Final Joint Judgement

8/6/2019 Final Joint Judgement

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INTERNATIONAL COURT OF mSTICEREPORTS OF JUDGMENTS,

ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE LEGALITY OFFRANCE'S ACTIONS BEFORE AND DURING THERWANDAN GENOCIDE(RWANDA v. FRANCE)

JUDGMENT OF 14 JULY 2011

2011COUR INTERNATIONALE DE mSTICE

RECUEIL DES ARRETS,AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A LA LEGALITE DESACTIONS DE LA FRANCE AVANT ET PENDANTLE GENOCIDE AU RWANDA(RWANDA v. FRANCE)

ARRET DU 14 JUILLET 2011


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TABLE OF CONTENTS

INTRODUCTIONJURISDICTIONa. 'Legal issue'b. Consent to the Court's jurisdictionSTANDARD OF PROOFCOMPLICITYa. Introductionb. Incident One (Nyarushishi)c. Incident Two (Bissero)d. Incident Three (Bissero)

1. Outside the Turquoise zone11. A positive action

111. Proof of actual subjective knowledge of genocidal intentIV. Coupling of subjective knowledge and objective knowledge

BREACH ATTRIBUTABLE TO THE STATEFAILURE TO PREVENT GENOCIDEa. Introductionb. Capacity to influencec. Objective knowledge that a serious risk of genocide existsd. Breach of duty to preventi. Incident One (Nyarushishi)ii. Incident Two (Bissero)iii. Incident Three (Bissero)

FAILURE TO PUNISH GENOCIDEa. Introductionb. Application to the actions of Francec. Scope of applicationVIII. REPARATIONS

I.II.

III.IV.

V.VI.

VII.

a. Article 35: Restitutionb. Article 36: Compensationc. Article 37: Satisfaction

IX. OPERATIVE CLAUSE

Paragraphs1-34-8

45-89-10

11-3311-1819-222324-33282930-3132-3334-3536-5936-3839-4344-4849-595152-5657-5960-8060-6869-7475-8081-9282-8384-8889-92

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INTERNATIONAL COURT OF mSTICEYEAR 201114 July 2011

CASE CONCERNING THE LEGALITY OFFRANCE'S ACTIONS BEFORE AND DURING THERWANDAN GENOCIDE(RWANDA v. FRANCE)

JUDGMENTPresent: Judges CAO, CHIENG, CROWTHER, Fox, GODDARD, Ko,

O'CONNOR, PANDITHARATNE, PANG; Judges ad hoc VANDER WESTHUIZEN, WORRALL

In the case concerning the legality of France's actions before and during theRwandan Genocide,betweenthe Republic of Rwanda,represented by

Mr. Benjamin Worrall,as Agent,andthe French Republic,represented by

Mr. Coenraad van der Westhuizen,as AgentTHE CHAMBER OF THE INTERNATIONAL COURT OF JUSTICE,composed as above,after deliberation,delivers thefollowing Judgment:


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RWANDA v . FRANCE (JUDGMENT)

I. INTRODUCTION

1. There has been a long history of tension between the Tutsi and Hutuethnic groups in the Republic of Rwanda (Rwanda), primarily as a result ofBelgian colonisation in the early 20th century. The assassination of the RwandanPresident Habyarimana, a Hutu, in 1994 by Tutsi forces, triggered the Hutu tolaunch a brutal campaign which aimed to systematically exterminate what theydubbed the "Tutsi cockroaches". Over 800,000 Tutsi were killed in the conflict.2. The responsibility of the French Republic ('France') for its involvementin Rwanda began in 1990. France provided integral military, financial andpolitical support for the Hutu regime, including the provision of over $24million in weapons. In June 1994, France sent a UN sanctioned force of over3,000 troops into south-western Rwanda, known as 'Operation Turquoise', withthe ostensible purpose of creating a safe zone for refugees but an apparentunderlying political motivation to protect the Francophone Hutu forces from theEnglish speaking Ugandan-backed Tutsi invaders.

