Practice Relating to Rule 151. Individual Responsibility
Peru’s Human Rights Charter of the Security Forces (1991) provides: “Nobody shall escape the law when a violation of human rights has been committed. There shall be no impunity when a violation of human rights has been committed.”
Peru’s Code of Military Justice (1980), in a part entitled “Violations of the law of nations”, provides for the punishment of a list of offences, specifying that some of them be committed “in times of war”.
In 2004, in the Indalecio Pomatanta Albarran case
, Peru’s Supreme Court of Justice stated that “the commission of horrendous crimes and grave violations of human rights as defined by international human rights law and international criminal law can never be considered an ‘act of duty’”.
In 2006, in the Lucanmarca case
, the Second Provisional Criminal Chamber of Peru’s Supreme Court of Justice stated: “The function of the judiciary within its commitment to democracy and the law is to avoid impunity for crimes constituting serious violations of human rights and of international humanitarian law, irrespective of who is responsible for such crimes.”
In 2009, in the Fujimori case, the Special Criminal Chamber of Peru’s Supreme Court of Justice was called upon to decide whether a former Peruvian president was criminally responsible for acts committed in 1991 and 1992 in the context of anti-terror operations, including the abduction of two individuals (the so-called SIE Basement case) and the murder and injury of numerous individuals in Barrios Altos and at the so-called La Cantuta university in Lima, all of which were carried out by State officials while the accused was president. The Court found:
[T]he murders and serious injuries [committed in Barrios Altos and at La Cantuta university] … plainly fulfil the requirements of crimes against humanity. The murders and serious injuries that occurred in Barrios Altos and at La Cantuta [university] are also crimes that manifest a State policy of selectively eliminating alleged members of subversive groups.
The Court considered the appropriate mode of criminal liability. The prosecution argued:
[T]he conduct of members of the Colina Detachment (Barrios Altos and La Cantuta case) and of the Army Intelligence Service (SIE Basement case), can be attributed to the ex-President … by recourse to the mode of criminal liability of perpetration-by-means. From the top of the State apparatus, he gave orders for the execution of the very serious acts with which these cases are concerned.
The Court found: “The dogmatic concept regarding the criminal liability [relevant in this case] is that of perpetration-by-means as a form of principal liability.”
The Court further held:
PERPETRATION-BY-MEANS THROUGH THE CONTROL OF ORGANIZED POWER APPARATUSES
719. … Perpetration-by-means characterizes cases in which the crime is perpetrated by an official or a person behind the scenes through a direct intermediary or proxy. …
The dogmatic concept of perpetration-by-means is designed to ensure that the true perpetrator is held criminally liable for an offence that has been committed by a third person. It thus is a special form of perpetration in which the author carries out the punishable act through the intermediary and must therefore be held accountable for the criminal consequences of that unlawful act.
2. The General Premise: The existence of an organization.
726. STRUCTURED ORGANIZATION. CHARACTERISTICS. Perpetration-by-means through control over an organized apparatus of power is premised on “the prior existence of a structured organization”. The structured organization has a clear-cut hierarchy, in which the highest strategic level will be responsible for any criminal decisions and plans that may be adopted internally. These will subsequently be attributed to the direct perpetrator following the vertical structure inherent to the organization’s design.
3. Specific Premises and their Requirements.
727. FUNCTIONAL PREMISES AND REQUIREMENTS. The identification of hierarchical organizations which constitute apparatuses of organized power, and which are a basis for perpetration-by-means … , also requires the presence of what the German Federal Constitutional Court called “framework conditions”. This means that the following functional premises and prerequirements must be present: 1) command authority; 2) the organization’s disengagement from the legal order of the State; 3) the fungibility of the immediate perpetrator; and 4) the immediate perpetrator’s strong inclination to commit the act.
4. Objective Premises and Requirements.
4.1. Command authority.
729. CONCEPT …
Command authority is the capacity of the highest strategic level – the man behind the scenes – to issue orders or assign roles to subordinate parts of the organization. This capacity is obtained, or may be conferred, based on a position of authority, leadership, or rank derived from political, ideological, social, religious, cultural, economic, or other similar factors.
