Akayesu

A. First and Second Grounds of Appeal: Article 4 of the Statute (violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II)

425. The Prosecution raises two grounds of appeal relating to the Trial Chamber’s analysis of Article 4 of the Statute. Akayesu was charged with five counts under Article 4 of the Statute and was acquitted on each of the said counts.[777] The first Ground of Appeal alleges that the Trial Chamber erred in law in applying a “public agent or government representative test” in determining who can be held responsible for Serious Violations of Common Article 3 and Additional Protocol II thereto (“the public agent test”). The second Ground of Appeal is raised as an alternative ground of appeal, with the Prosecution submitting that it will only be necessary for the Appeals Chamber to consider it if it rejects the Prosecution’s first Ground of Appeal.[778] The Prosecution’s second ground, alleges that, having applied the public agent or government representative test, the Trial Chamber erred in fact in finding that Jean Akayesu was not a public agent or government representative who could incur responsibility under Article 4 of the Statute.[779]

426. As for the remedy sought, the Prosecution moves that with respect to the first Ground of Appeal, the Appeals Chamber set aside the Trial Chamber’s findings on this issue. With respect to the second Ground of Appeal, the Prosecution moves the Appeals Chamber to hold that the Trial Chamber erred in applying the public agent test in its factual findings in this case.[780]

427. The Prosecutor submits that the Trial Chamber erred in law in finding that for civilians to be responsible for violations of Common Article 3 and Additional Protocol II they must be “legitimately mandated and expected, as public officials or agents or persons otherwise holding public authority or de facto representing the Government, to support or fulfil the war efforts”.[781] The Prosecutor submits that there is no basis in neither the Statute (nor in the travaux pr�paratoires of the Statute) for the public agent test,[782] and similarly that it is contrary to the object and purpose of the Geneva Conventions and Additional Protocols,[783] as well as International Jurisprudence (including that of ICTY[784]) and Doctrine.[785]

428. With respect specifically to the object and purpose of the Geneva Conventions and Additional Protocols, it is the Prosecution’s submission that the Trial Chamber itself indicated that these instruments’ primary purpose is “to protect the victims as well as potential victims of armed conflicts”.[786] It submits that international case-law and doctrine strongly support the view that humanitarian law “imposes obligations not only upon senior officers of a State’s armed forces and the members of its government but all servicemen, whatever their rank, and, indeed, upon the entire civilian population”.[787] In the Prosecution’s submission the only general requirement under Article 4 of the Statute is “that there exist a link or nexus between the crimes committed and the armed conflict”.[788] There is no general requirement that the perpetrator of crimes under Article 4 of the Statute belong to a particular class of persons.[789] Consequently, it submits that “[I]t would be an aberration” if an ordinary civilian who commits an atrocity in relation to armed conflict would not entail individual criminal responsibility under Article 4 of the Statute.[790]

429. Akayesu submits that the disputed findings of the Trial Chamber must be reviewed within their proper context, and are not those alleged by the Prosecution.[791] He submits that if the Chamber did not to find him guilty under Article 4 of the Statute, it was because it found that it had not been proved beyond a reasonable doubt that the acts perpetrated were committed in conjunction with the armed conflict. The Trial Chamber’s holdings on the test were mere obiter dicta and were not designed to add a further requirement to Article 4 of the Statute.[792] An analysis of the holdings shows that the Trial Chamber actually admitted that the criminal responsibility of civilians can be considered under Article 4 and hence that “the holdings of the Trial Chamber are more intricate than the Prosecutor would have us believe”.[793]

431. Subsequently, having applied this finding to Akayesu’s circumstance to determine whether he could be held individually responsible for the crimes charged under Article 4 of the Statute, the Trial Chamber held that:

432. In the opinion of the Appeals Chamber, there is no doubt that the Trial Chamber applied the public agent test in interpreting Article 4 of the Statute, to consider subsequently the particular circumstances of Akayesu’s case. While pointing out that the Geneva Conventions and the Protocols have an “overall protective and humanitarian purpose”[796] and consequently, “the delimitation of this category of persons bound by the provisions in Common Article 3 and Additional Protocol II should not be too restricted”,[797] the Trial Chamber found that the category of persons likely to be held responsible for violations of Article 4 of the Statute includes “only […] individuals of all ranks belonging to the armed forces under the military command of either of the belligerent parties, or to individuals who were legitimately mandated and expected, as public officials or agents or persons otherwise holding public authority or de facto representing the Government, to support or fulfil the war efforts”. The Trial Chamber, held that this approach would allow application of … in a fashion which “corresponds best with the underlying protective purpose of the Conventions and the Protocols”.[798]

433. The issue here is whether this interpretation is consistent with the provisions of the Statute in particular and international humanitarian law in general. To that end, it is necessary, firstly, to review the relevant provisions of the Statute as interpreted by the case-law of the Tribunals and, secondly, the object and purpose of Common Article 3 to the Geneva Conventions.[799]

