Obligations of states in respect of compensation for victims of genocide, crimes against humanity and war crimes under international criminal law

KIGALI INDEPENDENT UNIVERSITY ULK
SCHOOL OF LAW
P.O.BOX: 2280 Kigali-RWANDA
A dissertation submitted to the School of
Law in Partial fulfillment of the
academic requirements for the award of
Bachelor’s Degree in Law
By NDAGIJIMANA Habacuc
SUPERVISOR: Lecturer BAHATI Védaste (LLM)
Kigali, November 2014
OBLIGATIONS OF STATES IN RESPECT OF COMPENSATION
FOR VICTIMS OF GENOCIDE, CRIMES AGAINST HUMANITY
AND WAR CRIMES UNDER INTERNATIONAL CRIMINAL LAW

i
DECLARATION
I, NDAGIJIMANA Habacuc, in accordance with Section VIII of Internal Regulations as
amended on 30/10/2014 up to date, especially in its Articles 110, 111 and 112, and to the best of
my knowledge hereby declare that this dissertation entitled OBLIGATIONS TO STATES IN
RESPECT OF COMPENSATION FOR VICTIMS OF GENOCIDE, CRIMES AGAINST
HUMANITY AND WAR CRIMES UNDER INTERNATIONAL CRIMINAL LAW; is my original
work and has never been either partially or wholly presented anywhere else for any other
academic qualification at any university or institution of higher learning.
NDAGIJIMANA Habacuc
Signature of the student………………………………………………………………
Date…………………………………

ii
APPROVAL
I, the undersigned BAHATI Védaste, in accordance with Section VIII of Internal Regulations as
amended on 30/10/2014 up to date, especially in its Articles 110, 111 and 112 certify that the
dissertation entitled “OBLIGATIONS TO STATES IN RESPECT OF COMPENSATION FOR
VICTIMS OF GENOCIDE, CRIMES AGAINST HUMANITY AND WAR CRIMES UNDER
INTERNATIONAL CRIMINAL LAW has been written by NDAGIJIMANA Habacuc under my
guidance as a university supervisor and I have approved its submission.
Signature of the Supervisor: …………………………………………………………………
BAHATI Védaste
Date …………………………

iii
DEDICATION
I dedicate my dissertation work to my parents GAHUNDE Médard and
NYIRAKANYAMIBWA Elisabeth, my entire family and many friends of mine.
A special feeling of gratitude goes to my loving spiritual parents, the God’s servant brother
MUVUNYI Emile, Pastor Prof. Dr RWIGAMBA BALINDA and his lovely wife whose words
of encouragement and push for tenacity ring in my ears.
My brother Sunny NIYOMUGABO and all of my siblings, to Jari KIISKINEN and Blaise
MUGANZA who have never left my side and are very special.
I also dedicate this dissertation to my many friends and Church family who have supported me
throughout the receiving Evangelization of the end time process and they explained me well
about the Prophet William M. BRANHAM (4th
Elijah). I will always appreciate all they have
done, especially brother Christian RURANGWA for helping me develop my new spiritual life,
Lecturer Védaste BAHATI for the many hours of proofreading, and other lecturers of the Faculty
of Law for helping me to become the Legal Expert.
I dedicate this work and give special thanks to my best friend brother Pascal TUMAINI. To
Brother Caleb, Brother Ladislas BONANE and my wonderful Classmates for being there for me
throughout the entire LLB program. All of them have been my best companions.
To my Comrades brother and sisters living or those who have lived in Gihembe Congolese
Refugee Camp;
And I dedicate precisely this Dissertation to the Survivors of Mudende Massacres and all who
have been victimized elsewhere in the World.

iv
ACKNOWLEDGEMENTS
I wish to thank first of all the almighty Heavenly Father who draws me. Special thanks go to
Prof. Dr RWIGAMBA BALINDA, Founder and President of Kigali Independent University
(ULK Ltd.) and Initiator of the RWIGAMBA BALINDA FOUNDATION (RBF) for his
unconditional support and contribution on Earth and Heaven throughout my academic and
spiritual journey.
In the same way, I thank all of the ULK School of Law staff for their immeasurable guidance
during these four years, you have shaped me enough.
Particularly, I thank Mr. Védaste BAHATI who supervised along my research; your
collaboration was remarkable; full of affection and constructive corrections.
I would like to acknowledge and thank Mr. GAHAYA Roger, Secretary of the RBF, man I will
never forget your tremendous care on your duties; may God bless you!
Finally I would like to thank the beginning teachers, mentor-teachers and administrators in our
school division that assisted me with this project. Their excitement and willingness to provide
feedback made the completion of this research an enjoyable experience.
Thank you all!

v
LIST OF ABBREVIATIONS
ACHPR : African Court on Human and Peoples' Rights
ACHR : American Convention on Human Rights
ART : Article
CAH : Crimes against Humanity
CNLG : National Commission for the Fight against Genocide (Commission Nationale de
Lutte Contre le Genocide)
DRC : Democratic Republic of Congo
ECPHRFF :European Convention for the Protection of Human Rights and Fundamental
Freedoms
FDLR : Forces Démocratiques de Libération du Rwanda (Democratic Forces for the
Liberation of Rwanda)
FOCA : Force de Coalition Alliance
Http : Hyper Text Transfer Protocol
IAC : International Armed Conflicts
IBID : short of Ibidem, meaning "in the same place") is the term used to provide an
endnote or footnote citation or reference for a source that was cited in the
preceding endnote or footnote in the same source.
ICC : International Criminal Court
ICCPR : International Covenant on Civil and Political Rights
ICCPR : International Covenant on Civil and Political Rights
ICCSt : The Rome Statute
ICEFRD : International Convention on the Elimination of All Forms of Racial
Discrimination
ICJ : International Court of Justice
ICRC : International Committee of the Red Cross
ICTR : International Criminal Tribunal of Rwanda
ICTY : International Criminal Tribunal of the former Yugoslavia
ICTYSt : The Statute of ICTY
IDEM : the same as mentioned
IHL : International Humanitarian Law

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ILC : International Law Commission
IMT : International Military Tribunal of the Nuremberg
LLB : Latin Legum Baccalaureus or (Bachelor of Laws)
LLM : Latin Legum Magister or (Masters of Law)
LOAC : Law of Armed Conflicts
MAGRIVI : Mutuelle des Agriculteurs des Virunga
NIAC : Non-International Armed Conflicts
No : Number
Op. cit : Opere Citato (previously cited work)
OSAPG : Office of the UN special adviser on the prevention of genocide analysis
framework
PP : Page
RPF : Rwanda Patriotic Front
SSJIA : Sex Slaves of the Japanese Imperial Army
ULK : Université Libre de Kigali
UN : United Nations
UNCAT : United Nations Convention against Torture
UNDHR : United Nations Declaration of Human Rights
UNGAR : UN General Assembly Resolution
UNHCR : United Nations High Commission for Refugees
UNSC : United Nations Security Counsel
USA : United States of America
WWW : World Wide Web

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LIST OF TABLES
Table 1: Respondents’ view on human losses .............................................................................. 51
Table 2: Reviews of survivors on their property of their families looted or lost during those
chaos in DRC................................................................................................................ 52
Table 3: Reviews of survivors on their educational perspective .................................................. 53
Table 4: Reviews of survivors on their welfare perspective......................................................... 53
Table 5: Review of survivor reflecting access to Justice.............................................................. 54
Table 5: Review of survivor reflecting access to medical treatment for victims disabled
totally ............................................................................................................................ 56

viii
TABLE OF CONTENTS
KIGALI INDEPENDENT UNIVERSITY ULK............................................................................. i
DECLARATION............................................................................................................................. i
APPROVAL ...................................................................................................................................ii
DEDICATION...............................................................................................................................iii
ACKNOWLEDGEMENTS........................................................................................................... iv
LIST OF ABBREVIATIONS......................................................................................................... v
LIST OF TABLES........................................................................................................................ vii
TABLE OF CONTENTS ..........................................................................................................viii
APPENDICES ............................................................................................................................... xi
GENERAL INTRODUCTION.................................................................................................... 1
Foreword and Abstract of research................................................................................................. 1
1. Choice and interest of the subject ............................................................................................... 2
2. Scope of the topic........................................................................................................................ 3
3. Problematic of the subject........................................................................................................... 4
4. Hypothesis of work..................................................................................................................... 6
5. Objectives of the work................................................................................................................ 7
6. Research methodologies ............................................................................................................. 8
6.1. Techniques............................................................................................................................... 8
6.1.1. The documentary technique.................................................................................................. 8
6.1.2. The interview technique........................................................................................................ 8
6.1.3. The technique of Questionnaires .......................................................................................... 9
6.2. Methods.................................................................................................................................... 9
6.2.1. Analytical method................................................................................................................. 9
6.2.2. The statistical method ........................................................................................................... 9
6.2.3. The comparative method....................................................................................................... 9
6.2.4. The synthetic method.......................................................................................................... 10
7. Subdivision of the work............................................................................................................ 10
CHAPTER I: THEORETICAL AND CONCEPTUAL CONSIDERATIONS .................... 11
SECTION 1: STATE .................................................................................................................... 11
1.1.1. Notion of the State .............................................................................................................. 11

