Table of contents:
2.1.1. The perpetrator had knowledge of the attack.
P.45. Evidence of the perpetrator being told about the attack.
P.46. Evidence of the historical and political circumstances in which the attack occurred.
P.47. Evidence of the direct and indirect relationship between the political and military hierarchy.
P.48. Evidence of the scope, gravity and systematic nature of the attack.
P.50. Evidence of the perpetrators membership in forces that took part in the attack.
P.51. Evidence of the perpetrators participation in the attack.
P.52. Evidence of the role, rank or position of the perpetrator.
P.52.1. Evidence of the position of the perpetrator as a commander.
P.52.2. Evidence of the role and position as the warden of a concentration camp.
P.53. Evidence of repeated contacts of the perpetrator to the forces carrying out the attack.
P.54. Evidence of the perpetrators presence at the site of or the affected area of the attack.
2.1.2. The perpetrator knew his acts were part of the attack.
P.55. Evidence of the perpetrators willful pursuance of the goals of the attack.
P.56. Evidence of the perpetrators leadership role in the attack.
P.57. Evidence of the perpetrators participation in criminal acts.
P.57.1. Evidence of shooting at civilians.
P.57.2. Evidence of procuring weapons and gendarmes for the attack.
P.57.3. Evidence of ordering criminal acts directed at a member of a distinctive group.
P.57.4. Evidence of the acts of incitement to criminal acts.
P.58. Evidence of the perpetrators characterization of a victim as a member of a distinctive group.
P.59. Evidence of the perpetrators attendance at the meetings held to plan and organise the attack.
P.60. Evidence of the perpetrators expression of support for the attack.
Element:
"281. The Trial Chamber concluded that, “[b]ased on the evidence before it, […] Nzuwonemeye and Sagahutu are responsible under Article 6(1) of the Statute for ordering the killing of the Prime Minister and also aiding and abetting the direct perpetrators”.666 The Trial Chamber further found that they were also responsible for the killing as superiors under Article 6(3) of the Statute, which it considered in relation to sentencing.667 The Appeals Chamber recalls that it has already reversed the Trial Chamber’s finding that Nzuwonemeye aided and abetted this killing for lack of sufficient notice.668"
666 Trial Judgement, para. 2093.
667 Trial Judgement, paras. 2094, 2095, 2107, 2108, 2146, 2244, 2246, 2254, 2257. See also Trial Judgement, para. 1745.
Seee supra para. 190.
Prosecutor v. Augustin Bizimungu, Case No. ICTR-00-56B-A, Judgement (AC), 30 June 2014, paras. 315-320:
"315. The Prosecution argues in its Additional Submissions that the crimes committed at Musambira Commune office and dispensary were part of attacks on locations of refuge following the killing of the President and that the perpetrators knew that their actions formed part of this broader attack against Tutsis.893 It adds that Bizimungu was held responsible as a superior for the crimes committed at Musambira Commune office and dispensary. 894"
893 Prosecution’s Additional Submissions, paras. 71, 72.
894 Prosecution’s Additional Submissions, para. 73.
"316. In Bizimungu’s Additional Submissions, he asserts that there was no evidence adduced that the crimes committed at Musambira Commune office and dispensary were perpetrated in the context of a widespread or systematic attack against the civilian population and that the Trial Chamber made no legal finding on the crimes committed at Musambira Commune office and dispensary in relation to this count.895"
895 Bizimungu’s Additional Submissions, paras. 129, 130.
"317. The Trial Chamber stated in a general section on crimes against humanity that it considered the totality of the evidence, including evidence concerning the ethnic composition of individuals who were killed and sought refuge at various locations in Rwanda.896 It concluded that widespread and systematic attacks were launched against members of the civilian population in Rwanda on ethnic and political grounds following the death of President Habyarimana.897 It considered generally that as a high-ranking military officer and given the highly organised and broad-based nature of the attacks on civilians, it was inconceivable that Bizimungu and the principal perpetrators did not know that their actions formed part of the larger attacks.898"