The Rwandan government requests that this Court adjudge and declare that:1. France was responsible for complicity in genocide under Article 3(e)of the Convention on the Prevention and Punishment of the Crime ofGenocide! (hereinafter 'the Genocide Convention'),2. France breached its duty under Article 1 of the Genocide

Convention2 to prevent genocide, and3. France breached its duty under Article of the GenocideConvention3 to punish genocide.3. The Court notes that Rwanda does not seek to establish French stateresponsibility for the direct commission of genocide under Article 3(a) of theGenocide Convention. It is worth briefly noting that it would be extremelydifficult to establish that France was directly responsible for the commission ofthe Rwandan genocide under Article 3(a), first, because the interahamwe militiawhich perpetrated the genocide was not a de jure organ of France, and second,because France did not have "effective control" of the interahamwe militiaaccording to the test proposed in the Nicaragua Merits Case.4

1 Adopted by Resolution 260 (III) A of the United Nations General Assembly on 9 December1948.2 Adopted by Resolution 260 (III) A of the United Nations General Assembly on 9 December1948.3 Adopted by Resolution 260 (III) A of the United Nations General Assembly on 9 December1948.4 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United Statesof America) Merits (1986) ICJR 14.

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II. JURISDICTION

a) 'Legal issue'4. The issue of France's involvement in the 1994 genocide in Rwanda isnecessarily a political issue, given the implication of members of the highestlevels of the French government, as well as questions surrounding therelationship between the governments of both countries. However, this does notdetract from its also being a legal issuer' all that is necessary is that there be acomplaint of law which is denied by the respondent."

b) Consent to the Court's jurisdiction5. As the responsibility of France for breach of obligations owed underinternational law is a question of a legal nature, it is necessary to establish thatRwanda has standing to bring an action before this Court and that this Court hasjurisdiction to hear the issue.6. The Court recognises that Article 36(1) of the Statute of the ICJ7 providesthat the jurisdiction of the Court comprises all matters specifically provided forin treaties and conventions in force.

Article 9 of the Genocide Convention states that:"Disputes between the Contracting Parties relating to the interpretation,application or fulfillment of the present Convention, including thoserelating to the responsibility of a State for genocide or any of the otheracts enumerated in Article 3, shall be submitted to the International Courtof Justice at the request of any of the parties to the dispute."

7. This Court in the Application of the Convention on the Prevention andPunishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia andMontenegro) 8 ('Bosnia v. Serbia') held that Article 9 of the GenocideConvention constitutes a compromissory clause which allows a state party tosubmit an application to the International Court of Justice to resolve a disputerelating to the interpretation, application or fulfillment of the GenocideConvention.8. In this case, France and Rwanda are both state parties to the GenocideConvention and Rwanda has submitted an application against France pursuant to

5 Armed Actions (Nicaragua v. Honduras) case, ICJ Reports, 1988, p. 92.6 East Timor case; ICJ Reports, 1995, pp. 90,90-100.7 Annex to Charter of the United Nations.8 Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia andHerzegovina v Serbia and Montenegro) (2007) ICJR 43 (hereinafter Bosnia v Serbia).

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Article 9 in relation to France's liability under Articles 1 and 3 of the GenocideConvention. The Court therefore finds that France's consent to the jurisdictionof the Court is founded by its status as a signatory to the Genocide Conventionin this case.

III. STANDARD OF PROOF

9. The Court in Bosnia v. Serbia held that "claims against a state involvingcharges of exceptional gravity must be proved by evidence that is fullyconclusive.,,910. The Court further held that "the same standard of proof would apply tothe proof of attribution for such acts."IO

IV. COMPLICITY

a) Introduction11. In Bosnia v. Serbia, this Court relied on the International LawCommission's Articles on Responsibility of States for Internationally Wrongful

Acts (hereinafter 'the ILC's Articles on State Responsibility') to attributeliability to the Serbian government.12. According to Article 38(1)(d) of the Statute of the ICl, this Court mayhave recourse to the writings of leading publicists. The International LawCommission is a UN organ entrusted with the study of international law and thisCourt has frequently referred to the Articles of State Responsibility in its priorjudgments. II As such, they provide a useful codification of some aspects ofcustomary international law.13. Article 16 makes States responsible for aiding or assisting wrongful actsif they do so "with knowledge of the circumstances" of the act in question. Inparticular, this Court previously found that no distinction need be drawn

between "aid or assistance" of a State "in the commission of an internationallywrongful act" within the meaning of Article 16 and "complicity in genocide"within the meaning of Article 3(e) of the Genocide Convention. 12

9 Bosnia v. Serbia. Ie] Reports, 2007, at '1[209.10 Bosnia v. Serbia. K'J Reports, 2007, at '1[209.11 For example, Bosnia v. Serbia. Ie] Reports, 2007, at '1[420.12 Bosnia v. Serbia. K'J Reports, 2007, at 'I [ 420.

