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ELEMENTS OF INTERNATIONAL CRIMES AND MODES OF LIABILITY
(PROSECUTING CASES TRANSFERRED TO RWANDA FROM THE ICTR)
By
Takeh B. K. Sendze Esq1
Pursuant to UN Security Council Resolution 1503 (2003), the Prosecutor of the
United Nations International Criminal Tribunal for Rwanda (ICTR) was urged
to pursue the transfer of some of his case files to national jurisdictions for
prosecution. This strategy was aimed at meeting the deadline imposed by the
Security Council for the completion of the ICTR’s mandate. Rwanda was the
primary jurisdiction for transfer of these cases.
To enable the effective prosecution of the transferred cases before the Rwandan
courts, the Rwandan government enacted Organic Law No09/2013/OL of
16/06/2013.2 This law is commonly referred to as the “Transfer Law”. It came
into force in June 2003.
Pursuant to Article 5 of the Transfer Law, notwithstanding the provisions of
other laws applicable in Rwanda, a person whose case is transferred by the ICTR
and the UN Mechanism for International Tribunals (“Mechanism”) to Rwanda
shall be liable to be prosecuted only for crimes falling within the jurisdiction of
the ICTR (“ICTR crimes”). In the Rwandan context, this means that an accused
person whose case has been transferred to Rwanda from the ICTR or the
Mechanism cannot be prosecuted for the crime of negationism and minimization
of the genocide against the Tutsi – a crime otherwise punishable pursuant to
Article 116 of the Rwandan penal code.
To date, the ICTR has transferred eight cases in respect of eight accused3 for
prosecution before the Special Chamber of the Rwandan High Court. In
prosecuting these crimes, it is important for all parties in the process to
understand the constituent elements of the relevant crimes and the applicable
modes of criminal liability.
This paper is broken down into three main sections. Section one highlights the
crimes falling within the jurisdiction of the ICTR and the corresponding crime
1
The views expressed in this paper are personal and do not represent the official position of the UNICTR or
UNMICT. Takeh Sendze is a lawyer and international criminal prosecutor from Cameroon currently serving as
an Appeals Counsel of the UNMICT – takehsendze@yahoo.com.
2
Replacing Organic Law No
11/2007 of 16/03/2007. Published in Official Gazette no
Special Bis of 16/06/2013.
3
Jean Uwinkindi, Sikubwabo, Kayishema, Ntaganzwa, Ndimbati, Ryandikayo, Munyarugarama and
Munyagishari.

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under Rwandan law. Section two focuses on defining and identifying the
elements of the ICTR crimes that can be pursued under the Rwandan penal code
in respect of transferred cases. Section three discusses the modes through which
criminal liability can be imputed on an accused person.
I. Crimes falling within the jurisdiction of the ICTR
Pursuant to the Statute of the ICTR, the following crimes fall within its
jurisdiction: Genocide4, conspiracy to commit genocide5, direct and public
incitement to commit genocide6, attempt to commit genocide7, complicity in
genocide8, crimes against humanity9, and violations of Article 3 common to the
Geneva Conventions and of additional protocol II (war crimes)10. Pursuant to
Article 5 of the Transfer law, these are the seven possible crimes for which an
accused can be prosecuted following the transfer of his/her case from the ICTR to
Rwanda for prosecution.
According to general principles of criminal law, an accused in Rwanda can only
be charged with criminal liability for crimes provided for in the Rwandan penal
code.11 In this regard, the following ICTR crimes are punishable under the
Rwandan penal code: genocide12, conspiracy to commit genocide13, incitement to
commit genocide14, attempt to commit genocide15, crimes against humanity16 and
war crimes17.
II. Definition of crimes and their constituent elements
In levying criminal charges against an accused, fundamental principles of
criminal and human rights law require that the rights of the accused person be
respected. One of such rights requires that the accused person must be informed
of the nature of the crime he/she is being charged with.18 The nature of a crime is
determined by the conduct of the accused (actus reus), his/her mental state at the
4
Article 2 (3)(a).
5
Article 2 (3)(b).
6
Article 2 (3)(c).
7
Article 2 (3)(d).
8
Article 2 (3)(e).
9
Article 3 (a-i).
10
Article 4 (a-h).
11
Organic Law No
01/2012/OL of 02/05/2012 instituting the penal code.
12
Articles 114 & 115.
13
Article 132(4).
14
Article 132(3).
15
Article 132(7).
16
Articles 120 & 121.
17
Articles 123 & 124.
18
International Convention on Civil and Political Rights (23 march 1976), Article 9(2).

