Killing as an Act of Genocide

In Prosecutor v Rutaganda (Judgment and Sentence) dated 6 December 1999, Trial Chamber I of the International Criminal Tribunal for Rwanda (ICTR) was faced with a problem of resolving a difference in the texts of the definition of genocide as provided for variously in the English and French versions of art 2(2)(a) of the ICTR Statute. The English version of art 2(2)(a) lists 'killing' as an act of genocide, while the French text indicates meutre [the French word for murder] as the equivalent concept. Noting that 'killing', in the English version, may include intentional and unintentional homicide, ‘the Chamber [held] that the version more favourable to the accused should be adopted, and [found] that art 2(2)(a) of the Statute must be interpreted in accordance with the definition of murder in the Criminal Code of Rwanda, which provides, under art 311, that “Homicide committed with intent to cause death shall be treated as murder.”’ [Rutaganda Judgment, para 50]

The Chamber’s reception of the Rwandan law in this manner is not free from difficulties.

The purpose of art 311 of the Rwandan Criminal Code is to define murder. But the purpose of art 2(2)(a) of the ICTR Statute is to define genocide. In the above dictum, the Chamber has managed to cross these purposes. There is no need to do so. Murder and genocide under the respective provisions have already been ascribed the necessary intent. It may not be necessary or advisable to create double intent for genocide as regards the genocidal act of killing, when the framers of the ICTR Statute have not done so.

Having said this, one must note that art 2(2) purports to describe the conducts therein enumerated as 'acts' and not as 'crimes'. It is when these acts are committed with the genocidal intent described in the general clause of art 2(2) that we have the crime of genocide. This ought to be the road to the interpretation of art 2(2) as regards killing as an act of genocide.

This interpretation is consonant with ordinary notions of criminal law in which a crime comprises of an act and the proper mental element for it, according to the Latin maxim actus non facit reum, nisi men sit rea [the act alone does not make a crime, unless there also be a guilty mind].

Murder is not merely an 'act'. It is a crime. It becomes incongruous to substitute this crime for an act, when the language of the provision logically meant to list an act (actus reus) whose intent (mens rea) had already been described in the general clause of art 2(2).

One particular problem that might arise from the interpretation employed by the Trial Chamber becomes this: will there not have been genocide by killing where a person had embarked on any of the other four acts of genocide, with the necessary genocidal intent? For instance, if an accused caused serious bodily harm to a victim, with the necessary genocidal intent, and the victim dies in the process. Will it then be a defence to say that all that the accused intended was to cause serious bodily harm and not death? Perhaps not. The culprit may still be held guilty of killing with genocidal intent. He may get a discount in sentencing, as the Court sees fit, compared with the conduct of someone who precisely intended to occasion death, with the necessary genocidal intent. This view will actualise the purpose of the international community who intended to eradicate the thought of genocide from the human mind.

If, however, murder must be the key word in art 2(2)(a), the minimum that ought to be done will be the adoption of a definition of that term in Akayesu, instead of the definition in art 311 of the Rwandan Criminal Code. This will be more consonant with the purpose of the proscription of genocide in international law, as well as with prior jurisprudence of the ICTR. In Akayesu, the Chamber said as follows (at para 589):

The Chamber defines murder as unlawful, intentional killing of a human being. The elements of murder are:

(a) Victim is dead
(b) The death resulted from an unlawful act or omission of the accused or a subordinate
(c) At the time of the killing the accused or a subordinate had the intention to kill or inflict grievous bodily harm on the deceased having known that such harm is likely to cause the victim's death, and is reckless as to whether or not death ensures [sic] or not.

It must be noted that this manner of mens rea is not included among the manner of mens rea for murder proscribed in art 311 of the Criminal Code of Rwanda (whose definition of murder the Chamber has incorporated into art 2(2)(a) of the Statute to explain the term killing as therein used).

It must be pointed out though that the Akayesu Chamber does go on to say as follows at para 590:

Murder must be committed as part of a widespread or systematic attack against a civilian population. The victim must have been murdered because he was discriminated against on national, ethnic, racial, political or religious grounds.

The additional elements added in para 590 are perfectly understandable, for the Chamber was defining the meaning of murder as a crime against humanity under art 3 of the Statute. These additional elements, however, do not, for purposes of genocide, diminish the usefulness of the definition provided in para 589. That definition will add symmetry and consistency to the law as developed at the ICTR. Clearly, the Rutaganda Trial Chamber was operating under this assumption when it held that the specific elements of murder as laid down in relation to crimes against humanity will also inform the meaning of murder as a war crime. [See para 107.]

Another problem with the importation of art 311 of the Rwandan Criminal Code in the intellection of killing as an act of genocide is that art 311 does not really assist much. Other provisions surrounding it will confuse the discourse rather than clarify it. [1] What would have been more helpful, perhaps, was a systematic, expert exposition of applied Rwandan homicide law. And that is lacking in the Rutaganda importation of the term as it exists in Rwandan law.

Perhaps, the dilemma here should be to reconcile the appearance of meutre in the French version of art 2(2)(a) of the ICTR Statute with killing in the English version. One way of doing so will be to follow the counsel of a Canadian judge to the effect that where the language of a provision is imperfectly expressed, the Court may follow the construction that best reflects the true purpose of the Statute.

In Rutaganda, the Chamber adopted this approach in reconciling the divergence of the coordinator appearing between 'widespread' and 'systematic' under art 3's proscription of crimes against humanity: in the English version of the provision the coordinator is 'or' while it is 'and' in the French version. The Chamber followed the English version as best expressing the purpose of the provision. [Paras 67 and 68.]

FOOTNOTES:
[1] Take this instance. In explaining what is 'voluntary homicide and voluntary bodily injuries', art 310, among other things, provides that any of these acts 'is considered premeditated where there is a prior decision before the attack to make an attack on an individual'. [Emphasis added.] Art 310 also makes 'ambush' a significant action in the context of homicide and defines it as 'the act of waiting for the victim for a period of time, in one or several places to commit homicide or inflict bodily injury.' Then, at art 312, it is provided, 'Murder committed by premeditation or ambush is an assassination; the punishment is the death penalty.' [Emphasis added.] And art 316 provides 'Anyone who uses torture or barbarian acts to commit a felony, regardless of the nature of the felony, shall be punished as if the act was an assassination.' In view of these provisions, to rely on Rwandan law in the exposition of the law of genocide, as was done in Rutaganda, will cause obvious confusion such as: As murder is not the only type of homicide provided for under the Rwandan Criminal Code, should the Tribunal also import into the jurisprudence of the Tribunal the concepts of 'assassination' and 'ambush'? If not, why not? (After all, these too are manners of killing under Rwandan law of homicide.) Will the person whose act of killing, which merely qualifies as murder under Rwandan law, receive the same, more, or less punishment as someone whose act of killing would qualify as assassination under Rwandan law? (Consider that assassination is obviously a worse crime than murder.) Will the provision of art 316 also inform the Tribunal's assessment of other acts of genocide (other than killing), and other crimes proscribed elsewhere in the Statute of the Tribunal?