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14. In Bosnia v. Serbia, this Court discussed the requisite link to be drawnbetween the genocidaires and the State accused of acting complicitly with them:" ... the question arises whether complicity presupposes that theaccomplice shares the specific intent (dolus specialis) of the principalperpetrator. But whatever the reply to this question, there is no doubtthat the conduct of an organ or a person furnishing aid or assistance to aperpetrator of the crime of genocide cannot be treated as complicity ingenocide unless at least that organ or person acted knowingly, that is tosay, in particular, was aware of the specific intent (dolus specialis) oftheprincipal perpetrator." 13 [emphasis added]

15. Regard should also be had to Article 2 of the ILC's Articles on StateResponsibility, entitled 'Elements of an Internationally Wrongful Act of aState':"There is an internationally wrongful act of a State when conductconsisting of an action or omission:(a) is attributable to the State under international law; and(b) constitutes a breach of an international obligation of the State."

16. Putting these considerations together, there are two elements to satisfy inorder to establish complicity in genocide, following this court's judgment inBosnia v. Serbia. First, the accused state must have actual subjective knowledgethat the perpetrators of genocide had a specific intent to commit genocide.Second, the accused state must have provided aid or assistance to theperpetrators (a "positive action?"), despite that knowledge. That is, the accusedstate must have provided aid or assistance to perpetrators of genocide "at a timewhen [the state was] clearly aware that genocide was about to take place or wasunder way". 15 It is therefore not sufficient that genocide have been merelycommitted with the resources of another state; it was for this reason that thisCourt found insufficient proof for the contention that the Federal Republic ofYugoslavia was complicit in the genocide committed by the Republika Srpskaand the VRS.1617. There has been some academic interpretation of the Bosnia v. Serbiadecision indicating that a State's knowledge of the specific genocidal intent ofthe perpetrators of genocide must relate to "specific acts of genocide." 17

Further clarification is required in respect of the specific spatio-temporal13 Bosnia v. Serbia. ICJ Reports, 2007, at 'I [ 421.14 Bosnia v. Serbia, ICJ Reports, 2007, at 'I [ 432.15 Bosnia v. Serbia, ICJ Reports, 2007, at 'I [ 422.16 Loc. cit.17 Schmitt, Paul, 'The Future of Genocide Suits at the International Court of Justice: France'sRole in Rwanda and Implications of the Bosnia v. Serbia Decision', Georgetown Journal ofInternational Law, Vol. 40, 2009, pp. 602, 605.

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coincidence that has to be established between the act of giving aid and thecommission of the genocide. In particular, the level of specificity with which'genocide' ought to be defined should be addressed.18. In Bosnia v. Serbia, this court limited its consideration to the massacrescommitted at Srebrenica due to deficiencies in the evidence of other massacresat concentration camps such as Omarska, Keraterm and Trnopolje. Themassacres at Srebrenica comprised a number of acts over several days or weeks,though they were related to the extent that they all occurred in the same location.

It would be a further stretch, however, to assert that the accused state needsimply possess subjective knowledge that genocide generally is occurring or isabout to occur. It is true that the crime of genocide is necessarily comprised of anumber of individual - and often isolated - acts, but this court should be carefulnot to push the jurisprudence too far. While a highly demanding burden ofproof would clearly be seen as an obstacle to finding accused states guilty incases in which inferential evidence may appear attractive, it is necessary toremember that the evidentiary burden that exists is deliberately commensuratewith the egregious nature of the crime of genocide. To the extent that this Courtis a normative actor in international law, it must not only be unwavering in itscondemnation of internationally wrongful acts, but also be steadfast inupholding the equality of the application of the law and the avoidance ofarbitrariness. In this context, it is more important that an accused state not befound guilty of complicity by reason of insufficient evidence than that anaccused state be found guilty of complicity by reason of an undue softening ofthe requisite burden of proof.

b) Incident One (Nyarushishi)19. The Court established that French soldiers supplied grenades, combatrations (both before and after killings of Tutsi), advice to the interahamwe onhow to avoid international suspicion, and assistance on night patrols to theinterahamwe at Nyarushishi. This was established on the basis of evidence givenby eyewitness accounts by members of the interahamwe, the perpetrators of thegenocide. The French assistance was used to kill Tutsi people and destroyhouses.20. This incident has been established as one of genocide by the ICTR in thecase of the Prosecutor v. Yussuf Munyakazi, 18 in which Munyakazi was indictedon charges of genocide for a range of specific acts of genocide including theparticular attack on the Nyarishishi Refugee Camp.