434. The Appeals Chamber shall firstly recall the provisions of Article 4 of the Statute:

435. Article 4 makes no mention of a possible delimitation of classes of persons likely to be prosecuted under this provision. It provides only that the Tribunal “shall have the power to prosecute persons committing or ordering to be committed” in particular, serious violations of Article 3 common to the Geneva Conventions. A reading of Article 4 together with Articles 1 and 5 of the Statute respectively relating to the Tribunal’s overall competence and personal jurisdiction, sheds no further light on the class of persons likely to be prosecuted under these articles, in particular under, Article 4. Indeed, the said Articles read as follows:

436. Thus, there is no explicit provision in the Statute that individual criminal responsibility is restricted to a particular class of individuals. In actuality, articles of the Statute on individual criminal responsibility simply reflect the principle of individual criminal responsibility as articulated by the Nuremberg Tribunal.[800] An analysis of the provisions of the Statute is therefore not conclusive. As a result, the Appeals Chamber must turn to the article which serves as a basis for Article 4, to wit, Article 3 Common to the Geneva Conventions, which provides that:

437. It must be noted that Article 3 common to the Geneva Conventions does not identify clearly the persons covered by its provisions[801] nor does it contain any explicit reference to the perpetrator’s criminal liability for violation of its provisions. The chapeau of Common Article 3 only provides that “each party to the conflict shall be bound to apply, as a minimum, the following provisions”. The primary object of this provision is to highlight the “unconditional”[802] character of the duty imposed on each party to afford minimum protection to persons covered under Common Article 3. In the opinion of the Appeals Chamber, it does not follow that the perpetrator of a violation of Article 3 must of necessity have a specific link with one of the above-mentioned Parties.

438. Despite this absence of explicit reference in the common Article 3,[803] ICTY Appeals Chamber nevertheless held that authors of violation of provisions of this article incur individual criminal responsibility.[804] Furthermore, it developed a certain number of other tests for the application of article 3 which the Appeals Chamber can summarize here as follows:

439. Although ICTY Appeals Chamber has, on several occasions, addressed the issue of the interpretation of common Article 3, it should be noted that it has never found it necessary to circumscribe the category of persons who may be prosecuted under Article 3. Therefore, no clarification has to date been provided on this point in the jurisprudence of the Tribunals, except for recent holdings by an ICTY Trial Chamber. The latter indeed found that “common Article 3 may also require some relationship to exist between a perpetrator and a party to the conflict.”[808] However, the Appeals Chamber observes that this holding finds no support either in statute or in case law. In any case, the Kunarac Trial Chamber has not found it necessary to elaborate on this point in light of the circumstances of the case.[809]

440. In this context, the Appeals Chamber deems it appropriate to analyze the object and purpose of common Article 3 in particular, and of the Geneva Conventions, in general, which object and purpose, in its view, are determinative in the interpretation of Article 4 of the Statute.[810]

441. ICRC commentaries outline the principles underlying the adoption of common Article 3:

442. Thus, common Article 3 seeks to extend to non international armed conflicts, the protection contained in the provisions which apply to international armed conflicts. Its object and purpose is to broaden the application of the international humanitarian law by defining what constitutes minimum humane treatment and the rules applicable under all circumstances. Indeed, “[i]n the words of ICRC, the purpose of common Article 3 [is] to ensure respect for the few essential rules of humanity which all civilized nations consider as valid everywhere and under all circumstances and as being above and outside war itself. These rules may thus be considered as the quintessence of humanitarian rules found in the Geneva Conventions as a whole”.[812] Protection of victims is therefore the core notion of common Article 3.

443. The Appeals Chamber is of the view that the minimum protection provided for victims under common Article 3 implies necessarily effective punishment on persons who violate it. Now, such punishment must be applicable to everyone without discrimination, as required by the principles governing individual criminal responsibility as laid down by the Nuremberg Tribunal in particular. The Appeals Chamber is therefore of the opinion that international humanitarian law would be lessened and called into question if it were to be admitted that certain persons be exonerated from individual criminal responsibility for a violation of common Article 3 under the pretext that they did not belong to a specific category.

444. In paragraph 630 of the Judgment, the Trial Chamber found that the four Conventions “were adopted primarily to protect the victims as well as potential victims of armed conflicts”. It went on to hold that “[t]he category of persons to be held accountable in this respect then, would in most cases be limited to commanders, combatants and other members of the armed forces”. Such a finding is prima facie not without reason. In actuality authors of violations of common Article 3 will likely fall into one of these categories. This stems from the fact that common Article 3 requires a close nexus between violations and the armed conflict. This nexus between violations and the armed conflict implies that, in most cases, the perpetrator of the crime will probably have a special relationship with one party to the conflict. However, such a special relationship is not a condition precedent to the application of common Article 3 and, hence of Article 4 of the Statute. In the opinion of the Appeals Chamber, the Trial Chamber erred in requiring that a special relationship should be a separate condition for triggering criminal responsibility for a violation of Article 4 of the Statute.

445. Accordingly, the Appeals Chamber finds that the Trial Chamber erred on a point of law in restricting the application of common Article 3 to a certain category of persons, as defined by the Trial Chamber.

446. For the foregoing reasons, the Appeals Chamber entertains this ground of appeal and finds further that it is therefore not necessary to pass on the Prosecution’s alternative ground of appeal.

