By Didas Gasana
That is the legal limbo facing ICTR. At the center of the limbo is an intersection of law and politics. Yeah; Bagosora was convicted of genocide because he failed to take effective command of his troops who committed the “genocide”. From the legal and philosophy of genocide, for a genocide to happen, there must be planning. Planning is an ingredient for determination of specific intent. Unlike other crimes; the crime of genocide needs both general and specific intent. Without planning, you can’t determine specific intent. Thats why i said we change the constitutive ingredients of the crime of genocide to accomodate contemporary challenges Rwanda’s case presents, or we call the crimes by their right identifications.
In a fair world, you can not convict a person of genocide without specific intent. That is what differentiates genocide from garden mass shootings! And there is no way you can determine specific intent without evidence of a plan or state policy. Law is a matter of interpretation. That is why there are sometimes dissenting judges in judgements where it is permissible. People should as well know that an acquittal doesn’t necessarily mean innocence or that conviction necessarily means guilt. Such is law.
Back to planning, many people, even some lawyers, including some judges in ICTR and ICTY happen to read the definition of genocide in its literal definition. With respect to genocide, it is self-evident that nothing in the text of the definition of genocide explicitly identifies the existence of a plan or policy as an element of the crime of genocide partly because a crime can never be “systematic” without being planned. Like in crimes against humanity, for a genocide to happen, acts must be “systematic”.
Genocide was originally defined in Article II of the 1948 Genocide Convention, but an essentially identical provision appears in such modem instruments as the ICTY Statute, the ICTR Statute and and the Rome Statute. But to understand more the importance of planning, people need to read Raphael Lemkin, the scholar who first proposed the concept of genocide in his book Axis Rule in Occupied Europe. He explicitly spoke regularly of a plan as a sine qua non for the crime of genocide. But like some judges at the ICTY, in the case of Prosecutor v. Kayishema, the ICTR Trial Chamber wrote: “Although a specific plan to destroy does not constitute an element of genocide, it would appear that it is not easy to carry out a genocide without a plan or organizationn.” The Chamber said that “the existence of such a plan would be strong evidence of the specific intent requirement for the crime of genocide.” Although this reasoning gives importance to the element of planning, it tends to suggest that its requirement is not 100%; while it really is.
Besides Lemkin, who is the father of “genocide”, The 1996 Commentary of the International Law Commission on its draft Code of Crimes Against the Peace and Security of Mankind expressly asserts that a plan or policy was central to the crime of genocide: “The extent of knowledge of the details of a plan or a policy to carry out the crime of genocide would vary depending on the position of the perpetrator in the governmental hierarchy or the military command structure. This does not mean that asubordinate who actually carries out the plan or policy cannot be held responsible for the crime of genocide simply because he did not possess the same degree of information concerning the overall plan or policy as his superiors. The definition of the crime of genocide requires a degree of knowledge of the ultimate objective of the criminal conduct rather than knowledge of every detail of a comprehensive plan or policy of genocide.”
Simillarly, evidence as to why a plan or policy is so ideterminant in the determination of the crime of genocide appears in the Report of the Commission of Inquiry on Darfur, set up in late 2004 at the behest of the U.N. Security Council and chaired by the distinguished international legal scholar Antonio Cassese. Answering the Security Council’s question of “whether or not acts of genocide have occurred, the Darfur Commission said “that the Government of Sudan has not pursued a policy of genocide.” Explaining its position, the Commission said: “However, one crucial element appears to be missing, at least as far as the central government authorities are concerned: genocidal intent. Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on
racial, ethnic, national or religious grounds.” The commission defined the specific intent (dolus specialis) as “the perpetrator consciously desired the prohibited acts he committed to result in the destruction, in whole or in part, of the group as such, and knew that his acts would destroy in whole or in part, the group as such.”
One may as well see the necessity of a plan in the Krstic trial at the ICTY. In its ruling, the trial chamber was convinced of the existence of intent by the evidence placed before it. Under the heading “A Plan to Execute the Bosnian Muslim Men of Srebrenica,” the chamber “finds that, following the takeover of Srebrenica in July 1995, the Bosnian Serbs devised and implemented a plan to execute as many as possible of the military aged Bosnian Muslim men present in the.enclave”.
Such is the reason why, in the article by the guardian you posted on this forum some days ago, the prosecution tried to pin Bagosora on planning and conspiracy, given the fact that Bagosora was a senior military official. After his conviction by the trial chamber and as an emphasis to the central role of planning, the guardian report reads in part: “The trial laid bare the extent of the planning for the genocide and the mobilisation of the state to implement it. It provides the most complete record of the planning of the killing going back to four years before the mass slaughter began. And Bagosora was at the centre of what the prosecution called “preparing the apocalypse.” Charges of planning and conspiracy were quashed by the appeals chamber. You can read more about state policy or planning in the Journal of Criminal Law and Criminology, Volume No 8. Issue 3 Spring. It will infact interest you.
Regarding the Akayesu case, the notion of the judicial notice of genocide being a fact of common knowledge was born of the UN investigation group to Rwanda as early as 1995. Since then, new evidence came up questioning this judicial notice, including evidence from the CIA and Pentagon that were used in military trials and 11. This is the very reason why most of the accused were acquitted.