You Will Be Punished:Attacks on Civilians in Eastern Congo

Human Rights, Freedom Of Expression,Democracy,Reconciliation

I. Background
Conflict in Eastern Congo

When the Democratic Republic of Congo held its first multiparty elections in over 40 years in June 2006, there was widespread optimism that the country would emerge out of years of brutal war. Congolese citizens in the densely populated provinces of North and South Kivu in eastern Congo on the border with Rwanda, an area deeply affected by two consecutive wars from 1996 to 1997 and again from 1998 to 2003, were desperate for peace. They voted overwhelmingly for presidential candidate Joseph Kabila, who promised to end conflict in this troublesome region. Yet in the three years following the elections, eastern Congo has remained locked in brutal conflict. In 2009 alone, botched peace attempts combined with badly organized and abusive military operations have led to nearly a million people fleeing their homes, hundreds massacred, and thousands more women and girls raped. As one resident of eastern Congo told Human Rights Watch, “We voted for peace, but all we got was more war. When are they going to stop killing us?”[2]

The ongoing conflict in eastern Congo has been marked by a constant shift in alliances between a confusing array of belligerents. One-time enemies turn into allies and back into enemies again in swift succession, confusing Congolese citizens and political analysts alike. In the three years since the elections, the Congolese government has failed to address the underlying causes of the conflict and to effectively extend state control to areas once occupied by the Rwandan army and its proxy forces. Instead the government has sought secret deals with various rebel groups and, when unsuccessful, used military force. To date, neither course of action has brought peace or security to the area.

Two armed rebel groups have dominated recent events in eastern Congo: a Rwandan Hutu militia called the Democratic Forces for the Liberation of Rwanda (Les Forces démocratiques de libération du Rwanda, FDLR), and the Congolese Tutsi-led National Congress for the Defense of the People (Congrès national pour la défense du peuple, CNDP). At different times, both groups have been either allies or enemies of the Congolese government depending on its relationship with Rwanda. The difficulty in finding lasting solutions to the crisis is exacerbated by the struggle for control of one of the richest regions in Congo.

The ongoing conflict in eastern Congo is also linked to the after-effects of the Rwandan genocide in 1994 and can only be understood by looking at political dynamics in both Congo and Rwanda. In Rwanda, growing restrictions on political space have promoted views among some Hutu, including those in the FDLR, that they have little or no say in Rwandan political life and that the Hutu population are being collectively punished for the genocide. Political parties that oppose President Paul Kagame are blocked from operating freely and the media faces severe restrictions on political reporting.

The Rwandan government often accuses its critics of “divisionism” or “genocide ideology,” vaguely defined offenses to punish the spreading of ideas that encourage ethnic animosity between the country's Tutsi and Hutu populations and the expression of any ideas that could lead to genocide.[3] Largely aimed at the Hutu population, such offenses permit, among other measures, the government to send away children of any age to rehabilitation centers for up to one year—including for the teasing of classmates—and for parents and teachers to face sentences of 15 to 25 years for the child’s conduct. The government has repeatedly accused the Voice of America, the British Broadcasting Corporation and other media outlets, as well as Human Rights Watch, of promoting genocide ideology; accusations these organizations deny.[4]

The tight control over political space, civil society and the media has forced a number of moderate Hutu and some Tutsi to leave Rwanda. Critics of the Rwandan government, including many Congolese civil society groups and the Congolese government, repeatedly call for an inter-Rwandan dialogue to ease the tension between Hutu and Tutsi in Rwanda. Congolese civil society groups claim that the failure to open political space in Rwanda is one of the underlying reasons for the continued suffering in eastern Congo. A European diplomat who agreed with this analysis said to Human Rights Watch, “The FDLR problem will not be solved if there is no political space for Hutu in Rwanda.”[5]
Democratic Forces for the Liberation of Rwanda (FDLR)

The FDLR are a predominately Rwandan Hutu armed group that uses military force to seek political change and greater representation for Hutu in Rwanda.[6] Some of the FDLR leaders are believed to have participated in the genocide in Rwanda in 1994 and the group has important ideological links to the former Hutu Power movement.[7] In the years since the genocide, the Rwandan Hutu militia reorganized politically and militarily, going through various name and leadership changes.[8] In 2000 the current configuration, the FDLR, was created. As of January 2009, the group was estimated to have some 6,000 combatants in eastern Congo.[9] The vast majority of these combatants did not participate in the genocide since they were too young at the time to have played a role.[10]