B. Third Ground of Appeal: Article 3 of the Statute (crimes against humanity)

447. The Prosecution alleges that in holding in paragraph 590 of the Judgment that “[t]he victim must have been murdered because he was discriminated against on national, ethnic, racial, political or religious grounds”, the Trial Chamber committed an error of law in finding that the discriminatory intent was an essential element for one of the crimes enumerated under Article 3 of the Statute to constitute a crime against humanity. The Prosecution submits that the Trial Chamber’s reasoning on this point is contradictory and inconsistent, and that it appears to have specifically found that a discriminatory intent is required in respect of one of the crimes enumerated under Article 3 of the Statute.[813] Although this ground of appeal refers explicitly to a finding in relation to murder, the Prosecution submits that the Trial Chamber committed the same error in its reasoning in relation to rape.[814]

448. The Prosecution submits that the holding in paragraph 590 of the Trial Chamber’s Judgment is inconsistent with the plain language of the Statute and international customary law,[815] and is inconsistent with the humanitarian object and purpose of the Statute and international humanitarian law in general.[816] In the Prosecution’s submission, the requirements of Article 3 are “ very different from the requirement that each enumerated crime be committed by a perpetrator who discriminates against a particular victim on any of the specific grounds”.[817] It submits that the motive of the perpetrator is irrelevant.[818] What is required on the other hand is that the enumerated act “be committed by a perpetrator who knew that his act contributed to, or was part of, a widespread or systematic attack against a civilian population on discriminatory grounds”.[819] The Prosecution submits that any other interpretation would mean that perpetrators of crime against humanity could evade conviction by invoking other motives in defence of their conduct. It argues that this would create significant lacunae by failing to protect victims who are killed on non-discriminatory grounds by perpetrators who, nonetheless, fully realize that their acts are connected to, or part of, a widespread or systematic attack against a civilian population on discriminatory grounds.[820]

449. In the Prosecution’s submission, while the requirement of discriminatory grounds in the chapeau to Article 3 is a jurisdictional limitation upon the Tribunal, it does not transform such grounds into a substantive element of the mens rea of the crimes in question.[821] However, it is the Prosecution’s submission that even if the discriminatory grounds requirement were a substantive element of the mens rea of the crimes, the provisions of the Statute should still be interpreted as stated above.[822] In the Prosecution’s submission, the wording of Article 3 leads to the conclusion that the commission of an enumerated crime does not have to be on discriminatory grounds. If such an element were required, then the requirement in Article 3(h) that persecutions be on “political, racial and religious grounds” would be redundant.[823]

450. The Prosecution submits that the Security Council intended to deviate from customary international law in drafting Article 3 of ICTR Statute by requiring that the widespread or systematic attack against the civilian population be on discriminatory grounds.[824] It argues that no authority, however, is referred to by the Trial Chamber in support of the proposition that the Security Council, in doing so, intended to deviate from customary international law to the extent of requiring that each enumerated crime under Article 3 be committed on discriminatory grounds.[825] The Trial Chamber departed from customary international law, and the clear wording of the Statute by equating the requirement of “discriminatory grounds” in Article 3 with one of “discriminatory intent”, whereas the former relate to objective knowledge while the latter relates to subjective motives.[826]

451. As a remedy, the Prosecution moves that the Appeals Chamber set aside the finding in paragraph 590 of the Judgment and hold that the discriminatory grounds required in the chapeau of Article 3 of the Statute relate to the widespread or systematic attack against any civilian population.[827]

452. In response Akayesu submits that, in accordance with the basic rules of interpretation, Article 3 must be construed strictly.[828] He further submits that the Prosecution in its submissions moves from an interpretative approach to a “legislative”[829] approach, in suggesting that the terms in issue be struck out from the chapeau of the article. He avers that the Prosecutor must live with the Statute and its limitations and observes that in the article in question, the Security Council departed from customary international law.[830] Akayesu refers to the Statute of Rome as reflective of the state of international opinion.[831] He complains that he is invited “to participate in an academic debate, a theoretical debate which doesn’t concern him but concerns other accused persons”. He submits that “he doesn’t have to subscribe to the interpretation suggested by the Prosecutor, [neither] does he have to challenge it”.[832] He submits further that the findings made on the issue were obiter dicta and that a decision of the Appeals Chamber to set aside will not have any effect on the verdict.[833]

453. The Trial Chamber found that the category of crimes enumerated in Article 3 of the Statute may be broadly broken down into four essential elements, including the requirement that “the act must be committed on one or more discriminatory grounds, namely national, political, ethnic, racial or religious grounds”.[834]

454. The Prosecution submits that if the “ intention” referred to is defined as including the conscious desire of the perpetrator that his crime further the attack on the group discriminated against, or knowledge or foresight that such a result is the likely consequence of his actions, then this holding is correct[836]. However, the Prosecution submits that it contradicts other findings by the Trial Chamber concerning murder and rape.

