Stretching the Boundaries of Commission Liability: The ICTR Appeal Judgment in Seromba

Abstract

In March 2008, the International Criminal Tribunal for Rwanda (ICTR) Appeals Chamber advocated in Seromba the general applicability of an approach, already propounded in previous judgments, which considerably broadens the notion of commission. It held that ‘committing’ is not limited to physical perpetration, thus implying that customary international law recognizes other forms of commission liability, which are distinct from joint criminal enterprise. As a result, the Appeals Chamber reversed the Trial Chamber's decision and held that Father Athanase Seromba's role in the massacre of April 1994 in the Nyange parish was not that of an aider and abetter, but rather of a principal perpetrator. While clearly motivated by the intent to impose an exemplary sentence on Seromba, the Appeals Chamber's reasoning lends itself to a number of objections.