The Congolese government has repeatedly turned to the FDLR (and its predecessor movements) for support in its fight against Congolese rebel groups backed by Rwanda and against the Rwandan army. In the 1998-2003 war, the well-trained Rwandan Hutu militias soon became some of the most important frontline troops for the then Congolese national government of Laurent Désiré Kabila, fighting alongside the Congolese army and its other allies throughout the war.[11]

Following the signing of a peace agreement ending the war, a transitional government was launched in Kinshasa in June 2003, led by Laurent Kabila’s son, Joseph. As part of the agreement, the Congolese government was nominally committed to disbanding the FDLR and facilitating its members’ return to Rwanda. Some minimal attempts were made to do so, but the effort was half-hearted and unsuccessful. With no outright war to fight and support from Kinshasa less frequent than before, the FDLR sought other sources of revenue. It turned to the illegal trade in mineral resources and control over other economic activities. In December 2008, the UN Group of Experts investigating arms trafficking estimated the FDLR’s economic activities brought them millions of dollars a year, including from the trade in minerals.[12]

In 2006, the Kinshasa government again turned to the FDLR for military support when a new Tutsi-led rebel group, the CNDP, emerged in North Kivu (see below). From late 2007 through 2008, the Congolese government continued to support, arm, and collaborate extensively with the FDLR.[13] In December 2008, the UN Group of Experts provided detailed evidence of this collaboration and support, including specific examples in which the FDLR cohabited with the Congolese army and supported the Congolese army in operations against the CNDP.[14]
National Congress for the Defense of the People (CNDP)

To deal with the continued threat of Rwandan Hutu militias across its border and to exercise influence in the fertile and mineral-rich North and South Kivu provinces, the Rwandan government has repeatedly backed Congolese rebel groups willing to fight the Hutu militias. Since 1996, Rwanda has backed three different Congolese rebel groups (and sometimes other splinter factions) who agreed to fight the Rwandan Hutu militias, but who also all sought to overthrow the government in Kinshasa.[15] The most recent Rwandan-backed rebel group is the CNDP, which until January 2009 was led by a former Congolese Tutsi general, Laurent Nkunda.

While the degree of military and political support for each of these groups has varied, Rwanda’s policy of continued support and influence over Congolese proxy groups willing to fight the Rwandan Hutu militias and enhance its influence in eastern Congo has been unmistakable.

Nkunda’s CNDP emerged during Congo’s historic national elections in 2006, when it became clear that Tutsi political clout was about to rapidly diminish. In the aftermath of the dramatic electoral defeat of RCD-Goma, the former Rwandan-backed rebel group that had become a political party, Nkunda presented himself as spokesman for and protector of Congolese Tutsi. His program, he said, was to eliminate the FDLR, prevent the exclusion of Tutsi from national political life, assure the security of Tutsi soldiers in the national army, and bring about the return of some 45,000 Congolese Tutsi refugees living in camps in Rwanda.[16] Some Tutsi leaders, fearful of losing economic gains made during the war years and an ethnic backlash against them, insisted that Nkunda’s troops constituted their last bulwark of protection.[17]

From 2006 through 2008, Nkunda’s CNDP cemented and expanded their area of control in Masisi and Rutshuru territories (North Kivu), where they created what one of Nkunda’s officers called “our little state” with their own local administrators and an extensive taxation system that brought in hundreds of thousands of dollars.[18] Nkunda’s CNDP also collected significant sums of money through voluntary donations from the Congolese Tutsi diaspora and businessmen in Goma, sent to bank accounts controlled by CNDP agents in Rwanda.[19]
Support and recruitment in Rwanda

Nkunda was joined by hundreds of former RCD-Goma troops and new recruits, including Hutu, Tutsi, and other ethnic groups, although the vast majority of the senior military officers were Tutsi. Nkunda also actively recruited combatants in Rwanda. Between 2006 and 2008, hundreds joined the CNDP’s ranks, including from the refugee camps in Rwanda, former demobilized Rwandan soldiers, and active Rwanda Defence Force (RDF) soldiers, some of whom were on “temporary” leave from their army.[20] Many joined voluntarily, but others were forcibly recruited or joined after false promises of jobs; some were children. By late 2008, the CNDP were estimated to have between 4,000 and 7,000 troops.[21]