ix
1.1.2. The charge and responsibility............................................................................................. 12
1.1.3. Definition of responsibility in legal framework.................................................................. 13
SECTION 2: CRIMES .............................................................................................................. 14
1.2.1. Introduction......................................................................................................................... 14
1.2.2. WAR CRIMES.................................................................................................................. 16
1.2.2.1. The notion and its origins ................................................................................................ 16
1.2.2.2. War and Grave Breaches ................................................................................................. 16
1.2.2.3. War Crimes in Non-international Armed Conflict .......................................................... 18
1.2.2.4. Link with International Humanitarian Law ..................................................................... 18
1.2.2.5. Categories of War Crimes................................................................................................ 20
1.2.2.6. War Crimes committed by civilians ................................................................................ 20
1.2.3. CRIMES AGAINST HUMANITY.................................................................................. 21
1.2.3.1. The Notion and Its Origins .............................................................................................. 22
1.2.3.2. The Ex Post Facto Principle regarded as constituting no legal or moral barrier to the
present trial.................................................................................................................................... 24
1.2.3.3. The Perpetrators and the Victims..................................................................................... 25
1.2.3.4. Crimes against humanity: Jus Cogens and Obligatio Erga Omnes................................. 25
1.2.3.5. The Specific Crimes within Crimes against Humanity.................................................... 27
1.2.4. GENOCIDE........................................................................................................................ 30
1.2.4.1. The Notion and its Origins............................................................................................... 30
1.2.4.1.1. Legal definition of genocide ......................................................................................... 30
1.2.4.1.2. Genocidal intent............................................................................................................ 31
1.2.4.2. Elements of Genocide...................................................................................................... 32
1.2.4.3. Cultural Genocide............................................................................................................ 33
1.2.4.4. Prevention of Genocide vs. Complicity in genocide ....................................................... 33
1.2.4.5. Domestic implementation................................................................................................ 34
SECTION 3: VICTIMS OF WAR CRIMES, CRIMES AGAINST AND GENOCIDE ............ 35
1.3.1. Introduction......................................................................................................................... 35
1.3.2. The physical and financial impact of victimization............................................................ 35
1.3.2.1. The physical impact of victimization............................................................................... 36
1.3.2.2. Financial impact of victimization .................................................................................... 38

x
CHAPTER II: THE OBLIGATION OF THE GOVERNMENT OF RWANDA AND
ITS OBLIGATION TO INVESTIGATE AND PROSECUTE CRIMINALS
....................................................................................................................................................... 41
SECTION 1: THE OBLIGATION TO INVESTIGATE AND TRY THE PERPETRATORS OF
THE CRIMES............................................................................................................................... 41
2.1.1. Summary presentation of crimes committed against Congolese Tutsi............................... 41
2.1.2. The competent jurisdictions................................................................................................ 44
2.1.2.1. Rwandan Jurisdictions ..................................................................................................... 45
2.1.2.2. The courts of any State where are found the suspects ..................................................... 46
2.1.2.3. International Community is bound to the obligation of “aut dedere, aut judicare”......... 47
SECTION 2: THE OBLIGATION TO COMPENSATE THE DAMAGES................................ 48
2.2.2. Damage assessment on killings of refugees and exercise of civil action result of these
crimes................................................................................................................................. 49
2.2.2.1. Evaluation of Human losses............................................................................................. 49
2.2.2.2 Sample size ....................................................................................................................... 50
2.2.2.3. Commemoration of Mudende atrocities and other related slaughters perpetrated
against Congolese Tutsi elsewhere ..................................................................................... 54
2.2.3. Victims wounded in massacres........................................................................................... 55
Partial Conclusion......................................................................................................................... 57
CHAPTER III: LEGAL MECHANISMS FOR THE REPARATION......................................... 58
SECTION 1: REPARATION AS AN OBLIGATION UNDER INTERNATIONAL LAW ...... 58
3.1.1. Three Characterizations of Reparation Programs............................................................... 58
3.1.1.1. Effective Remedies in Various Dimensions .................................................................... 59
3.1.1.2. The State Responsibility as a Legal Basis for the Right to Remedy and Reparation ...... 61
3.1.1.3. The Process towards a Comprehensive International Instrument.................................... 63
3.1.2. Principles underlying the Nairobi Declaration ................................................................... 63
SECTION 2: COMPLIANCE WITH HUMAN RIGHTS STANDARDS................................... 64
3.2.1. Implantation of International conventions to assure a remedy to victims .......................... 65
3.2.2. The Nature, Scope and Content of the Basic Principles and Guidelines............................ 66
3.2.3. No Justice without Reparation............................................................................................ 68
3.2.4. The right to reparation under international law .................................................................. 69

xi
3.2.4.1. Restitution........................................................................................................................ 71
3.2.4.2. Compensation .................................................................................................................. 71
3.2.4.3.Rehabilitation.................................................................................................................... 72
3.2.4.4. Satisfaction....................................................................................................................... 72
3.2.4.5. Guarantees of non-repetition............................................................................................ 72
GENERAL CONCLUSION AND RECOMENDETIONS.......................................................... 74
BIBLIOGRAPHY......................................................................................................................... 79
APPENDICES

1
GENERAL INTRODUCTION
Foreword and Abstract of research
The narratives in this work frame Congolese refugees’ violent experiences of the recent past in
relation to a protracted forced migration: Fled from Congo while Rwandans were also having
been massively leaving Rwanda. Through ethnographic fieldwork, I elaborate on the style of
narration used by refugees within UNHCR interviews to demonstrate how refugees narrate
trauma and violence in everyday life in the form of expressive idioms rather than more literal,
detailed, and technical descriptions of massacres as prompted by the UNHCR1
. Within these
interviews and questionnaires, the subject of Mudende is never far from the surface. A former
refugee camp where many occupants of Gihembe lived until 1996 when it became the site of
brutal massacres, narratives related to Mudende invoke refugees’ understandings of the political
climate in the Democratic Republic of Congo (DRC) surrounding the 1996 civil war. Yet when
narrated to the UNHCR, memories of the Mudende massacres are keys for assessing the
narrator’s need for reparation. As such, narratives of Mudende vary drastically according to the
audience. This research shows how refugees narrate massacres to the UN humanitarian apparatus
in a distinct style in comparison to when speaking among themselves. Of particular importance,
personal narratives related to share experience of violence reveal the profound ways that
Gihembe camp inhabitant cope with and endure the spectacular violence of the past within the
slow brutality and discrete violence of their present camp conditions. The Mudende atrocities is
internationally well-known many world media have alerted those killings.2
Having dwelled in the camp now for sixteen years close to the town of Byumba, Gihembe camp
refugees live in a constant state of general, normalized emergency.
1
Emiliy A. Lynch, “Mudende Trauma and Massacre in a Refugee Camp”, University Of Texas at Austin, this
Article is available on http://www.oralhistoryforum.ca/index.php/ohf/article/viewFile/537/615 retrieved at
September 3, 2014.
2
The December 11 massacre of about 327 refugees at the Mudende refugee camp in Rwanda, the second mass
killing there in four months, "represents a resurgence of genocide in the northwest region of Rwanda," State
Department Spokesman James Rubin said December 18., the Washington post."The brutality of this attack on the
Tutsi refugees is reminiscent of the genocide of 1994," Rubin added in a prepared statement from London, made
available in Washington. Rubin said that "these criminal acts have rightly outraged the international community, and
initiatives must be taken to bring to justice individuals accountable for these crimes and to prevent future acts of
genocide," adding that the United States "is prepared to assist in this challenge”.

2
One of four refugee camps in Rwanda, Gihembe is home to over twenty thousand people, the
majority of whom are ethnic Tutsi Congolese civilians displaced by civil war in north Kivu,
DRC. It is a place where there is never enough of anything—food, water, clothing, housing,
blankets, medicine, soap, or education.
1. Choice and interest of the subject
Our choice of research topic is based on the fact that, despite his 17 years of sadness, crimes of
genocide, war crimes and those against humanity perpetrated against the Congolese Tutsi,
between August and December in 1997 continues to generate questions, passions, contradictions,
even apprehensions, both in Rwanda and in other countries seeking to discover or know the truth
about.
Contradictions exist, for example between the exact number of people killed, the international
community, estimated at over three hundred dead the Rwandan government, while refugees
speak, they were more than two thousand five hundred victims!
Despite these contradictions, the truth is that these horrible crimes are proven and require that
light may actually be given by the noble purpose of first to understand what happened, then, to
establish responsibilities in clear manner and heal the wounds. The demands of international civil
society for the respect of human rights and for accountability for their violation also influenced
the creation of several ad hoc international institutions dedicated to these ends, such as the
International Military Tribunal, the International Military Tribunal for the Far East, the
International Criminal Tribunal for the Former Yugoslavia, and the International Criminal
Tribunal for Rwanda.3
These institutions benefitted from the support of governments motivated
by universal humanistic values and recognize the importance of international criminal
accountability mechanisms as a means to maintain world order and restore peace.
Therefore, we believe that our findings will help to identify and understand the true
responsibility of the ex-FAR, INTERAHAMWE and ex-FOCA, which became FDLR for the
preparation and execution of these massive attacks against the MUDENDE refugee camp.
3
M. Cherif BASSIOUNI, Accountability for Violations of International Humanitarian Law and Other Serious
Violations of Human Rights, p.3.

