SIPHOSAMI MALUNGA
COMMISSION as mode of liability is provided for in the statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), Special Court for Sierra Leone SCSL), Extraordinary Chambers in the Courts of Cambodia (ECCC) and International Criminal Court (ICC).
The ICTY Appeals Chamber has held that “commission covers physical perpetration of a crime by the offender himself, or the culpable omission of an act”.
“Committing” is regarded a more serious form of criminal responsibility than, for instance, instigating or aiding and abetting. The commission may also occur through participation in the realisation of a common design of purpose.
The SCSL has reaffirmed the decisions of the ICTY in several cases. In addition, the ECCC has also followed the reasoning of the ICTY on the concept of commission.
The ECCC has used exactly the similar language to the SCSL case of Kamara in finding that “committing extends to physical perpetration or a culpable omission of an act, and commission through the participation in a joint criminal enterprise.” The ICTR has however taken a slightly different approach to commission. In Gacumbitsi, which dealt with commission of genocide, the Appeals Chamber held that: direct and physical perpetration need not mean physical killing; other acts can constitute direct participation in the actus reus of the crime. […] It was [the accused] who personally directed the Tutsi and Hutu refugees to separate — and that action, which is not adequately described by any other mode of Article 6(1) liability, was as much an integral part of the genocide as were the killings which it enabled.
In Gacumbitsi, the accused had been instrumental in planning, organising and overseeing an attack on Tutsi refugees in which thousands were killed. There was no evidence that he had actually killed any himself although he was said to have killed one person, which killing was unfortunately not charged in the indictment.
In taking a surprisingly broad approach to the concept of “committing”, the Trial Chamber found that, although he had not killed anyone, he could still be found guilty of committing the crime of genocide.
This finding divided the Trial Chamber judges. The ICTR Appeals Chamber reaffirmed the reasoning in Gacumbitsi in Seromba. A priest, Seromba, was accused of supervising the bulldosing of a church with 1 500 Tutsi who had taken refuge.
The ICTR held that by approving the use of the bulldoser, and by virtue of his authority over the driver of the bulldoser, “[the accused’s] acts 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.”
In his dissenting judgment, Judge Liu found that the broad approach to “commission” was inconsistent with the jurisprudence of the ICTs, particularly the Stakić Appeals judgment, which held that co-perpetration is not part of customary international law and tribunal law.
The broad approach to “committing” taken by the ICTR has been criticised by Giustiniani who argues that the reasoning was misplaced and that the facts of the case were better suited to a finding of instigation than committing despite the possible desire by the ICTR to demonstrate its disapproval of Seromba’s conduct.
Giustiniani criticises the Appeals Chamber for not explaining why Seromba’s conduct was qualified as committing instead of instigation.
Although Giustiniani’s criticism on the ICTR is merited, his conclusion that “the facts of the case were better suited to a finding of instigation” is rather flawed. In both Seromba and Gacumbitsi, a finding of aiding and abetting would make sense. Manuel Ventura posits that aiding and abetting is “[a] mode of liability in international criminal law which refers to acts or omissions that assist, encourage or lend moral support to a crime and substantially contribute to its commission.” It is evident that the actions of the accused in the aforementioned cases assisted in the commission of the crime and therefore a finding of aiding and abetting would have been better suited.
The ICC also envisages “commission” under Article 25 of the Rome Statute which takes a broad approach to commission to include perpetration and other forms of participation as well as omission.
In Lubanga, the ICC Pre-Trial Chamber held that “committing” in Article 58(1)(a) is broader than direct/physical perpetration. It includes modes of liability, attempt, incitement and superior responsibility. The ICC has interpreted indirect or co-perpetration expansively with regard to crimes committed by organisations or multiple perpetrators.
In Katanga, the ICC Pre-Trial Chamber found that indirect or co-perpetration refers to committing the crime through another person and extends to ‘control over troops’ who implemented a criminal plan.
Although there are questions regarding the propriety of this reasoning and its legal basis, its application to Gukurahundi offers a unique opportunity to hold the civilian and military leaders who had control over Five Brigade, other Zimbabwe National Army (ZNA) troops and other security forces in Matabeleland and Midlands liable as indirect or co-perpetrators of all their crimes.
Commission is defined as the physical perpetration, it means that every member of Five Brigade, Central Intelligence Organisation, Zimbabwe National Army, Zimbabwe Republic Police and other security and government agencies who physically committed or culpably omitted to act would be liable for commission.
Based on the Tadić Appeals Decision which held that “the commission may occur through participation in the realisation of a common design of purpose”, every individual who participated in the realisation of the common criminal (genocidal) plan either to destroy in whole or in part the Ndebele civilian population; or the plan to systematically attack civilian Ndebele Zapu supporters and their leaders, in furtherance of the Zanu PF one-party state agenda and ideology, committed crimes against humanity.
Similarly, the participation in the common plan to conflate and attack civilians as part of the military operations in Matabeleland and Midlands would constitute the commission of war crimes. In the case of Kordić & Čerkez, the ICTY Trial Chamber held that “[A] person found to have committed crime will not be found responsible for planning the same crime.”
Therefore it is important and necessary to distinguish perpetrators who physically committed the crime and those perpetrators who planned the crime.
About the writer: Dr Siphosami Malunga is a Zimbabwean international human rights lawyer.
