On March 12, 2008, the Appeals Chamber of the United Nations International Criminal Tribunal for Rwanda (ICTR) handed down its judgment in the case of Prosecutor v. Seromba. The Appeals Chamber, by a four-to-one majority, found that Athanase Seromba, a Roman-Catholic priest from Rwanda, was guilty of "committing" genocide and extermination as a crime against humanity for his participation in the bulldozing of Nyange church that resulted in the deaths of the at least 1,500 displaced ethnic Tutsi inside the church on April 16, 1994, and increased his sentence from fifteen years to imprisonment for the remainder of his life. The Appeals Chamber's judgment expanded the legal definition of "committing" genocide (as a mode of participation), and, also as a precedent, applied this definition of committing to extermination as a crime against humanity. This expansion of the definition of committing under international criminal law and the imposition of the maximum sentence by the Appeals Chamber's majority drew a dissenting opinion from Judge Liu.
The judgment reversed the Trial Chamber's finding that Seromba was criminally responsible for the offence of aiding and abetting (as a mode of participation) genocide in the bulldozing of the Nyange church, but affirmed the Trial Chamber's finding that Seromba, in a separate incident on a previous day, aided and abetted genocide by expelling several of the parish's Tutsi employees that resulted in their being killed by Hutu extremist attackers gathered outside the presbytery walls. The Appeals Chamber also affirmed the acquittal of Seromba on the charge of conspiracy to commit genocide.
Several of the Appeals Chamber's other rulings in Seromba are noteworthy, including finding that an accused person does not have unfettered right to testify last at his trial; that the testimony of one witness can be sufficient to make a finding of fact beyond a reasonable doubt (in other words, that the principle of unus testis, nullus testis, or a single witness is the same as none, is not a valid rule of evidence); that "betrayal of trust" is an aggravating circumstance, and; that an accused person's age of 31 at the time of the crime does not constitute a mitigating circumstance.
II. THE FACTS AS FOUND BY THE TRIAL CHAMBER'S JUDGMENT
The ICTR Trial Chamber in its judgment of December 13, 2006 had found that beginning on April 12, 1994, Tutsi were herded toward Nyange church, located in Kibuye prefecture, Rwanda. At least 1,500 displaced Tutsi civilians sought shelter in the Nyange church as thousands of armed Hutu surrounded the church to prevent the Tutsi from escaping. On April 13, 1994, Seromba expelled the parish's Tutsi staff from his presbytery compound. Seromba prohibited the hungry, displaced Tutsi from picking bananas from the parish's grove and he ordered gendarmes to shoot any Tutsi that did so.
On the days preceding April 16, 1994, Hutu assailants, including Interahamwe, attacked the displaced Tutsi and church using machetes, guns, grenades, dynamite, and petrol sprayers. As the attacks escalated, the Tutsi barricaded themselves inside the Nyange church. On April 15, 1994, the attackers attempted but failed to burn down the church. Witnesses testified that attackers sang songs with anti-Tutsi lyrics and blew whistles during attacks coordinated by local leaders.
On April 16, 1994, the Nyange church was bulldozed and attacked resulting in the deaths of at least 1,500 displaced Tutsi. There appears to have been only one survivor from the bulldozing and attacks that took place on April 16, 1994 against the Nyange church. The Trial Chamber found that Seromba discussed and "accepted" the local authorities' decision to bulldoze the church with the Tutsi inside it. Before he began bulldozing, the bulldozer driver "asked Seromba three times whether he should destroy the church." Seromba responded in the affirmative and "said such words to [the] bulldozer driver ... as would encourage him to destroy the church." The Trial Chamber found that Seromba advised the bulldozer driver where to hit his own church, pointing to "the fragile side of the church." Based on these factual findings, the Trial Chamber held that Seromba merely aided and abetted genocide and sentenced him to fifteen years imprisonment. Both the Prosecutor and the Defense appealed the Trial Chamber judgment.
III. THE ICTR APPEALS CHAMBER'S JUDGMENT OF MARCH 12, 2008
The main issue on appeal was the accused's mode of participation, namely: did Seromba aid and abet, commit, or order genocide and extermination as a crime against humanity? Seromba, however, maintained he was innocent, "did not commit any crime," and sought to overturn the Trial Chamber's factual and legal findings. The Prosecutor's appeal generally did not seek to overturn the facts, but rather sought different legal conclusions on the same facts. The legal categorization of Seromba's acts became the hallmark of the Appeals Chamber's judgment.
The Prosecutor argued that Seromba's acts and utterances amounted to "ordering" genocide and extermination as a crime against humanity. Alternatively, Seromba's acts constituted "committing" genocide, which does not require direct and physical perpetration of the killing or killing "with one's own hands." This alternative argument relied on the Appeals Chamber's holding in Prosecutor v. Gacumbitsi, handed down five months before the trial judgment in Seromba.