4.2. Deviation from the law. Modalities and Characteristics.
733. DEFINITION Another objective requirement of perpetration-by-means through the control of organized power apparatuses is the “disengagement” of or “deviation” from the law. … [This] means that the organization is structured, operates or acts outside the national and international legal system.
5. Subjective Premises and Requirements.
1. Fungibility. Classes.
737. … Fungibility is the first subjective premise that may attribute perpetration-by-means through the control of organized power. Fungibility is generally understood as a characteristic of the individual carrying out the crime according to which he or she can be exchanged or substituted by the highest strategic level in the operationalization and carrying out of the criminal plan.
2. The predisposition for the realization of an unlawful act.
741. Specifically, this category refers to the direct perpetrator’s psychological predisposition to carry out an order involving the commission of a crime. Here it is not the fungibility of the perpetrator that ensures that the order will be carried out, but rather the latter’s internalized interest and conviction in making it happen. It is a matter, then, of eminently subjective factors, which some authors identified through the justifying motivation, capable of transforming “millions of people into potential and obedient instruments
The Court then considered the difference between perpetration-by-means and superior responsibility in international criminal law. The Court found:
742. … It is important to distinguish between perpetration-by-means through the control of organized power apparatuses and other modalities of imputation which have been developed in international criminal law in order to attribute criminal responsibility to strategic levels of State or State-derived power structures. …
743. … [S]uperior responsibility refers to … commission by omission and generates the responsibility of the individual who commands the direct perpetrator of the crime.
744. … [B]ecause of its characteristics and requirements, [superior responsibility] … differs from perpetration-by-means through the control of organized power apparatuses. … [Perpetration-by-means] is a form of commission which, however, is transferred from an order issued at the highest strategic level to the concrete execution of the ordered act by a proxy.
The  Rome Statute shows and develops this difference well. The Rome Statute regulates both modalities of imputation as two distinct levels of intervention and criminality of strategic organs that are linked to the commission of crimes violating human rights. Essentially, Article 25, paragraph 3, sub-paragraph a) [of the Rome Statute] precisely identifies perpetration-by-means (“Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible”). In contrast, Article 28 [of the Rome Statute] defines in detail the omissions which engage the responsibility of the designated superior
(“… as a result of his or her failure to exercise control properly
[footnotes in original omitted; emphasis in original]
In the presence of the defendant, the Public Prosecutor and the plaintiff, and in public:
The acts that Dusingize has been accused of:
Considering the evidence given by the prosecution witnesses stating that they saw everything that Alexis Dusingize did; including: [witness VNK], who was one of the witnesses who saw [Dusingize] during the attack that Alexis Dusingize was in command of and who saw that, during this attack, … the witness’ younger brother … was discovered while in hiding and killed.
Considering that Alexis Dusingize accepts that he left Nyamata on motorbike and headed towards Kibenga accompanied by his followers;
Considering that Alexis Dusingize accepts that he requested to see identity cards at the roadblocks; …
Considering that those who are seeking compensation have declared that their property was pillaged or that their property was destroyed during the hostilities and that members of their families were victims of the hostilities, and, therefore, they must be compensated for all of this by Alexis Dusingize along with the Rwandan State as he was an authority responsible for assisting the mayor of the Commune of Kanzenze;
Concluding that Alexis Dusingize knew the objective of the murders as he brought his family by motorbike to a place of refuge via the public highway while claiming that he was a wanted man;
Finds that, upon returning to his home in Kibenga, he went to the roadblock; a fact which he himself accepts.