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time he/she committed the crime (mens rea), and the manner in which he/she
committed the crime (mode of liability)19.
The actus reus and the mens rea make up the elements of a crime. In order to
establish the guilt of an accused, all the elements of the relevant crime(s) must
be established beyond reasonable doubt. The elements of a crime vary from crime
to crime as you will now observe.
A. Genocide
Pursuant to Article 114 of the Rwandan penal code, an accused will be charged
with genocide where there is prima facie evidence showing that he/she
committed one or more of the acts listed below, with the intention to destroy in
whole or in part, a national, ethnic, racial, or religious group, whether in time of
peace or war. The punishable acts include: killing members of the group, causing
serious bodily or mental harm to members of the group, deliberately inflicting on
the group harm calculated to bring about its physical destruction in whole or in
part, taking measures intended to prevent births within the group, and forcibly
transferring children of the group to another group. This definition of genocide in
the Rwandan penal code is identical to the definition in Article 2(2) of the ICTR
Statute, save for the phrase “whether in time of peace or war”.
To establish the actus reus for the crime of genocide, the Prosecutor must prove
beyond reasonable doubt that the accused committed or caused the commission
of any of the acts listed under Article 114(1-5) of the Rwandan penal code. These
prohibited acts constitute the actus reus element of genocide. Contrary to
popular belief, to establish the actus reus for genocide, it is sufficient to prove
that the accused committed or caused the commission of any of the prohibited
acts against a single person.
On the other hand, the mens rea or mental element for genocide requires that
the accused acted with the specific intention to destroy members of one of the
protected groups in whole or in part. The words “in part” refer to a substantial
part of a group.20
B. Conspiracy to commit genocide
Conspiracy is defined in Article 25 of the Rwandan penal code as an agreement
between two or more persons to engage in the commission of an offence by one or
more of them. A conspiracy to commit genocide is therefore an agreement
19
Modes of liability will be discussed in the next session.
20
Krstić Appeals Judgement, para. 8.

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between two or more persons to commit the crime of genocide. Simply put, the
elements of this crime include an agreement between the accused and one or
more people to act for the purpose of committing genocide (actus reus). In
addition to establishing an agreement, it must also be established that the
individuals taking part in the agreement possessed in the specific intention
required for the crime of genocide (mens rea).21 Note that with a conspiracy, the
intended crime need not occur as a consequence.
C. Incitement to commit genocide
To be liable for this crime, it must be established that the accused incited the
commission of genocide using speech, image or writing (actus reus) and that his
incitement was perpetrated with the specific intent to incite others to commit
genocide (mens rea). Unlike Article 2(3)(c) of the ICTR statute which specifically
includes a “direct and public” element to the crime of incitement, Article 132(3)
of the Rwandan penal code does not.
D. Crimes against humanity
Article 120 of the Rwandan penal code defines crimes against humanity as
constituting acts of murder; extermination; enslavement; deportation or forcible
transfer of population; imprisonment or other severe deprivation of physical
liberty in violation of the law; torture; rape, sexual slavery, forced prostitution,
forced sterilization, or any other form of sexual violence of comparable gravity;
persecution against a person on political, racial national, ethnic, cultural,
religious grounds or any other form of discrimination; enforced disappearance of
persons; apartheid; and other inhuman acts of a similar character intentionally
causing great suffering, or serious injury to mental and physical health;
committed as part of a widespread or systematic attack directed against a
civilian population because of its national, political, ethnic or religious affiliation.
Although Article 120 defines crimes against humanity with more details than
Article 3 of the ICTR statute, both definitions are conceptually the same.
The actus reus element for a crime against humanity has three facets. It must be
established that (1) the accused committed or caused the commission of any of
the prohibited acts listed in Article 120 of the Rwandan penal code; (2) the
prohibited act was committed in an inhumane nature and character, causing
great suffering or serious physical or mental harm; and (3) the inhumane act was
committed as part of or within the context of a widespread or systematic attack
21
Nahimana Appeals Judgement, paras. 344, 894.

