161. The Appeals Chamber recalls that

[i]n the context of genocide, however, “direct and physical perpetration” need not mean physical killing; other acts can constitute direct participation in the actus reus of the crime.

The jurisprudence makes clear that “committing” is not limited to direct and physical perpetration and that other acts can constitute direct participation in the actus reus of the crime.  The question of whether an accused acts with his own hands, e.g. when killing people, is not the only relevant criterion.  The Appeals Chamber therefore finds, Judge Liu dissenting, that the Trial Chamber erred in law by holding that “committing” requires direct and physical perpetration of the crime by the offender. To remedy this error, the Appeals Chamber will apply the correct legal standard—i.e., whether Athanase Seromba’s actions were “as much an integral part of the genocide as were the killings which [they] enabled.”  In so doing, it will determine whether, as the Prosecution has argued on appeal, the Trial Chamber’s factual conclusions and the evidence contained in the trial record support the conclusion that Athanase Seromba became a principal perpetrator of the crime itself by approving and embracing as his own the decision to commit the crime and thus should be convicted for committing genocide.

162. The Appeals Chamber considers that the law should be applied to the factual findings of the Trial Chamber, taken as a whole. It is on this basis that the Appeals Chamber will determine the proper mode of liability under Article 6(1) of the Statute. In cases of ambiguity reference may be made, pursuant to Rules 109 and 118(A) of the Rules, to the record on appeal.

171. On the basis of these underlying factual findings, the Appeals Chamber finds that Athanase Seromba approved and embraced as his own the decision of Kayishema, Ndahimana, Kanyarukiga, Habarugira, and other persons to destroy the church in order to kill the Tutsi refugees. It is irrelevant that Athanase Seromba did not personally drive the bulldozer that destroyed the church. What is important is that Athanase Seromba fully exercised his influence over the bulldozer driver who, as the Trial Chamber’s findings demonstrate, accepted Athanase Seromba as the only authority, and whose directions he followed. The Appeals Chamber finds, Judge Liu dissenting, that Athanase Seromba’s acts, which cannot be adequately described by any other mode of liability pursuant to Article 6(1) of the Statute than “committing”, indeed were as much as an integral part of the crime of genocide as the killings of the Tutsi refugees.[1] Athanase Seromba was not merely an aider and abetter but became a principal perpetrator in the crime itself.

172. The Appeals Chamber observes, Judge Liu dissenting, that Athanase Seromba’s conduct was not limited to giving practical assistance, encouragement or moral support to the principal perpetrators of the crime, which would merely constitute the actus reus of aiding and abetting.[2] Quite the contrary, the findings of the Trial Chamber allow for only one conclusion, namely, that Athanase Seromba was a principal perpetrator in the killing of the refugees in Nyange church. The Appeals Chamber therefore finds that Athanase Seromba’s conduct can only be characterized as “committing” these crimes.

173. The Appeals Chamber recalls that an accused evinces the requisite mens rea for committing a crime when he acts with an intent to commit that crime.[3] This stands in contrast to the mens rea for aiding and abetting, which “is indicated by the requirement that the act of participation be performed with knowledge that it will assist the principal in the commission of the criminal act.”[4]

Also see infra on Judge Liu’s Dissenting Opinion.

492. A person commits the crime of genocide (Article 2(3)(a) of the Statute) if he or she commits one of the acts enumerated in Article 2(2) of the Statute (actus reus) with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such (“genocidal intent”).[1] Furthermore, even if an accused has not committed genocide himself, his responsibility may be established under one of the modes of responsibility provided for in Article 6(1) and (3) of the Statute. Where a person is accused of having planned, instigated, ordered or aided and abetted the commission of genocide by one or more other persons pursuant to Article 6(1) of the Statute, the Prosecutor must establish that the accused’s acts or omissions substantially contributed to the commission of acts of genocide.[2]

595. […] The Appeals Chamber recalls that, for the Appellant to be convicted under Article 6(1) of the Statute, it must have been established that specific acts or omissions of the Appellant themselves constituted an instigation to the commission of genocide. An alternative would be that specific acts or omissions of the Appellant may have substantially contributed to instigation by others.