Considering that Alexis Dusingize committed the act of identifying Tutsis in order to separate them from the others and that he himself admits to having committed these acts;
Considering the attacks that he has been accused of, and which he was the leader of, led to the extermination of a number of people, which he himself accepts;
Considering that the evidence from the Prosecutor is well founded;
On returning from his place of refuge, Alexis Dusingize did not undertake the work which he was responsible for in the Commune of Kanzenze, but instead left for Kigali where he had found work in the Ministry of Public Works where he was arrested;
For all these well-founded reasons, in the presence of the defendant and the Public Prosecutor … ;
Pursuant to Decree No. 08/75 of 12/02/1975 [approving and ratifying various international conventions on human rights, disarmament, and the prevention and repression of acts that may endanger peace between people and nations], Article 2 of the  ICTR [International Criminal Tribunal for Rwanda] [Statute] established with a view to prosecuting the criminals responsible for the genocide in Rwanda, and Organic Law No. 08/96 of 30/08/1996 on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990;
Pursuant to Articles 91 and 312 of Books I and II of the Rwandan Penal Code;
Having regard to Articles 281, 282 and 283 as amended of Book II of the Rwandan Penal Code (RPC);
Having regard to Articles 91 and 168 as amended of Books I and II of the RPC;
Having regard to Articles 27 [stating that the Public Prosecution Department represents, as of right or upon request, the civil interests of minors and others who do not have legal representation] and 30 [on liability for damages for criminal acts committed and on awarding damages to victims not yet identified] as amended of Organic Law No. 08/96 of 30/08/1996 referred to above, with Article 2 [classifying persons accused of offences into categories] of the Organic Law placing him in Category 1 [subparagraph] “b” [of the offenders listed therein];
Confirms that the offences that Alexis Dusingize is accused of having committed are well-founded;
Confirms that the four offences that Alexis Dusingize has been accused of are well-founded, as detailed in the accusations that were made, and were committed in ideal concurrence of offences, which is why he must receive the death penalty as punishment;
Dismisses Alexis Dusingize, sentences him to death and orders that all [of his] property be seized from wherever it may be located.
Charges [brought against Gatanazi]:
1. Between April and July 1994, in the Kagarama sector in the Commune of Kicukiro, Prefecture of Kigali City (PVK) Préfecture de la Ville de Kigali, in the Republic of Rwanda, as either the perpetrator or accomplice, committed offences constituting the crime of genocide as provided for in the Convention [on the Prevention and Punishment of the Crime of Genocide] of 09/12/1948 ratified by Rwanda on 12/02/1975 with Decree No. 08/75, with these offences punishable under Organic Law No. 08/96 of 30/08/1996 [on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990].
3. Forming a criminal association with the aim of exterminating the Tutsi, with this offence being contained in and punishable under Articles 281, 282 and 283 of the Rwandan Penal Code Articles 2a and 14a of Organic Law No. 08/96 of 30 August 1996 [on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990].
4. Murdering a number of people, including [victim MNY], [victim MKR] and his two children, and [victim MKB] and her two children, all of whom were killed because of their ethnicity. This offence is contained in and punishable under Articles 312 and 317 of the Rwanda Penal Code and Articles 2a, b and 14a of Organic Law No. 08/96 of 30 August 1996 [on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990].
5. Committing acts of sexual torture and raping Tutsi women, with these offences contained in and punishable under Article 360, second and third of the Rwandan Penal Code and Articles 2a and 14a of Organic Law No. 08/96.
6. Complicity in acts of sexual torture and in the rape of Tutsi women, with this offence being contained in and punishable under Articles 3, 2a and 14a of Organic Law No. 08/96 of 30/08/96 [on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990] and by Articles 89, 91,1° and 360 of the Rwandan Penal Code.
7. Forcibly entering the homes of private individuals, with this offence being contained in and punishable under Article 304 of the Rwandan Penal Code.