455. In its findings relating to murder as crime against humanity, the Trial Chamber held inter alia that:

456. Similarly, regarding rape as crime against humanity, the Trial Chamber found inter alia that:

457. On the other hand, with respect to extermination and torture as crimes against humanity, the Trial Chamber found that it is the attack which “must be on discriminatory grounds namely national, ethnic, political, racial, or religious grounds”.[839]

458. The Appeals Chamber finds there appears to be prima facie a contradiction in the reasoning and the findings of the Trial Chamber. Indeed, although it appears to have found, on the one hand, that for murder and rape to constitute crimes against humanity their perpetrators must have the discriminatory intent to commit such crimes against the victim, and, on the other hand, that where extermination and torture are concerned, the attack must be on discriminatory grounds.

459. The issue before the Appeals Chamber is to determine whether this ingredient of crimes against humanity within the jurisdiction of the Tribunal, as referred to in the chapeau of Article 3 of the Statute, requires the perpetrator to have knowledge that his act is part of a widespread or systematic attack against a civilian population on discriminatory grounds, or is in furtherance of the attach, or whether this ingredient requires that the perpetrator of each crime enumerated in the article must have the discriminatory intent to commit the said crime against his victim in particular, on one of the enumerated grounds.

460. The Appeals Chamber will first recall the provisions of Article 3 of the Statute.

461. ICTY Appeals Chamber has had occasion to consider the issue of discriminatory intent within the context of crimes against humanity, as defined in Article 5 of the Statute of ICTY. In the Tadic Appeal Judgment, the Appeals Chamber found that:

462. This Appeals Chamber is, however, of the view that this jurisprudence as well as the interpretation of Article 5 of ICTY Statute are of limited relevance in the instant case and to the Appeals Chamber’s consideration of Article 3 of the Statute especially as both provisions are substantially different. Indeed, Article 5 of ICTY Statute does not include the same requirement in its chapeau namely that crimes against humanity may be prosecuted “when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds”[841]. However, it does not follow automatically that the “addition” to Article 3 of ICTR Statute allows a reading contrary to that contained in Tadic and that, consequently, Article 3 required that the perpetrator (s) of any crimes against humanity must have a discriminatory intent.

463. Therefore, the Appeals Chamber must pass on how the lawmaker (to wit, the Security Council) intended Article 3 of the Statute to be understood and, in particular, it must determine whether there exists a difference between Article 3 and Article 5 of ICTY Statute such that the Appeals Chamber must depart from the interpretation of crimes against humanity contained in Tadic.

464. In the opinion of the Appeals Chamber, except in the case of persecution, a discriminatory intent is not required by international humanitarian law as a legal ingredient for all crimes against humanity[842]. To that extent, the Appeals Chamber endorses the general conclusion and review contained in Tadic, as discussed above.[843] However, though such is not a requirement for the crime per se, all crimes against humanity, may, in actuality, be committed in the context of a discriminatory attack against a civilian population. As held in Tadic: “[i]t is true that in most cases, crimes against humanity are waged against civilian populations which have been specifically targeted for national, political, ethnic, racial or religious reasons”.[844] It is within this context, and in light of the nature of the events in Rwanda (where a civilian population was actually the target of a discriminatory attack), that the Security Council decided to limit the jurisdiction of the Tribunal over crimes against humanity solely to cases where they were committed on discriminatory grounds. This is to say that the Security Council intended thereby that the Tribunal should not prosecute perpetrators of other possible crimes against humanity.

465. The Appeals Chamber found that in doing so, the Security Council did not depart from international humanitarian law[845] nor did it change the legal ingredients required under international humanitarian law with respect to crimes against humanity. It limited at the very most the jurisdiction of the Tribunal to a sub-group of such crimes, which in actuality may be committed in a particular situation. By the same token, the Appeals Chamber notes that ICTY Statute contains in its Article 5 explicitly an express requirement for a nexus with an armed conflict. As held in Tadic, this “creates a narrower sphere of operation than that provided for crimes against humanity under customary international law”.[846] Here again, by limiting the scope of the article, the Security Council did not, however, intend that the definition contained in ICTY Statute should constitute a departure from customary international law. In the case at bench, the Tribunal was conferred jurisdiction over crimes against humanity (as they are known in customary international law), but solely “when committed as part of a widespread or systematic attack against any civilian population” on certain discriminatory grounds; the crime in question is the one that falls within such a scope. Indeed, this narrows the scope of the jurisdiction, which introduces no additional element in the legal ingredients of the crime as these are known in customary international law.

466. Consequently, apart from this restriction of jurisdiction, such crimes continue to be governed in the usual manner by customary international law, namely that discrimination is not a requirement for the various crimes against humanity, except where persecution is concerned.

467. The meaning to be collected from Article 3 of the Statute is that even if the accused did not have a discriminatory intent when he committed the act charged against a particular victim, he nevertheless knew that his act could further a discriminatory attack against a civilian population; the attack could even be perpetrated by other persons and the accused could even object to it. As a result, where it is shown that the accused had knowledge of such objective nexus, the Prosecutor is under no obligation to go forward with a showing that the crime charged was committed against a particular victim with a discriminatory intent. In this connection, the only known exception in customary international law relates to cases of persecutions.