The Trial Chamber convicted the Appellant for committing extermination at Gitwa Hill, and, alternatively, for both instigating, and aiding and abetting extermination (Trial Judgement, para. 485). The Appeals Chamber proprio motu raised the issue of alternative convictions and held

122.  While an accused can be convicted for a single crime on the basis of several modes of liability, alternative convictions for several modes of liability are, in general, incompatible with the principle that a judgement has to express unambiguously the scope of the convicted person’s criminal responsibility. This principle requires, inter alia, that the sentence corresponds to the totality of guilt incurred by the convicted person. This totality of guilt is determined by the actus reus and the mens rea of the convicted person. The modes of liability may either augment (e.g., commission of the crime with direct intent) or lessen (e.g., aiding and abetting a crime with awareness that a crime will probably be committed[1]) the gravity of the crime.[2] Thus, the criminal liability of a convicted person has to be established unequivocally.

In the present case, the Appeals Chamber held, by majority, Judge Güney dissenting, that the Trial Chamber did not convict the Appellant in the alternative; rather, the Trial Chamber was seeking to provide a further characterisation of the Appellant’s criminal conduct, which constituted committing, instigating, and aiding and abetting.

For case-law on cumulative charging and the pleading principles on the various modes of liability, see Chapter VI of the Blaškić Appeal Judgement.

Para. 50: when an accused is charged with personally committing a crime, the Prosecution must plead the material facts of that incident:

50. The Indictment, taken alone, does not allege the killing of Mr. Murefu. In the Statement of Facts (“Statement”) related to the genocide count, it states that “Sylvestre Gacumbitsi killed persons by his own hand”, but provides no further details. The Statement goes on to describe the massacre at Nyarubuye Parish, but does not mention Mr. Murefu and does not suggest that the Appellant participated personally in the killing there. Count 4 of the Indictment (Murder) does allege that the Appellant killed a number of individuals in several separate incidents, but Mr. Murefu is not among them. The Appellant could not reasonably have known, on the basis of the Indictment alone, that he was being charged with the killing of Mr. Murefu. While in certain cases, “the sheer scale of the alleged crimes ’makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes’”, this is not such a case. The Prosecution should have expressly pleaded the killing of Mr. Murefu, particularly as it had this information in its possession before the Indictment was filed. The Appeals Chamber thus finds by majority, Judge Shahabuddeen and Judge Schomburg dissenting, that the Indictment was defective in this respect. (internal citation omitted).

169.    Article 2 of the Statute provides that “[g]enocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as …”, the relevant acts in the instant case being genocide by killing members of the group and causing serious bodily or mental harm to members of the group. The Appeals Chamber finds that there is no legal ingredient in Article 2 of the Statute, which requires the establishment of a nexus between the manner in which a genocide was carried out and the personal circumstances of an accused. Similarly, the provision does not require proof that an accused had certain means at his disposal to prepare and commit genocide. The financial situation of an accused would normally not be of major importance to the question of whether he could be held liable for genocide.

170.    Furthermore, genocide is not a crime that can only be committed by certain categories of persons.  As evidenced by history, it is a crime which has been committed by the low-level executioner and the high-level planner or instigator alike. […]

3322.            The Appeals Chamber has held in relation to genocide that “committing” under Article 6(1) of the Statute, which envisions the physical perpetration of a crime, does not only mean physical killing and that other acts can constitute direct participation in the actus reus of the crime.[1] The question is whether an accused’s conduct was “as much an integral part of the [crimes] as were the killings which it enabled.”[2] In the cases where the Appeals Chamber has concluded that an accused’s role constituted an integral part of the crimes, the accused were present at the crime scene and conducted, supervised, directed, played a leading role, or otherwise fully exercised influence over the physical perpetrators.[3]

3323.            Even if the Appeals Chamber were to overturn the Trial Chamber’s findings that Kanyabashi’s Speech was not inflammatory and did not substantially contribute to the subsequent killings, it is not convinced that Kanyabashi’s approval of Kambanda’s and Sindikubwabo’s Speeches, his position of authority, and the contents of his speech are sufficient to qualify Kanyabashi’s overall conduct as that of “committing” genocide. The Appeals Chamber considers that, where it is not established that the accused was present at the scene of the crimes, conducted, supervised, directed, played a leading role, or otherwise fully exercised influence over the physical perpetrators, making a speech days, if not weeks, before the physical perpetration of killings cannot be deemed to constitute “direct participation in the actus reus” of the killings. Nor can such circumstances compel the conclusion that the conduct of the individual who gave the speech was as much an integral part of the genocide as were the killings which it allegedly enabled. In the view of the Appeals Chamber, the notion of commission by playing an integral part in the crime is not as expansive as the Prosecution argues in the present case. […]