896 Trial Judgement, para. 2090.
897 Trial Judgement, para. 2090.
898 Trial Judgement, para. 2090.
"318. The Trial Chamber did not specifically apply these findings to the crimes committed at the Musambira dispensary or find that they were committed in the context of a widespread or systematic attack against the civilian population in Rwanda on ethnic and political grounds. Nonetheless, the Appeals Chamber considers that the killings at the Musambira dispensary fit within the Trial Chamber’s reference to attacks on individuals who had sought refuge at various locations in Rwanda. Furthermore, given Witness DBB’s testimony regarding the widespread attacks on Tutsis in Musambira Commune following the killing of the President,899 the Appeals Chamber is convinced that the only reasonable inference is that the killings perpetrated at the Musambira dispensary were committed as part of the widespread and systematic attacks against members of the civilian population in Rwanda on ethnic and political grounds following the death of President Habyarimana and that the perpetrators were aware that their actions formed part of these larger attacks."
899 Witness DBB, T. 26 January 2006 pp. 23-32.
"319. The Trial Chamber found it established that killings were perpetrated at the Musambira dispensary900 which fulfils the actus reus of murder as a crime against humanity. As noted above in relation to the genocide charge, it further found that soldiers under Bizimungu’s command committed the killings at the Musambira dispensary,901 and that Bizimungu knew of the crimes and had the material ability to prevent and punish his culpable subordinates but failed to do so.902"
900 Trial Judgement, para. 1192.
901 Trial Judgement, paras. 1190, 1192.
902 Trial Judgement, paras. 1205, 1220.
"320. In light of the foregoing, the Appeals Chamber finds that despite the Trial Chamber’s failure to make legal findings, it did not err in convicting Bizimungu as a superior of murder as a crime against humanity in relation to the killings perpetrated at the Musambira dispensary."
2.1.1. The perpetrator had knowledge of the attack.
ICC, The Prosecutor v. Charles Ble Goude , ICC-02/11-02/11, Decision on the confirmation of charges (PTC), 11 December 2014, para. 154-156:
"154. The Chamber finds that Charles Ble Goude meant to engage in his activities in the post-election crisis, and to issue orders and instructions, with a view to implementing the common plan to retain power at any cost, including by the use of force against civilians. Further, the Chamber finds that Charles Ble Goude, in performing his actions aimed at sustaining the common effort agreed with the other co-perpetrators, meant to cause the use of violence against civilians or was aware that the violence would occur in the ordinary course of events, leading to killings, rape and acts causing serious injury to body and great suffering, and that Charles Ble Goude intended the discriminatory use of violence against civilians known or perceived to be supporters of his political opponent Alassane Ouattara. The Chamber also finds that Charles Ble Goude and the other co-perpetrators were mutually aware and accepted that the implementation of the common plan to maintain power at any cost would result in the use of violence against civilians.
155. Indeed, the evidence shows that: (i) Charles Ble Goude, Laurent Gbagbo and his inner circle mobilised the youth for violent acts against known or perceived supporters of Laurent Gbagbo’s political opponent Alassane Ouattara; (ii) Charles Ble Goude, Laurent Gbagbo and his inner circle engaged in preparatory activities in anticipation of the use of violence, such as acquisition of weapons and recruitment of FDS elements, militias and mercenaries; (iii) Charles Ble Goude, Laurent Gbagbo and his inner circle coordinated the implementation of the common plan through their interaction with the pro-Gbagbo forces, as illustrated by the meetings and instructions given to units on the ground during the crisis; and (iv) Charles Ble Goude, Laurent Gbagbo and his inner circle reacted to the evolution of the crisis by taking specific steps to ensure continued implementation of the common plan to retain power at any cost, including by use of violence against civilians.
156. In the view of the Chamber, this evidence also shows that Charles Ble Goude was aware that the crimes committed formed part of a widespread and systematic attack directed against a civilian population, namely known or perceived Ouattara supporters."
P.45. Evidence of the perpetrator being told about the attack.
P.46. Evidence of the historical and politicalcircumstances in which the attack occurred.