In Seromba, a majority of the Appeals Chamber found that committing genocide does not require direct and physical perpetration. The majority took its Gacumbitsi precedent and expanded upon it to create a wider legal definition of committing genocide. The majority created a new legal standard, and held that committing may occur where the actions of an accused are "as much an integral part of the genocide as were the killings which [they] enabled." The majority held that Seromba was a "principal perpetrator of the crime itself by approving and embracing as his own the decision to commit the crime and thus should be convicted for committing genocide." Therefore, Seromba committed genocide because his actions, including his presence, utterances, approving and embracing the decision to bulldoze, and his giving of directions, amounted to an integral part of the genocidal bulldozing of the Nyange church. Under this expanded definition of committing genocide, for the bulldozing, "[i]t is irrelevant that Athanase Seromba did not personally drive the bulldozer that destroyed the church." 
Also as a precedent, the Appeals Chamber applied this expanded definition of committing (previously limited in Gacumbitsi to just the crime of genocide) to extermination as a crime against humanity. The Appeals Chamber in Seromba held:
Notwithstanding the confinement of the Gacumbitsi dictum regarding committing to genocide, the Appeals Chamber, Judge Liu dissenting, can find no reason why its reasoning should not be equally applicable to the crime of extermination. The key question raised by the Gacumbitsi dictum is what other acts can constitute direct participation in the actus reus of the crime. As noted above, the Appeals Chamber is satisfied that the acts of Athanase Seromba set out in the Judgement were sufficient to constitute direct participation in the actus reus of the crime of genocide, and is equally satisfied that the same acts are sufficient to constitute direct participation in the crime of extermination....
IV. DISSENTING OPINION OF JUDGE LIU
In his dissenting opinion, Judge Liu found that the majority confused the definition of committing because to commit without physical perpetration is only allowed under a joint criminal enterprise (JCE) theory and when JCE is pleaded expressly in the indictment. Judge Liu seems concerned that the new "integral part" test fashioned by the majority blurs the line between aiding and abetting and committing, and serves as a "catch-all" mode of participation for less significant acts of an accused, thereby opening up the flood gates for committing. In other words, the Prosecutor can plead committing without direct participation and without JCE, in more cases and in cases of acts more accurately described as aiding and abetting.
Judge Liu dissented on the majority's increasing Seromba's sentence to the maximum sentence. This appears to indicate not necessarily a presence of many mitigating circumstances in favor of Seromba, but rather a preference to show a gradation between weighty sentences and to use sentencing as a way of reflecting various degrees of individual criminal responsibility.
V. READING BETWEEN THE LINES AND THE CASE FOR "ORDERING"
The Appeals Chamber appears to have used Seromba as a vehicle to expand the definition of committing instead of issuing a short, unremarkable judgment relying on ordering genocide. This expansion provides an innovative co-perpetrator-type committing mode of participation and grants courts wider discretion in determining the mode of participation. The expansion, however, may blur the line between committing and aiding and abetting.
The Appeals Chamber's inclination to expand the definition of committing is also evident in its abrupt dismissal of the Prosecutor's main argument that the utterances and acts by Seromba constituted ordering as a mode of liability. At first blush, this case has a colorable claim that Seromba ordered, as opposed to committed genocide, by his utterances that directed the bulldozer driver and were followed by the bulldozer driver. Had the Appeals Chamber found that Seromba ordered instead of committed, it might have avoided debate. The Appeals Chamber started its analysis of ordering by agreeing with the Prosecutor's contention that the Trial Chamber had applied the wrong test for ordering, namely finding that the Trial Chamber erred in law when it considered "effective control" (an element of Article 6(3) of the Statute) as an element necessary to prove ordering, under Article 6(1) of the Statute. The Appeals Chamber, however, failed to go any further, and declined to analyze the facts of the case within the framework of ordering.
To find that Seromba was not liable for ordering the bulldozing on April 16, 1994, the Appeals Chamber obliged itself to re-interpret the Trial Chamber's finding that Seromba had ordered the gendarmes to shoot the Tutsi taking bananas around April 13, 1994. The Appeals Chamber decided to reverse this well-supported finding of fact and re-categorized Seromba's utterance to the gendarmes from an order to "a mere reinforcement of his prohibition." This reinterpretation seems unwarranted. It is also inconsistent because the Appeals Chamber elsewhere refers to this same utterance by Seromba as an order. In addition, the Appeals Chamber refers to another finding of the Trial Chamber that Seromba issued an order, but fails to distinguish that one. The judgment seems to downgrade Seromba's mode of participation. Moreover, the words uttered one day to gendarmes do not necessarily determine the legal significance of words uttered to a bulldozer driver three days later.
In its terse analysis of ordering, the Appeals Chamber failed to rule whether Seromba had an informal superior-subordinate relationship with the bulldozer driver. Perhaps this is because the Appeals Chamber's findings on committing already tend to show the existence of an informal superior-subordinate relationship between Seromba and the bulldozer driver. These findings also include facts that tend to show ordering. The Appeals Chamber found:
On the basis of these underlying factual findings, the Appeals Chamber finds that Athanase Seromba approved and embraced as his own the decision of Kayishema, Ndahimana, Kanyarukiga, Habarugira, and other persons to destroy the church in order to kill the Tutsi refugees.... What is important is that Athanase Seromba fully exercised his influence over the bulldozer driver who, as the Trial Chamber's findings demonstrate, accepted Athanase Seromba as the only authority, and whose directions he followed.
