Current Developments at the Ad Hoc International Criminal Tribunals

Extract

1. Substantive Developments

A. Crimes

1. Genocide (Article 2 ICTRSt.)

(a) Mens rea

In Munyakazi, the Appeals Chamber¹ found that the Trial Chamber correctly established Munyakazi’s genocidal intent based on his leadership role and personal participation in attacks which resulted in the killings of thousands of mostly Tutsi civilians in Cyangugu préfecture.² It recalled that an accused’s criminal intent may be inferred from circumstantial evidence including active participation in an attack; the absence of evidence concerning Munyakazi’s personal views about Tutsis did not undermine this conclusion.³

(b) Conspiracy to commit genocide (Article 2(3)(b) ICTRSt.)

The Bizimungu et al. Trial Chamber⁴ held that an agreement to commit indirect or preparatory acts may amount to conspiracy to commit genocide as long as they are intended to further it.⁵ The Trial Chamber relied on the travaux préparatoires of the Genocide Convention which revealed that ‘preparatory acts’ were not expressly included in the Convention because they would necessarily be incorporated in the crime of conspiracy to commit genocide, which ‘includes agreements to undertake acts that precede physical perpetration of genocide but are clearly aimed at it’.⁶