3
And in doing so, we hope that this study could attract and retain the attention of the current
Rwandan government or any particular state of the world in general, to prevent other crimes,
including war crimes, crimes against humanity and genocide. That, the latter, may not be
prepared or executed both in Rwanda and elsewhere on this Earth.
There is no doubt that every conflict has its own peculiarities and can even be labeled sui
generis, but for such happened in MUDENDE was unique in sense of exterminating
systematically the Tutsi tribe located in the Great Lakes region and in the East of Africa.4
2. Scope of the topic
The case study of this research has taken into consideration of space of time in its length and
large scale of the Mudende massacres of 1997 night of 10th-11th August and same dates of
December 1997.
Although these slaughterers of Congolese Refugee Tutsi in MUDENDE in 1997 rooted in the
history of pre-colonial Rwanda and post-colonial, it would be tedious and very pricey to
establish the responsibility of the Government of Rwanda under HABYARIMANA regime in the
matter. And support of the former Zaire now became "Democratic Republic of the Congo
(DRC)" since that distant age, as time and financial constraints do not allow us to conduct such
research.
That is why we decided to limit our study from 1993 to 2004 upstream downstream. The first
year coincides with the beginning of MAGRIVI Movement in North Kivu in Zaire under Mobutu
regime, the liberation war in Rwanda under the leadership of the RPF, while the second year is
the massive exiles from Rwanda to the Ex-Zaire and the creation of FOCA and ALIR which
afterwards became the FDLR.
Gerard PRUNIER presents a different picture to the ICG's assessment. As of approximately
August 2001, he describes two separate ALiR groups, the 'old' ALiR I in North Kivu, made up of
ex-FAR and Interahamwe, about 4,000 strong, and the 'new' ALiR II operating in South Kivu out
of DR Congo government supported bases in Kasai and northern Katanga. Prunier says of ALiR
4
The International Convention of the Prevention and Punishment of the Crime of Genocide on December 9, 1948
set the United Nations definition of genocide: General Assembly Resolution 260A (III) Article 2

4
II that '...it had over 10,000 men, and although many of the officers were old genocidaires most
of the combatants were recruited after 1997.
They were the ones that fought around Pepa, Moba, and Pweto in late 2000.5
The even newer
FDLR had around 3,000 men, based in Kamina in Katanga. Still untried in combat, they had
been trained by the Zimbabweans and were a small, fully equipped conventional army.6
It is not
clear which if either of these two accounts is correct. The ALiR is currently listed on the U.S.
Department of State's Terrorist Exclusion List as a terrorist organization.
Our topic study reveals about the International Law in general and International Criminal Law in
particular. And our research will take place over the entire extent of the Great Lakes region, in
particular the North Kivu and the Western Province of Rwanda covering the red territory in
which the Congolese Tutsi have much suffered. In order to try to identify the responsibility of
States of the Great-Lakes region in such cruel violations of International Humanitarian Law, by
attacking refugees.
3. Problematic of the subject
This region of eastern of the DRC has experienced from 1995 until 1999, war crimes, crimes
against humanity and genocide against the Congolese Tutsi, after the genocide of April to July
1994 in Rwanda. Frankly the nature of these crimes is not yet identified and recognized by the
international community. Yet many Congolese Tutsi saw perish theirs or have themselves
perished, family after family, “although most of the major Western and local media published the
cliché of the interethnic confrontation”.7
The eastern part of Congo has suffered the most and
continues to experience ongoing violence based on ethicist hatred of extremist genocidal Hutus
against Tutsi and the xenophobia of Congolese government against Tutsis8
. Without an
affirmative obligation to investigate and prosecute past human rights abuses, governments may
officially forget past misdeeds in an attempt to promote national unity or to avoid confrontations
5
Gérard Prunier, From Genocide to Continental War: The "Congolese" Conflict and the Crisis of Contemporary
Africa, C. Hurst & Co, 2009, p.268
6
Ibidem
7
R. DEGNI-SEGUI, The expansion of genocidal ideology and hatred of Rwandan Hutu against Tutsi in great lakes
region, 1997, p.34.
8
MATHIEU, P.and J-C. WILLAME, Les crises des grands lacs et la question des Tutsi, Kigali, C.R.I.D, 1999,
p.24.

5
with the military. This Comment demonstrates that in fact an obligation to investigate and
prosecute certain grave human rights violations exists in both conventional and customary
international law.
The author argues that governments should recognize the obligation, since it reflects an emerging
consensus in international law. The Comment examines the policy implications of adopting this
affirmative obligation, and concludes that it would well serve the cause of human rights and
democracy9
.
The world community has introduced various legal instruments regarding reparations for gross
violations of human rights10
. Certainly, these examples prove that it is the almost universal
mobilization of the world against the genocide and its ideology including crimes against
humanity and war crimes. Although much remains to be done in the context of the massacres
perpetrated against Tutsi Congolese refugees in Mudende Camp, given that most criminals
continue to run in the woods or the streets of the capitals of the world, either anonymously or in
Rwanda at the same time. We think of INTERAHAMWE who roam with impunity in the
savannas and forests of Kivu in the east of the Democratic Republic of Congo. Of which also are
sources of leakage of these poor Tutsi.
Many international legal provisions stipulate that the Right to a Remedy and Reparation in
International Instruments have Effective Remedies and Various Dimensions: The basic right to
effective remedies has a dual meaning11
. It has a procedural and a substantive dimension. The
procedural dimension is subsumed in the duty to provide “effective domestic remedies” by
means of unhindered and equal access to justice. The right to an effective remedy is laid down in
numerous international instruments widely accepted by States; the Universal Declaration of
Human Rights (article 8), the International Covenant on Civil and Political
Rights (article 2), the International Convention on the Elimination of All Forms of Racial
Discrimination (article 6), the Convention against Torture and Other Cruel, Inhuman or
9
Naomi Roht-Arriaza, in foreword of “State obligation to investigate and prosecute Grave Human rights violations
in International Law”, California Law Review, March 1990, vol.78, art.4.
10
H. DUY PHAN, “Reparations to victims of Gross Human rights violations, the case of Cambodia”., Hao Duy
Phan holds an S.J.D. from American University Washington College of Law. He has been a Research Fellow at the
Institute of Southeast Asian Studies, Singapore and the East-West Center in Washington D.C. The views expressed
in this reference do not reflect those of his affiliations.
11
See in particular Dinah Shelton, Remedies in International Human Rights Law (2nd edition),
Oxford, 2005, 7 ff.

6
Degrading Treatment or Punishment (article 14), the Convention on the Rights of the Child
(article 39), the International Convention for the Protection of All Persons from Enforced
Disappearance (article 24), as well as in regional human rights treaties: the African Charter on
Human and Peoples’ Rights (article 7), the American Convention on Human Rights (article 25),
the European Convention for the Protection of Human Rights and Fundamental Freedoms
(article 13). Also relevant are instruments of international humanitarian law: the Hague
Convention of 1907 concerning the Laws and Customs of War on Land (article 3), the Protocol
Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of
International Armed Conflicts (Protocol I, article 91) and the Rome Statute of the International
Criminal Court (article 68 and 75). In Rwanda, for example, special courts and tribunals as
“Gacaca jurisdictions” were created or reinforced to repress the crime of genocide. At the same
time, associations or organizations such as AVEGA the FASG, etc. have been initiated and are
operational due, in order to illustrate victims who were more affected by Genocide12
.
However, in spite of all these national and international efforts to fight for the interests of the
survivors of Tutsi Genocide of 1994, two major questions remain:
1. Which obligations does the Rwandan government owe to the victims of the Mudende
Massacres of 1997?
2. Seeing the ignorance of these victims and their rights and the silence of both Rwandan
government and the international community during the massacres of civilian (refugees) […] up
to date, how can we ensure that the damage caused by these Crimes should be compensated?
This study will attempt to adopt solutions to these two problems
4. Hypothesis of work
Given the problematic mentioned above, will be relieved the following two hypotheses and we
will verify them as following:
- The obligation of Republic of Rwanda to investigate and try the perpetrators of the crimes.
12
G. Innocent, “the responsibility of the Rwandan government in the preparation and execution of the 1994
genocide.” Kigali Independent University 2006, (not published), Dissertation presented and submitted to the faculty
of law in Partial Fulfillment of the Requirements for the Award of Bachelor’s Degree in law.

7
- The ignorance of these victims and their rights and the silence of the Rwandan government
and the international community to compensate, to remedy and redress the refugees who
are victims of for [ever]… for the reparation of damage caused to the victims of that
massacre by INTERAHAMWE, it is a must to implement legal mechanisms at both
national and international. More specifically, they ought to arrest all presumed criminals
and their accomplices throughout the world; their actual judgment must contain measures
to restitution, compensation and rehabilitation for victims without forgetting to other
measures to the argument of advocating these refugees for repatriation to their country of
origin.
So, these are the two assumptions cited above that we will try to analyze throughout this
research.
5. Objectives of the work
In general, our work aims to identify the responsibility and civil and criminal liability of the
Rwandan state in the repair of damage and lead to a criminal investigation.
Because in traditional international law, States were the major subjects and insofar as wrongful
acts were committed and remedies instituted, this was a matter of inter-State relations and inter-
State responsibility13
.
Specifically, our study is the following:
- First, show the victims their rights and how to claim for the damage they have suffered;
- And then show why some people have to share the action to repairing damage to for these
atrocious massacres. In other words we would like to show the facts that make each civilly
liable;
- Determine the existing legal mechanisms or create in repairing damage caused to the
victims of Genocide, Crimes against Humanity and War Crimes;
- Make proposals likely to curb hatred and xenophobia against Tutsis in Eastern DRC. And
improve the situation of victims of several massacres, including survivors which include
orphans, widows, the disabled, etc ...
13
C. Fertsman, M. Goetz and A. Stephens in their book “Reparations for victims of Genocide, War Crimes and
Crimes against Humanity.” Leiden, Boston(2009), p28.

8
6. Research methodologies
Research Methodology is the systematic, theoretical analysis of the methods applied to a field
of study. It comprises the theoretical analysis of the body of methods and principles associated
with a branch of knowledge. Typically, it encompasses concepts such as paradigm, theoretical
model, phases and quantitative or qualitative techniques14
.
6.1. Techniques
This is a common approach and helps you to 'triangulate' i.e. to back up one set of findings from
one method of data collection underpinned by one methodology, with another very different
method underpinned by another methodology - for example, you might give out a questionnaire
(normally quantitative) to gather statistical data about responses, and then back this up and
research in more depth by interviewing (normally qualitative) selected members of your
questionnaire sample.
6.1.1. The documentary technique
We used this technique by consulting various documents related to responsibility and obligations
of States in respect of redress, reparation of damage, and continue to investigate the crime of
genocide, crimes against humanity and war crimes. It comes to books, dissertations, reports,
magazines or newspapers realized and published on the gross violations of human rights and
international humanitarian law, especially as the two Kivu scenarios, including the websites
related thereto.
6.1.2. The interview technique
According to Madeleine GRAWITZ “interview is a procedure of scientific investigation using a
verbal communication process in order to collect information relating to the set objective
15
.Using this technique, we will intervene with groups or individuals capable of delivering their
opinions on the massacres of August and December 1997 in a refugee camp MUDENDE:
14
Irny, S.I. and Rose, A.A. (2005) “Designing a Strategic Information Systems Planning Methodology for
Academic research, Yale University School of Law, Volume VI, No. 1, 2005. p.27.
15
M. Grawitz, Méthodes des sciences sociales, 11ème
éd., Paris, Dalloz, 2001, p.644.