The number of Rwandan citizens recruited into the CNDP remains unknown, but an indication of the scale can be deduced from the UN’s Disarmament, Demobilization, Repatriation, Reintegration, and Resettlement (DDRRR) program, which is tasked with facilitating the return of foreign combatants. Between January and October 2009, DDRRR staff had repatriated 448 former CNDP combatants to Rwanda, including 83 children (see below).[22]

The full extent of Rwanda’s support for Nkunda’s CNDP was evident in the December 2008 report of the UN Group of Experts monitoring arms trafficking in Congo. The report provided detailed evidence of Rwanda’s ongoing support for the CNDP, including evidence that Rwandan authorities “had been complicit in the recruitment of soldiers, including children, facilitated the supply of military equipment, and sent officers and units from the Rwanda Defence Force (RDF) to the Democratic Republic of the Congo in support of the CNDP.”[23] The report also provided specific evidence of Rwandan army support to a CNDP offensive against the Congolese army on October 26-30,[24] and showed how Rwanda has served as a rear base for the CNDP’s financial and communications networks.[25]
Clashes and the Failure of Mixage

Nkunda’s CNDP posed a significant problem for Kabila’s new government. Kabila’s election success had largely come from eastern Congo, where the population voted overwhelmingly for him on the basis that he promised to bring peace. In August and November 2006, Nkunda’s forces fought against the Congolese national army, producing substantial losses for both sides but no clear victor. In an effort to avoid further military operations, President Kabila in December 2006 dispatched Gen. John Numbi, the then head of the air force, to secretly negotiate a deal with Nkunda. The two sides met in Rwanda in January 2007 in talks facilitated by the chief of staff of the Rwandan army, Gen. James Kabarebe, where an agreement was reached. Nkunda accepted a limited form of integration of his CNDP troops into the ranks of the Congolese army, called mixage. In return the government agreed to deploy these troops in the Kivu provinces to conduct military operations against the FDLR. Nkunda gave a vague commitment to leave Congo temporarily for South Africa, a point that was later much disputed by both sides.

The deal failed. The integration did not work, and instead of bringing much needed security to North Kivu, the deployment of the mixed brigades led to a further deterioration of the security and human rights situation. Nkunda-affiliated units killed, raped, and otherwise attacked Congolese civilians to punish them for supposedly collaborating with the FDLR. For their part, the Congolese army units of the mixedbrigades loyal to Kinshasa showed little willingness to fight the FDLR. By August 2007 the two sides were once again on opposite sides of the frontline and fighting resumed.

In October and November 2007, diplomatic efforts led by the United States and the European Union to broker a ceasefire between the government and Nkunda’s CNDP rebels failed, with both sides blaming the other for the failure of mixage. In December 2007, the Congolese army launched a major offensive against the CNDP in Masisi, with logistical support from MONUC peacekeepers. The offensive failed. Government forces were defeated and soldiers deserted the battlefield in the thousands. Holding a strong military position, Nkunda again called for peace talks.
More Peace Talks Fail Again

In late 2007 and early 2008 two important agreements were struck, which diplomats hoped would end the conflict in eastern Congo. The first was signed on November 9, 2007, in Nairobi, Kenya, and was known as the “Nairobi Communiqué.” The agreement between the Congolese and Rwandan governments stipulated that the Congolese government would stop all support to the FDLR and would undertake military operations against the group if its members refused to return voluntarily to Rwanda. The Rwandan government agreed to block any support for armed groups in eastern Congo coming from its territory, including to the CNDP.[26]

The second agreement, known in English as the “Goma Agreement” (Acte d’Engagement in French), was signed on January 23, 2008, following three weeks of intense peace discussions in Goma, North Kivu, between the Congolese government and 22 armed groups, the most important of which was the CNDP. It committed all parties to an immediate ceasefire, disengagement of forces from frontline positions and integration of troops into the Congolese army. The agreement also established a separate commission[27] to provide a forum for negotiations of the armed groups’ political demands, particularly those of the CNDP, to be facilitated by foreign diplomats.