182008, Case No. ICTR-97-36-Rllbis.

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21. According to testimony by Georges Rutaganda, the vice president of theinterahamwe, who was found guilty in 1999 at the ICTR for genocide andcrimes against humanity:"Not only did they advise us, but they even ensured we had enough food.Sometimes they would meet the prefect, Manichimwe. He would comeand give us the instructions that he'd received from the French. 'You cango wherever you want, without fear - we've got the French supporting us,and they certainly don't want to see the country in the hands of thecockroaches.' As for the roadblocks, the French weren't exactlycomplimentary about our work. They told us the barriers would give usaway and they advised us to remove them and inspect everything by theroadside. We took away the tree trunks that were blocking the road andwe kept an eye on everything, at least along the road. They explained tous that when the international community keeps things under surveillance,if the satellites see barriers, it creates a really bad impression; so theyadvised us to keep watch on the road without erecting barriers. No, therewas never the slightest problem or misunderstanding in our relations withthe French. They distributed weapons even outside Nyarushishi." 19[emphasis added]

22. The Court finds that the actions of France in this circumstance clearlyconstituted positive acts of aid or assistance. However, it was not establishedconclusively that at that time, France possessed actual subjective knowledge ofthe genocidaires' specific intent to commit genocide. While there is little doubtthat France possessed objective knowledge that genocide was or would beoccurring in Rwanda20 - that is, it should have been aware of it - as discussedabove, the high standard of proof required to establish complicity under theGenocide Convention renders it more difficult to find France liable. Beingreminded that "claims against a state involving charges of exceptional gravitymust be proved by evidence that is fully conclusive," 21 the Court is notconvinced that France possessed the requisite subjective knowledge to satisfythe charge of complicity in respect of this particular incident.

c) Incident Two (Bissero)23. Evidence was adduced of a second incident of alleged complicity ingenocide, also occurring at Bissero.22 The Court concluded that the failure of

19 Republique du Rwanda, Rapport de la Commission Nationale ('the Rwandan Report'),2007.20 See the Court's discussion of this issue below.21 Bosnia v. Serbia. IC] Reports, 2007, at '1[209.22 See further below under 'failure to prevent genocide'.

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French troops to intervene in a massacre occurring five kilometres away fromtheir military base did not satisfy the requirement of complicity that there be apositive action of aid or assistance.

d) Incident Three (Bissero)24. The facts of this incident were established by two eyewitness accountscontained in a documentary by Georges Kapler:

"Vincent Kayigema, who was eight years old at the time, testified thatFrench soldiers had assembled around 200 Tutsis who had come out ofhiding on a hill; facing them were crowds of armed militia. When theFrench then turned their armored vehicles around and left, the anti-Tutsimilitia stepped in 'and killed more than half of the Tutsis who were there'.In the intervening three days before the French returned, about 1000Tutsis were slaughtered. Another survivor by the name of Jean-Damescene put the figure at 2000. Many Tutsis were too exhausted to runand hide again. Emotionally, too, many gave up.,m

25. A Human Rights Watch report provides evidence from French colonelJean-Rene Duval - known as 'Diego' - who reported that he spent three daysmaking numerous calls on his satellite phone to Paris to alert higher commandabout the imminent danger to the hundreds of Tutsis they had seen on the hills.In fact, on June 26, the day before Diego and his men discovered the survivors,three journalists - Hugeux, Kiley and Bonner - had informed Gillier thatmassacres were taking place.

26. Colonel Jacques Rosier, head of the French special forces, refused tocountenance a rescue mission even though the French had a base full of specialservice commandos, the equivalent of the British SAS, ready and willing toreturn to help the survivors and stop the genocide. Notably, Rosier had been inRwanda from June to November 1992 as head of the pro-Rwandan armymilitary cooperation operations in Kigali.27. The Court considered that there were four questions that needed to beaddressed in respect of this event, in order to establish whether complicity on thepart of France could be proved: first, what was the significance of this event's

taking place outside the Turquoise zone ('Zone Turquoise'); second, whether a"positive action" 24 of aid or assistance can be established from a withdrawal offorces; third, whether actual subjective knowledge of genocidal intent can beestablished; and fourth, if actual subjective knowledge of genocidal intentcannot be proven by itself, whether actual subjective knowledge of an23 Georges Kapler, Un Cri d'un Silence Inoui, Rwanda, 2004.24 Bosnia v. Serbia, Ie] Reports, 2007, at 'I [ 432.