P.47. Evidence of the direct and indirect relationship between the political and military hierarchy.
P.48. Evidence of the scope, gravity and systematic nature of the attack.
Prosecutor v. Augustin Bizimungu, Case No. ICTR-00-56B-A, Judgement (AC), 30 June 2014, para. 351:
"351. The Trial Chamber stated in a general section on crimes against humanity that it had considered the totality of the evidence, including evidence concerning the ethnic composition of individuals who were killed and sought refuge at various locations in Rwanda.973 It concluded that it was satisfied that widespread and systematic attacks were launched against members of the civilian population in Rwanda on ethnic and political grounds following the death of President Habyarimana.974 The Trial Chamber considered generally that, as a high-ranking military officer, and given the highly organized and broad-based nature of the attacks on civilians, it was inconceivable that Bizimungu and the principal perpetrators did not know that their actions formed part of the larger attacks.975 The Trial Chamber did not specifically apply these findings to the crimes committed at TRAFIPRO or find that they were committed in the context of a widespread or systematic attack against the civilian population in Rwanda on ethnic and political grounds. Nonetheless, the Appeals Chamber considers that the killings and rapes at TRAFIPRO fit within the Trial Chamber’s reference to attacks on individuals who had sought refuge at various locations in Rwanda. The Appeals Chamber is convinced that the only reasonable inference is that the killings and rapes perpetrated at TRAFIPRO were committed as part of the widespread and systematic attack against members of the civilian population in Rwanda on ethnic and political grounds following the death of President Habyarimana and that the perpetrators were aware that their actions formed part of these larger attacks."
973 Trial Judgement, para. 2090.
974 Trial Judgement, para. 2090.
975 Trial Judgement, para. 2090.
A. Legal source/authority and evidence:
Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 895:
"895. [...] Moreover, Milan Lukic and Sredoje Lukic could not have avoided knowing that there was an attack; the scale of the attack was considerable and the effects of the attack on the Muslim population were drastic and severe, and it was perpetrated by local Serbs and the Serb authorities, which was the community to which both Milan Lukic and Sredoje Lukic belonged."
Prosecutor v Mitar Vasiljević, Case No. IT-98-32-T, Judgement (TC), 29 November 2002, para. 60:
"60. Finally, the Trial Chamber is satisfied that the acts of the Accused comprised part of the widespread and systematic attack against the non-Serb civilian population of the municipality of Visegrad. The Trial Chamber is satisfied that the Accused knew of the attack, as he knew of the situation of non-Serb civilians in Visegrad and he was told about the commission of crimes committed against non-Serb civilians, by, inter alia, Milan Lukic with whom he was associated.120 Also, in view of the sheer scale and systematic nature of the attack, the Accused must have noticed the consequences of this campaign upon the non-Serb civilian population of the Visegrad municipality.[…]"
120 See The Accused, T 1882, 2103-2105. As stated under the incident charged in the Indictment under pars 12 and 13 (Counts 4 through 7), the Accused gained that knowledge not later than 7 June 1992, prior to the moment when the first acts charged in the Indictment were committed.
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 259:
"259. As the Trial Chambers of this Tribunal and the ICTR have already asserted in respect of the mens rea of the crime of genocide in the Rule 61 Karadzic and Mladic proceedings485 and in the Akayesu case 486 and as Trial Chamber II of this Tribunal stated regarding the mens rea of a crime against humanity in the Tadic487 case, knowledge of the political context in which the offence fits may be surmised from the concurrence of a number of concrete facts. Principally, these are:
- the historical and political circumstances in which the acts of violence occurred ;
- the functions of the accused when the crimes were committed;
- his responsibilities within the political or military hierarchy;
- the direct and indirect relationship between the political and military hierarchy;
- the scope and gravity of the acts perpetrated;
- the nature of the crimes committed and the degree to which they are common knowledge."
