ASSIGNMENT

Assignment



ARTICLE 1: THE EFFECTS OF THE RWANDA GENOCIDE

The factors considered include the scale of atrocities, their general nature, and the deliberate and systematic targeting of victims on account of group membership.114 In Rutaganda, the numerous atrocities against Tutsis throughout the Rwandan territory and the fact that the victims were systematically and deliberately chosen for their membership of the Tutsi group were construed as part of an overall context within which all other criminal acts systematically directed against the Tutsis were committed (Afoaku, 2001, 149).

On the other hand, the ICJ applies the inference theory in a more limited manner, requiring stringent proof. In Corfu Channel, it recognized the admissibility of circumstantial and indirect evidence from which inferences may be drawn. However, it set a high standard - no room for reasonable doubt.116 In the Bosnia-Herzegovina Genocide Case, it reiterated that intent must be convincingly correlated with particular circumstances unless a general plan can be convincingly shown. It then refused to infer intent because genocide was not the only possible purpose of the consistent destructive and inhuman camp practices throughout Bosnia-Herzegovina. Whereas the inference approach is supposed to facilitate evidence of an otherwise undiscoverable mental state, the ICJ made it just as difficult as finding intent per se (Afoaku, 2001, 149).

Forms of Liability

The ad hoc tribunals agree on the following heads of individual criminal liability:

planning;

instigating;

ordering;

committing;

aiding and abetting; and

Joint criminal exercise.

On the other hand, states may incur responsibility for:

commission;

conspiracy to commit;

direct and public incitement to commit;

attempt to commit; and

Complicity in genocide.

Apart from liability for commission, the two lists reveal parallels: planning and conspiracy, instigating and incitement, ordering and complicity, and aiding and abetting and complicity. As to the relationship among the modes of liability, the ad hoc tribunals subscribe to the principle that an accused cannot be convicted both as principal and accomplice for the same set of facts. On the other hand, the ICJ elucidates that where the acts are attributable to the state, the state will be found responsible for committing genocide, which will absorb acts of conspiracy and incitement. Conversely, a finding of non-attribution does not preclude inquiry into responsibility for conspiracy and incitement. The ICJ also makes it clear that 'complicity' in the sense of directing or effectuating genocidal acts does not exist, since such would graduate into the commission of genocide itself because then the acts would be attributable to the state. It recognized complicity only in the form of providing aid or assistance, although it refrained from answering the question whether complicity by state organs in this sense can be attributed to the state (Charny, 1999, 1).

Evidentiary Effect of Individual Responsibility

To its credit, the ICJ unequivocally ruled that prior individual conviction is not a condition sine qua non for state responsibility. This would address a situation where no proceedings are commenced because the individuals responsible are still in control of the state. Nevertheless, the ICJ relied heavily on the ICTY's ...