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impending massacre coupled with objective knowledge of genocide occurring inRwanda is sufficient to satisfy the knowledge component of the test forcomplicity.

(i) Outside the Turquoise zone28. Itmight be argued that French soldiers stationed outside the area within

which they had been given a UNmandate to protect would be "exceeding [their]authority=" in terms of attributing their actions to the French state. It is notclear whether the French soldiers in this incident were posted as part of theOperation Turquoise or whether they had been posted as part of a previousagreement between France and Rwanda. Nevertheless, Article 7 of the ILC'sArticles on State Responsibility makes it clear that even if the organ of a state"exceeds its authority or contravenes instructions", the actions of such an organare still considered an act of the state in question if that organ acts in thecapacity of an organ empowered to exercise elements of governmental authority.Therefore, whether or not the French troops in question were stationed as part ofOperation Turquoise has no bearing on the finding of complicity.

(ii) A positive action29. In order to establish complicity in genocide, it is necessary to demonstrate

that the complicit party committed a positive act of aid or assistance. Incomparison to Incident Two, the act of withdrawal in Incident Three amounts toa positive action of aid or assistance. In this instance, the French were situatedbetween 200 Tutsis who had come out of hiding on a hill at the behest of theFrench, and a crowd of armed interahamwe militia intent on killing the Tutsis.The act of the French in withdrawing their armoured vehicles amounted to apositive act of aid or support because it effectively allowed the Hutu to advanceand kill more than half of the Tutsis. Violence against the Tutsis was inevitableif the French withdrew, and this also supports the conclusion that the Frenchwithdrawal was a positive act of support, not merely an omission.

(iii) Proof of actual subjective knowledge of genocidal intent30. The Court is satisfied that there is sufficient evidence to establish that

France had actual subjective knowledge that killings of Tutsi were imminent atBissero. The testimony of French colonel Jean-Rene Duval demonstrates thatsenior French officials in Paris were explicitly informed over a period of days ofsuch a danger, based on actual observations of French troops in the area. Thisevidence, however, does not by itself establish subjective knowledge of an intent

25 Article 7, Il.C's Articles of State Responsibility.

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to commit genocide: the threat of a massacre of "hundreds of Tutsis" is not thesame as a threat to "destroy, in whole or part, a national, ethnical, racial or1 . ,,26re IglOUSgroup .31. The situation was almost identical in Bosnia v. Serbia in respect of thekillings at Srebrenica: as the Court pointed out, it was necessary that the FederalRepublic of Yugoslavia be aware "that not only were massacres about to becarried out or already under way, but that their perpetrators had the specificintent characterizing genocide, namely, the intent to destroy, in whole or in part,a human group, as such.,,27 A further question, which the Court did not considerin that case, is whether the knowledge component of the test for complicity canbe satisfied by coupling such knowledge of imminent massacres with a generalobjective knowledge that genocide was occurring at the time.

(iv) Coupling of subjective knowledge and objective knowledge32. The question is whether actual subjective knowledge of an impendingmassacre coupled with objective knowledge of genocide occurring in Rwanda issufficient to satisfy the knowledge component of the test for complicity. Thegeneral objective knowledge of France that genocide was occurring is addressedin detail in the section dealing with the failure to prevent genocide, but oneaspect of the evidence merits repetition here. Ferdinand Nahimana and JeanBosco Barayagwiza were tried by the ICTR in 2003 for, relevantly, genocideand inciting genocide" These men were co-founders of the Hutu radio station

Radio Television Libre des Mille Collines, which broadcast hateful rhetoricagainst Tutsis from July 1993 to July 1994.33. France, as part of the international community, was aware of the radiobroadcasts emanating from Hutu leaders both before and during the commissionof the genocide in Rwanda, and given the finding of the ICTR, it is clear thatthose broadcasts were genocidal in nature. Given that France was aware ofthese broadcasts (as well as other evidence discussed elsewhere/"), it can beestablished that France had clear objective knowledge of the genocide occurringin Rwanda, both before and during the events at Bissero. Combining France'sestablished subjective knowledge of the impending massacre at Bissero with itsestablished objective knowledge of the widespread genocide generally occurringin Rwanda, the Court considers that the knowledge component of the test for

complicity - which requires an awareness of genocidal intent - is satisfied onthis basis.26 Article 2, Convention on the Prevention and Punishment of the Crime of Genocide.27 Bosnia v. Serbia, ICJ Reports, 2007, at 'I [ 422.28 The Matter of Jean Bosco Barayagwiza, ICTR-97-l9, 2003; The Matter of FerdinandNahimana, ICTR-96-ll, 2003.29 See the section on failure to prevent genocide.