Considering that the Military Prosecutor wishes for the hearing of the … witness known as Diana to take place;
Considering that [DR] … was born in 1980 … ;
Considering that when asked whether she had heard the Interahamwe say they were sent by Chief Warrant Officer Rwahama, [DR] replied that she learnt this later when Rwahama asked them if the Interahamwe he had sent had raped either of them, then [LN] admitted to having been raped;
Considering that, in response to the question as to who saved them, [DR] replies that it was indeed Rwahama because before arriving at his home, they almost seemed done for;
Considering that the Military Prosecutor states that the … witness named [LM] received a certificate from Chief Warrant Officer Rwahama prohibiting anyone from harming her or her children since they were of the [NR] family, a Hutu that the Interahamwe had just killed;
Considering that, in response to the question of how she [witness LM] knows Chief Warrant Officer Rwahama, she replied that she met him for the first time during the festivities organised at the home of [NT], but she was unsure whether her husband and Rwahama knew each other;
Considering that she continued by explaining that it was [NT] who had introduced them, and that it was on this occasion that Chief Warrant Officer Rwahama declared that the Bakiga (the people from the north of the country) were so unreasonable that they had married Tutsi women;
Considering that she goes on to say that she recognized Chief Warrant Officer Rwahama through the windows of their house, which were large in size, and that the Chief Warrant Officer was accompanied by several armed individuals. Her husband left the house to observe them when suddenly shots were heard, which is why she thinks that her husband died from these shots as he died on 07/04/1994;
Considering that she goes on to say that the next day, Chief Warrant Officer Rwahama came to her house with a number of other individuals, and he asked her to open the door, then spoke in these terms: “Madame, the revolution is the revolution, all Tutsis must die”. Her child then pleaded with him by saying: “Papa Honoré, have pity on our mother, it is true that she is Tutsi but we are Hutus”;
Considering that she goes on to recall that, after learning that her husband was a native of Gisenyi, Chief Warrant Officer Rwahama left her a handwritten note prohibiting the wrongdoers from harming her;
Considering that the Military Prosecutor stated that the witness, Victor Habyalimana, would testify about the manner in which the attacks were carried out from Rwahama’s home on the 07/04/1994;
Considering that the Military Prosecutor asked him where the attacks most often originated from and who was directing them. He replied that certain attacks were carried out from the center of Kicukiro, while others were carried out from Rwahama’s home who lived in the lower part of the town of Nyanza[. He explained] that soldiers based at the earth station would meet at his home after coming via a trading center where weapons were distributed to them, and after their meetings they would hold a reception in a bar that was near his home;
Considering that when counsel for the defence asked Victor whether he used to possess a grenade as recorded in the minutes, that he responded that he used to possess some before the death of Habya[r]imana, and that they were sold in such a way that he himself bought three of them;
Considering that, when questioned about the nature of the weapons that they had at their disposal, he replied that some had bows while others had grenades;
Considering that when he was again asked to clarify whether they joined forces in order to carry out the attacks, he replied that these weapons were intended to be used in self-defence so they could not carry out attacks as soon as they had these weapons;
Considering that the Military Prosecutor stated that the witness has spoken the truth since no soldier can launch an attack without carrying out reconnaissance work on the ground, which is why they first went to Rwahama’s home as they were unfamiliar with the local population;
Finds that, between 1991 and 1992, Chief Warrant Officer Anaclet Rwahama met a group of individuals who included, amongst others, Gérard Butera, Victor Habyalimana, and Marc Muhamyangabo, at the bar run by a man named Viateur otherwise known as Kimuga;
Finds that on arrival at the bar, the Chief Warrant Officer expressed himself in these terms: “I left the Umutura area after killing many Tutsis, and now I am encountering them again here”. He was alone and armed with two pistols;
Finds that he turned around, looked at the owner of the bar who was infirm and insulted him by kicking him in the chest as confirmed by Gérard Butera during his hearing of 23/06/1998;
Finds that Chief Warrant Officer Anaclet Rwahama, in addition to this, also looked over to where the father of the infirm person was, who he also insulted by calling him a dirty old man, and then publicly expressed regret that they had killed Tutsis without ever managing to exterminate them. He promptly kicked him in the ribs, which caused him to collapse. This may be read in the minutes from Butera’s hearing of 26/06/1998, Victor Habya[l]imana’s hearing of 24/08/1998 and in those of Eugène Karuranga’s hearing of 01/07/1998;
Finds that Chief Warrant Officer Rwahama used to threaten the Tutsis who were living in Kagarama, that he constantly expressed his hatred towards them throughout his stay in Kagarama, as he himself admitted to the War Council by explaining that this behaviour was linked to the education that he had received since primary school, which did not stop even after enrolling in the army;