Thus, the Appeals Chamber found that Seromba had influence over the bulldozer driver, that the bulldozer driver accepted Seromba as the only authority, and that Seromba gave "directions" and the bulldozer driver followed these directions. The Appeals Chamber also found that Seromba held a "position of trust," which he abused. The Appeals Chamber appears to split hairs between "direction" and "order" without providing any reasoning.
The Appeals Chamber did not apply any of the case law defining ordering and informal superior-subordinate relationship. Ordering is an affirmative "instructing" by a superior to a subordinate with at least an informal superior-subordinate relationship. In other words, ordering is when a person in a position of authority uses that authority to instruct another to commit an offence, and that authority can be reasonably implied. A formal superior-subordinate relationship between the accused and the perpetrator is not required. The ICTR Appeals Chamber in Semanza held that an informal superior-subordinate relationship may be implied and that the accused need hold some position of authority. An informal superior-subordinate relationship can be proved with circumstantial evidence.
The facts relied upon to find the crime of committing genocide, that the bulldozer driver drove on the parish's property and that he, before committing the offence, specifically asked permission of Seromba because it was his church that was targeted, tend to show an implied superior-subordinate relationship. Further, Seromba was the priest in charge of the parish and the church's representative, who occupied "some position of authority." The Appeals Chamber did not analyze this authority or acknowledge that the Roman-Catholic Church was a powerful institution in Rwanda and that Seromba was its representative at Nyange during the events. None of the local authorities, found to have ordered the bulldozing, had a formal superior-subordinate relationship with the bulldozer driver. To categorize their utterances as a decision or order, and not that of Seromba, is debatable.
Also noteworthy in the judgment is the affirming of the acquittal on the charge of conspiracy to commit genocide, despite the finding that Seromba approved and joined the decision to bulldoze the Nyange church. It appears that the Prosecutor's appeal misguidedly focused on the insufficient evidence of meetings held in Nyange on the days before the bulldozing where Seromba and others allegedly hatched a plot, rather than focusing on the key conversation between the local authorities, Seromba, and the bulldozer driver that immediately preceded the bulldozing. The Prosecutor's appeal might have persuaded the Appeals Chamber to characterize that conversation as a criminal agreement and conspiracy, had it focused on the facts as found at trial.
About the Author
Gregory Townsend, an ASIL member, is a Senior Legal Officer with the Special Court for Sierra Leone (SCSL) in The Hague. The views expressed herein are solely those of the author and do not necessarily reflect the views of the SCSL.
See Prosecutor v. Seromba, ICTR-2001-66-A, Judgement, 12 March 2008 (Appeals Chamber) (hereinafter "Seromba Appeals Judgment").
See Prosecutor v. Seromba, ICTR-2001-66-A, Judgement, 12 March 2008, at 86-93 (Dissenting Opinion of Judge Liu) (hereinafter "Dissenting Opinion of Judge Liu").
See Prosecutor v. Seromba, ICTR-2001-66-I, Judgement, 13 December 2006, at para. 85 (Trial Chamber) (hereinafter "Seromba Trial Judgment"). See also Gabriella Venturini, Rwanda's Unanswered Screams: Still Seeking Justice after the Seromba Trial, 2 Hague Justice Journal 50-53 (2007) (commenting on the Seromba Trial Chamber Judgment).
Article 6(1) of the ICTR statute lists five modes of participation (planning, instigating, ordering, committing, and aiding and abetting). The Seromba indictment charged all five modes, but the appeal revolved around the last three.
Prosecutor v. Semanza, ICTR-97-20-A, Appeal Judgement, 20 May 2005, para. 361 (holding: "All that it required was the implied existence of a superior-subordinate relationship.... As recently clarified by the ICTY Appeals Chamber in Kordic and Cerkez, the actus reus of 'ordering' is that a person in a position of authority instruct another person to commit an offence. No formal superior-subordinate relationship between the accused and the perpetrator is required. It is sufficient that there is proof of some position of authority on the part of the accused that would compel another to commit a crime in following the accused's order.") (citing Kordic & Cerkez, IT-95-14/2-A, Appeals Judgement, 17 October 2004, para. 28) (emphasis added).
See Prosecutor v. Galic, IT-98-29-A, Judgement, para. 178, 30 November 2006 (Appeals Chamber) (finding that "the mode of liability of ordering can be proven, like any other mode of liability, by circumstantial or direct evidence, taking into account evidence of acts or omissions of the accused.").
2008 by The American Society of International
purpose of ASIL Insights is to provide
concise and informed background for
developments of interest to the international
community. The American Society of
International Law does not take positions
on substantive issues, including the
ones discussed in this Insight. Educational
and news media copying is permitted
with due acknowledgement.