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V. BREACH ATTRIBUTABLE TO THE STATE34. The Court considered Article 4 of the ILC's Articles on StateResponsibility, which reads:

"1. The conduct of any State organ shall be considered an act of thatState under international law, whether the organ exercises legislative,executive, judicial or any other functions, whatever position it holds inthe organization of the State and whatever its character as an organ ofthe central Government or of a territorial unit of the State.2. An organ includes any person or entity which has that status inaccordance with the internal law of the State."

35. The three alleged crimes of failure to prevent genocide, failure to punishgenocide and complicity in genocide were committed by soldiers of France. Thisoffice has been held as constituting an organ of the state in many previousdecisions of this Court."

VI. FAILURE TO PREVENT GENOCIDE

a) Introduction36. Rwanda also contends that France failed in its obligation to preventgenocide, incurred under Article 1 of the Genocide Convention. This article wasinterpreted in Bosnia v. Serbia as having two requirements: first, a "capacity toinfluence effectively the action of persons likely to commit, or alreadycommitting, genocide"; secondly, objective knowledge that a serious risk ofgenocide existed. 31 States' efforts to prevent genocide need not succeed, butstates must "employ all means reasonably available to them, so as to preventgenocide as far as possible'v"37. This Court also considered, in Bosnia v. Serbia, the application of Article14, paragraph 3, of the ILC's Articles on State Responsibility, which reads:

"3. The breach of an international obligation requiring a State to prevent agiven event occurs when the event occurs and extends over the entireperiod during which the event continues and remains not in conformitywith that obligation."

30 For example, Caire (1929) 5 RIAA 516.31 Bosnia v. Serbia, IC] Reports, 2007, at 'I [ 430.32 Bosnia v. Serbia, IC] Reports, 2007, at 'I [ 430.

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38. This Court concluded that "a State's obligation to prevent, and thecorresponding duty to act, arise at the instant that the State learns of, or shouldnormally have learned of, the existence of a serious risk that genocide will becommitted. From that moment onwards, if the State has available to it meanslikely to have a deterrent effect on those suspected of harbouring specific intent(dolus specialis), it is under a duty to make such use of these means as thecircumstances permit.,,33 Itwas also noted that "a violation of the obligation toprevent results from mere failure to adopt and implement suitable measures toprevent genocide from being committed.,,34 [emphasis added]

b) Capacity to influence39. In Bosnia v. Serbia, the Court considered that because of the extremelystrong political, military and financial links between the Federal Republic ofYugoslavia and the Bosnian-Serb militia, Yugoslavia had the capacity toinfluence the Bosnia-Serb militia and potentially prevent the genocide.40. The Court concludes that France had the capacity to influence the Hutuon a political level due to the extensive historical ties that existed betweenFrance and Rwanda. The Court is also of the belief that French political capacityto influence the Hutu regime is established on the basis of the continual financialsupport provided by France to the Hutu regime, which ensured that the Hutusremained in a position of some financial reliance on France at least until thecommencement of genocidal acts. As reported by the Organisation of African

Unity." France was Rwanda's closest ally during this time period.41. France also had the capacity to influence from a military perspective, asthe French had some sway over the Rwandan military operations, with the 1998French Parliamentary Commission on Rwanda detailing arms deals conductedthrough the French embassy in Rwanda. The French government has alsoadmitted the presence of a team of forty seven French nationals in Rwanda whoprovided advice and technical assistance to key units in the Rwandan army andpolice force.42. Moreover, France acquired further significant military capacity toinfluence the Hutu perpetrators of genocide on the ground upon receiving amandate from the Security Council to conduct a humanitarian mISSIOn

throughout south-west Rwanda, known as Operation Turquoise.

33 Bosnia v. Serbia, ICJ Reports, 2007, at 'I [ 431.34 Bosnia v. Serbia, ICJ Reports, 2007, at 'I [ 432.35 'Rwanda: The Preventable Genocide', International panel of eminent personalities, July 7,2000.