Finds that after the death of Habyarimana, the former President of the Republic of Rwanda, Chief Warrant Officer Anaclet Rwahama held meetings aimed at identifying those who they were calling criminals, namely the Tutsis. These meetings took place at the home of a man named Thomas … in participation with Mugenzi, Sindambiwe, Stanislas Butera and Mahame. All of these people were Interahamwe militia leaders in Kagarama as stated by [witness MK] during hearing No. 16;
Finds that from 07/04/1994, the Interahamwe repeatedly carried out attacks against the population of Kagarama who, however, fought back and resisted them until the Interahamwe retreated. When the population resisted, they withdrew and retreated to the home of Chief Warrant Officer Anaclet Rwahama in order to return with soldiers armed with rifles;
Finds that the population stood firm against them until 09/04/1994 when Chief Warrant Officer Rwahama sent heavily armed attackers who fired on the population with anti-tank rifles and 60mm mortars from 2pm until around 6pm;
Finds that those who survived these attacks took refuge that night at the CND Conseil National de Développment - the National Development Council, which was the former parliament of Rwanda]. Many others were injured, but could not flee, so they were killed on the spot, who included, in particular, [victim VH], [victim GN], [victim RM], [A]’s family comprised of his wife and three children, [victim KR] and his daughter named … [victim NS] and many others as contained in minutes of the hearing of Victor Habyalimana from 24/08/1998 … and the facts that Victor presented before the War Council;
Finds that Interahamwe often came to Kagarama where they would meet with soldiers at the home of Chief Warrant Officer Anaclet Rwahama in order to collect equipment, in particular rifles and grenades, before launching an attack;
Finds that the population united together in order to resist their attackers who they had successfully forced to retreat;
Finds that before carrying out further attacks these attackers would meet at the home of Anaclet Rwahama with other Interahamwe, … as explained by Marc Muhamyangabo during hearing No. 10;
Finds that between 08/04/1994 and 13/04/1994, Chief Warrant Officer Anaclet Rwahama and Butera apprehended two women and their five children, who they then took away with them while telling them that they were taking them to the CND [Conseil National de Développment - the National Development Council, which was the former parliament of Rwanda], which is where their inkotanyi brothers were;
Finds that they instead took them to a forest where several others had previously been executed, and that a meeting on how to kill them immediately began between Chief Warrant Officer Rwahama and his henchmen as some proposed death by shooting while Chief Warrant Officer Rwahama suggested killing them with a machete;
Finds that the oldest of these children was called [victim NYN];
Finds that during this meeting the mother of [victim NYN] addressed the Interahamwe in the following terms: “You are cowards, you have come to work, and here you are incapable of doing so”. At these words, the Chief Warrant Officer became angry and shot the old lady, and the latter died instantly;
Finds that [victim MKB], another woman who was among the group, spoke in the following terms: “What have you just done? You said that a single bullet was going to be enough for everyone and here you are using it to kill one single person”. Gatera then immediately fired at her, with Chief Warrant Officer Rwahama then ordering the children to lie down on the ground;
Finds that [victim NYN] lay down near to her mother’s dead body and that of her cousin [victim MKB] so that the blood of these victims ended up flowing towards her. The four other children were then immediately killed with machetes;
Finds that on 08/05/1994 two young girls, namely [DR], who was 14 years old at the time, and [LN], were apprehended by an Interahamwe named Iyakaremye who said he was leading them to Chief Warrant Officer Anaclet Rwahama so that he could decide their fate;
Finds that Chief Warrant Officer Anaclet Rwahama immediately recognised [LN] when Iyakaremye appeared before him with them. He then ordered the soldiers to leave them alone as he claimed that they were his children;
Finds that Chief Warrant Officer Anaclet Rwahama took them to his house, where he gave orders for some water to be heated so that they could wash themselves, and that they be given them something to eat after which he left;
Finds that in accordance with the order that he gave, they received water to wash themselves with and some food. On his return they spoke with him and told him what had happened to them. [LN] acknowledged that she had been raped while [DR] said that this had not happened in her case;
Finds that when it was time to go to bed, Chief Warrant Officer Rwahama indicated to [LN] which bedroom she was to sleep in and said that [DR] was going to spend the night with him. The two girls pleaded with him in vain to let them sleep in the same room;