9
Survivors, Victims, (orphans, widows and disabled), the UNHCR Agents and the Authorities of
the Government of Rwanda.
6.1.3. The technique of Questionnaires
The method of questionnaires aims to collect information also related to our theme of research16
.
These questionnaires will contain formulated questions of "an open or closed manner."
6.2. Methods
The study of research methods is not only an essential requirement for social scientists, it is also
vital for anyone looking to succeed in business and management.17
6.2.1. Analytical method
This method was an opportunity for us to analyze all the information and all information
collected in connection with the crimes of Genocide, crimes against humanity and war crimes by
considering each case in order to understand the mechanism of operation.18
6.2.2. The statistical method
The results of our investigation will be quantified and figured in ad hoc tables.
6.2.3. The comparative method
This method has allowed us to establish comparisons releasing the similarities and dissimilarities
between different gross violations of human rights and humanitarian on this planet. In this
context it has been good even when comparing the remedies relating to such crimes and between
what is happening in our Great Lakes region.
16
See Claude JAVEAU (1985:37),
17
http://www.emeraldgrouppublishing.com/research/guides/methods/#sthash.aO7Hh6OW.dpuf
18
According to Dr. M. Yves, (ULK, 2014 Syllabus, not published): The analytical method is a method enabling to
systematically analyze all data and information collected. In other words, it consists in analyzing or commenting the
written data and information collected in documents.

10
6.2.4. The synthetic method
This method will allow us to synthesize and bring together different ideas into a coherent whole.
All the data and information found in the course of the research cannot be put in the research
work, but only those which are relevant and necessary.19
7. Subdivision of the work
Our study focuses on three chapters preceded by a general introduction. The first chapter outlines
the theoretical considerations in which we define the concepts of research before making the
review of knowledge on the subject in historical form of overview of Genocide and other human
carnage in the world and in our Great Lakes region especially the Northern Kivu.
The second chapter will deal with the responsibility and obligation of the Government of
Rwanda in the legal prosecution and conduct an investigation against the Ex-FAR, EX-ALIR,
INTERAHAMWE, EX-FOCA and FDLR suspected of having been involved in the massacres of
1997 at MUDENDE Refugee Camp. Also it consists in the assessment of damages in the
atrocities of Tutsis refugees, mostly from North Kivu and the exercise of civil action resulting
from these crimes before the jurisdictions.
The third and final chapter examines the legal mechanisms for the repair of damage caused to the
victims of these crimes which derogate all international engagement protecting civilians,
especially Refugees. It is then that this last chapter is a study of shared responsibility between the
tripartite i.e. Rwanda, DRC and UNHCR; in the repair of damage as a solution to compensate the
victims of these massacres.
Finally, the work ends with a general conclusion that emerged from the different suggestions as
well as the adoption of certain recommendations in relation to our research.
19
Ibidem. “This method is also unavoidable in any research, it consists in the process of summarizing or selecting
the data and information considered by the researcher as being more relevant or substantial for his/her research.”

11
CHAPTER I: THEORETICAL AND CONCEPTUAL CONSIDERATIONS
In this chapter, I would try to highlight some key concepts that are relevant to my work
considered as important in this study before reaching a general theory on the subject. The first
problem faced by practitioners of law is therefore to find the text related to criminal activity
deemed objectionable by the designer and lawful appellation as specified by the Special Criminal
Law. Qualification is a process designed to find the name corresponding to the lawful criminal
activity as given. So this is a transaction that occurs when the offense was committed and that we
must apply a text of the law20
. It is therefore fundamental, i.e. the qualification, because, it will
flow, the head of indictment, an offense or contraventions21
. The classification of the offense is
going to result the type of sentence.22
SECTION 1: STATE
State commonly refers to either the present condition of a system or entity, or to a governed
entity (such as a country) or sub-entity such as an autonomous territory of a country.
1.1.1. Notion of the State
The concept of state with a capital letter is defined by A. Rey (1995: 421), first as a "sovereign
authority acting on a people and a specific territory" and then as "a set of human group for a
defined territory, subject to the same authority.”
According to this second definition, examples of state are an empire, a nation, a country, a
power, a republic or a kingdom.
In the field of constitutional law and public international law, R. and J. VINCENT GUILLIEN
(2001: 245) give four definitions of the concept of state.
1) "the sociological perspective: special kind of political society resulting from attachment to a
particular territory of a relatively homogeneous human community governed by an
institutionalized authority with a monopoly on organized coercion (especially the monopoly of
armed force) ". These authors cite as an example of state in this direction.
20
B. LIKULIA, Droit penal special zairois, Tomel, 2e edition, Dolloz, Paris 1985,p.18; retrieved from [la
problematique de la qualification et de la poursuite des crimes commis contre les tutsi congolais], by M. Fiston,
ULK, Gisenyi campus, 2008.p.7.
21
Ibidem
22
Ibidem

12
2) "The legal point of view, corporation holder of sovereignty."
3) "in a narrower sense and proper: all political bodies, governments, as opposed to the governed
(for example when we say that the state is pervasive, the need to reform the state, etc.)."
4) "according to the Marxist conception: instrument for oppression of the ruling class; under
capitalism instrument of the bourgeoisie for the exploitation of the proletariat. (But the
establishment of a classless society must cause the withering away of the state). "
By analyzing all these definitions, we find that they are suitable for our work (except the fourth);
insofar since independence from Belgian rule in 1962 until the time of the genocide, Rwanda
was operating a republic that had a regular army in those enjoying the monopoly of coercion
organized throughout the national territory.
1.1.2. The charge and responsibility
The laws of state responsibility are the principles governing when and how a state is
held responsible for a breach of an international obligation. Rather than set forth any particular
obligations, the rules of state responsibility determine, in general, when an obligation has been
breached and the legal consequences of that violation. In this way they are "secondary" rules that
address basic issues of responsibility and remedies available for breach of "primary"
or substantive rules of international law, such as with respect to the use of armed force. Because
of this generality, the rules can be studied independently of the primary rules of obligation. They
establish (1) the conditions for an act to qualify as internationally wrongful, (2) the
circumstances under which actions of officials, private individuals and other entities may be
attributed to the state, (3) general defenses to liability and (4) the consequences of liability.
Until recently, the theory of the law of state responsibility was not well developed. The position
has now changed, with the adoption of the Draft Articles on the Responsibility of States for
Internationally Wrongful Acts ("Draft Articles") by the International Law Commission (ILC) in
August 2001.23
23
Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILC on the Work of
its Fifty-third Session, UN GAOR, 56th Sess, Supp No 10, p 43, UN Doc A/56/10 (2001

13
The Draft Articles are a combination of codification and progressive development. They have
already been cited by the International Court of Justice24
and have generally been well received.
1.1.3. Definition of responsibility in legal framework
A.REY (1999, 1956) argues that the concept of "Responsible" works as both an adjective and a
noun and means "to accept and suffer the consequences of his/her actions, in reply, which must
(by law) repair the damage he/she has caused by his fault or who is to undergo the punishment
under the law.”
In this sense, the same lexicographer (ditto) falls as synonyms for responsible the words "author"
and "guilty".
The "responsible" concept to determine the concept of "responsibility" that lexicographer (ibid)
defines, in criminal law, as "the obligation to repair the damage that has been caused by his/her
fault, in some cases determined by the law.”
In civil law, according R.GUILLIEN and VINCENT J. (2001: 487), responsibility is "the
obligation to repair the damage resulting either from the breach of contract (contractual liability),
or breach of duty usually does not cause any harm to another by his/her own act, or because of
the things we care, or because of the staff, or because of the things we care, or because of the
people whose answers (vicarious liability).” It is in this context that SOURDAT defined liability
as "the obligation to make reparation resulting from direct or indirect negligence caused the
damage “definition that in terms of the Rwandan government at the time of the massacres
MUDENDE, we believe that both responsibilities (contractual liability and vicarious liability)
are called into question, since the government of that time had duty and obligation to keep
security and peace of refugees, so the responsibility to protect these refugees without exception.
However, it is also appropriate to point out the shared responsibility. The concept of shared
responsibility first requires some clarification.
24
The ICJ cited an earlier draft text of the Articles in Gabčíkovo-Nagyamaros Project (Hungary/Slovakia), ICJ
Reports 1997, at 7.

14
First as regards the definition of liability itself, the authors of a crime recognize that they have an
obligation to repair damage they caused personally or was caused by people that must meet or
things that his custody.
The wrongdoer once identified, is thus to redress. Before we straightly go to the problem
statement, we would like to talk about these questions which still arise: which obligations does
the Rwandan government owe to the victims of the Mudende Massacres of 1997? And we
would conclude that the government of Rwanda has two obligations: first, the obligation to
investigate and try the perpetrators of the crimes. Secondly, the obligation to pay compensation
to the victims as a States ruled by law.
SECTION 2: CRIMES
In ordinary language, the term crime denotes an unlawful act punishable by a state.25
The term
crime does not, in modern criminal law, have any simple and universally accepted definition.26
Though statutory definitions have been provided for certain purposes, the most popular view are
that crime is a category created by law (i.e. something is a crime if applicable law says that it
is). This is derived from the principle of Nullum crimen sine lege ("no crime without law") is the
moral principle in criminal law and international criminal law that a person cannot or should not
face criminal punishment except for an act that was criminalized by law before he/she performed
the act. Subtler versions of this principle require crimes to be declared in unambiguous statutory
text. One proposed definition is that a crime, also called an offence or a criminal offence, is an
act harmful not only to some individual, but also to the community or the state (a public wrong).
Such acts are forbidden and punishable by law27
.
1.2.1. Introduction
International criminal law is relatively new branch of international law. The list of international
crimes, that is of the acts for which international law makes the authors criminally responsible,
has come into being by gradual accretion.
25
Farmer, Lindsay. "Crime, the New Oxford Companion to Law ”Oxford University Press. 2008, p.263.
26
Oxford English Dictionary Second Edition on CD-ROM. Oxford: Oxford University Press. 2009
27
George Fletcher, Basic Concepts of Criminal Law (1998), chap.1, p.37.