485 Article 61 Karadzic and Mladic, para. 94. According to the Trial Chamber, the specific intention of a crime of genocide may "be inferred from a certain number of facts such as the general political doctrine which gave rise to the acts possibly covered by the definition in Article 4, or the repetition of destructive or discriminatory acts. The intent may also be inferred from the perpetration of acts which violate, or which the perpetrators themselves consider to violate, the very foundation of the group – acts which are not in themselves covered by the list in Article 4(2) but which are committed as part of the same pattern of conduct".
486 Akayesu Judgement, paras. 523-524.
487 http//www.legal-tools.org/doc/a0948e/Tadic Judgement, para. 657. According to the Trial Chamber "[w]hile knowledge is thus required, it is examined on an objective level and factually can be implied from the circumstances" (emphasis added) (cf. Also case no. 38, Annual Digest and Reports of Public International Law Cases for the Year 1947, London, 1951, pp. 100-101)."
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 62:
"62. The Trial Chamber is also satisfied that the Accused knew of the attack upon the non-Serb civilian population of Foca and surrounding areas. His role and position as the warden of the KP Dom, his continued presence at the KP Dom where the crimes were committed, his repeated contacts with the military and the general knowledge among Serbs about the situation of the non-Serb population at the time in Foca, all point to the conclusion that the Accused did in fact know that the Muslim civilian population was systematically targeted and abused in many ways. The Accused conceded that he knew that the mosques in Foca were being destroyed and that prison camps for the detention of Muslims were set up in other municipalities of the area which subsequently became Republika Srpska.204 He also conceded that he was aware of the danger to non-Serbs if they remained in Foca town and municipality, and that he knew that by the middle or the end of August 1992 most non-Serbs had been forced out of the area.205 The Trial Chamber is further satisfied that the Accused knew about the conditions of the non-Serb detainees, the beatings and the other mistreatment to which they were subjected while detained at the KP Dom, and that he knew that the mistreatment which occurred at the KP Dom was part of the attack upon the non-Serb population of Foca town and municipality.206"
"204. T 7887-7888, 7895.
205. T 7890 7892.
206. See pars 125-127, 169-173, 308-320, 486-502 (where findings in relation to individual charges are made), infra."
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 259:
"259. As the Trial Chambers of this Tribunal and the ICTR have already asserted in respect of the mens rea of the crime of genocide in the Rule 61 Karadzic and Mladic proceedings485 and in the Akayesu case 486 and as Trial Chamber II of this Tribunal stated regarding the mens rea of a crime against humanity in the Tadic487 case, knowledge of the political context in which the offence fits may be surmised from the concurrence of a number of concrete facts. Principally, these are:
- the historical and political circumstances in which the acts of violence occurred ;
- the functions of the accused when the crimes were committed;
- his responsibilities within the political or military hierarchy;
- the direct and indirect relationship between the political and military hierarchy;
- the scope and gravity of the acts perpetrated;
- the nature of the crimes committed and the degree to which they are common knowledge."
485 Article 61 Karadzic and Mladic, para. 94. According to the Trial Chamber, the specific intention of a crime of genocide may "be inferred from a certain number of facts such as the general political doctrine which gave rise to the acts possibly covered by the definition in Article 4, or the repetition of destructive or discriminatory acts. The intent may also be inferred from the perpetration of acts which violate, or which the perpetrators themselves consider to violate, the very foundation of the group – acts which are not in themselves covered by the list in Article 4(2) but which are committed as part of the same pattern of conduct".
486 Akayesu Judgement, paras. 523-524.
487 http//www.legal-tools.org/doc/a0948e/Tadic Judgement, para. 657. According to the Trial Chamber "[w]hile knowledge is thus required, it is examined on an objective level and factually can be implied from the circumstances" (emphasis added) (cf. Also case no. 38, Annual Digest and Reports of Public International Law Cases for the Year 1947, London, 1951, pp. 100-101)."
P.50. Evidence of the perpetrator’s membership in forces that took part in the attack.
Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 206:
206. On the basis of this evidence, the Chamber considers that there are substantial grounds to believe that there existed a close connection between Mr. Kapondi, the SLDF and the Network, also given that the leader of the SLDF was present during the 14 December 2007 meeting at Mr. Ruto's house. In light of the foregoing, the Chamber is satisfied that there are substantial grounds to believe that Mr. Kapondi, notwithstanding his incarceration between 17 April 2007 and 14 December 2007, was in a position to arrange the purchase and supply of weapons to the Network
P.51. Evidence of the perpetrator’s participation in the attack.
A. Legal source/authority and evidence:
Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 57:
"57. The Trial Chamber moreover notes that, despite remaining uncertainties regarding his exact rank and position, the accused was part of the Serbian forces that took part in the operation conducted against the non-Serbian civilian population in Brcko. It was indeed in anticipation and in the service of the attack that the accused, who comes from Bijeljina, was given police duties in the municipality of Brcko. As one of the active participants in this attack, Goran Jelisic must have known of the widespread and systematic nature of the attack against the non-Serbian population of Brcko."
P.52. Evidence of the role, rank or position of the perpetrator.
P.52.1. Evidence ofthe accused having a high position in the civil administration
Prosecutor v. Ildephonse Nizeyimana, Case No. ICTR-2000-55, Judgement (TC), 19 June 2012, para. 1558:
1558. The Chamber recalls its findings that the killings occurred based on Nizeyimana’s instructions and were committed with his express approval. His position as a high ranking officer within the ESO’s hierarchy and his experience in the S2/S3 office charged with intelligence and training / operations are essential to understanding his role. These factors, along with his intimate knowledge of the neighborhood demonstrate that he held a supervisory role in this operation and was present to ensure its satisfactory completion. In this regard, his presence, in addition to the instructions he issued, amounted to significant and substantial tacit approval to the removal and subsequent murder operation. Finally, Nizeyimana’s position within the military and participation in similar attacks around this time demonstrate that he knew this attack was part of a widespread and systematic attack on political and ethnic grounds.
http//www.legal-tools.org/doc/7bc57f/Prosecutor v. Fran?ois Karera, Case No. ICTR-01-74-T, Judgement (TC), 7 December 2007, para 553:
" 553. Based on the evidence, it is clear that a widespread or systematic attack against Tutsi civilians took place in the prefectures of Kigali-Ville and Kigali-Rural, between 6 April and June 1994. Considering Karera’s participation in attacks in Kigali-Ville and Kigali-Rural prefectures (II.4, 5.3, 5.4 and 6), as well as his high official position in the Rwandan administration, the Chamber finds that Karera was aware that such an attack took place."
P.52.2. Evidence of the position of the perpetrator as a commander.
http//www.legal-tools.org/doc/6082dd/Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-T, Judgement (TC), 6 December 2010, para. 706:
"706. The Chamber finds that Hategekimana and the other participants in the joint criminal enterprise must have been aware, during the events of April 1994, that their actions formed part of a widespread and systematic attack against the Tutsi civilian population. Hategekimana was familiar with the situation in Rwanda nationally; due to his position as the commander of a military camp, he must have received regular intelligence reports about the situation not only in the Butare Préfecture but around the country. In addition, he was a member of the Butare Préfectoral Security Council and must have attended meetings together with other participants in the joint criminal enterprise. The assailants who physically perpetrated the killings also must have been aware of the broader context, particularly given the scale of the atrocities."
http//www.legal-tools.org/doc/9bbd8a/Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31-T, Judgement (TC), 14 July 2009, para. 784:
"784. The Chamber has considered the totality of the evidence, in particular concerning the ethnic composition and actual or perceived political leanings of individuals identified at roadblocks or who sought refuge at various sites throughout Kigali. It finds that there were widespread and systematic attacks against the civilian population on ethnic and political grounds between April and July 1994. It is inconceivable that the principal perpetrators of these attacks as well as Renzaho did not know that their actions formed part of this attack. As a high-ranking military officer and senior government official, Renzaho would have been familiar with the situation unfolding both nationally and in areas under his authority. Many of the attacks or massacres where open and notorious. The Chamber has also concluded that Renzaho participated in some of these attacks."