468. In light of this interpretation and the finding that persecution is the only crime which requires a discriminatory intent, the Appeals Chamber is of the view that any interpretation of the chapeau of Article 3 of the Statute such as would add a requirement for a showing of a discriminatory intent with respect to all crimes against humanity would likely render redundant the express if more succinct reference to discrimination – contained in Article 3 of the Statute (Persecutions), which reference is understood as a requirement of a discriminatory intent.[847] As is known, one of the basic rules of interpretation requires that a provision or part thereof should not be interpreted in a manner to render it redundant or bereft of any object, unless such a conclusion is inevitable. One must proceed from the assumption that the lawmakers intended to give some effect to each of the words used.

469. For the foregoing reasons, the Appeals Chamber considers the present ground of appeal and finds that:

470. In the Fourth Ground of Appeal, the Prosecution submits that the Trial Chamber erred in law in finding that instigation under Article 6(1) of the Statute must be direct and public.[848] It is the Prosecution’s submission that instigation has a broader ambit than direct and public incitement and specifically, that it is not limited by any direct and public requirement[849].

471. Relying on the canons of interpretation laid down in the 1969 Vienna Convention on the Law of Treaties, the Prosecution submits that “the forms of criminal participation set out in Article 6(1) should be given their ordinary and natural meaning in light of the object [of] purpose of the Statute [and] instigation its ordinary meaning [which] does not require […] a public and direct element”[850]. The Prosecution argues that if the requirement set forth by the Trial Chamber is introduced, a person who instigates the commission of an offence falling within the jurisdiction of the Tribunal could be held criminally responsible only if the instigation happened to have been made in a “public place” so legally defined[851]. It submits that for criminal responsibility to attach, it is immaterial whether the act of instigation is committed in a bus or public park, or in a private motor vehicle or a private garden, the moral responsibility of the instigator is the same. In both cases, individual criminal responsibility attaches under Article 6(1) of the Statute.[852] The Prosecutor further submits that to hold that incitement always has to be public and direct may render otiose the specific reference to “direct and public incitement to commit genocide” as stipulated under Article 2(3)(c) of the Statue.[853]

472. As a remedy, the Prosecution moves the Appeals Chamber to set aside the holding of the Trial Chamber.[854]

473. Akayesu submits that if the Appeals Chamber were to entertain this ground of appeal, that will not alter the verdict rendered by the Trial Chamber in any way and that, for that reason the Appeals Chamber need not even consider this ground of appeal.[855] Consequently, Akayesu submits that should the Chamber decide to hear this ground of appeal, it would also have to authorize Counsel for the other accused concerned to be joined to the proceedings.[856] Furthermore, Akayesu poses the question as to whether the issue raised warrants an intervention by the Appeals Chamber, and cites, in this respect, the Prosecution’s reference to ILC Commentary on the Draft Code of Crimes.[857] Akayesu therefore submits that it is not necessary to entertain the Prosecution’s appeal in order to make this cosmetic clarification.[858]

474. The Trial Chamber reviewed Article 6 of the Statute (individual criminal responsibility) and found, inter alia, as follows:

475. The Prosecution submits that this interpretation of Article 6(1) is erroneous, leading the Trial Chamber to require that “instigation” must be direct and public. Relying on a comparison of Article 6(1) of the Statute (instigated) with Article 2(3)(c) of the Statute ([…] incitement to commit genocide), the Trial Chamber found that “some people” contend [instigation must include direct and public elements] adding that “it also accepts this interpretation”.[860] In this holding, the Trial Chamber refers to the opinion of certain experts (“some people”), by citing Morris and Scharf in a footnote.

476. First and foremost, the Appeals Chamber considered the analysis made by Morris and Scharf in their book. In the opinion of the Appeals Chamber, it could be said that in fact Morris and Scharf only provided a general comparison of the approach followed by the Draft Code of Crimes (and commentaries included therein) with the approach contained in the Statute, with respect to individual criminal responsibility regarding incitement to commit crimes.[861] It is not clear that these authors reached specifically the alleged finding.[862] Regarding the Trial Chamber’s review, its finding is based on a broad comparison of provisions of international instruments, which use the “public character” test and refer to it in the same context.[863] The issue here is whether the Trial Chamber erred in its review and, in particular, whether it erred in finding that the term “instigated” in Article 6(1) of the Statute is necessarily to be construed as direct and public incitement.

477. Article 6(1) of the Statute both texts of which are authoritative, provides that:

478. There is a glaring disparity between the English text and the French text: indeed, the English word “instigated” is translated into French as “incit�”. That said, the Appeals Chamber is of the opinion that linguistically the two terms are synonymous. The Appeals Chamber points out in particular that neither text contains any suggestion or recommendation that incitement must be direct and public. Consequently, by interpreting this provision “in accordance with [its] ordinary meaning”,[865] the Appeals Chamber holds that, although instigation may, in certain circumstances, be direct and public, this does not, however, constitute a requirement. Nothing in Article 6 (1) suggests that there is such a requirement. The Appeals Chamber concurs with the Prosecution’s argument that “[…][ i]f the drafters of the Statute had wished to similarly confine ‘instigation’ to situations where it was ‘public and direct’, it would be reasonable to expect that they would have specifically required it”.[866] It goes without saying that “[a] special meaning shall be given to a term if it is established that the parties so intended”.[867] Such an intent has not been established.