15
Initially, in the late nineteenth century, and for a long time, only war crimes were punishable.28
It
is only since World War II that new categories of crimes have developed, while that of war
crimes has been restated: in 1945 and 1946, the Statutes of the International Military Tribunal at
Nuremberg (IMT) and the International Military Tribunal for the Far East (IMTFE), respectively,
were adopted, laying down new classes of international criminality. Thus, in 1945 crimes against
humanity and crimes against peace (chiefly wars of aggression) were added, followed in 1948 by
genocide as a special subcategory of crimes against humanity (soon to become an autonomous
class of crimes), and then in the 1980s, by torture as a discrete crime.29
Features that must
international crimes show to be classified:
First of all, all international crimes are breaches of international rules entailing the personal
criminal liability of the individuals concerned (as opposed to the responsibility of the state of
which the individuals may act as organs).30
Second, international crimes result from the cumulative presence of the following elements.
(1) They consist of violations of international customary rules (as well as treaty provisions,
under certain circumstances, for instance where such provisions codify, spell out customary law
or have contributed to its formation, or are otherwise applicable.
(2) Such rules are intended to protect values considered important by the whole international
community and are consequently binding on all states and individuals. The values at issue are not
propounded by scholars or thought up by philosophers. Rather, they are laid down in a string of
international instruments, which may not necessarily spell out the values fully or explicitly.31
28
A. Cassese, G. Acquiviva, M. Fan, and A. Whiting, (International Criminal Law: CASES & COMMENTARIES,)
Oxford University press,2011. p, 113.
29
Ibidem
30
Ibidem
31
They include the 1945 UN Charter, the 1948 Universal Declaration of Human Rights, the 1950 European
Convention on Human Rights, the Two 1966 UN Covenants on Human Rights, the 1969 American Convention on
Human RIghts, the UN Declaration on Friendly Relations of 1970 and the 1981 African Charter on Human and
People’s Rights. Other treaties also enshrine those values, although from another perspective: they do not proclaim
the values directly, but prohibit conduct that infringes them: for instance, the 1948 Convention on Genocide, the
1949 Conventions on the protection of victims of armed conflict and the two Additional Protocols of 1977, the 1984
Convention against Torture, and the various treaties providing for the prosecution and repression of specific forms
of terrorism.

16
(3) There exists a universal interest in repressing these crimes. Subject to certain conditions, their
alleged authors may in principle be prosecuted and punished by any State, regardless of any
territorial or nationality link with the perpetrator or the victim.
Finally, if the perpetrator has acted in an official capacity, i.e. as a de jure or de facto State
official, the State on whose behalf he/she has performed the prohibited act is barred from
claiming enjoyment of functional immunity from the civil or criminal jurisdiction of foreign
States.
These following three major international crimes are especially my concern: War Crimes,
Crimes against humanity and Genocide.
1.2.2. WAR CRIMES
Under State practice and opinio juris war crimes are serious violations of international
humanitarian law, the breach of international law dealing with the conduct of armed conflict
whether international or non-international (such as civil wars or large-scale and protracted armed
clashes within a State).
1.2.2.1. The notion and its origins
Only serious violations of humanitarian law are considered war crimes that entail individual
criminal responsibility of the perpetrator. In contrast, a number of rules relating to Prisoners of
War such as the rules allowing prisoners of war to wear their own decorations (Article 19 of
Geneva Convention III) or those on the distribution of collective consignments (Art. 43 of
Geneva Convention III) are merely obligations to provide for the general well-being of certain
categories of protected persons. Their violation, although amounting to a breach of humanitarian
law, does not entail individual criminal responsibility.
1.2.2.2. War and Grave Breaches
A grave breach is a particularly serious violation of the Geneva Convention or of Additional
Protocol I, such as willful killing, torture, cruel treatment, mutilations or extensive destruction of
property32
.
32
A subset of the serious violations that is frequent is the grave breaches regime contained in the Geneva
Convention and in Additional Protocol I (Article 85).

17
And therefore, the particular regime of grave breaches imposes all States the international
obligation to prosecute or (extradite) persons of having committed them, regardless of the
nationality of the perpetrator or the victim or the place of commission of the crime (so-called
universal jurisdiction).33
What is “war”? Wars on drugs, on poverty, and on illiteracy are laudable political constructs but
are not literally wars, of course a state of war has wide-ranging repercussions in contracts34
insurance, constitutional issues,35
neutrality, and governmental wartime emergency powers, not
to mention the life and death issues played out on the battlefield.36
The “War on Terrorism” is
not a war in the sense of Geneva Convention common Article 2,37
in this perspective it is
important to consult International Humanitarian Law and International Human Rights for exactly
knowing the definitions of those Massacres of MUDENDE.
In the past sixty years, human rights and humanitarian goals have nudged their way onto the
battlefield, encouraged by opinions of the International Court of Justice and other human rights
tribunals.38
“Humanitarian law” refers to international rules that attempt to “mitigate the human
suffering caused by war.”39
It is an umbrella term for laws that aim to humanize armed conflict
that, taken together, form the corpus of IHL and international human rights law (HRL). “It is
hardly possible to find documentary evidence of when and where the first legal rules of a
humanitarian nature emerged . . . For everywhere that [armed] confrontation . . . did not result in
a fight to the finish, rules arose . . . for the purpose of limiting the effects of the violence.”
33
Oxford University press,2011. p, 118.
34
See, e.g., Navios Corporation v. The Ulysses II, 161 F. Supp. 932 (D. Md. 1958), in which contractual
liability under a ship’s charter depended upon the interpretation of a contractual clause providing that a
declared war enabled the ship’s owners to cancel the charter. In question was the character of the 1956
seizure of the Suez Canal from Egypt by France and the United Kingdom.
35
Consider Korematsu v. U.S., 323 U.S. 214 (1944) and its address of civil rights.
36
Ingrid Detter, The Law of War, 2d ed. (Cambridge: Cambridge University Press, 2000), p.18–20.
37
Common Article 2 requires an armed conflict between “two or more of the high Contracting Parties . . . ”
38
See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory (The Wall
Advisory Opinion), [July 2004] ICJ Rep. 136; and, Advisory Opinion on the Legality of the Threat or Use
of Nuclear Weapons (The Nuclear Weapons Advisory Opinion), [1996] ICJ Rep. 226; and, Issa v. Turkey,
2004 Eur. Ct. H.R. 71.
39
Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War: An Introduction to International
Humanitarian Law (Geneva: ICRC, 2001), 12.

18
40
Humanitarian law, as such, does not frequently arise when considering jus in bello issues. Still,
“there is today no question that human rights law comes to complement humanitarian law in
situations of armed conflict41
.”
1.2.2.3. War Crimes in Non-international Armed Conflict
The rationale for expanding the applicability of (Article 3 ICTYSt.) war crimes to non-
international armed conflicts was propounded in 1995 by the ICTY Appeals Chamber in Tadić
and is now widely accepted.42
And according to ICTY statement in Tadić case, further clarified
that: (i) war crimes must constitute a breach of a rule of international humanitarian law; (ii) the
rule in question must be of customary law or applicable treaty law; (iii) the violation must be
serious, i.e. it must be a rule protecting important values and its breach must involve grave
consequences for the victim; and (iv) the violation must entail, under either custom or treaty law,
the individual criminal responsibility of the person breaching the rule (so-called ‘four Tadić
conditions’ or ‘Tadić test’).
However, for the armed conflict a separate issue is that not all serious crimes committed during
an armed conflict constitute war crimes. There must be a link between the criminal conduct and
the armed conflict.43
1.2.2.4. Link with International Humanitarian Law
IHL is the body of international legislation that applies in situations of armed conflict.
Like its fraternal twin, Law Of Armed Conflict (LOAC), IHL refers to the body of treaty-based
and customary international law aimed at protecting the individual in time of international or
non-international armed conflict – treaties, for example, such as 1949 Geneva Convention IV, for
the protection of civilians. IHL is confined to armed conflict, both international and non-
international.44
It is intended to limit the violence of armed conflicts by protecting those taking
no active part in hostilities, by protecting property not considered military objectives, and by
40
Hans-Peter Gasser, International Humanitarian Law: An Introduction (Berne: Paul Haupt Publishers, 1993), 6.
41
Cordula Droege, “Elective Affinities? Human Rights and Humanitarian Law,” 871 Int’l Rev. of the Red
Cross (Sept. 2008), 501.
42
The ICTY Appeals Chamber (Tadić Interlocutory Appeal, para.95)
43
See the Kunarac case, ICTY, (para.57)
44
ICRC, “International Humanitarian Law and the Challenges of Contemporary Armed Conflicts,” 867
Int’l Rev. of the Red Cross (Sept. 2007), 719, 722.