Following these talks, the government launched a peace program for eastern Congo, known as the Amani Program, or “Peace Program” in Swahili. It quickly became clear that the Amani Program sought to minimize the role of the new commission established by the Goma Agreement, which Nkunda’s CNDP rebels saw as a crucial forum to negotiate their political demands. Despite efforts by international representatives to move the process forward, by July 2008 the Goma Agreement had collapsed.
Applicable Legal Standards

International humanitarian law (the laws of war) is binding on all parties to an armed conflict, including non-state armed groups such as the FDLR. Applicable international humanitarian law in Congo includes article 3 common to the four Geneva Conventions of 1949, the Second Additional Protocol of 1977 (Protocol II) to the Geneva Conventions, and customary international humanitarian law.

International humanitarian law requires the humane treatment of civilians and captured combatants, prohibits violence to life and person, including murder, torture and other mistreatment, the taking of hostages, collective punishment, and outrages upon personal dignity. It prohibits rape and other forms of sexual violence.

International humanitarian law also regulates the methods and means of armed conflict. A fundamental principle is that all parties to a conflict must distinguish between combatants and civilians, and may not deliberately attack civilians or civilian objects. Acts or threats of violence whose primary purpose is to spread terror among the civilian population is prohibited.

Individuals who willfully commit serious violations of the laws of war, that is deliberately or recklessly, are responsible for war crimes. This includes those who participate in or order war crimes, or are culpable as a matter of command responsibility. States have an obligation to investigate alleged war crimes committed on their territory.

Serious offenses, including murder, torture and rape, deliberately committed as part of a widespread or systematic attack against any civilian population are crimes against humanity.

Congo is party to the Rome Statute of the International Criminal Court (ICC), which may exercise jurisdiction for “the most serious crimes of concern to the international community as a whole,”[28] specifically genocide, crimes against humanity, and war crimes. In March 2004, the Congolese government referred the situation in the country to the ICC,[29] inviting the ICC prosecutor to investigate crimes within the jurisdiction of the Rome Statute on its territory. In June 2004 the ICC prosecutor announced the opening of an investigation in the Congo,[30]initially focused on Ituri, northeastern Congo, and in November 2008 announced the investigations were being expanded to include the Kivu provinces of eastern Congo.[31] The crimes committed by FDLR forces, the Congolese army and its allies, documented in this report, are subject to ICC jurisdiction.
Individual responsibility

Under international law, individuals are criminally liable for the commission of war crimes and crimes against humanity. This includes attempting to commit such a crime, as well as assisting in, facilitating, and aiding and abetting an offense. Commanders and other superiors are criminally responsible for war crimes and crimes against humanity committed or attempted pursuant to their orders.Finally, commanders and other superiors may be criminally liable as a matter of command responsibility for crimes committed by their subordinates if they knew, or had reason to know, of such crimes and failed to prevent the crimes or to punish those responsible.

Command responsibility as a basis of liability for crimes in violation of international law is well-established. The doctrine is provided in the Rome Statute of the International Criminal Court,[32] ad hoc international courts,[33] and customary international law.[34] It applies both to military commanders and to civilians in leadership roles, and during internal as well as international armed conflicts.[35]

Under article 28 of the Rome Statute, a superior shall be criminally responsible for crimes within the jurisdiction of the court, committed by subordinates under the superior’s effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and

(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

The concept of crimes against humanity has been incorporated into a number of international treaties and the statutes of international criminal tribunals, including the Rome Statute of the International Criminal Court.The definition of crimes against humanity has been defined as a range of serious human rights abuses committed as part of a widespread or systematic attack by a government or organization against a civilian population.[36]Murder, rape, and other inhumane acts intentionally causing great suffering all fall within the range of acts that can qualify as crimes against humanity.[37]

Crimes against humanity include only abuses that take place as part of an attack against a civilian population. So long as the targeted population is of a predominantly civilian nature, the presence of some combatants does not alter its classification as a “civilian population” as a matter of law.[38]Rather, it is necessary only that the civilian population be the primary object of the attack.[39]

The attack against a civilian population underlying the commission of crimes against humanity must be widespread or systematic. It need not be both.[40]“Widespread” refers to the scale of the acts or number of victims.[41] A “systematic” attack indicates “a pattern or methodical plan.”[42]International courts have considered to what extent a systematic attack requires a policy or plan. For instance, such a plan need not be adopted formally as a policy of the state.[43]