Finds that, in line with what he had decided, Chief Warrant Officer Rwahama spent the night with … [DR] until the moment when he suggested she move closer to him, when [she] apologized to him reasoning that she was still too young to make love, but Chief Warrant Officer Rwahama turned a deaf ear, and he order her to comply by threatening her and reproaching her for being ungrateful when he had rescued her. He immediately undressed her and raped her as detailed by [DR] at her hearing of 15/07/1998 contained in Minutes No. 21 from the hearing as well as before the War Council;
Finds that during this period of war in April 1994, Chief Warrant Officer Rwahama visited a lady named [LM], and he asked her where her husband was. The lady answered that he had been killed. Following the explanations given to him by the lady, Rwahama understood that her husband was a Mukiga (people from the north of the country) like him, and this news troubled him. As a result of this, Chief Warrant Officer Rwahama put in writing the instruction that no one was allowed to hurt this woman. After that, nothing happened to her. All of this is contained in the minutes of [witness LM’s] hearing as well as in the document written by Chief Warrant Officer Rwahama on page 23 of the case file, and [witness LM] even testified to this before the War Council;
Finds that the Military Prosecutor has not provided irrefutable evidence of Chief Warrant Officer Rwahama’s complicity in the offence of sexual torture;
Finds that Chief Warrant Officer Rwahama admitted before the War Council that the following facts are correct:
Finds that Chief Warrant Officer Anaclet Rwahama bears part of the responsibility for the planning of the genocide as he organized meetings with Interahamwe militia leaders who included, amongst other, Stanislas Butera, Kukumba, and Tugiri. These meetings took place at Thomas’ home at the AIDR, and were aimed at determining ways of working that ensured no Tutsis could escape … Chief Warrant Officer Rwahama himself admitted these facts before the War Council ;
Finds that Chief Warrant Officer Rwahama incited certain Rwandans to exterminate their Tutsi brothers, he persecuted people belonging to this ethnic group well before the war of April 1994, and during this period he ordered the Interahamwe to kill certain members of the population of Kagarama because of their ethnicity or because of the help they had provided to Tutsis, in particular by taking care of their children. He was recognized on several occasions when among other Interahamwe, and he was armed with guns, which encouraged the latter as explained in the 3rd, 4th, 5th, 6th, 11th, 12th, 19th, [and] 20th statements of reasons. In addition to this, he admitted before the War Council that these facts are correct when he explained that his hatred of the Tutsi stemmed from the ideology he was taught during both his primary education and during his time serving in the army, notably by figures including Commander La Paix, Lieutenant Kamondo and Lieutenant Bahembera;
Finds that Chief Warrant Officer Rwahama supervised the genocide because he was presented with the people who were to be killed so that he could decide their fate, which is what he did in relation to the two girls, in this case [LN] and [DR], even if he raped them at a later stage, and in relation to [witness LM] whom he saved by giving her a document prohibiting anyone from harming her;
Finds that the particular nature of Chief Warrant Officer Rwahama’s authority is demonstrated by the fact that, after the killings, the Interahamwe would give him him reports describing the progress of the work in general, as has been explained by the Chief Warrant Officer himself before the War Council when he acknowledged that an Interahamwe named Butera and Sergeant Major Ntibiringirwa informed him of the deaths of [victim NR] and [victim KM], which demonstrates that the Chief Warrant Officer actually received such reports;
Finds that Chief Warrant Officer Rwahama became infamous in the massacres perpetrated against the Tutsi in Kagarama during the April 1994 war, because, as he himself repeatedly recognised before the War Council, in his capacity as Chief Warrant Officer he was highly respected. He would give instructions to kill certain people and would save whomever he wanted, he was distributing rifles and grenades, he personally killed several individuals, [and] he coordinated the operations of the soldiers and the Interahamwe when they were preparing to carry out attacks in Kagarama. All this was explained in the 19th, 20th, 21st and 35th statements of reasons;
Finds that insufficient proof has been provided of the guilt of Chief Warrant Officer Anaclet Rwahama in relation to the acts of sexual torture;
Finds that insufficient proof has been provided of Chief Warrant Officer Rwahama’s complicity in the acts of sexual torture;
Finds that responsibility for the offence with which Chief Warrant Officer Anaclet Rwahama has been charged of criminal association, as provided for and punishable under Articles 281, 282, and 283 of the Rwandan Penal Code, has been established;
Finds that responsibility for the offence with which Chief Warrant Officer Anaclet Rwahama has been charged of raping a minor under 16 years of ages, as provided for and punishable under Articles 360, subparagraph 3, of the Rwandan Penal Code, has been established;
Finds that responsibility for the offence with which Chief Warrant Officer Anaclet Rwahama has been charged of forcibly entering the homes of private individuals, as provided for and punishable under Article 304 of the Rwandan Penal Code, has been established;