19
restricting the combatants’ right to use any methods of warfare they choose. Until the end of
World War II, IHL was an unknown term.
Today, although the 1949 Geneva Conventions (and most military references) employ the term
“law of armed conflict,” IHL invocation is widespread, particularly in civilian and academic
circles. “The purpose of IHL is not to prevent war.
More prosaically, it seeks to preserve an oasis of humanity in battle until resort to armed force . .
. is no longer a means of settling differences between States.”45
“Law of armed conflict” and
“international humanitarian law” have essentially the same meaning, particularly among
academics and the influential ICRC – groups that would ideally like to see a narrowed range of
options for combatants, by no means an unworthy goal. An Australian academic clearly thinks
“IHL” rather than “LOAC” when she writes, “Written by the military, for the military, about the
military, IHL (international humanitarian law) treaties, particularly the universally ratified
Geneva Conventions . . . relate to bare survival during the most horrific condition humans can
manufacture – armed conflict.”46
The same could be applied to LOAC.
The melding of battlefield laws and humanitarian goals is not without its critics. Jean Pictet,
editor of the Geneva Convention Commentaries, writes that IHL has been “contaminated” by
ethics and idealism,47
appearing to combine concepts of different characters, one legal, and the
other moral.48
A possible disadvantage of the term [IHL] is that it could be thought to exclude some parts of the
laws of war (such as the law on neutrality) whose primary purpose is not humanitarian. Indeed,
the term “international humanitarian law” could be seen as implying that the laws of war have an
exclusively humanitarian purpose, when their evolution has in fact reflected various practical
concerns of states and their armed forces on grounds other than those which may be considered
humanitarian.49
45
Christophe Girod, DRAFT, Storm in the Desert: The International Committee of the Red Cross and the
Gulf War 1990–1991 (Geneva: ICRC, 2003), 26–7.
46
Helen Durham, “International Humanitarian Law and the Gods of War: The Story of Athena Versus
Ares,” 8–2 Melbourne J. of Int’l L. (2007), 248, 253.
47
Jean S. Pictet, International Humanitarian Law (Geneva: ICRC, 1985), 3.
48
Jean S. Pictet, Humanitarian Law and the Protections of War Victims (Leyden: ICRC, 1975), 11.
49
Roberts and Guelff, supra, note 33, 2.

20
The combination of national and international prosecutors for what has come to be called “core
international crimes”—namely, genocide, crimes against humanity, and war crimes—is referred
to in the statute of the International Criminal Court (ICC) as “complementarity.”50
The
ICC complements national criminal justice systems whenever a given system is “unwilling or
unable” to carry out its enforcement obligations.51
But if these assumptions do not materialize, then what? States may not fulfill their international
obligations to prosecute, extradite to other states willing to prosecute, or simply may not
cooperate with the ICC. Moreover, the ICC may turn out to be unable to address the increased
demands placed upon it by unfolding events. Will that be the decline of ICJ or maybe even the
end of the ICJ that we have come to know so far? Will something new emerge that reflects new
realities in a global society?
1.2.2.5. Categories of War Crimes
A better categorization of war crimes would perhaps consisting objective criteria linking similar
crimes. For example, it should be possible to list war crimes depending on the subject matter to
which they relate. Thus, one could distinguish between various classes of war crimes depending
on whether they are intended to deal with (i) attacks against civilians or civilian objects; (ii)
unlawful taking of life (murder of civilians, murder of prisoners of war); (iii) unlawful attacks to
personal integrity (for example, torture, wounding of civilians or prisoners of war, sexual
violence); (iv) limitations of personal freedoms (for example, deportation, slavery, forced labor,
forced enlisting, hostage taking); (v) illicit appropriation of property (for example, plunder,
appropriation of cultural property); etc...52
1.2.2.6. War Crimes committed by civilians
War crimes may be committed by military personnel against enemy combatants or civilians (or
persons otherwise not taking active in the hostilities).
50
Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90. For a comparison between the
ICC and national justice systems, see id. Arts.1 (17). See also M. C. BASSIOUNI, the legislative history of the
international criminal court: introduction, analysis, and integrated text 128–31 (2005).
51
Rome Statute, supra note 61, art. 17.
52
Article 8 of the Rome Statute establishing the International Criminal Court (ICC), the entire article defines well
the war crimes.

21
They may also be committed by civilians, as long as their conduct is linked to the armed conflict.
Two cases explain how this may happen.53
1.2.3. CRIMES AGAINST HUMANITY
For the purpose of the Rome Statute, "crime against humanity" means any of the following acts
when committed as part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules
of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any
other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic,
cultural, religious, gender as defined in paragraph 3, or other grounds that are universally
recognized as impermissible under international law, in connection with any act referred to in
this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious
injury to body or to mental or physical health.
53
Superior Military Court of the French Occupation Zone in Germany, RÖCHLING et al., Judgment of 25 January
1949.

22
1.2.3.1. The Notion and Its Origins
Crimes against humanity occupy the space between war crimes and genocide.54
While war
crimes can be isolated or singular events and are necessarily tied to armed conflict, crimes
against humanity address serious crimes (such as murder, torture, persecutions, deportation,
sexual violence, and other inhumane acts of similar character and gravity) committed as part of a
‘widespread or systematic attack on a civilian population’55
. A perpetrator need only commit a
single specific crime to be charged with a crime against humanity, but must do so in the context
of a widespread or systematic attack and with an awareness of the link between his act and the
larger attack.
Accordingly, crimes against humanity address crimes committed against a civilian population on
a massive scale, or repeatedly over time.
Moreover, in customary international law, and certain codifications of the concept (such as the
ICCSt., but not the ICTYSt.), crimes against humanity can be committed absent an armed
conflict, such as when a State commits atrocities against its own people.56
Although the ICTY
reached this conclusion in the Tadić case, ICTY limits the jurisdiction of the ICTY to crimes
against humanity ‘committed in armed conflict’, and therefore adds an element beyond what is
required by customary international law.
Article 5 of the ICTY states that: The International Tribunal shall have the power to prosecute
persons responsible for the following crimes when committed in armed conflict, whether
international or internal in character, and directed against any civilian population:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
54
A. Cassese, G. Acquiviva, M. Fan, and A. Whiting, (International Criminal Law: cases & commentaries,) Oxford
University press, 2011. p, 154.
55
Article 7 of the Rome Statute establishing the International Criminal Court (ICC), the entire article defines well
the war crimes.
56

23
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts.
When crimes against humanity are committed during the course of an armed conflict, there can
be substantial overlap between war crimes and crimes against humanity, and frequently
international criminal indictments will charge each specific crime as both war crime and crimes
against humanity.57
During the 19th
century, States sometimes protested the brutal treatment by other States of their
own minority populations, and at times even justified military intervention, in part, on this basis.
Nonetheless, in the early history the seeds were planted for the later development of
accountability for such crimes.
One of the first uses of the expression ‘crimes against humanity’ occurred in 1915 when the
British, French and Russians protested the killings of Armenians in the Ottoman Empire.58
Four
years later, in the lead-up to the Versailles Conference, diplomats from the Great Powers
contemplated a tribunal to hold members of the German Empire and its allies accountable for
violations of the laws and customs of war as well as the ‘laws of humanity’.59
Following the
World War II, what began as a political expression of condemnation was further translated into a
cognizable legal concept of individual responsibility.
The Charter of the International Military Tribunal (IMT) at Nuremberg was, of course, the most
significant step in this process; it included crimes against humanity among the potential charges
and it provided some definition for these crimes.
57
Ibidem
58
Blast of the World War I, although it was a political and diplomatic condemnation, and therefore in keeping with
similar protests of the preceding century, the formulation that was used suggested at least the possibility of
individual accountability.
59
Robert Lansing and James Brown Scott, “Memorandum of Reservations Presented by the Representatives of the
United States to the Report of the Commission on Responsibilities” (4th
April 1919), Annex II to Commission on the
Responsibility of the Authors of the War and Enforcement of Penalties, Report Presented to the Preliminary Peace
Conference (Versailles, 29th
March 1919) (1920) 14 American Journal of International Law 95, 144. Retrieved from
(A. Cassese, G. Acquiviva, M. (International Criminal Law: cases & commentaries,) Oxford University press, 2011.
p, 155).

24
At the same time, it limited their scope by requiring a connection to the other crimes in the
Charter (Crimes against humanity or against peace).60
In its first incarnation, therefore, crimes against humanity were:
Murder, extermination, enslavement, deportation, and other inhumane acts committed against
any civilian population, before or during the war, or persecutions on political, racial, or religious
grounds in execution of or connection with any crimes within the jurisdiction of the Tribunal,
whether or not in violation of the domestic law of the country where perpetrated.61
1.2.3.2. The Ex Post Facto Principle regarded as constituting no legal or moral barrier to
the present trial
Under written constitutions the ex post facto rule condemns statutes which define as criminal
acts committed before the law was passed, but the ex post facto rule cannot apply in the
international field as it does under constitutional mandate in the domestic field.62
International
law is the product of multiple treaties, conventions, judicial decisions and customs which have
received international acceptance or acquiescence.63
Cassese added that it would be sheer absurdity to suggest that the ex post facto rule, as known to
constitutional States, could be applied to a treaty, a custom, or a common law decision of an
international tribunal, or to the international acquiescence which follows the event. Usually the
defendants claim protection under the principle of nullum crimen sine lege, though they withheld
from others the benefit of that rule during Hitler regime. Obviously the principle in question
constitutes no limitation upon the power or right of the court to punish acts which can properly
be held to have been violations of international law when committed.
60
Ibidem
61
IMT Nuremberg, Göring et al., judgment of 30 September—1 October 1946 (Streicher, Von Schirach). [Streicher
was an early member of the Nazi party and the publisher and editor of Der Stürmer, an anti-Semitic weekly
newspaper. His conviction for incitement to murder and extermination and for persecution resulted in a sentence of
death for Streicher and foreshadows the prosecution of Ferdinand Nahimana and others (also known as the ‘Media
Case’).
62
63
Ibidem