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directed against members of the civilian population on national, political, ethnic,
racial or religious grounds.
The mens rea element of a crime against humanity requires proof of the
following: (1) that the accused intentionally or willingly committed or caused the
commission of any of the prohibited acts; (2) that at the time of committing the
act, the accused knew there was an attack against a civilian population; and (3)
that the accused knew that his act formed part of the broader attack against the
civilian population.22 Again, contrary to popular belief, for an act to constitute a
crime against humanity, it need not be carried out against a huge number of
victims. Thus, a prohibited act directed against a single victim can constitute a
crime against humanity provided that act forms part of a widespread and
systematic attack against a civilian population.23
There are ten specific crimes against humanity listed under Article 120 of the
Rwandan penal code. In addition to the broader elements discussed above, each
specific crime against humanity requires proof of other elements that may or
may not be unique to them. For instance, the elements of the crimes of murder,
extermination and rape are different.
i. Murder
Murder as a crime against humanity, requires proof of the fact that the act or
omission of the accused caused the death of a victim (actus reus). It must be
shown that a victim died. The mental element requires proof that the accused
acted with the intention to kill the victim or to inflict grievous bodily harm,
reasonably knowing that it might lead to the death of the victim.
ii. Extermination
Extermination as a crime against humanity requires proof that (1) the accused
committed killings on a massive or large scale (actus reus).24 The large scale or
massive nature of killings must be assessed on a case-by-case basis taking into
account the circumstances in which the killings occurred.25 (2) The accused acted
with the intention to engage in the massive killing of persons or to subject a
large number of people to conditions that would result to their death (mens
rea).26 The requirement of killings at a massive scale is what distinguishes
extermination from the crime of murder.
22
Bagosora Appeal Judgement, para. 389.
23
Nahimana Appeals Judgement, para. 924.
24
Bagosora Appeal Judgement, para. 394.
25
Bagosora Appeal Judgement, para. 396.
26
Ntakirutimana Appeal Judgement, para. 522.

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iii. Rape as a crime against humanity
Rape as a crime against humanity has evolved over the years. The actus reus
element of rape in international law constitutes sexual penetration, however
slight of the vagina or anus of the victim by the penis of the perpetrator or with
the use of any other object; or the sexual penetration of the victim’s mouth by use
of the perpetrator’s penis. Any such sexual penetration must occur without the
consent of the victim. The mens rea element requires proof of the accused’s
intention to inflict any of these sexual penetrations with the knowledge that it
occurs without the victim’s consent.27
Article 196 of the Rwandan penal code defines rape as engaging in non-
consensual sexual intercourse using force, threat of trickery. This definition is
not as progressive as the current international law definition.
Recall that all crimes against humanity must be committed intentionally, and as
part of or within the context of a widespread or systematic attack directed
against members of the civilian population on national, political, ethnic, racial or
religious grounds; and the perpetrator must have been aware of the attack
against civilians and knew that his/her act formed part of the broader attack.
E. War crime
According to the Rwandan penal code, a war crime constitutes the commission of
any of the sixteen acts listed under Article 123; which acts are committed during
an armed conflict and directed against persons or property protected under the
provisions of the Geneva Conventions and their additional protocols I and II.
There are two main distinctions between this definition of a war crime and the
definition in Article 4 of the ICTR Statute. Unlike the definition in the ICTR
Statute, the definition in the Rwandan penal code extends to acts against
property protected under the Geneva Conventions. It also specifically refers to
additional protocol I which the ICTR statute does not mention. However, while
the ICTR Statute only expressly lists eight acts that can constitute a war crime,
compared to sixteen listed in the Rwandan penal code, Article 4 of the ICTR
statute “shall not be limited” to the listed acts.
The elements of war crimes include (1) proof of the fact that the accused
committed any of the acts listed under Article 123(1-16) against persons or
property protected under the Geneva Conventions and their additional protocols
I and II (actus reus); (2) that the accused acted intentionally with the knowledge
that the victim was not taking part in the hostilities, had laid down his or her
27
Gacumbitsi Appeal Judgement, para. 151.

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arms and could no longer defend him or herself (mens rea). War crimes are
generally perpetrated within the context of an armed conflict.
III. Modes of Liability and their constituent elements
A mode of liability is a description of the manner in which an accused person is
alleged to have assumed criminal liability for his actions or the actions of others
to the extent permitted under applicable laws. As earlier stated, the complete
nature of an accused crime consists of the elements of the crime and the mode of
liability under which he is charged.
There are some parallel relationships between crimes and modes of liability.
Both must be specifically pleaded in an indictment, and they all consist of
elements (actus reus & mens rea) that must be established on the evidence.
Criminal liability can attach to a person either on the basis of his/her conduct
(direct responsibility) or the conduct of his/her subordinate (superior
responsibility).
Pursuant to Article 6(1) of the ICTR Statute, a person who planned, instigated,
ordered, committed or aided and abetted the execution of a crime shall be
individually responsible for the crime.28 Article 6(3) extends criminal liability to
a superior (military or civilian) for crimes committed by his or her
subordinate(s). In broad terms, these are the different modes through which
criminal liability can be imputed on an accused person in international criminal
law.
In Rwanda, Articles 97, 98 and 133 of the penal code, stipulates that a person
can broadly be held criminally liable as an offender, a co-offender, an accomplice
(aider and abettor), or a superior. Specific reference is made to ordering in
Article 132(1) of the penal code.
As mentioned earlier, and elaborated below, every mode of liability consists of
elements that must be established to make a case against an accused.
A. Committing
This mode is ordinarily known to cover an accused’s direct physical perpetration
of a crime or his/her omission to perform an act that is mandated by law
(culpable omission). For example, a person who personally shots and kill, or
rapes a victim ‘commits’ a crime. This mode is covered by Article 98(1&2) of the
28
Kayishema & Ruzindana, Appeal Judgement, para. 185.