Finds that Chief Warrant Officer Rwahama committed all these offences against the population of Kagarama because of their Tutsi ethnicity or because of the relationship that the population maintained with the Tutsis. In doing so, he is guilty of committing the crime of genocide as provided for in Article 1 of Organic Law No. 08/96 of 30 August 1996;
Finds that Chief Warrant Officer Anaclet Rwahama became infamous in the massacres perpetrated in the area he was staying in, as provided for by Article 2 of Organic Law No. 08/96 of 30 August 1996;
For all the above reasons, ruling publicly and in adversary proceedings;
Having regard to the Rwandan Penal Code, particularly Articles 89, 91, 281, 282, 283, 304, 312, 317, 360, subparagraphs 2, [and] 3 ;
Declares that Chief Warrant Officer Anaclet Rwahama’s responsibility for the charge of criminal association has been established, and consequently he must be punished for this;
Declares that Chief Warrant Officer Anaclet Rwahama’s responsibility for the charge of murdering a number of different people has been established, and he must be punished for this;
Declares that Chief Warrant Officer Rwahama’s responsibility for the charge of complicity in the murder of a number of different people has been established, and he must be punished for this;
Declares that Chief Warrant Officer Rwahama’s responsibility for the offence of sexual torture has not been established and he must be acquitted of this;
Declares that Chief Warrant Officer Rwahama’s responsibility for the offence of the rape of a minor under 16 years of ages has been established, and he must be punished for this;
Declares that Chief Warrant Officer Anaclet Rwahama’s responsibility for the offence of forcibly entering the homes of private individuals has been established, and he must be punished for this;
Declares that all the offences that Chief Warrant Officer Rwahama has been found guilty of arose in ideal concurrence;
Declares that Chief Warrant Officer Rwahama’s responsibility for all these charges has been established, as well as for having planned and supervised the genocide and inciting the population to commit it. He became infamous in the killings that were perpetrated where he was living, and, consequently, ought to be placed in the first category [of offenders contained in Article 2 of Organic Law No. 08/96 of 30 August 1996 on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since October 1, 1990];
Declares that Chief Warrant Officer Rwahama has lost the court case;
Sentences Chief Warrant Officer Rwahama to death[.]
Peru’s Military and Police Criminal Code (2010) states:
Article 51 - Civil reparation
Civil reparation is established in the sentence together with the punishment. This obligation comprises:
1. Restitution of the object or, if not possible, the payment of its value; and,
2. Compensation for the damage and harm.
Article 52 - Restitution of the object
The restitution of the object shall be made with the same object even though it may be in the power of third parties. This is without prejudice to the rights of third parties to lodge the corresponding claims or legal actions.
Article 53. – Joint liability
Civil reparation is incurred jointly by those responsible for the punishable acts and by third parties with civil obligations.
Article 55. – Civil action
Civil action that results from punishable conduct shall not expire while the criminal proceedings continue within the military and police jurisdiction. Civil action against third parties shall proceed if the dictated sentence does not cover them. Civil reparation shall otherwise be governed by the provisions of the Civil Code.
Article 57. - Transfer of civil responsibility
The obligation to make civil reparation established in a decision shall be transferred to the heirs of the responsible party to the extent that the reparation concerns the inherited objects. The right to demand civil reparation shall be transferred to the heirs of the victim.
In 2009, in the Fujimori case, the Special Criminal Chamber of Peru’s Supreme Court of Justice was called upon to decide whether a former Peruvian president incurred civil liability for crimes he committed in 1991 and 1992 in the context of anti-terror operations, including the abduction of two individuals (the so-called SIE Basement Case) and the murder and injury of numerous individuals in Barrios Altos and at the so-called La Cantuta university in Lima. The Court held:
778. This court must decide whether the perpetrator of the crimes [ie the accused] is civilly liable to make reparation to the victims and their families if an international judgment [by the Inter-American Court of Human Rights] on the matter of reparation [by a State] for crimes suffered by the [same] victims has already been rendered.
779. … It is clear that the international responsibility of the State is direct and principal in character, since it results from the violations of rights set out in [international human rights] treaties that can be attributed to the State. However, the case before this court concerns direct civil liability for the commission of a crime incurred by the perpetrator of the crime for damage caused by the crime. In the first case [in which a State violated its obligations under an international human rights treaty], the State is obliged to make reparation. In the second case [in which an individual committed a crime], the direct obligation to make reparation falls on the perpetrator of the crime as active subject of the obligation. In principle, the person with criminal liability is also the one that incurs civil liability.
