found in the
Tadic case that: "a person may only be criminally responsible for conduct where it is determined
that he knowingly participated in the commission of an offence" and that "his participation
directly and substantially affected the commission of that offence through supporting the actual
commission before, during, or after the incident."81

478. This intent can be inferred from a certain number of facts, as concerns genocide, crimes
against humanity and war crimes, for instance, from their massive and/or systematic nature or
their atrocity, to be considered infra in the judgment, in the Tribunal's findings on the law
applicable to each of the three crimes which constitute its ratione materiae jurisdiction.

479. Therefore, as can be seen, the forms of participation referred to in Article 6 (1), cannot
render their perpetrator criminally liable where he did not act knowingly, and even where he
should have had such knowledge. This greatly differs from Article 6 (3) analyzed here below,
which does not necessarily require that the superior acted knowingly to render him criminally
liable; it suffices that he had reason to know that his subordinates were about to commit or had
committed a crime and failed to take the necessary or reasonable measures to prevent such acts
or punish the perpetrators thereof. In a way, this is liability by omission or abstention. 480. The
first form of liability set forth in Article 6 (1) is planning of a crime. Such planning is similar to
the notion of complicity in Civil law, or conspiracy under Common law, as stipulated in Article 2
(3) of the Statute. But the difference is that planning, unlike complicity or plotting, can be an act
committed by one person. Planning can thus be defined as implying that one or several persons
contemplate designing the commission of a crime at both the preparatory and execution phases.

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Prosecutor vs. Nahimana ,et al, Case No. ICTR 99 52 T (ICTR Trial
Chamber, December 3, 2003) (“Nahimana)

(Before Judge Fausto Pocar, ptesiding Judge Mohamed Shahabuddeen Judge

Mehmet Giiney Judge Andrdsia Vaz Judge Theodor Meron)

This Extract is taken up from Prosecutor vs. Nahimana ,et al, Case No. ICTR 99
52T , United Nations International Residual Mechanism for Criminal Tribunals.

334. The Trial Chamber considered that the success of Appellant Nahimana's intervention in
halting the RTLM attacks against UNAMIR was "an indicator of the de facto control he had but
failed to exercise after 6 April 1994".It was on this basis in particular that the Trial Chamber
found that the Appellant exercised "superior responsibility for the broadcasts of RTLM and then
found him guilty of direct and public incitement to commit genocide and persecution as a crime
against humanity pursuant to Article 6(3) of the Statute 8.

355. The Trial Chamber found Appellant Barayagwiza guitty of genocide, direot and public
incitement to commit genocide, extermination and persecution as crimes against 'humanity, by
virtge of his position as a superior of RTLM. It was satisfied that the Appellant incurred criminal
responsibility under Article 6(3) of the Statute for "his active engagement in the management oi
RTLM prior to 6 April, and his failure to take necessary and reasonable measures to preventhe
killing of Tutsi civilians instigated by RTLM".

351. Appellant Barayagwiza submits that the Trial Chamber ened in finding him guilty of direct
and public incitement to commit genocide and persecution as a crime against humanitys3'z on
the basis of RTLM broadcasts prior to 6 April 1994, since these broadcasts were not pleaded in
the Barayagwiza Indictment or in the Prosecutor's Pre-Trial Brief.E

355. The Trial Chamber found Appellant Barayagwiza guitty of genocide, direot and public
incitement to commit genocide, extermination and persecution as crimes against 'humanity, by
virtge of his position as a superior of RTLM. It was satisfied that the Appellant incurred criminal
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responsibility under Article 6(3) of the Statute for "his active engagement in the management oi
RTLM prior to 6 April, and his failure to take necessary and reasonable measures to preventhe
killing of Tutsi civilians instigated by RTLM".'3'

359. The Trial Chamber found that Appellant Barayagwiza was the "No. 2" of RTLMe'q and that
he was one of the most active members of its Steerins Committee.Eso It went on to find that the
Appeltant exetcised superior responsibility for RTLM broadcasts by virtue of, inter alia, these
two positions, and it found him guilty of genocide, direct and public incitement to commit
genocide, extermination and persecution as crimes against humanity pursuant to Article 6(3) of
the Statute.E

