Current Developments at the Ad Hoc International Criminal Tribunals

Extract

1. Substantive Developments

A. Crimes

1. Genocide

(a) Actus reus

(i) Committing genocide

The Trial Chamber¹ in Karera² found that through his presence and participation by shooting during the attack at Ntarama Church, the accused was guilty of committing genocide. It followed the holding of the Appeals Chamber in Gacumbitsi that presence, supervision and separation of ethnic groups during an attack constituted committing genocide.³

(ii) No requirement for a plan or policy element for the actus reus of genocide

The Appeals Chamber⁴ in Simba affirmed that the existence of an agreement or a plan is not an element required for a conviction for genocide.⁵

(b) Mens rea

In Simba the Appeals Chamber rejected the appellant's argument that the intent to commit genocide must be formed prior to the commission of genocidal acts. It held that the inquiry is not whether the specific intent was formed prior to the commission of the acts, but whether at the moment of commission the perpetrators possessed the necessary intent.⁶