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Rwandan penal code. The elements for this mode of liability are the same as
those of the associated crime charged.
B. Ordering
Criminal liability for ‘ordering’ will be incurred where a person in a position of
authority (formal or informal, permanent or temporal in nature) uses that
position to order another person to commit29 an offence (actus reus) with the
direct intent to give the order and the awareness of the substantial likelihood
that a crime will be committed in the execution of that order (mens rea). At the
ICTR, to establish ordering as a mode of liability, the ordered crime must
subsequently be committed by the person who received the order.30 This may not
be the case in Rwanda considering the provision of Article 132(1) of the penal
code which stipulates that “an order, even when not followed by the commission,
to commit any of the … [prohibited crimes]” shall be punished.
C. Aiding and abetting (accomplice liability)
An aider and abettor is one who carries out acts directed to assist, encourage or
lend moral support to the perpetration of a crime. The aider and abettor’s acts
must have a substantial effect on the perpetration of the crime.31 No cause-effect
relationship between the conduct of the aider and abettor and the commission of
the crime is required. 32 Unlike other modes of liability, which require that the
relevant conduct precede the perpetration of the statutory crime, the actus reus
element of aiding and abetting can occur before, during, or after the commission
of the crime.33 The mens rea element for aiding and abetting is knowledge that
the acts performed assist the commission of the specific crime of the principal
perpetrator.34 The aider and abettor is required to know the specific intent of the
principal perpetrator to commit a crime at the time he/she provided the
support.35
D. Superior responsibility
Under to this mode of liability, a superior will be held criminally liable for the
criminal conduct of his subordinate, if it is established that a superior-
subordinate relationship exists between the accused and perpetrator of the
29
Kalimanzira, Appeal Judgement, para. 213.
30
Hategekimana, Appeal Judgement, para. 67.
31
Seromba, Appeal Judgment, para. 44.
32
Rukundo, Appeal Judgement, para. 52.
33
Nahimana, Appeal Judgement, para. 482.
34
Ntakirutimana, Appeal Judgement, para. 508, 530.
35
Seromba, Appeal Judgement, para. 57.

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crime; that the superior knew or had reason to know of the criminal conduct of
his subordinate (mens rea) and the superior failed to take the necessary and
reasonable measures to prevent the commission of the crime or to punish his
subordinates for having committed the crime (actus reus).36 This mode of liability
is commonly relied upon in situations of armed conflicts to ensure that the
military leaders, who often do not personally commit the atrocities, are not
relieved of criminal responsibility for the acts of the foot soldier.
Hypothetical Case Study
On 11 February 2014, John travelled from his home town of Bisosoro to the
coastal city of Kibaye in the South West Region of Rwandana to visit his younger
brother – Mike. John arrived at Kibaye at 6.00pm and was picked up by Mike
who took him to a nearby club for a welcome drink. At the club, John saw Mr.
Evans Rwagafunzi, whom he (John) had for a long time wanted dead for having
committed adultery with John’s wife on their marital bed. John saw this as a
good opportunity to punish Evans for his act of adultery. John then called Mike
to the side, disclosed Evan’s adulterous conduct, gave Mike a gun and instructed
him to convince Evans to follow him into a nearby bush and shoot him dead.
Being the younger brother whose education had been financed by John, Mike felt
compelled and carried out the instruction. He convinced Evans to come with him
into a nearby bush and shot him twice on the head, causing Evan’s death.
John and Mike are eventually arrested by the police. The police have now
consulted you to advise them on what crimes(s) and mode(s) of liability they can
rely on to charge the suspects for the death of Evans.
With your knowledge of the elements of the various crimes and modes of
criminal liability applicable under international criminal law and Rwandan law,
carefully consider what crimes and modes of liability can be used to hold John
and/or Mike criminally responsible for the death of Evans. Advise the police
officers.
I expect to hear your views at the end of the training session.
36
Bagosora, Appeal Judgement, para. 191.