364. The Trial Chamber found that Appellant Banyagwiza "had superior responsibility over
members of the cDR and its militia, the Impuzamugambi", and found him guilty of genocide
pursuant to Article 6(3) of the Statute "for his active engagement in CDR, and his failure to take
necessary and reasonable measures to preventhe killing of Tutsi civilians by CDR members and
Impuzamugambf'."" lt also found him guilty of direct and public incitemento commit genocide,
as well as extermination and persecution as crimes against humanity pursuant to Article 6(3) of
the Statute, for "the acts of direct and public incitement to commit genocide caused by CDR
members",sE for "the killing of Tutsi civilians by CDR members and ImpuzamugamDr-se and
for "the advocacy of ethnic hatred or incitement of violence against the Tutsi population by CDR
memberc and Impuzamugambi".w

398. The Appeals Chamber notes that the Trial Chamber found the Appellant Ngeze guilty:

- Of genocide, inter alia "as founder, owner and editor of Kangura, a publication that instigated
the killing of Tutsi civilians";w

- Of direct and public incitement to commit genocide on grounds that "Ngeze used the
publication to instill hatred, promote fear, and incite genocide"

- Of conspiracy to commit genocide, "through personal collaboration as well as interaction

among institutions within [Nahimana, Ngeze and Barayagwiza's] control, namely RTLM.,
Kangura and CDR''''4'z

- Of persecution as a crime against humanity because ofthe "content of Kangura advocating

ethnic hatred or inciting violence".q'

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558. Finally, regarding the tapes of the RTLM broadcast of 12 December 1993,rt' the Appeals
Chamber notes that the Trial Chamber accepted that what Appellant Buayagwiza .aia diA not, as
such, constitute incitement to commit genocide,'3to but conveyed the Appellant's personal
experience and aimed at raising awareness about the discrimination sufiered by the Hutu.'"'
There was thus nothing in the Appellant's statements inherently incompatible with an intent to
destroy the Tutsi ethnic group in whole or in part, and capable of refuting the Trial Chamber's
findings with respect to his genocidal intent

583. The Prosecutor submits that Appellant Nahimana was rightly found guilty of having
instigated the commission of genocide, since he used RTLM and its joumalists to accomplish his
criminal purpose.r3s In this respect, the Prosecutor argues that the Appellant participated in the
creation of RTLM; that he was a member of its Steering Committee; that he played a role in its
financial management; that he presided over the Technical and Program committee; that he
represented RTLM at meetings with the Minister of Information; and that he had the last word
over all of the activities of RTLM, including its broadcasts and its editorial polioy, even after 6
April 1994.13e1 The Prosecutor adds that the Appellant "unambiguously supported RTLM's
activities of directly and publicly inciting the killings of Tutsis both in meetings with the
Minister of Information, as well in his public statement on Radio Rwanda at the height of
massacres", and that'he "acquiesced to the incitement perpetrated by joumalists".'3s The
Prosecutor maintains that, contrary to what the Appellant appears to argue, the Trial Chamber
did not rely on purely intentional elements in order to convict him: it considered the statements
made by the Appellant in the interview of 25 April 1994 as an admission of guilt, not as an
element of the offence'"*

586. The Appellant argues in this respecthat he cannot be held liable of having instigated the
commission of genocide through "indirect participation', because the Statute does not provide for
such a mode of liability and the Prosecutor did not plead it as such at rial.'no' He further submits
that the Akoyesu Appeal Judgement, as well as the tavaux prdparatoires of the Genocide
Convention, show that an act of instigation to genocide which does not meet the criteria of direct
and public incitement to commit genocide cannot entail criminal responsibility;'o* the
Prosecutor's thesis that the Appellant had, through indirect participation in RTLM, "instigated"
the joumalists to commit genocide must therefore be rejected.r{t

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587. With regard to the compounded modes of liability proposed in the altemative by the
Prosecutor, the Appellant maintains that

- He could not be found guilty of having, by omission, aided and abetted direct and public
incitemento commit genocide.'ot Liability for an omission can exist only in two exceptional
cases: where there has been a failure to discharge a legal duty to act under criminal law,r{o or in
the case of the "approving spectator", where, by virtue of his superior position, "the accused's
mere presence on the scene of the crime constitutes a positive act of aiding and abetting, which
had a direct and significant effect on the commission of the crime".ra However, these situations
are not relevant here: in the first case, there was no legal rule, under either Rwandan or
intemational law, which imposed a duty to act upon the Appellant;rar2 inthe second case, the
jurisprudence requires that the accused be present at the scene of the crime, in close proximity to
the principal perpetrator,rar3 which was not the case here, since the Appellant had no contact
witl RTLM after 8 April 1994; 'ar'