25
1.2.3.3. The Perpetrators and the Victims
Ordinarily, individuals who commit crimes against humanity will be state actors or members of
an organized rebel or militia group.64
In many cases individual perpetrators will themselves be
within the state or organizational entity promoting the attack on civilians, or in another closely
aligned group or organization (such as a paramilitary group), that is not necessarily the case.65
With regard to the victims of crimes against humanity, the drafters of the London Charter clearly
had in mind that some of the worst acts perpetrated, in particular by German officials, had not
been committed against foreign nationals, but rather against Germany’s own citizens on racial,
political or other discriminatory bases.
They could therefore not be considered criminal under the then-applicable laws or customs of
war. Crimes against humanity are therefore linked more to civilians than to combatants (hors de
combat or not).66
Accordingly, victims of crimes against humanity will ordinarily be civilians whether or not of
the same nationality as the perpetrator…67
1.2.3.4. Crimes against humanity: Jus Cogens and Obligatio Erga Omnes
International crimes including that rise to the level of jus cogens constitute obligatio erga omnes
which are non-derogable. Legal obligations which arise from the higher status of such crimes
include the duty to prosecute or extradite, the non-applicability of statutes of limitations for such
crimes, the non-applicability of any immunities up to and including heads of state, the non-
applicability of the defense of "obedience to superior orders" (save as mitigation of sentence), the
universal application of these obligations whether in time of peace or war, their non-derogation
under "states of emergency", and universal jurisdiction over the perpetrators of such crimes68
Jus
64
The elements of crimes of the ICC, adopted by the Assembly of States parties pursuant to Article 9 of the ICCSt.
65
See Robert Cryer, ET AL., an introduction to international criminal law and procedure, 230 – 233 (2010); or
commentary on the rome statute of the criminal court, 121 – 122 (Otto Triffterer ed., 1999) for a background to the
development of crimes against humanity.
66
Yale Law School, Charter of the International Military Tribunal, Constitution, available at
http://avalon.law.yale.edu/imt/imtconst.asp (accessed 20 October 2014).
67
Affirmation of the Principles of International Law Recognized by the Charter of the Nuremburg Tribunal, G.A.
Res. 95(I), UN Doc A/64/Add.1 (Dec. 11, 1946).
68
M. CHERIF BASSIOUNI, international criminal law conventions and their
Penal provisions, 451-54 (1997)...

26
cogens refers to the legal status that certain international crimes reach, and obligatio erga
omnes pertains to the legal implications arising out of a certain crime's characterization as jus
cogens.
Thus, these two concepts are different from each other. International law has long recognized
and employed with both concepts, but mostly in contexts that do not include international
criminal law ("ICL").69
The national criminal law of the world’s major legal systems and ICL
doctrine has, however scantily, dealt with these concepts.70
The term "jus cogens" means "the
compelling law" and, as such, a jus cogens norm holds the highest hierarchical position among
all other norms and principles.71
By virtue of this status, jus cogens norms are deemed to be "peremptory" and non-derogable.72
Scholars, however, disagree as to what constitutes a peremptory norm and how a given norm
rises to that level. Disagreement arises over sources, content (the positive or norm-creating
elements), evidentiary elements (such as whether universality is appropriate, or less will suffice),
and value-oriented goals (for example, preservation of world order and safeguarding of
fundamental human rights).
Furthermore, there is no scholarly consensus on the methods by which to ascertain the existence
of a peremptory norm, nor to assess its significance or determine its content.
Scholars also disagree as to the means to identify the elements of a peremptory norm, to
determine its priority over other competing or conflicting norms or principles, to assess the
significance and outcomes of prior application, and to gauge its future applicability in light of the
value-oriented goals sought to be achieved.73
69
See, e.g., Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, U.N. Doc.
70
See M. Cherif Bassiouni, a draft international criminal code and draft statute for an international criminal tribunal
(1987); Joseph B. Keenan & Brendan F. Brown, crimes against international law (1950)., p.34.
71
See M. Cherif Bassiouni, A Functional Approach to "General Principles of International Law",
72
See, e.g., Lauri Hannikainen, peremptory norms (jus cogens) in International Law (1988)
73
See, e.g., Ian Brownlie, Principles of public international law 512-15 (3d ed. 1979 Norms of International Law:
Their Source, Function and Future, 4 Denver j. int'l l. & policy 187 (1973).

27
Some scholars see jus cogens sources and customary international law as the same,74
others
distinguish between them,75
while still others question whether jus cogens is simply not another
semantic way of describing certain "general principles."76
This controversy adds to the level of
uncertainty as to whether jus cogens is a source of ICL.
1.2.3.5. The Specific Crimes within Crimes against Humanity
A crime against humanity is committed when:
 The accused commits a prohibited act ;
 That is part of:
o an “attack”
o which is “widespread or systematic” and
o “directed against any civilian population”;
 And when there is a link or “nexus” between the acts of the accused and the attack.
The ICTY Statute requires that the attack be committed in the context of an armed conflict,77
and
the ICTR Statute requires that the attack have a discriminatory element.78
Neither of these
elements are required by the definition of crimes against humanity under customary international
law. At the ICC neither of these additional elements is required.79
A crime against humanity
involves the commission of certain prohibited acts committed as part of a widespread or
systematic attack directed against a civilian population.
When committed within this context, what would have been an “ordinary” domestic crime, such
as murder, becomes a crime against humanity. A person commits a crime against humanity when
he or she commits a prohibited act that forms part of an attack.80
74
See Anthony d'Amato, the concept of custom in international law 132 (1971).
75
See Christenson, supra note 40; cf. Mark Janis, Jus Cogens: an Artful Not a Scientific Reality.
76
See BASSIOUNI, supra note 62.
77
However, the ICTY has held that under customary international law, a connection with an armed conflict is not
required. Duško Tadid, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,
Appeals Chamber, 2 Oct. 1995, para. 141, See also Kaing Guek Eav, Case No. 001/18-07-2007/ECCC/TC, Trial
Judgement, 26 July 2010, para. 2I8.
78
See infra, section 7.2.2.1.7.
79
It should be noted that while the attack need not be discriminatory, the crime of persecution requires that the act
amounting to persecution be carried out on discriminatory grounds.
80
See, e.g., Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Judgement, 2 Sept. 1998, para.205.

28
Factors to consider when determining whether an “attack” against a civilian population has taken
place include:
 Were there discriminatory measures imposed by the relevant authority?
 Was there an authoritarian takeover of the region where the crimes occurred?
 Did the new authority in fact establish “governmental” structures?
 Did summary arrests, detention, torture, rape, sexual violence or other crimes take place?
 Did massive transfers of civilians to camps take place?
 Was the “enemy population” removed from the area?81
The concepts “attack” and “military attack” differ. A crime against humanity can occur when
there is no armed conflict.82
Thus, an attack is not limited to the conduct of armed hostilities or
use of armed force. CAH can include mistreatment of a civilian population. The attack could also
precede, outlast or continue during an armed conflict, without necessarily being part of it.83
The
attack does not need to involve the military or violent force.84
ICTY and ICTR jurisprudence,
and the Rome Statute, provide that there must be at least “multiple” victims or acts to be
considered an attack directed against a civilian population.85
The acts can be of the same type or
different.86
“Directed against” requires that the civilian population must be the primary target of
the attack, not just an incidental target.87
Thus, the primary object of the attack is “any civilian population”.88
“Any” highlights the fact
that CAH can be committed against both enemy nationals and crimes by a state’ own subjects.89
“Civilian” refers to non-combatants. “Population” refers to a larger body of victims and crimes
of a collective nature.90
It is not required that an entire population of an area be targeted.
81
Dragan Nikolid, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, TC, IT-94-2-
R61, 20 Oct. 1995, para. 27.
82
Except at the ICTY, where crimes against humanity must be committed “in armed conflict, whether international
or internal in character”. ICTY Statute, Art. 5. This requirement was abandoned in the ICTR and ICC Statutes.
83
Dragoljub Kunarac et al., Case No. IT-96-23-A, Appeal Judgement, 12 June 2002, para.86.
84
Akayesu, TJ para. 676 – 684.
85
Rome Statute of the International Criminal Court, Art. 7(2)(a); Dragoljub Kunarac et al., Case No. IT-96-23-T,
Trial Judgement, 22 Feb. 2001, para.415; Milorad Krnojelac, Case No. IT-97-25-T, Trial Judgment, 15 March 2002,
para. 54.
86
Clément Kayishema et al., Case No. ICTR-95-I-T, Trial Judgement, 21 May 1999, para. 122.
87
“ICC Elements of Crimes” ICC-ASP/1/3 (adopted 9 Sept. 2002, entered into force 9 Sept. 2002), Introduction to
Art. 7 (ICC Elements of Crimes).
88
Tihomir Blaškid, Case No. IT-95-14-A, Appeal Judgement, 29 July 2004, para.106.
89
Kunarac et al., AJ para.91.