P.52.3. Evidence of the role and position as the warden of a concentration camp.
P.53. Evidence of repeated contacts of the perpetrator to the forces carrying out the attack.
P.54. Evidence of the perpetrator’s presence at the site of or the affected area of the attack.
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 242:
"242. The Chamber is further satisfied that Mladen Naletilic knew of the attack. In his function as commander of the KB, Mladen Naletilic was moving between Sovici, Doljani and Mostar and was present at all those locations at various times. There is no reasonable possibility that he could not have known about the situation of the Muslim civilian population in those areas. Moreover, the Chamber is satisfied that Mladen Naletilic wilfully pursued the goals of the attack against the Muslim civilian population in the area and thus, also knew that his acts fit into the pattern of the attack."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 62:
"62. The Trial Chamber is also satisfied that the Accused knew of the attack upon the non-Serb civilian population of Foca and surrounding areas. His role and position as the warden of the KP Dom, his continued presence at the KP Dom where the crimes were committed, his repeated contacts with the military and the general knowledge among Serbs about the situation of the non-Serb population at the time in Foca, all point to the conclusion that the Accused did in fact know that the Muslim civilian population was systematically targeted and abused in many ways. The Accused conceded that he knew that the mosques in Foca were being destroyed and that prison camps for the detention of Muslims were set up in other municipalities of the area which subsequently became Republika Srpska.204 He also conceded that he was aware of the danger to non-Serbs if they remained in Foca town and municipality, and that he knew that by the middle or the end of August 1992 most non-Serbs had been forced out of the area.205 The Trial Chamber is further satisfied that the Accused knew about the conditions of the non-Serb detainees, the beatings and the other mistreatment to which they were subjected while detained at the KP Dom, and that he knew that the mistreatment which occurred at the KP Dom was part of the attack upon the non-Serb population of Foca town and municipality.206"
"204. T 7887-7888, 7895.
205. T 7890 7892.
206. See pars 125-127, 169-173, 308-320, 486-502 (where findings in relation to individual charges are made), infra."
Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, para. 946:
"946. The Chamber finds that in 1994, the Accused had knowledge of a widespread or systematic attack that was directed against the civilian population in Rwanda. This finding is supported by the presence of Musema at attacks in different locations in Kibuye Préfecture, as found above, by the testimony of the Accused, and by Defence exhibits."
2.1.2. The perpetrator knew his acts were part of the attack.
P.55. Evidence of the perpetrator’s willful pursuance of the goals of the attack.
ICC, The Prosecutor v. Charles Ble Goude , ICC-02/11-02/11, Decision on the confirmation of charges (PTC), 11 December 2014, para. 100:
"100. The Chamber also notes that the statements at the rallies indicate that Charles Ble Goude possessed knowledge of the fact that violence was being exerted, in particular at the roadblocks established following his explicit instructions. The Chamber notes the argument of the Defence as well as some evidence that at the end of the crisis Charles Ble Goude was concerned with the proliferation of weapons among the population. However, there is evidence that, despite such concerns, his mobilisation of the pro-Gbagbo youth for violence did not end. On the contrary, in a video broadcast in the beginning of April 2011, Charles Ble Goude continued with the same kind of rhetoric that was employed throughout the crisis."
P.56. Evidence of the perpetrator’s leadership role in the attack.
Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 204-205:
204. The Chamber notes that, as testified by Witness 8 in connection to the 2 September 2007 meeting, Mr. Ruto was working closely with at least 6 other people to obtain weapons. Thus, although Mr. Kapondi appeared to be the main weapons supplier, the evidence indicates that he was not the only one to perform such a task within the Network.