- He could not be found responsible for having planned direct and public incitement to commit
genocide, because this form of responsibility in the third degree is not recognized under
intemational criminal law and, in any event, there could be no such form of responsibility in the
present case, since he "never gave orders or directives to staff of the radio [station]".rnr

678. The Appeals Chamber considers that a distinction must be made between instigationr6'r
under Article 6(1) of the Statute and public and direct incitemento commit genocide under
Article 2(3)(c) of the Statute. In the first place, instigation under Article 6(1) of the Statute is a
mode of responsibility; an accused will incur criminal responsibility only if the instigation in fact
substantially contributed to the commission of one ofthe crimes under Articles 2 to 4 of the
Statute.r6r2 Bycontrast, direct and public incitement to commit genocide under Article 2(3)(c) is
itself a crime, and it is not necessary to demonstrate that it in fact substantially contributed to the
commission of acts of genocide.r6r3 In other words, the crime ofdirect and public incitemento
commit genocide is an inchoate offence, punishableven if no act of genocide has resulted
therefrom. This is confirmed by the travaw prdparatoires ro the Genocide Convention, from
which it can be concluded that the drafters ofthe Convention intended to punish direct and public
incitement to commit genocide, even if no act of genocide was committed, the aim being to
forestall the occurrence of such acts'r6ra The Appeals Chamber further observes - even if this is

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not decisive for the determination of the state of customary intemational law in 1994 - that the
Statute of the Intemational Criminal Court also appears to provide that an accused incurs
criminal responsibility for direct and public incitement to commit genocide, even if this is not
followed by acts of genocide.'u''

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Prosecutor v. Katanga, (Case No. ICC-01/04-01/07)

( Before: Judge Bruno Cotte, Presiding Judge Judge Fatoumata Dembele Diarra

Judge Christine Van den Wyngaert)

This Extract is taken up from The Prosecutor v. Germain Katanga, ICC-01/04-

01/07, Judgment pursuant to article 74 of the Statute ICC Legal Tools Database.

525. It is the Prosecution’s submission that as a result of repeated UPDF attacks, the inhabitants
of Walendu-Bindi collectivité became actively involved, as from late 2000 and early 2001, in the
conflict in Ituri and that they organised themselves into a community self-defence
movement.1105 According to the Prosecution,“[TRANSLATION] [r]elentless attacks on the
collectivité demanded solidarity and cooperation among the Ngiti combatants to counter the
enemy.”

526. The formation of self-defence groups in Walendu-Bindi collectivité to repel the many
UPDF attacks was not per se contested by the Defence.1107 In fact, the Defence acknowledged
that from late 2000, local combatants were forced to defend themselves “by force of
circumstance”1108 and that defence efforts were made to this end in Walendu-Bindi collectivité
as a whole and involved everyone, as the community’s survival depended on it.1109 The
Defence submits that the activities were organised at a very local level but that the combatants
were constantly on battle alert. As there is no dispute about this part of the record, the Chamber
will not dwell much on it and will not refer to the content of the evidence on record regarding
this topic. As there is no dispute about this part of the record, the Chamber will not dwell much
on it and will not refer to the content of the evidence on record regarding this topic.

529. The Chamber has no doubt that in 2001 and early 2002, the general state of mind of the
population in Walendu-Bindi collectivité was to defend their community at all cost from all
outside attackers and, where necessary, to go on the offensive as part of the resistance effort. It
notes that the general mobilisation described would arise with the need to defend enemies and
observes that it proceeded in the same way when they subsequently had to resist UPC
combatants.

530. The Chamber also notes that in 2001 and 2002, the combatants in WalenduBindi were
mainly armed with traditional weapons such as spears and arrows although sometimes they
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succeeded in seizing firearms from their adversaries in the aftermath of battle.1120 According to
Germain Katanga, for many villagers, the term “combatant” merely meant “[TRANSLATION] a
man who [fights] with arrows, [in other words], traditional weapons.” themselves against the
Ugandan

770. Article 30 of the Statute defines the requisite state of mind to establish the criminal
responsibility of an accused person. It constitutes the lex generalis which is applicable by default,
“unless otherwise provided”. Article 30 provides that it must be established that the material
elements of the crime were committed “with intent and knowledge”, unless the Statute or the
Elements of Crimes provide otherwise.

