Existence of a plan or policy

Notion(s) Filing Case
Appeal Judgement - 20.10.2010 RUKUNDO Emmanuel

62. The Appeals Chamber finds no error in the fact that the Trial Chamber took into consideration the judicially-noticed fact that “during 1994, there was a campaign of mass killing intended to destroy, in whole or at least in very large part, Rwanda’s Tutsi population”.[1] […]

63. As the Appeals Chamber’s jurisprudence underscores, Rukundo is correct in contending that judicial notice and evidence of the general context cannot be a substitute for specific findings on mens rea. However, the Trial Chamber’s analysis does not use the general context in Rwanda and in Gitarama Prefecture as the sole basis for finding that Rukundo possessed the mens rea for genocide. Instead, it appropriately used the judicially-noticed finding of widespread attacks against Tutsis in Rwanda, and the contextual evidence about the targeting of Tutsis in Gitarama Prefecture, as a frame or context in which to interpret numerous other indicators of Rukundo’s mens rea. […]

[1] Trial Judgement, para. 565, citing The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73(c), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006 (“Karemera et al. Appeal of Decision on Judicial Notice”), para. 35.

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Decision on Reconsideration - 01.12.2006 KAREMERA et al.

At para. 21, the Appeals Chamber recalled that:

[T]he existence of a plan or policy is not a legal ingredient of the crime of genocide. While the existence of such plan may help to establish that the accused possessed the requisite genocidal intent, it remains only evidence supporting the inference of intent and does not become the legal ingredient of the offence.[1]

As a result it held that “if the existence of a plan to commit genocide is vital to the Prosecution’s case, this must be proved by evidence.” (para. 21).

[1] The Prosecutor v. Radislav Krstic, Case No. IT-98-33-A, Judgment, 19 April 2004,para.225 which refers to   The Prosecutor V. Goran Jelisic, Case No. IT-95-10-A,Judgment , 5 July 2001, para.48

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ICTR Statute Article 2(2) ICTY Statute Article 4(2)