Murder as crime against humanity
| Notion(s) | Filing | Case |
|---|---|---|
| Appeal Judgement - 14.12.2011 |
BAGOSORA et al. (Military I) (ICTR-98-41-A) |
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415. Similarly, the Appeals Chamber finds that the Trial Chamber did not err in entering convictions for both murder as a crime against humanity (Article 3 of the Statute) and violence to life as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Article 4 of the Statute) on the basis of Nsengiyumva’s role in the killings in Gisenyi town. It recalls that a conviction under Article 4 of the Statute has a materially distinct element not required for a conviction under Article 3 of the Statute, namely the existence of a nexus between the alleged crimes and the armed conflict satisfying the requirements of common Article 3 of the Geneva Conventions and Article 1 of Additional Protocol II.[1] Likewise, a conviction under Article 3 of the Statute requires proof of a materially distinct element not required under Article 4 of the Statute, namely proof of a widespread or systematic attack against a civilian population.[2] [1] Ntagerura et al. Appeal Judgement, para. 427; Semanza Appeal Judgement, para. 368; Rutaganda Appeal Judgement, para. 583. [2] Ntagerura et al. Appeal Judgement, para. 427; Semanza Appeal Judgement, para. 368; Rutaganda Appeal Judgement, para. 583. |
Other instruments Common Article 3 of the Geneva Conventions; Article 1 of Additional Protocol II. | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 14.12.2011 |
BAGOSORA et al. (Military I) (ICTR-98-41-A) |
|
|
416. The Appeals Chamber recalls, however, that cumulative convictions for extermination and murder as crimes against humanity based on the same set of facts are not permissible because, whereas extermination requires the materially distinct element that the killings occur on a mass scale, murder does not contain an element materially distinct from extermination.[1] The Trial Chamber therefore erred in law in entering cumulative convictions for murder and extermination as crimes against humanity for the killings in Gisenyi town. Since the offence of extermination contains an additional materially distinct element,[2] which is present in the instant case,[3] the Appeals Chamber concludes that Nsengiyumva’s convictions for extermination entered under Count 6 of the Nsengiyumva Indictment should be upheld while his convictions for murder as a crime against humanity under Count 5 should be vacated. 736. Bagosora did not formally raise any error vis-à-vis his cumulative convictions for murder and extermination as crimes against humanity. However, the Appeals Chamber recalls its holding above in connection with Nsengiyumva’s appeal that cumulative convictions for extermination and murder as crimes against humanity based on the same set of facts are not permissible because murder as a crime against humanity does not contain a materially distinct element from extermination as a crime against humanity.[4] Accordingly, the Appeals Chamber finds, proprio motu, that the Trial Chamber erred in law in convicting Bagosora of both murder and extermination as crimes against humanity based on the same facts. In this context, the Appeals Chamber recalls that the more specific provision should be upheld.[5] Consequently, the Appeals Chamber concludes that Bagosora’s conviction for murder as a crime against humanity under Count 4 of the Bagosora Indictment pursuant to Article 6(3) of the Statute should be reversed, while his conviction for extermination under Count 6 of the Bagosora Indictment should be affirmed. [1] Ntakirutimana Appeal Judgement, para. 542. [2] See Krajišnik Appeal Judgement, para. 386, citing Čelebići Appeal Judgement, para. 413: “Where this test is not met, the Chamber must decide in relation to which offence it will enter a conviction. This should be done on the basis of the principle that the conviction under the more specific provision should be upheld. Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision”. See also Strugar Appeal Judgement, para. 321. [3] See supra, para. 398. [4] See supra, para. 416. [5] See supra, fn. 961. |
ICTR Statute Article 3 ICTY Statute Article 5 | |