774. Article 30(2) of the Statute links intent firstly to the conduct in which the person in question
means to engage and then to the consequences of the act committed. As regards conduct, the
Chamber considers that it must be ascertained whether the suspect deliberately acted or failed to
act, without regard to the expected result of the action taken. As regards the consequence of the
act committed, the Statute foresees two forms of intent. The first appears in article 30(2)(b),
which lays down that a person has intent where that person means to cause a consequence (dolus
directus of the first degree). That definition refers to the conventional definition of intent:
volition to commit the act and to achieve the desired result. The second form of intent provided
for by the Statute in relation to the consequence of the act committed is awareness that the
consequence “will occur in the ordinary course of events”, a concept which the Statute leaves
undefined and which it rests with the Chamber to determine.

775. It cannot be inferred from the use of the future tense and words or expressions such as “will
occur” or “in the ordinary course of events” that the drafters of the Statute intended to include
dolus eventualis, that is, awareness of the existence of a mere likelihood or possibility.
However, neither need the volition to cause the consequence in question be established − since
article 30(2)(b) is intended to furnish an alternative to dolus directus of the first degree – or even
the absolute certainty that that consequence will occur in future, which by definition is
impossible to prove.

776. The words “will occur”, read together with the phrase “in the ordinary course of events”,
make clear that the required standard of occurrence of the consequence in question is near but
not absolute certainty. The standard is therefore “virtual certainty”, otherwise known as “oblique
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intention”. The Chamber considers that the words used in article 30 are sufficiently clear for it to
be able to rule in this connection. It therefore adopts the findings of Pre-Trial Chamber II in
Bemba.

781. Consequently, the Chamber considers that in the instant case, the perpetrator must have
intentionally killed one or more persons. Such intent will be proven where the perpetrator acted
deliberately or failed to act (1) in order to cause the death of one or more persons or (2) whereas
he or she was aware that death would occur in the ordinary course of events.

782. Furthermore, the Chamber must be satisfied that the perpetrator knew that the conduct was
part of or intended the conduct to be part of a widespread or systematic attack against a civilian
population.

797. The Chamber notes that there is no definition of the term “attack” in the Statute or in the
Elements of Crimes. Considering the reference in article 8(2)(e) of the Statute to “serious
violations of the laws and customs applicable in armed conflicts not of an international
character” and to the “established framework of international law” the Chamber is of the view
that it must have regard to Additional Protocol II, specifically to article 13 on which article 8(2)
(e)(i) draws.

798. In the Chamber’s view, the term “attack” must be understood within the meaning of article
13(2) of Additional Protocol II, that is, as “acts of violence against the adversary, whether in
offence or defence”.

799. It further considers that the crime of attack against civilians proscribes a certain conduct and
that the material element is established where the attack is launched and its object is a civilian
population as such or individual civilians not taking direct part in hostilities; no result need ensue
from the attack. Indeed, the Chamber considers that the absence of a result requirement in the
Elements of Crimes is not accidental, insofar as, where such a requirement exists, the Elements
of Crimes refer to it and specify the consequence thereof.

800. Article 8(2)(e)(i) of the Statute enshrines the prohibition on the direct targeting of
civilians.1839 The Chamber recalls that this prohibition can in no circumstances be
counterbalanced by military necessity.1840 The prohibition on directly attacking civilians is
therefore absolute and applies both to international and non international armed conflict. 801.

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Consonant with its approach to murder as a war crime, the Chamber understands “civilian” to mean any
person who is not a member of either State or non-State armed forces. The term “civilian population”
denotes “civilians as a group”. In this connection, the Chamber will take account of factors such as the
number and the conduct of the combatants present.

802. The Chamber considers that the crime may be established even if the military operation also
targeted a legitimate military objective. It is important, however, to establish that the primary object of
the attack was the civilian population or individual civilians. Thus, situations in which the attack is
directed against a military objective and civilians are incidentally affected fall out with article 8(2)(e)(i). It
must be noted that indiscriminate attacks – proscribed by a rule of custom − may qualify as intentional
attacks against the civilian population or individual civilians, especially where the damage caused to
civilians is so great that it appears to the Chamber that the perpetrator meant to target civilian
objectives. Use of weaponry that has indiscriminate effects may, inter alia, show that the attack was
directed at the civilian population or individual civilians. The Chamber notes in this regard that an
indiscriminate attack does not, however, automatically constitute an attack against the civilian
population under article 8(2)(e)(i), as the subjective element is decisive in respect of the second case.

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