479. Furthermore, the Appeals Chamber is of the view that this interpretation is supported by Article 2(3)(c) of the Statute, where the Security Council specifically chose the same wording as that of the corresponding provision of the Convention on Genocide.[868] Article 2(3)(c) reads:

480. With respect specifically to incitement to commit the crime of genocide, the Statute makes clear that the act must be direct and public, which plainly excludes any other form of incitement to commit genocide, including private incitement to commit genocide. Such additional element is not included in the text of Article 6(1) of the Statute. The Appeals Chamber is of the opinion that if such a requirement were to be included also in Article 6(1) of the Statute, then the specification contained in Article 2(3)(c) of the Statute would be superfluous.[870]

481. In this connection, it would be erroneous to superimpose this wording on the (discrete) wording of Article 6(1) of the Statute, so as to import into the latter language to the effect that Article 2(3)(c) of the Statute provides explicitly that incitement to commit genocide must be public. As stated above, this would run counter to the well-established rules of interpretation under, which, in general, disparities in meaning are seen as tantamount to disparities in language.

482. Consequently, the Appeals Chamber finds that there is no cause to hold that the Security Council intended Article 6(1) of the Statute to include an additional element (absent from the explicit language of the provision), which would require an interpretation inconsistent with its plain and ordinary meaning.

483. For the foregoing reasons, having considered this ground of appeal the Appeals Chamber finds that “incitement”, as set out in Article 6(1) of the Statute, need not be “direct and public”.

[777] The Indictment charged Akayesu with five counts under Article 4 of the Statute as follows: Count 6 (murder) under Article 4(a) of the Statute; Count 8 (murder) under Article 4(a) of the Statute; Count 10 (murder) under Article 4(a) of the Statute; Count 12 (cruel treatment) under Article 4(a) of the Statute; Count 15 (Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault) under Article 4(e) of the Statute. Akayesu was found not guilty on each of these counts, the Trial Chamber having found that it had not been proved beyond reasonable doubt that the acts perpetrated at the time of the events, were committed in conjunction with the armed conflict, and that it had not been proved beyond reasonable doubt that Akayesu was a member of the armed forces, or that he was legitimately mandated and expected, as a public official or agent or person otherwise holding public authority or de facto representing the Government, to support or fulfil the war efforts. Cf. Trial Judgment, para. 643.

[779] The second ground concerns the application of the test to the facts of the case. The Prosecution intends to raise the issue of the application of the law and not of errors committed by the Trial Chamber. It submits that “[t]he application of the [test] …to Bourgmetstres in Rwanda is of general importance to the jurisprudence of the Tribunal as a number of other accused before the Tribunal were Bourgmestres at the time of the crimes with which they are charged. It is respectfully submitted that the Appeals Chamber therefore has the inherent power to clarify the application of the Public Agent or Government Representative Test if the test is applicable under the law of the Statute”. Cf. Prosecution’s Brief, para. 1.19.

[780] Ibid, paras. 2.42 to 3.23 respectively; T(A), 1 November 2000, pp. 210 to 212.

[781] Ibid, para. 2.3; Ibid, paras 2.39 to 2.41.

[782] Prosecution’s Brief, paras. 2.7 to 3.13. The Prosecution submits that it is clear from the formulation of the Statute and the intention of the Security Council, as set out in its Resolution 955, that any person who meets the conditions provided for in Articles 1, 4, 5, 6 and 7 of the Statute (none of which includes the test in question) may be prosecuted for the violations stipulated in Article 4 of the Statute. The import of the test is therefore contrary to the object and purpose of the Statute.

[784] Ibid, paras. 2.28 to 2.36; T(A), 1 November 2000, pp. 206 to 208.

[785] Ibid, paras. 2.17 to 2.27, 2.37 and 2.38.

[786] Ibid, paras. 2.4, 2.14 to 2.16; T(A), 1 November 2000, pp. 230 to 231. The citation is from the Trial Judgment, para. 630. The Prosecution submits that contrary to the Trial Chamber’s holdings, the object and purpose of the Geneva Conventions “require that anyone who commits serious violations of Common Article 3 or Additional Protocol II, be held individually responsible for the crimes if those crimes are related to the armed conflict”. Prosecution’s Brief, para. 2.16.

[791]Akayesu’s Reply, paras. 8(a) and 17 to 24.

[792] Akayesu’s Response, para. 8(a); T(A), 2 November 2000, pp. 10 to 13.

[793] T(A), 2 November 2000, pp. 10 to 13. Akayesu also submits that insofar as the Prosecution renounced its ground of appeal relating to the Chamber’s main finding on this issue (the Trial Chamber erred in not taking into account the totality of evidence presented at trial, which showed that the acts perpetrated by Akayesu were committed in conjunction with the armed conflict in Rwanda in 1994), this ground of appeal has no legal basis. Cf. Akayesu’s Response, para. 25. This ground of appeal was renounced in the Prosecution’s Brief, para. 1.13. The Prosecution submits that “if the Prosecution was to be successful on this ground of appeal the likely outcome would be that the matter would have to be remitted to the Trial Chamber. For reasons of judicial economy, the Prosecution – without prejudice to any position the Prosecution may take if the case for other reasons should be remitted to the Trial Chamber – does not wish a re-opening of the case solely on this matter”.