205. The Chamber recalls its earlier finding in paragraph 157, whereby the evidence suggests that Mr. Kapondi could have been present at the 14 December 2007 meeting at Mr. Ruto's house. The evidence further suggests that Mr. Kapondi was also the focal point for the weapons supply to the Network. This information finds support in the statements of Witnesses 8 and 6 concerning, respectively, the 30 December 2006 meeting and one of the two Nandi meetings held at Mr. Cheramboss' house in December 2007.Moreover, the Chamber notes that according to a NSIS Situation Report dated 11 January 2008 "Kalenjin youth [...] ha[d] acquired firearms from Mt. Elgon and Marakwet Districts, which they intend [ed] to use in evicting Kikuyus from Rift Valley Province" . As stated in another NSIS Situation Report dated 23 November 2007 "William Ruto [was] funding SLDF [Sabaot Land Defence Forces] through Kapondi who [was] reportedly living a luxurious lifestyle in Bungoma GK prison with access to satellite phones and newspapers.
P.57. Evidence of the perpetrator’s participation in criminal acts.
P.57.1. Evidence of shooting at civilians.
P.57.2. Evidence of procuring weapons and gendarmes for the attack.
P.57.3. Evidence of ordering criminal acts directed at a member of a distinctive group.
http//www.legal-tools.org/doc/6082dd/Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-T, Judgement (TC), 6 December 2010, paras. 710-711:
"710. The evidence in this case supports the conclusion that in the immediate aftermath of President Habyarimana’s death, political opponents of the MRND régime were targeted and that there was a systematic attack against the civilian population on political grounds. Hategekimana must have known that opponents of the régime were being targeted throughout Rwanda, including in various parts of the Butare Préfecture.
711. On the night of 8-9 April 1994, Hategekimana and soldiers under his command forced their entry into Rugomboka’s home and demanded to see the residents’ identity documents. Other assailants remained outside the home. While searching the premises for weapons or other objects indicating the residents’ affiliation with the Rwandan Patriotic Front, the soldiers found a T-shirt bearing the image of a political martyr named Rwigema. Evidence of Hategekimana’s orders to and supervision of the soldiers, as well as evidence of the soldiers’ forcing of Jean Bosco Rugomboka to wear the T-shirt before he was abducted from his house and the traces of torture whereby Rwigema’s effigy was carved through the T-shirt into Jean Bosco Rugomboka’s chest are strongly indicative that Jean Bosco Rugomboka was killed for his political opinions and not because of his Tutsi ethnicity."
P.57.4. Evidence of the acts of incitement to criminal acts.
P.58. Evidence of the perpetrators presence at the scene of the crime
A. Legal source/authority and evidence:
Prosecutor v. Ndahimana, Case No. ICTR-01-68-T, Judgement (TC), 31 December 2011, para. 838:
"838. Given Ndahimana’s position of authority at the time and his presence at Nyange parish on 16 April 1994, the Majority finds it inconceivable that the perpetrators of the killings, as well as Ndahimana himself, did not know that their actions formed part of a widespread attack."
P.59. Evidence of the perpetrator’s characterization of a victim as a member of a distinctive group.
A. Legal source/authority and evidence:
Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement (TC), 16 May 2003, para. 453:
"453. Taking into consideration the Accused’s leadership role in attacks against Tutsi, his acts of shooting at Tutsi refugees, his procurement of weapons and gendarmes for attacks against Tutsi, his characterization of the old man and young boy as "Inyenzi" or "Tutsi", and the evidence discussed in paragraphs 416-418 above, the Chamber finds that the Accused intended to kill Tutsi civilians and knew that his acts were part of a widespread and systematic attack against the civilian Tutsi population on ethnic grounds."
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 242:
"242. Moreover, the Chamber is satisfied that Mladen Naletilic wilfully pursued the goals of the attack against the Muslim civilian population in the area and thus, also knew that his acts fit into the pattern of the attack."
P.60. Evidence of the perpetrator’s attendance at the meetings held to plan and organise the attack.
P.61. Evidence of the perpetrator’s expression of support for the attack.
