ICTR, The Prosecutor v. Jean-Paul Akayesu Case Brief
Order ID: 89JHGSJE83839 Style: APA/MLA/Harvard/Chicago Pages: 5-10 Instructions:
ICTR, The Prosecutor v. Jean-Paul Akayesu Case Brief
1. (Trial Chamber, paras 492-499)
a. How would you define genocide in order to distinguish it from a crime against humanity?
b. Is the obligation to sanction genocide an element of customary international law? Of customary IHL? Does the ICTR
have the jurisdiction to prosecute individuals who committed genocide by virtue of its Statute alone? Must the State of
which the accused is a national be a party to the Convention on Genocide? Must it have included repression of this
crime in its national legislation?
c. Is the expression in part attached to the extent of the crimes actually committed or to the perpetrators intention?
Do you agree with the Chamber when it rules that a crime committed with the intention to destroy part of a specific
group constitutes genocide?
d. What is the special intent (or dolus specialis) necessary for genocide to take place? How can we determine the
existence of this special intent? (See also paras 517-523)
2. (Trial Chamber, paras 510-523)
a. What do you think of the ICTRs definition of a protected group? Is the chamber using subjective or objective criteria?
Is group membership not often a matter of self-identification by the members of the group or stigmatization by the
groups enemies, and therefore would subjective criteria not be more appropriate?
b. What does the expression stable group mean? Are only national, ethnic, racial and religious groups stable? Would
this mean that the extermination of other groups (such as handicapped people, some political groups and homosexuals by the Nazi regime) would be qualified as a crime against humanity but not as genocide? Is cultural genocide
recognized in international law? Do you think it should be?
3. (Trial Chamber, paras 601-610, 619-627)
a. How does the ICTR qualify the conflict in Rwanda? Is Art. 3 common to the Conventions applicable? Is Protocol II
applicable?
b. What is the relevance of the qualification of the conflict to the case?c. Is there a difference of applicability between Art. 3 common to the Conventions and Protocol II?
4. Does Art. 4 of the ICTR Statute criminalize certain acts? Or does it give the ICTR jurisdiction over acts criminalizedelsewhere? If so, where are those acts criminalized? [See UN, Statute of the ICTR]
5. (Trial Chamber, paras 601-610)
a. What is the relevance, for the prosecution of the accused, of establishing whether the rules referred to in Art. 4 of the
Statute were at the time of indictment part of customary international law?
b. Why did the Court find it necessary to establish that Art. 3 common to the Conventions is part of customary
international law? What were the conclusions of the Court concerning Protocol II?
c. Was the Court correct to argue in its conclusion that at the time when Akayesu committed his crimes, Art. 4 was part
of existing customary law?
d. Is it necessary for a rule of Art. 3 common to the Conventions or of Protocol II to be part of customary law for the
ICTR to apply it under Art. 4 of its Statute? Why? Because of the principle of nullum crimen sine lege? Would the
application of a purely treaty-based rule of Protocol II violate that principle? Even though Rwanda was, at the time of the
crimes, party to Protocol II? At least for those rules which are neither incorporated into Rwandan legislation nor self-
executing?
e. Did the Security Council not empower the ICTR through Art. 4 of its Statute to apply all rules of Protocol II? If so, does
the Court consider that this would have violated the principle of nullum crimen sine lege?
f. Did the Chamber in the Tadic case [See ICTY, The Prosecutor v. Tadic [Part A., paras 89, 94 and 143]] consider that the ICTY may only apply customary rules? If one accepts such an interpretation, should it also apply to the ICTR?
6. (Trial Chamber, paras 611- 617)
a. Why may the ICTR only prosecute violations of Art. 3 common to the Conventions and Protocol II for which customary law foresees individual criminal responsibility? Is the same reasoning applicable as for the ICTY in the Tadic
case? Do you agree with the statement in para. 608 of the Trial Chamber decision that most States have criminalized
violations of Art. 3 common to the Conventions in their domestic penal codes? Would that be necessary to claim that
customary law criminalizes violations of common Art. 3? For the ICTR to try Akayesu?
b. Would it have sufficed for the Rwandan criminal code to foresee individual criminal responsibility for the acts
Akayesu was accused of? Can we assume that the acts committed by Akayesu were prohibited under Rwandan
criminal law? Had the ICTR adopted such an approach, would it have violated the principle of nullum crimen sine lege?
7. (Appeals Chamber, paras 430-445)
a. Who are the beneficiaries of the IHL of non-international armed conflicts? Who has to respect Art. 3 common to the
Conventions? Protocol II? All individuals who commit a prohibited act during an armed conflict on the territory of the
State in which the conflict is taking place? Must the act be linked to the conflict? [See ICTY, The Prosecutor v. Tadic
[Part B.]] Must the perpetrator belong to a party to the conflict? Must he be a public agent for one of the parties? Must
he be part of the armed forces of one of the parties?
b. According to the Trial Chamber (See paragraphs of the Trial Chamber Judgement reproduced in para. 430 of the
Appeals Judgement), is only a person who is mandated and supposed to be helping the war effort of one of the parties
obliged to respect IHL? How do you interpret Art. 3 common to the Conventions and Protocol II on this issue? Do you
think that the Appeals Chamber was right to decide that the Trial Chamber had committed an error?
c. Is the Appeals Chambers interpretation the only one that allows for individual criminal responsibility to be applied in
non-international armed conflicts that take place in a failed State?
ICTR, The Prosecutor v. Jean-Paul Akayesu Case Brief
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52-49 points
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ICTR, The Prosecutor v. Jean-Paul Akayesu Case Brief