[794] Trial Judgment, paras. 630 and 631 (emphasis added).

[799] Article 31(1) of the Vienna Convention on the Law of Treaties (1969) provides that: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.

[800] Cf. The Trial of the Major War Criminals: Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part. 22, p. 447.

[801] Celebici Appeal Judgment, para. 153 [referring to the Tadic Appeal Judgment (objection to jurisdiction), para. 128].

[803] Tadic (jurisdiction Decision), para. 128; Celebici Appeal Judgment, para. 153.

[804] Tadic, (jurisdiction Decision), para. 128; Celebici Appeal Judgment, para. 153; The Appeals Chamber further recalled the terms used by the Secretary-General of the United Nations during adoption of the Statute: “Article 4 of the Statute […] for the first time criminalizes common Article 3 of the Geneva Conventions (see Report of the Secretary-General of the United Nations, (Security Council resolution 955) on the establishment of an international tribunal for the [sole] purpose of prosecuting persons responsible for genocide and other serious violations of international humanitarian law.

[805] In Tadic (jurisdiction Decision), ICTY Appeals Chamber indeed demonstrated, with reference to the Nicaragua case (para. 128) that “States specified certain minimum mandatory rules applicable to internal armed conflicts in common Article 3 of the Geneva Conventions of 1949” and that “[…] at least with respect to the minimum rules in common Article 3, the character of the conflict is irrelevant” (para. 102). ICTY Appeals Chamber recently confirmed this interpretation in the Celebici case: “It is both legally and morally untenable that the rules contained in common Article 3, which constitute mandatory minimum rules applicable to internal conflicts, in which rules are less developed than in respect of international conflicts, would not be applicable to conflicts of an international character. The rules of common Article 3 are encompassed and further developed in the body of rules applicable to international conflicts. It is logical that this minimum be applicable to international conflicts as the substance of these core rules is identical. In the Appeals Chamber’s view, something which is prohibited in internal conflicts is necessarily outlawed in an international conflict where the scope of the rules is broader. The Appeals Chamber is thus not convinced by the arguments raised by the appellants and finds no cogent reasons to depart from its previous conclusions”. Cf. Celebici Appeal Judgment, para. 150.

[806] On this point, ICTY Appeals Chamber recently recalled that “Common Article 3 of the Geneva Conventions is intended to provide minimum guarantees of protection to persons who are in the middle of an armed conflict but are not taking any active part in the hostilities. Its coverage extends to any individual not taking part in hostilities and is therefore broader than that envisioned by Geneva Convention IV incorporated into Article 2 of the Statute”. Cf. Celebici Appeal Judgment, para. 420.

[807] ICTY Appeals Chamber noted that “[I]t is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict”. Cf. Tadic Appeal Judgment (objection to jurisdiction), para. 70. In the instant case, the issue is not raised before the Appeals Chamber, nor is the interpretation of this requirement given by the Trial Chamber in the Judgment.

[810] See Article 31(1) of the Vienna Convention on the Law of Treaties. (supra)

[816] Prosecution’s Brief, paras. 4.16 to 4.25. The Prosecution submits that “one of the prime objectives of international humanitarian law is the protection of the weak and the vulnerable in such situations where their lives and security are in danger and also the primary purpose of the establishment of both Tribunals is not to leave unpunished any person guilty of a serious violation of international humanitarian law”, T(A), 1 November 2000, para. 222.

[817] Prosecution’s Brief, para. 4.9. The Prosecution submits that the provisions of Article 3 “are clear and unambiguous. There are four main requirements: a specified crime listed in Article 3 must be committed; these crimes must have been committed as part of a widespread or systematic attack; the attack must be against a civilian population, and the attack must be on national, political, ethnic, racial or religious grounds”. See also T(A), 1 November 2000, pp. 218 to 220.

[819] Prosecution’s Brief, para. 4.3 The Prosecution submits that “an enumerated crime may be committed without a discriminatory intent against the victim provided that the accused knows that his acts fit into the widespread or systematic attack against the civilian population on discriminatory grounds”. Prosecution’s Brief, para. 4.10; T(A), 1 November 2000, pp. 219 to 220.

[823] Prosecution’s Brief, para. 4.14; T(A), 1 November 2000, p. 220. In the Prosecution’s Response (para.5.3) it is also mentioned that Article 7 of the Rome Statute requires a discriminatory intent only in relation to the crime of persecution.

[825] Prosecution’s Brief, paras. 4.26 to 4.33.

[826] Prosecution’s Brief, para. 4.32. The Prosecution cites several cases which, it submits, support the proposition that the crimes enumerated in Article 3 may be committed without a discriminatory intent (paras. 4.33 to 4.38).

[827] Prosecution’s Brief, paras. 4.47 to 4.48.

[828] Akayesu’s Response, paras. 37 and 38.

[829] Akayesu’s Response, paras. 37 and 38.

[835] Trial Judgment, paras. 583 and 584 (footnotes omitted).