A. Legal source/authority and evidence:
Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement (TC), 16 May 2003, paras 416-418:
"416. In ascertaining the intent of the Accused, the Chamber has also taken into account incidents charged elsewhere, in addition to his acts relevant to this charge. The Chamber has considered the Accused’s act of ordering Interahamwe to undress a Tutsi woman, and to insert a sharpened piece of wood into her genitalia, after ascertaining that she was of the Tutsi ethnic group (see II.7.2.4 above). The body was then left, with the piece of wood protruding from it, in plain view on a public road for some three days thereafter. Further, the Chamber has taken into account the murder of an old man and young boy, both Tutsi, by the Accused (see II.5.1.4 above).
417. The Chamber has also considered the Accused’s jubilation at the killing of Assiel Kabanda and his subsequent decapitation and castration, and the piercing of his skull through the ears with a spike. Kabanda was a prominent Tutsi whose capture was met with rejoicing by the Accused and others (see II.7.1.4 above).
418. In this regard, the Chamber has also taken into consideration the Accused’s attendance and participation at meetings held to plan and organize the killing of Tutsi in Bisesero (see II.3.1.3 above), his acts of incitement (see II.4.2.4, and II.4.4.4. above), and his expression of support at the 3 May meeting of the Prime Minister, Jean Kambanda, and the Interim Government, and actions or inactions in failing to protect the Tutsi population (see II.4.3.4 above)."
P.62. Evidenceshowing that the perpetrator could not reasonably have believed that the victim of his crime was a member of the armed forces.
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 435:
"435. Finally, as the Trial Chamber pointed out above, Article 5 of the Statute protects civilians as opposed to members of the armed forces and other legitimate combatants,1113 but the Prosecution does not need to prove that the accused chose his victims for their civilian status. However, and as a minimum, the perpetrator must have known or considered the possibility that the victim of his crime was a civilian. The Trial Chamber stresses that, in case of doubt as to whether a person is a civilian, that person shall be considered to be civilian. The Prosecution must show that the perpetrator could not reasonably have believed that the victim was a member of the armed forces."
"1113. History of the United Nations War Crimes Commission (1948), p 193."
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 583-585:
"583. Dragoljub Kunarac also knew that Muslim women were specifically targeted, as he himself took several of them to his men and raped some of them himself. In the course of one of these rapes, he expressed with verbal and physical aggression his view that the rapes against the Muslim women were one of the many ways in which the Serbs could assert their superiority and victory over the Muslims. While raping FWS-183, the accused Dragoljub Kunarac told her that she should enjoy being "fucked by a Serb." After he and another soldier had finished, Dragoljub Kunarac laughed at her and added that she would now carry a Serb baby and would not know who the father would be. In addition, the accused Dragoljub Kunarac removed many Muslim girls from various detention centres and kept some of them for various periods of time for him or his soldiers to rape.
584. The Trial Chamber also notes that the consistency of these occurrences and the predictability of the women’s fate were particularly evident with respect to the accused Dragoljub Kunarac and his group of soldiers. The girls and women, who were selected by Dragoljub Kunarac or by his men, were systematically taken to the soldiers’ base, a house located in Ulica Osmana Dikica no 16. There, the girls and women, whom he knew were civilians,1371 were raped by Dragoljub Kunarac’s men or by the accused himself.
585. Through these acts, the accused Dragoljub Kunarac not only showed that he knew of the attack and knew that his crimes fitted in with or were part of the attack , but he also clearly showed that he intended them to be so. He demonstrated a total disregard for Muslims in general, and Muslim women in particular. The accused Dragoljub Kunarac used his bravery in combat to gain the respect of his men, and he maintained it by providing them with women."
"1371. Prosecution Submission Regarding Admissions and Contested Matters, 1 Feb 2000, pars 22-23."
[1]. The relevant texts of the Rome Statute and the Elements of Crimes document are as follows:
The jurisprudence of the ad hoc tribunals, and the customary international law confirmed by that jurisprudence, provides that the existence of a plan or policy is not a legal element of crimes against humanity. However, it may be evidentially relevant in establishing the systematic nature of the crime (yellow highlights above) and some other legal elements such as the requirement that the attack was directed against a civilian population (blue highlights above).
[2] http//www.legal-tools.org/doc/b8d7bd/Akayesu Judgement para. 580.
