By Lennert Breuker
The case I want to devote some attention to is already a relatively older case of the ICTR Appeals Chamber (12 March 2008). But as I recently came across several commentaries that noted (with some concern) the expansion of the notion ‘committing’, I just wanted to make to use of this opportunity to link the case to the concept of ‘functional perpetratorship’.
In Prosecutor vs Seromba the Appeals Chamber convicted a priest for committing genocide, thereby rejecting the Trial Chamber’s finding that his responsibility would be more properly translated into aiding and abetting genocide. What makes this case interesting is that while the priest did not physically perpetrate the genocide, nor was considered as co-perpetrator, nor as a member of a joint criminal enterprise, he was still found to be a principal perpetrator.
Athanase Seromba was a Roman Catholic priest in charge of the Nyange parish in Rwanda, when the violence against the Tutsi broke out in 1994. When the Tutsi began to seek refuge in and around the church, Seromba adopted measures such as refusing to celebrate mass for Tutsi hiding in the church, expelling Tutsi parish staff members from the compound and forbidding hungry Tutsi to pick fruit from a grove and ordering gendarmes to shoot Tutsi that attempted to do so anyway. With Hutu assailants surrounding the church in the following days, the Tutsi barricaded themselves inside the church, which was ultimately destroyed by a bulldozer, killing approximately 1500 people.
Seromba’s role in this massacre was a particular one. When it became clear that the attackers could not destroy the church by using bullets or grenades, several of them decided to use a bulldozer in stead. They approached Seromba with their solution, upon which Seromba answered: ‘If you have no other means, bring the bulldozers then, and destroy the church’. The bulldozer driver, however, was hesitant to comply with this order, and turned to Seromba for authorization. He clearly had to be convinced and asked three times for permission. Each time Seromba confirmed, saying that ‘there are demons in the church, it should be destroyed’, and even pointing out the weak part of the church where the bulldozer should start.
The Appeals Chamber came to the following considerations, which are best integrally provided:
171. 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. It is irrelevant that Athanase Seromba did not personally drive the bulldozer that destroyed the church. What is important is that Athanase Seromba fully exercised his influence over the bulldozer driver who, as the Trials Chamber’s findings demonstrate, accepted Athanase Seromba as the only authority, and whose directions he followed. The Appeals Chamber finds, Judge Liu dissenting, that Athanase Seromba’s acts, which cannot be adequately described by any other mode of liability pursuant to Article 6(1) of the Statute than “committing”, indeed were as much as an integral part of the crime of genocide as the killings of the Tutsi refugees. Athanase Seromba was not merely an aider and abetter but became a principal perpetrator in the crime itself.
172. The Appeals Chamber observes, Judge Liu dissenting, that Athanase’s conduct was not limited to giving practical assistance, encouragement or moral support to the principal perpetrators of the crime, which would merely constitute the actus reus of aiding and abetting. Quite the contrary, the findings of the Trial Chamber allow for only one conclusion, namely, that Athanase Seromba was a principal perpetrator in the killing of the refugees in Nyange church. The Appeals Chamber therefore finds that Anathase Seromba’s conduct can only be characterized as “committing” these crimes.
The interpretation that ‘committing’ in the context of genocide could also entail acts of non-physical perpetration such as the supervision of killings had already been accepted in the Gacumbitsi case, delivered a few months prior to this case. The Appeals Chamber relied on the legal standard introduced in Gacumbitsi to determine whether Seromba could be considered to be a principal. His actions would have to qualify “as much an integral part of the genocide as were the killings which they enabled”. In deciding whether this was the case, the Appeals Chamber examined the question whether Seromba became a principal perpetrator of the crime by approving and embracing as his own the decision to commit the crime. And as seen above, it came to an affirmative answer.
What the Appeals Chamber essentially engaged in at this point, was the direct imputation of the killings to Seromba. Something that seemed to have been based primarily on the formidable (religious) authority vested in him as a priest, as the majority of paragraphs of the Judgement dealing with the question of principal perpetratorship are devoted to that aspect.
In this regard, the association with another legal concept comes to mind, which was put forward as viable alternative for liability modes such as ordering and instigating and related to the concept of superior responsibility. Professor van der Wilt had suggested that the concept of functional perpetration might be useful in cases where ‘those who in a functional capacity ‘effectuate’ a crime qualify to incur criminal responsibility, rather than those who, usually as subordinates or employees, carry out instructions or orders.’ (JICJ 5 – 2007 – p. 103). In cases of functional perpetration, not the subordinate person who has physically committed the crime is being held as principal, but the person in a hierarchical position who has in fact made the crime happen. Other than superior responsibility, it does not concern a form of responsibility for omission. The criminal act is directly imputed to the person who has effectuated the crime.
This concept, developed in German and Dutch jurisprudence, is applied only in the limited context of economic crime, but as professor van der Wilt pointed out, several (German and Dutch) authors noted that the concept might also be appropriate in the context of system criminality, particularly because of the subdivision of labour in hierarchical organisations which characterizes this type of criminality.
The concept is conditional upon the requirements of control over and acceptance of the crime. Having control means having more than just a formal power. The control has got to be genuine, and probably implies a power that goes beyond being able to stop a crime: it should be able to evoke the criminal act (DeHullu Substantive Criminal Law 2003). Taking this into consideration, the reasoning of the Appeals Chamber comes remarkably close to the underlying rationale of functional perpetration. It was not the encouragement or even the practical assistance which the Appeals Chamber felt to be at the core of Seromba’s criminal blameworthiness. It was the fact that Seromba in his capacity of a figure of religious authority exerted his influence over the driver effectuating the destruction of the church, and unambiguously embracing the consequences. These two elements were given much more prominence than the legal standard of acts forming an ‘integral part of the genocide’, which remained a rather vague formula.
Perhaps the connection is more than just coincidental as the Appeals Chamber referred in a footnote to a case of the German Bundesgerichtshof (26 July 1994), but that is for now outside the direct reach of this author…In any case, it seems a development to keep a watchful eye on, if only because this concerns yet another expansion of criminal liability without clearly written basis.