By Didas Gasana
Just had the worst legal debate in my life with an evidently Hutu supremacist trying to absolve Jean Kambanda’s government for genocide in 1994.
His legal argument was that because the RPA downed Habyarimana’s plane, which sparked off the genocide (in his own words), then Kagame and RPA should be criminally held liable for the massacres and that the ex-FAR and Interahamwe acted in self defense. He added that some killings were accidental, invoking versari doctrine!
For all intents and purposes, there is no shortage of what to accuse Kagame and RPA of but shifting the criminal liability of the former regime shouldn’t be one of them.
Per his submission, what happened in 1994 is a genocide against the Tutsis but RPA and Kagame are criminally liable for it. I have heard a number of politicians parroting the same argument but to hear this from a lawyer is the worst to expect.
I tried to hammer into his head that the element of fault prescribed for the crime of genocide is dolus specialis and as such qualifies the acts through which genocide is committed: the act must be committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”
In Criminal law, intent can take on one of three forms:
Dolus directus, in which event the wrongful consequences of the act were foreseen and desired by the perpetrator (A desires the death of B and foresees that his act will bring about B’s death: if A in these circumstances commits the act and B dies in consequence of that act, then A will be judged to have acted with direct intent to kill B);
Dolus indirectus, in which event certain (secondary) consequences in addition to those desired by the perpetrator of the act were foreseen by the perpetrator as a certainty, and although the perpetrator did not desire those secondary
consequences he/she nevertheless committed the act and those consequences did set in (A desires the death of B and foresees that if he were to put poison in B’s food, other guests at B’s table will most certainly also die; knowing that C will be joining B for dinner, A nevertheless poisons the food and in so doing causes the death of both B and C; in regard to the death of C, A acted with indirect intent); and:
Dolus eventualis, in which event the perpetrator foresaw
consequences other than those desired as a possibility (not a certainty) and nevertheless went ahead with the act (A desires the death of B and foresees that if he were to shoot B while B is driving his car, other passengers in the car may possibly also be injured or even killed; if A nevertheless goes ahead and shoots B while B is driving the car with C as his passenger, A will be held liable for the injuries, or the death, of C under the rubric of dolus eventualis even though he might not have wished C any harm).
Specific intent as a standard mensrea for the crime of genocide is confined to dolus directus. The “mental element” of crimes within the jurisdiction of the ICC-which apply “unless otherwise provided”- requires that the material elements of the crime must have been committed “with intent and knowledge.” In relation to the consequences of the unlawful act, intent is defined as requiring that “the person means to cause the consequence or is aware that it will occur in the ordinary course of events.” Knowledge, in turn, is only present if “awareness that… a consequence will occur in the ordinary course of events” can be demonstrated. The verb used in these passages, “will occur,” includes dolus directus and dolus indirectus, but not dolus eventualis. However, the special nature of genocide- the mother of all crimes, particularly its component of “intent to destroy,” leaves no scope for liability for the principal act in cases of dolus indirectus. Destruction of the group will always be the primary objective of the principal perpetrator, while dolus indirectus applies to secondary consequences beyond those actually desired by the perpetrator. Dolus indirectus can, however, lead to a conviction in cases of complicity in genocide.
Due to the requirement of special intent, there is also no place for versari in re illicita in the international law prohibition of genocide. What the versari doctrine simply means is that a person committing a wrongful act is responsible for all harmful consequences of the act-those brought about by his/her act as well as those ensuing from the act of someone else-irrespective of his/her fault regarding those other consequences. For example, if A robs a grocery store, and B, the shop owner, fires a shot at the robber, misses, and accidentally hits and kills his own wife, the versari rule provides that the robber can be held criminally liable for the death of B’s wife. The versari rule is frowned upon in legal systems where criminal liability is strictly based on fault in respect of the harmful consequences of the criminal act. The requirement of special intent for the crime of genocide, as well as the circumscription in the ICC Statute of the “mental element” as a precondition for criminal liability clearly excludes versari in re illicita.
In summary, there is a lot to blame Kagame and RPA for. There is no need for creativity in finding fault or misplacing criminal responsibility. While Kagame and RPA had a role and interest in what happened in Rwanda in 1994, that doesn’t make the murderers innocent in the name of self defense or versari doctrine. That is the law.