[836] Prosecution’s Brief, paras. 4.40 and 4.41.

[839] Trial Judgment, para. 592 (concerning extermination). Para. 595 reflects, in similar terms, the Trial Chamber’s interpretation of the ingredients of torture.

[841] Article 5 of ICTY Statute reads as follows “The Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and religious grounds; and (i) other inhumane acts”.

[843] Ibid, para. 287 et seq. Following its review in para. 292, the Appeals Chamber found that “[t]his warrants the conclusion that customary international law, as it results from the gradual development of international instruments and national case-law into general rules, does not presuppose a discriminatory or persecutory intent for all crimes against humanity”. In Tadic, ICTY Appeals Chamber relied, in particular, on the interpretation of the London Agreement of 8 August 1945, the Statute of the International Tribunal for Tokyo, Council Control Law No. 10, the Draft Code of crimes against the peace and security of mankind and the Statute of Rome.

[845] In this connection, the Appeals Chamber recalls the finding in Tadic (para. 296): “it is open to the Security Council – subject to respect for peremptory norms of international law (jus cogens) – to adopt definitions of crimes in the Statute which deviate from customary international law [footnotes omitted]. Nevertheless, as a general principle, provisions of the Statute defining the crimes within the jurisdiction of the Tribunal should always be interpreted as reflecting customary international law, unless an intention to depart from customary international law is expressed in the terms of the Statute, or from other authoritative sources”.

[847] The chapeau refers to discrimination on “national, political, ethnic, racial or religious” grounds while Article 3(h) of the Statute envisages cases of “persecutions on political, racial and religious grounds”.

[848] Prosecution’s Brief, para. 5.1. The Prosecution observes that while Akayesu was found guilty of instigating various acts, no acquittal was entered on the basis of any alleged instigation not being direct and public. Prosecution’s Brief, 5.2

[849] Prosecution’s Brief, para. 5.9. The Prosecution recalls that the Trial Chamber relies on an observation made in The International Criminal Tribunal for Rwanda [of V. Morris and M. P. Scharf (hereinafter “Morris and Scharf”), Transnational Publishers Inc. 1998, Vol. P.239] and on a comparison between Article 6(1) of the Statute and Article 2(3)(b) of the Draft Code of crimes against the Peace and Security of Mankind of 1996 (hereinafter “the Code of Crimes”). The Prosecution alleges that whilst it is true that Morris and Scharf state that “instigation under Article 6(1) corresponds to Article 2(3)(f) of the Draft Code […] it may be argued that …[they]…simply meant that public and direct incitement falls within the concept of, and has some similarities to, instigation, but not, necessarily, that the latter is confined and limited to the former”. Prosecution’s Brief, para. 5.9. The Prosecution submits that reliance upon the Draft Code as a subsidiary guide to interpretation cannot supplant the plain meaning of the Statute. Prosecution’s Brief, para. 5.12.

[850] Prosecution’s Brief, para. 5.17, T(A), 1 November 2000, p. 235.

[852] Prosecution’s Brief, para. 5.21. The Prosecution submits that the “public and direct” requirement would be “unwarranted and would frustrate the intention of the drafters of the Statute by restricting those who could be held criminally responsible and […] deserving of penal sanction”. Prosecution’s Brief, para. 5.26.

[853] Prosecution’s Brief, para. 5.27. Lastly, the Prosecutor submits that “[a]s long as a person knowingly instigates the commission of an offence (wishing it to be carried out or foreseeing that this is a likely consequence of his actions) and his participation directly and substantially affected the commission of that offence, he will be liable under Article 6(1).” Prosecution’s Brief, para. 5.31.

[857] Akayesu’s Response, para. 46. Akayesu submits that if the Prosecution wanted to institute proceedings against inciters or instigators who acted privately, it could prepare their indictment taking into account the above remark.

[859] Trial Judgment, para. 481 (footnotes omitted).

[861] In pp. 238 and 239 of their book, Morris and Scharf write that “the Security Council condemned the breaches of international humanitarian law in Rwanda and recalled the principle of individual criminal responsibility for the instigation of such acts. This element of Article 6(1) corresponds to Article 2(3)(f) of the Draft Code which is explained in the commentary (by ILC) as follows” (footnote omitted).

[862] The Appeals Chamber holds in particular that nothing in the text suggests that Morris and Scharf considered in particular the fact that Article 6(1) of the Statute does not include the term “public”.

[863] The Trial Chamber referred to Article 2(3)(f) of the Draft Code of Crimes ( as cited by Morris and Scharf) and Article 2(3)(c) of the Statute, Trial Judgment para. 481.

[865] Article 31(1) of the Vienna Convention on the Law of Treaties.

[867] Article 31(4) of the Vienna Convention on the Law of Treaties.

[868] Article III of the Convention on the Prevention and Punishment of the Crime of Genocide: The Following acts shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide.

[869]Article 2(3)(c) of the Statute (emphasis added). One may also cite Article 2(3)(f) of ILC Report which provides that “[a]n individual shall be responsible for a crime set out in articles 17, 18, 19 or 20 if that individual: […] (f) directly and publicly incites another individual to commit such a crime which in fact occurs” .(p.18)