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48. On the basis of this evidence of the surrounding circumstances, the Courtholds that France ought to have known of the genocidal intent of the Hutumilitia. Therefore, alongside France's clear influence over the Rwandangovernment and the militia, France's obligation to prevent genocide arose.

d) Breach of duty toprevent49. Having established that France had the obligation to prevent genocide, the

Court must consider whether France discharged this duty by employing "allmeans reasonably available to them, so as to prevent genocide as far aspossible"."

50. The Agent for Rwanda has provided three sfgecific incidents in which it isalleged that France has failed to prevent genocide. 8

(i) Incident One (Nyarushishi)51. France had soldiers on the ground in this instance and thus the military

capacity to influence the situation. By instead aiding the Hutu militia bysupplying grenades and other assistance, France manifestly failed to take allmeasures reasonably necessary and within its power to prevent the Hutuinterahamwe from committing genocide of the Tutsi people. Thus the Courtholds France liable for failure to prevent genocide in this instance.

(ii) Incident Two (Bissero)52. This incident involved French troops refusing to intervene in a massacre

which occurred only 5 km away from their base. As detailed in the RwandanReport, John Bigirumwami - a public official in the town of Muganza - accusedthe French of giving protection to the interahamwe who ransacked infrastructureand houses in the area and murdered all of the Tutsi in the area. He stated:

"After the flight of the leaders of the commune, the French took controlof the entire region by stealing some of our common assets andinfrastructure. Indeed, the interahamwe were destroying and lootingpublicly while the French were based in buildings nearby." [translationfrom French]53. The French military had a capacity to influence this situation, given its

geographical proximity and given that transport was available. As discussedunder complicity above, although a mere omission is not sufficient to make out37 Ibid.38 These incidents have been described in greater detail above in the section dealing withcomplicity.

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it complied with its obligation of prevention in respect of the same acts,because logic dictates that a State cannot have satisfied an obligation toprevent genocide in which it actively participated.v' '59. For this reason, the Court cannot find France guilty of failure to preventgenocide in respect of this particular incident, because it has already foundFrance guilty of complicity in genocide in respect of the same incident.44 Theissue of logical consistency alluded to above does not, however, affect theCourt's findings in respect of the two other incidents referred to throughout thisjudgment.

VII. FAILURE TO PUNISH GENOCIDEa) Introduction

60. The Court now turns to the question of France's compliance with itsobligation to punish the crime of genocide pursuant to Article 1 of the GenocideConvention.61. Article 1 of the Genocide Convention states that "genocide is a crimewhich the Contracting parties undertake to prevent and punish." The languagein this article is not merely hortatory: in the Bosnia v. Serbia decision, this Court

held that Article 1 is a "distinct internationally wrongful act" and creates anormative obligation on each contracting State to punish genocide."62. Since the breach of Article 1 is a separate internationally wrongful actand creates a distinct cause of action, regardless of whether France wascomplicit in genocide under Article 3(e) of the Genocide Convention, it may beheld liable for a failure to punish genocide."63. Article 6 of the Genocide Convention limits the application of the duty topunish under Article 1.Article 6 states that:

"Persons charged with genocide or any of the other acts in Article 3 shallbe tried by a competent tribunal of the State in the territory of which theact was committed, or by such international penal tribunal as may havejurisdiction with respect to those Contracting Parties which shall haveaccepted its jurisdiction."

43 Bosnia v. Serbia, Ie] Reports, 2007, at'l[382.44 See above in section on complicity.45 Bosnia v. Serbia. K'J Reports, 2007, at 'I [ 383.46 Bosnia v. Serbia. K'J Reports, 2007, at 'I [ 383.

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64. In Bosnia v. Serbia, this Court held that Article 6 does not impose anobligation on states to try its citizens who are guilty of genocide in its owncourts. However, the Court did conclude that Article 6 imposes an obligation onstate parties to "arrest persons accused of genocide who are in their territory -even if the crime of which they are accused was committed outside it - and,failing prosecution of them in the parties' own courts, [to] hand them over fortrial by the competent international tribunal. ,,4765. In the case of Rwanda, the relevant international tribunal is theInternational Criminal Tribunal on Rwanda (ICTR) which was established in1994 shortly after the genocide ended. To determine whether France fulfilled itsobligations in this respect, there are two preliminary questions, identified by theCourt in Bosnia v. Serbia, which must be answered: first, whether the ICTRconstitutes an "international penal tribunal" for the purpose of Article 6; second,whether France "accepted the jurisdiction" of the tribunal for the purpose ofArticle 6.4866. With regard to the first consideration, in Bosnia v. Serbia this Court heldthat the meaning of "international penal tribunal" includes all internationalcriminal courts created after the adoption of the Genocide Convention which arecompetent to try the perpetrators of genocide or any other acts under Article 3 ofthe Genocide Convention. 49 On this basis, it found that the International

