The ICTR’s Troubling Karemera Decision

The ICTR’s Troubling Karemera Decision

According to a little-noticed Office of the Prosecutor press release two weeks ago, the ICTR has held that the occurrence of genocide in Rwanda is a matter of “common knowledge” and will no longer have to be proven at trial:

The Appeals Chamber of the International Criminal Tribunal for Rwanda on 16 June 2006 ruled that the Trial Chambers must take judicial notice of the following facts:

  1. The existence of Twa, Tutsi and Hutu as protected groups falling under the Genocide Convention;
  1. The following state of affairs existed in Rwanda between 6 April 1994 to 17 July 1994: there were throughout Rwanda widespread or systematic attacks against a civilian population based on Tutsi ethnic identification. During the attacks, some Rwandan citizens killed or caused serious bodily or mental harm to person[s] perceived to be Tutsi. As a result of the attacks, there were a large number of deaths of persons of Tutsi ethnic identity;
  1. Between 6 April 1994 and 17 July 1994 there was genocide in Rwanda against Tutsi ethnic group.

This land mark decision was delivered by the Appeals Chamber on Prosecutor’s Appeal on Judicial Notice, dated 16 June 2006, in the trial of Prosecutor v. Karemera, Ngirumpatse and Nzirorera, ICTR-98-44-AR73 (C). The decision will have an immediate impact on the trial proceedings in the Karemera et al case, and will be felt in all of the current and pending trials before the Trial Chambers of the ICTR. Judicial notice of the above matters means that they are to be taken as established beyond any dispute and not requiring any proof.

This is one of the most significant rulings of the Tribunal, given the consequences in terms of putting the occurrence of the genocide beyond legal dispute. It can be recalled that until now the OTP has had to in each case lead evidence and prove the occurrence of the genocide. This will no longer be necessary.

In the view of the OTP the ruling should now silence the ‘rejectionist’ camp which has been disputing the occurrence of genocide. By relieving the OTP of a substantial burden of proof the ruling has the potential to shorten the cases as each will essentially focus on the personal involvement of the accused person in genocide.

I agree that Karemera is a very significant decision by the Tribunal. It is also one of the most disturbing. The ICTR’s own jurisprudence makes clear that the Prosecution does not have to prove that genocide actually occurred in Rwanda in order to convict an individual defendant of genocide. In Akayesu, for example, the Tribunal specifically held that

[c]ontrary to popular belief, the crime of genocide does not imply the actual extermination of a group in its entirety, but is understood as such once any one of the acts mentioned [for example, killing members of the group] is committed with the specific intent [to destroy a group].

The ICTY has taken a similar position. In Jelisic, the Tribunal held that, because the Genocide Convention “did not deem the existence of an organisation or a system serving a genocidal objective as a legal ingredient of the crime,” murders committed by a single perpetrator

are sufficient to establish the material element of the crime of genocide, and it is a priori possible to conceive that the accused harboured the plan to exterminate an entire group without this intent having been supported by any organisation in which other individuals participated.

Given that the Prosecution has never formally had to prove genocide in Rwanda, the only possible purpose of holding that its occurrence is a matter of “common knowledge” is to make it easier for the Prosecution to prove that the defendant acted with the requisite genocidal intent. As Payam Akhavan has noted:

ICTR jurisprudence correctly recognizes the mental element of genocide in the chapeau of Article 2(2) as its distinguishing feature, namely the requirement of a specific intent (dolus specialis) to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. This mental element applies to all material acts of genocide enumerated under Article 2(a)-(e) of the Statute. Since the underlying acts — such as killing or causing serious bodily or mental harm — are not international crimes as such, “[i]t is this specific intent that distinguishes the crime of genocide from the ordinary crime of murder.” Thus, in addition to defining genocide, the requisite mental element also delineates the normative sphere of international criminal law from that of domestic law.

Karemera thus raises a fundamental question: how does proof that genocide generally occurred in Rwanda help prove that a particular defendant possessed the requisite specific intent to commit genocide? The two are analytically distinct: the fact that some individuals in Rwanda committed genocide does not mean that every defendant who committed an allegedly genocidal act did, in fact, act with genocidal intent. Some additional proof of that intent — evidence indicating that the act was not simply an “ordinary crime” — is required.

But it’s not, as least insofar as the ICTR is concerned. Consider the following passage from Akayesu:

intent is a mental factor which is difficult, even impossible, to determine. This is the reason why, in the absence of a confession from the accused, his intent can be inferred from a certain number of presumptions of fact. The Chamber considers that it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of perpetration of other culpable acts systematically directed against the same group, whether these acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act.

Note the highlighted text: Akayesu explicitly says that a defendant’s specific intent can be inferred from the specific intent of others. Consider, for example, a defendant charged with genocide because he killed a Tutsi. At trial, the defendant argues (inter alia) that the killing was an ordinary crime, not an act of genocide. According to Akayesu, the Tribunal can use the proven fact that other defendants acted genocidally — say, killing Tutsis while avoiding killing non-Tutsis — to infer that, contrary to the defendant’s claim, the killing was actually an act of genocide.

This is a troubling outcome, to say the least. And it’s tempting to respond that the Tribunal would never convict a defendant in such a situation unless there was some close connection between him and the genocidaires whose actions the Prosecution is using to “prove” his specific intent. That may or may not be true — but it’s an unacceptable response even if it is, because it simply resurrects the long-discredited concept of “group criminality” used by the IMT and NMT after WWII. The argument then becomes: group X committed genocide (the Interahamwe, for example); the defendant who committed an allegedly genocidal act was a member of group X; the defendant, therefore, must have acted genocidally. Even if we follow the IMT and NMT and limit such group criminality to defendants who knew group X was committing genocide and voluntarily remained a member of the group, we are still violating the principle of individual criminal responsibility that is at the heart of international criminal law; as Antonio Cassese has pointed out, pursuant to that principle, a member of a group “is not criminally liable for acts contrary to law performed by leaders or other members of the group and to which he is extraneous.”

And now, finally, we are in a position to understand why the ICTR’s seemingly innocuous decision that that genocide in Rwanda is “common knowledge” is anything but innocuous: it allows future Trial Chambers to infer a defendant’s genocidal intent not only from the actions of others, but from the actions of others that the prosecution does not even have to prove were genocidal. The commission of an allegedly genocidal act plus alleged membership in a group conclusively presumed to have acted genocidally will now — always — be sufficient to convict.

OTP’s press release claims that Karemera is a “landmark” decision because it can now “focus on the personal involvement of the accused person.” I suspect, however, that the Prosecution’s jubilation actually comes from its recognition that, in fact, precisely the opposite is true.

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Vlad Perju


Very interesting case. I can’t help but notice the potential similarities between your discussion of group criminality accepted by the ICTR and last week’s discussion from Hamdan about whether conspiracy is an accepted crime under international law. See my post and the comments that follow here. Sounds somewhat similar no? Group X committed international crime Y; the defendant who committed an allegedly criminal act was a member of group X; the defendant, therefore, must have acted criminally.

Roger Alford

Marko Milanovic
Marko Milanovic


Conspiracy to commit genocide is already a separate offense under the Genocide Convention, unlike with war crimes. There is also common purpose/JCE responsibility. But anyway, I agree with Kevin that this decision of the ICTR might unacceptably lower the Prosecution’s burden of proving the responsibility of each defendant. We have to wait and see.