Lastly, for individuals to be found culpable for crimes against humanity requires their having the relevant knowledge of the crime.[44]That is, perpetrators must be aware that their actions formed part of the widespread or systematic attack against the civilian population.[45]While perpetrators need not be identified with a policy or plan underlying crimes against humanity, they must at least have knowingly taken the risk of participating in the policy or plan.[46] Individuals accused of crimes against humanity cannot avail themselves of the defense of following superior orders nor benefit from statutes of limitation. Because crimes against humanity are considered crimes of universal jurisdiction, all states are responsible for bringing to justice those who commit crimes against humanity. There is an emerging trend in international jurisprudence and standard setting that persons responsible for crimes against humanity, as well as other serious violations of human rights, should not be granted amnesty.

[2] Human Rights Watch interview with displaced person, Minova, February 6, 2009.

[3] Rwanda adopted a law on genocide ideology in July 2008. Law N° 18/2008 of 23/07/2008 Relating to the Punishment of the Crime of Genocide Ideology, Official Gazette of the Republic of Rwanda.

[4] Human Rights Watch, World Report 2009 (New York: Human Rights Watch, 2009), Rwanda chapter, http://www.hrw.org/en/world-report-2009/rwanda; Human Rights Watch, World Report 2008, Rwanda chapter; Human Rights Watch, World Report 2007, Rwanda chapter.

[5] Human Rights Watch interview with European diplomat, November 12, 2009.

[6] Democratic Forces for the Liberation of Rwanda (FDLR), “Who are the FDLR and Why the FDLR?” http://www.fdlr.org (accessed September 24, 2009).

[7] Hutu Power is a movement which cut across party lines and embodied ethnic solidarity among Hutu against Tutsi who were seen as outsiders, invaders or suppressors. Radio Télévision Libre des Mille Collines was a radio station closely associated with the Hutu Power movement. It broadcast hate media and played an important role in the genocide. Alison Des Forges, Leave None to Tell the Story: Genocide in Rwanda (New York: Human Rights Watch and International Federation of Human Rights (FIDH) 1999), http://www.hrw.org/en/reports/1999/03/01/leave-none-tell-story.

[8] These included the Armed People for the Liberation of Rwanda (PALIR), the Liberation Army of Rwanda (ALIR), the Committee of Coordination for the Resistance (CCR), among others. See African Rights, “A Welcome Expression of Intent: The Nairobi Communiqué and the Ex-FAR/Interahamwe,” December 2007.

[9] Human Rights Watch electronic communication with UN DDRRR official, Goma, November 2, 2009.

[10] Labeling the FDLR as “genocidaires” or “interahamwe” (participants in the 1994 genocide), as is frequently done by commentators and diplomats alike, is incorrect. In a region where ethnic tensions remain high and where the use of such labels is often misused for political purposes, it can also be dangerous.

[11] During the 1998-2003 war, Kabila’s allies included troops from Zimbabwe, Namibia, and Angola. The opposing Rwandan forces were supported by troops from Uganda and Burundi. For further details, see Gerard Prunier, Africa's World War: Congo, the Rwandan Genocide, and the Making of a Continental Catastrophe(New York: Oxford University Press, USA, 2008).

[12] UN Group of Experts on the Democratic Republic of Congo, Final Report of the Group of Experts on the Democratic Republic of Congo, November 21, 2008, published in Letter dated 10 December 2008 from the Chairman of the Security Council Committee established pursuant to resolution 1533 (2004) concerning the Democratic Republic of Congo addressed to the President of the Security Council, S/2008/773, paras. 72-73. See also Global Witness, “Faced with a Gun, What Can You Do?”: War and the Militarisation of Mining in Eastern Congo (London: Global Witness, 2009).

[13] UN Group of Experts, Final Report, November 21, 2008, para. 102.

[14] Ibid, para. 110.

[15] In 1996 Rwanda first backed Laurent Kabila’s AFDL rebellion which overthrew Mobutu’s government and included many prominent Tutsi in its ranks. In 1998 Rwanda backed a second rebel group, the Rally for Congolese Democracy (RCD, later referred to as RCD-Goma), intent on overthrowing Kabila who had turned against Rwanda, and sent its own troops to occupy large swathes of eastern Congo until 2002.

