Practice Relating to Rule 152. Command Responsibility for Orders to Commit War 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 ‘La Cantuta’ university in Lima, all of which were carried out by State officials. The Court held: “Superior Responsibility refers to … commission by omission and generates the responsibility of the individual who commands the direct perpetrator of the crime.”
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].
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;