780. The passive subjects [i.e. the victims] of the damage for which reparation is to be made are the same in this criminal case and in the other case [concerning State responsibility before the Inter-American Court of Human Rights (IACtHR)]. The judgments of the IACtHR identified the victims and families and stipulated the reparation owed to them. For these reasons, it is not possible that these victims receive additional or double compensation because this could be seen as unjust enrichment …
792. Article 93 of the Penal Code … determines the extent of civil reparation in criminal proceedings. Such civil reparation comprises the restitution of the object or, if this is not possible, the payment of its value, and compensation for the damage and harm. Article 101 of the Penal Code states that civil reparation is further governed by the relevant provisions of the Civil Code.
The fundamental provision of the Civil Code on this matter is Article 1969, which provides that “Any person who negligently or intentionally hurts another person is obliged to make reparation” …
793. From a general perspective, civil liability includes the obligation to restore the affected assets to the state in which they were prior to the commission of the punishable act. The objective is to make the most comprehensive reparation for the damage caused, [and] to neutralize the potential or actual effects of the criminal act. The national legislator has established three forms of discharging civil liability: Restitution, which is the preferred one …, as well as reparation and compensation.
According to the Criminal Code links, reparation comes to bear … if restitution is not possible … This means that restitution comprises not only the return of the object to the person from whom it was taken, but also the re-establishment of the state before the crime was committed. On the other hand, compensation is an appropriate form of economic compensation for private damage irrespective of whether the damaged good is a physical one … This damage and harm must be directly derived from the punishable act … and it must be proven … by those who claim compensation except if the physical and moral damage is clearly apparent from the events …
Damage for which reparation is to be made includes material … and non-material damage: [that is to say] damage to the person and moral damage. Material and non-material damage includes damage to objects and physical injury … Non-material damage is subdivided into the following categories: i) Damage to the person, understood as damage to fundamental and material rights of the individual …; and ii) moral damage, understood as the victim’s ephemeral and non-permanent pain and psychological suffering, including anxiety, distress and physical suffering …
Moreover, non-material damage includes consequential damage and loss of income. Strictly speaking, these are two categories of non-material damage. Consequential damage is understood as non-material damage and physical or psychological harm to an individual with or without economic implications. Loss of income is understood as lack of earnings that the victim would have lawfully gained … Concerning the victim’s heirs … , compensation includes … the following three components: medical and funeral expenses … as well as moral damage …
794. In paragraph eight of the Plenary Accord Number 6-2006/CJ-116 of 13 October 2006, the Supreme Court held that civil damage must be understood as the negative effects that stem from the violation of a protected interest. Such a violation can give rise to both (1) material damages for the violation of rights of an economic nature for which reparation is to be made … ; and (2) non-material damages, circumscribed by the violation of fundamental rights or legitimate interests …
795. The Criminal Chambers of the Supreme Court have consistently held that the scope or range of civil reparation specifically relates to the material compensation. … Concerning crimes such as the present ones, which are not crimes giving rise to material damage, restitution or reparation are not appropriate … Rather, compensation is warranted, which means the payment of a monetary sum sufficient to cover the damage caused by the crime.
[footnotes in original omitted; emphasis in original]
Considering that those who are seeking compensation have declared that their property was pillaged or that their property was destroyed during the hostilities and that members of their families were victims of the hostilities, and, therefore, they must be compensated for all of this by Alexis Dusingize along with the Rwandan State as he was an authority responsible for assisting the mayor of the Commune of Kanzenze.
[The Court c]onfirms that Alexis Dusingize, along with the public authorities, must pay the compensation that has been claimed;
[The Court o]rders that he must pay damages valued at 15,000 RWF [Rwandan Franc] and, failing which, expropriation should forcibly take place through the action of the State;
Dismisses Alexis Dusingize, sentences him to death and orders that all [of his] property be seized from wherever it may be located.
The Court of Appeal of Ruhengeri:
Ruling on the documents submitted by the parties:
Declares that Ntaganda and Nzakira have not been charged with the criminal offences of pillaging and theft, which is why they must pay damages based on personal injury, with 1,000,00 francs awarded to each member of the families that were affected and 2,000,000 francs awarded to each survivor, with damages set as follows: …