[16] Human Rights Watch interview with Laurent Nkunda, Kilolirwe, August 26, 2006; National Congress for the Defense of the People, “Seven Points Program,” http://www.cndp-congo.org/minimumprog.php (accessed November 16, 2009).

[17] Human Rights Watch interviews with businessman, Goma, August 26, 2006, and MONUC official, Goma, February 21, 2007; see Human Rights Watch, Democratic Republic of Congo – Renewed Crisis in North Kivu, October 23, 2007, http://www.hrw.org/en/reports/2007/10/22/renewed-crisis-north-kivu, p. 13.

[18] UN Group of Experts, Final Report, November 21, 2008, paras. 33 and 35.

[19] Ibid., para. 30.

[20]Ibid., para. 63.

[21] Ibid., para. 20.

[22] Official statistics from UN DDRRR program, November 4 2009, on file with Human Rights Watch. The UN DDRRR program also repatriated 15 former CNDP combatants to Uganda and 12 to Burundi during the same time period.

[23] UN Group of Experts, Final Report, November 21, 2008, para.61.

[24] Ibid., para.66.

[25] Ibid., para.68.

[26] “Joint Communiqué of the Government of the Democratic Republic of Congo and the Government of the Republic of Rwanda on a common approach to the threat posed to peace and security in both countries and the Great Lakes Region,” Nairobi, Kenya, November 9, 2007.

[27] It was known as the Mixed Technical Commission on Peace and Security.

[28] Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, ratified by the Democratic Republic of Congo on September 8, 2000, art. 5.

[29]“Prosecutor receives referral of the situation in the Democratic Republic of Congo,” ICC press release, April 19, 2004, http://www.icc-cpi.int/pressrelease_details&id=19&l=en.html (accessed October 26, 2009).

[30]“The Office of the Prosecutor of the International Criminal Court opens its first investigation,” ICC press release, June 23, 2004, http://www.icc-cpi.int/pressrelease_details&id=26&l=en.html (accessed October 26, 2009).

[31] Luis Moreno-Ocampo, Address to the Assembly of State Parties, The Hague, November 14, 2008 at http://www.icc-cpi.int/NR/rdonlyres/50F9D0FA-33A0-48B3-942E-4CFF88CA3A27/0/ICCASPASP7StatementProsecutor.pdf (accessed October 26, 2009).

[32]Rome Statute, art. 28.

[33]Statute of the International Criminal Tribunal for the former Yugoslavia, SC Res. 827, UN Doc. S/RES/827 (1993), as amended, www.un.org/icty/legaldoc-e/basic/statut/statute-feb06-e.pdf (accessed July 10, 2008), art. 7(3); Statute of the International Criminal Tribunal for Rwanda, SC Res. 955, UN Doc. S/RES/955 (1994), as amended, http://69.94.11.53/ENGLISH/basicdocs/statute.html (accessed July 10, 2008), art. 6(3).

[34] See International Committee of the Red Cross (ICRC), Customary International Humanitarian Law (Cambridge, UK: Cambridge University Press, 2005), pp. 558-63.

[35] See Prosecutor v. Fatmir Limaj et al, International Criminal Tribunal for the former Yugoslavia, Case No. IT-03-66-T, Judgement (Trial Chamber II), November 30, 2005, para. 519: “The principle of individual criminal responsibility of superiors for failure to prevent or to punish crimes committed by subordinates is… applicable to both international and internal armed conflicts.”

[36]See Rodney Dixon, “Crimes against humanity,” in Otto Triffterer, ed., Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos Verlagsgesellschaft, 1999), p. 122. This is the standard applied by article 7 of the Rome Statute of the International Criminal Court.

[37] Murder and torture are among the core offenses that have been included within the definition of crimes against humanity at least since the adoption of the charter establishing the Nuremberg tribunal after World War II. Deportation (to another country) was listed but not (internal) forced transfer. Rape was not explicitly included in the charter’s definition of crimes against humanity in article 6(c), although it could be derived from that definition’s general prohibition against “other inhumane acts.” This ambiguity has been resolved in recent years; the statutes of the International Criminal Tribunals for Rwanda and the former Yugoslavia, as well as the Rome Statute, all explicitly include rape in the list of enumerated offenses that can constitute crimes against humanity. The Rome Statute also lists: extermination, enslavement, deportation, and forcible transfer of population, imprisonment, persecution, enforced disappearance, apartheid, and “other inhumane acts.” Rome

Statute, article 7(1).