29
It is enough to show that a certain number of individuals were targeted in the course of the
attack, or that individuals were targeted in such a way that demonstrates that the attack was in
fact directed against a civilian “population”, rather than against a small and randomly selected
number of individuals.91
Factors to determine whether the attack was directed against a civilian
population include:
 the means and methods used in the course of the attack;
 the number of victims;
 the status of the victims;
 the discriminatory nature of the attack;
 the nature of the crimes committed in the course of the attack;
 the resistance to the assailants at the time; and
 the extent to which the attacking force may be said to have complied or attempted to
comply with the precautionary requirements of the laws of war.92
The ultimate objective—such as restoring democracy—of a fighting force can be no justification
for attacking a civilian population. Rules of IHL apply equally to both sides of a conflict,
irrespective of who is the “aggressor”, and the absolute prohibition under international
customary and treaty law on targeting the civilian population precludes military necessity or any
other purpose as a justification.93
At the ICC, “civilian population” refers to people who are civilians and not members of armed
forces or other legitimate combatants.94
The civilian population must be the primary target of the
attack, not a secondary victim.95
90
Duško Tadid, Case No. IT-94-1-T, Trial Judgement, 7 May 1997, para.644.
91
Kunarac et al., AJ para. 90; Stanislav Galid, Case No. IT-98-29-T, Trial Judgement, 5 Dec. 2003, para.143;
Krnojelac, TJ para.56; Kunarac et al., TJ para. 424-425; Mladen Naletilid et al., Case No. IT-98-34-T, Trial
Judgement, 31 March 2003, para. 235; Akayesu, TJ para. 582; Georges A. N. Rutaganda, Case No. ICTR-96-3-T,
Trial Judgement, 26 May 2003, para.71; Kayishema, TJ para.128.
92
Blaškid, AJ, para.106; Kunarac et al., AJ para.90.
93
Moinina Fofana et al., Case No. SCSL-2003-11-A, Appeal Judgement, 28 May 2008, para.247.
94
Geneva Conventions 1949 (adopted 12 Aug. 1949, entered into force 21 Oct. 1950) (GC I-IV), Common Art. 3,
and Additional Protocol I (adopted 8 June 1977, entered into force 7 Dec. 1978) (AP I) Arts. 43 and 50; Situation in
the Republic of Kenya, Case No. ICC-01/09, Decision Pursuant to Article 15 of the Rome Statute on the
Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, para.82 (fn 74), citing
Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the

30
1.2.4. GENOCIDE
Genocide is the systematic destruction of all or a significant part of a racial, ethnic, religious or
national group. Well-known examples of genocide include the Holocaust, the Armenian
genocide, and more recently the Rwandan genocide.
1.2.4.1. The Notion and its Origins
Frequently called the crime of crimes in contemporary international criminal law cases, genocide
is infamous because of its association with the Shoah, translated into English as Holocaust. What
gives genocide its particular odiousness is its dolus specialis (special intent element, also referred
to as genocidal intent).
Genocide was a crime without a name as Winston Churchil put it in describing the Nazi Final
Solution until Polish lawyer Raphaël LEMKIN, a refugee fleeing Nazi occupation of his
homeland, coined the term genocide.
The term merges the ancient Greek word genos, meaning race or tribe, and caedere,the Latin
word for killing. The term was meant to capture the grave offence of extinguishing a group,
thereby robbing the world of the group and its future contributions.
1.2.4.1.1. Legal definition of genocide
Genocide is defined in Article 2 of the Convention on the Prevention and Punishment of the
Crime of Genocide (1948) as "any of the f following acts committed with intent to destroy, in
whole or in part, a national, ethnical, racial or religious group, as such: killing members of the
group; causing serious bodily or mental harm to members of the group; deliberately inflicting on
the group conditions of life calculated to bring about its physical destruction in whole or in part.
It might be necessary to determine if all or only a part of the group at risk within a specific
geographical location is being targeted.
Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, Pre-Trial Chamber II, 15 June
2009 para. 78; Kunarac et al., TJ para.425.
95
Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute, para.82(fn 73), citing
Bemba Confirmation Decision para.77; Kunarac et al., AJ para.91-2; Milomir Stakid, Case No. IT-97-24-T, Trial
Judgement, 31 July 2003, para.624; Mitar Vasiljevid, Case No. IT-98-32-T, Trial Judgement, 29 Nov. 2002, para.33.

31
The aim of the Genocide Convention is to prevent the intentional destruction of entire human
groups, and the part targeted must be significant enough (substantial) to have an impact on the
group as a whole.
The substantiality requirement both captures genocide’s defining character as a crime of massive
proportions (numbers) and reflects the Convention’s concern with the impact the destruction of
the targeted part will have on the overall survival of the group (emblematic).
Imposing measures intended to prevent births within the group; and forcibly transferring children
of the group to another group.96
Frequently called the ‘crime of crimes’ in contemporary international criminal law cases,
genocide is infamous because of its association with the Shoah, translated into English as
‘Holocaust’.97
What gives genocide its particular odiousness is its dolus specialis (special intent element, also
referred to as genocidal intent): the specific intent to destroy a national, racial, religious or
ethnical group as such, in whole or in part, through one of five listed categories of criminal
conduct.98
When mass slaughter targeting a racial, religious or ethnical group flares there often is a legal
and political battle over whether the term genocide applies because the label conveys deep
condemnation and particular expressive force99
.
1.2.4.1.2. Genocidal intent
Genocidal intent –also called dolus specialis, special intent and specific intent in the
jurisprudence—is frequently the most complex issue in case of alleged genocide.100
96
Art. 6 of the Rome Statute of the International Criminal Court.
97
Oxford University press, 2011. p, 154.
98
Ibidem
99
Ibidem
100
A. Cassese, G. Acquiviva, M. Fan, and A. Whiting, (International Criminal Law: CASES &
COMMENTARIES,) Oxford University press, 2011. p, 154.

32
The specific intent to destroy101
is the hallmark of genocide and gives the crime its particular
gravity. Discerning genocidal intent can be difficult102
. Mass killing often takes many hands.
Some may harbor the intent to destroy a group as such, and some may luck that special intent
element; aiming instead to kill for such manifold reasons as revenge, to obey orders, or out of
generalized hatred and sadism short of genocidal intent.103
Cassese continues arguing that some
may also contribute to the commission of genocide without sharing the intent to destroy the
group.
1.2.4.2. Elements of Genocide
The key components of genocide are threefold.104
First, there must be an underlying offence committed with requisite mens rea.
Second, the underlying offence must be directed against a particular group as seen already above.
Third, the underlying offence against a protect group must be committed with genocidal intent—
the specific intent to destroy the group. Genocide thus has two layers of mens rea. The second
overarching mens rea, specific intent to destroy, is what sets genocide apart from all other
crimes.
Hereafter are prescribed five categories of underlying acts committed with intent to destroy, in
whole or in part, a national, ethnical, racial or religious group, as such105
:
 (a) Killing members of the group;
 (b) Causing serious bodily or mental harm to members of the group;
 (c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
101
See, 1.4.1.1. Legal definition of genocide cited in this dissertation.
102
OFFICE OF THE UN SPECIAL ADVISER ON THE PREVENTION OF GENOCIDE (OSAPG), ANALYSIS
FRAMEWORK (2005).
103
The Oxford Companion to International Criminal Justice (Antonio Cassese, ed.) (Ref. K5301 .O94 2009) is a
reference work that includes essays on major issues, definitions of terms and short biographies, and summaries of
important cases.
104
Ibidem
105
Art. 2 of theConvention on the Prevention and Punishment of the Crime of Genocide Adopted by Resolution 260
(III) A of the United Nations General Assembly on 9 December 1948.

33
 (d) Imposing measures intended to prevent births within the group;
 (e) Forcibly transferring children of the group to another group.
1.2.4.3. Cultural Genocide
When we notice well, things that happen in our area (great—lakes region, ‘genocide in
Rwanda—against Tutsi; massacres of Mudende; the unceasing wars in Eastern DRC; and in
Burundi’), mass killing, human carnage ... no doubt we see much, it is a culture of hate. They
hate one to another.
A.CASSESE defines the notion of cultural genocide as an amorphous and politically freighted
one that was explicitly rejected during the framing of the Genocide Convention. The problem
with vague concepts is that they are often capacious enough to be seized upon for various
political projects, thereby loosening and weakening the concept of genocide from its baseline
horror—the effort to physically eradicate the existence of a group. He continues stating that the
“idea of cultural genocide would have opened a nettlesome rash of questions in light of colonial
history in which languages and cultures of indigenous peoples have been repeatedly eradicated.
There would also be line—drawing problems between assimilation measures and the contested
concept of cultural genocide.”
1.2.4.4. Prevention of Genocide vs. Complicity in genocide
After the Shoah, the world said ‘never again!’ to genocide—but has flared time and again in the
contemporary era. The international community has been slow to intervene to prevent genocide,
as the Rwanda case demonstrates, though under the Genocide Convention, States undertake to
prevent as well as punish genocide.106
Genocide expert William SCHABAS has termed prevention the genocide convention’s ‘greatest
failure’.
106
A. Cassese, G. Acquiviva, M. Fan, and A. Whiting, (International Criminal Law: CASES &
COMMENTARIES,) Oxford University press, 2011. p, 229.

34
The politics of intervention are complicated and often hinder efforts to prevent genocide. As a
matter of legal design, moreover, the enforcement mechanism of the Genocide Convention is
subject to critique.107
1.2.4.5. Domestic implementation
Under article 5 of the Genocide convention, ‘the Contracting Parties undertake to enact in
accordance with their respective Constitutions, the necessary legislation to give effect to the
Genocide convention and to provide effective penalties for persons guilty of genocide or any of
the other acts enumerated in article 3.108
Many signatories have reproduced verbatim the Genocide Convention’s definition of genocide
into their criminal codes upon ratification.109
Since international tribunals intervene when
domestic institutions are not able or willing to act, it is logical that national courts deal with
genocide as with any other crime.
However, when no specific statutory provision exists domestic courts have often proven
reluctant to apply the provisions of the Genocide Convention –despite ratification of the
convention—or to enforce obligations to prevent and punish genocide arising from customary
international law. The reluctance may be heighted by lawsuits that strain the notion of
genocide.110
107
Art. 6 of the said Convention leaves enforcement to courts of the States where the genocide occurred or before an
international penal tribunal—which in 1948 was still a distant dream.
Art. 8 of the same convention permits contracting parties to ‘call upon the competent organs of the UN to take such
action under the UN Charter as they consider appropriate for the prevention and suppression of act of genocide’.
108
Ibidem
109
The Government of Rwanda punishes for instance, the genocidal ideology is punished under Article 135:
Punishment of the crime of genocide ideology and other related offences
Any person who commits the crime of genocide ideology and other related offences shall be liable to a term of
imprisonment of more than five (5) years to nine (9) years and a fine of one hundred thousand (100,000) to one
million (1,000, 000) Rwandan francs.
A law shall provide for the details related to genocide ideology and other related offences
110
The following case provides an example: Australian, Nulyarimma v. Thompson, federal Court of Australia, see
the Judgment of 1 September 1999.

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