[38]See, for example, Prosecutor v. Naletilic and Martinovic, International Criminal Tribunal for the former Yugoslavia (ICTY), Case No. IT-98-34, Judgement (Trial Chamber I), March 31 2003, para. 235 (“The population against whom the attack is directed is considered civilian if it is predominantly civilian”); Prosecutor v. Akayesu, International Criminal Tribunal for Rwanda (ICTR), Case No. ICTR-96-4-T, Judgement (Trial Chamber I), September 2, 1998, para. 582 (“Where there are certain individuals within the civilian population who do not come within the definition of civilians, this does not deprive the population of its civilian character”); Prosecutor v. Jelisic et al, ICTY, Case No. IT-95-10, Judgement (Trial Chamber I), December 14, 1999, para. 54 (“The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.”).

[39] See Prosecutor v. Naletilic and Martinovic, International Criminal Tribunal for the former Yugoslavia (ICTY), Case No. IT-98-34, Judgement (Trial Chamber I), March 31 2003, para. 235.

[40]See Prosecutor v. Dusko Tadic, ICTY, Case No. IT-94-1-T, Opinion and Judgment (Trial Chamber), May 7, 1997, para. 646 (“it is now well established that…the acts…can…occur on either a widespread basis or in a systematic manner. Either one of these is sufficient to exclude isolated or random acts.”).

[41]Akayesu defined widespread as “massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims,” Prosecutor v. Akayesu, ICTR, Case No. ICTR-96-4-T, Judgement (Trial Chamber I), September 2, 1998, para. 579; see also Prosecutor v. Kordic and Cerkez, ICTY, Case No. IT-92-14/2, Judgement (Trial Chamber III), February 26, 2001, para. 179; Prosecutor v. Kayishema and Ruzindana, ICTR, Case No. ICTR-95-1-T, Judgement (Trial Chamber II), May 21, 1999, para. 123.

[42]Prosecutor v. Dusko Tadic, ICTY, Case No. IT-94-1-T, Opinion and Judgment (Trial Chamber), May 7, 1997, para. . 648. In Prosecutor v. Kunarac, Kovac and Vokovic the Appeals Chamber stated that “patterns of crimes—

that is the non-accidental repetition of similar criminal conduct on a regular basis—are a common expression of [a] systematic occurrence.” Prosecutor v. Kunarac, Kovac and Vokovic, ICTY, Case No. IT-96-23 and IT-96-23-1A, Judgement (Appeals Chamber), June 12, 2002, para. 94.

[43]Prosecutor v. Akayesu, ICTR, Case No. ICTR-96-4-T, Judgement (Trial Chamber I), September 2, 1998, para. 580.

[44]See Prosecutor v. Kupreskic et al., ICTY, Case No. IT-95-16, Judgement (Trial Chamber), January 14, 2000, para. 556.

[45] See Prosecutor v. Kupreskic et al., ICTY, Case No. IT-95-16, Judgement (Trial Chamber), January 14, 2000, para. 556: “[T]he requisite mens rea for crimes against humanity appears to be comprised by (1) the intent to commit the underlying offence, combined with (2) knowledge of the broader context in which that offence occurs.” See also Prosecutor v. Dusko Tadic, ICTY, Case No. IT-94-1, Judgement (Appeals Chamber), July 15, 1999, para. 271; Prosecutor v. Kayishema and Ruzindana, ICTR, Case No. ICTR-95-1-T, Judgement (Trial Chamber II), May 21, 1999, paras. 133-134.

[46] See Prosecutor v. Blaskic, ICTY, Case No. IT-95-14-T, Judgement (Trial Chamber), March 3, 2000, para. 257. Blaskic (paras. 258-259) listed factors from which could be inferred knowledge of the context: (a) the historical and political circumstances in which the acts of violence occurred; (b) the functions of the accused when the crimes were committed; (c) his responsibilities within the political or military hierarchy; (d) the direct and indirect relationship between the political and military hierarchy; (e) the scope and gravity of the acts perpetrated; and (f) the nature of the crimes committed and the degree to which they are common knowledge.
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