Criminal Tribunal on Yugoslavia clearly constituted an international penaltribunal. Under Article 2 of the Statute of the ICTR, the ICTR is competent totry the perpetrators of genocide and therefore constitutes an international penaltribunal.67. The second question, as phrased by the Court in Bosnia v. Serbia, iswhether the Respondent, France, is obliged to accept the jurisdiction of theinternational penal tribunal, the ICTR. In Bosnia v. Serbia, the Court establishedthis on the basis that the Federal Republic Yugoslavia had signed the DaytonAgreement which established the ICTY and made rulings of the ICTY bindingon the parties to the Agreement.68. In this case, Security Council Resolution 955 which was passed in 1994created the ICTR. The Security Council acted under Chapter VII of the Charterof the United Nations (in particular, under Article 41 of the Charter) andResolution 955 is therefore binding on France as a member of the United

Nations. Consequently, France can be taken to have accepted the jurisdiction ofthe ICTR for the purpose of Article 6 of the Genocide Convention.

47 Bosnia v. Serbia. K'J Reports, 2007, at'l[443.48 Bosnia v. Serbia. K'J Reports, 2007, at 'I [ 444.49 Bosnia v. Serbia. K'J Reports, 2007, at'l[445.

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b) Application to the actions of France69. Having established that Article 6 of the Genocide Convention isapplicable, it is necessary to examine whether France fully cooperated with theICTR "by [arresting] persons accused of genocide who are in their territory.r''"70. In this case, numerous interahamwe militia fled Rwanda to France.Evidence led by the agent for Rwanda sought to establish that followingOperation Turquoise, several genocidaires including Wenceslas Munyeshyekaand Laurent Bucyibaruta fled into Zaire (now the Democratic Republic of theCongo), and subsequently immigrated to France where they lived free fromprosecution until their arrests in 2007.71. Munyeshyeka, a Catholic priest, was indicted in 1995 on charges ofgenocide and was alleged to have collaborated with Hutu militia in facilitating amassacre at a church, while Bucyibaruta, a member of the former Hutugovernment in Rwanda, was accused of complicity and incitement of genocidein his province. Munyeshyeka lived freely in France for 12 years until his arrestin 2007 when France commenced proceedings against him in its own courts.Laurent Bucyibaruta was indicted in January 2000, also on charges of genocide.While he was prefet of Gikongoro province, he collaborated with Hutu militia,orchestrated genocide in his province and incited acts of genocide. He also livedfreely in France from 2000 until 2007, when France finally ordered his arrest.72. It is useful by way of analogy to consider the findings of the Court inBosnia v. Serbia, in which evidence was adduced showing that General RatkoMladic, leader of the Serbian militia responsible for the Srebrenica massacre -who was indicted by the ICTY for genocide - was on Serbian territory onseveral occasions for substantial periods of time and Serbian authorities did notdo all they could reasonably have done to ascertain where he was living and toarrest him." Ratko Mladic was indicted in 1995 and Serbia was convicted bythis Court for failure to punish him in 2007, a time delay of twelve years.73. Even though both Munyeshyeka and Bucyibaruta are now beingprosecuted in the French judicial system, France's significant delay in arrestingthese men still amounts to a failure to punish, especially giving the particularlyheinous nature of their crimes. Moreover, the fact that Munyeshyeka andBucyibaruta were known to be living freely in France, as opposed to Ratko

Mladic who was in hiding, adds further weight to the failure of France topromptly arrest these men.74. As such, the Court finds that France is guilty offailing to punish genocideon the basis that it significantly delayed arresting indicted Hutu militiamen whowere living freely in France.

50 Bosnia v. Serbia. IC] Reports, 2007, at'l[443.51 Bosnia v. Serbia, IC] Reports, 2007, at 'I [ 448.

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c) Scope of application75. While the Court in Bosnia v. Serbia found that liability for failure to

punish genocide is limited by Article 6 of the Genocide Convention, there issome scope to widen the application of the duty to punish, especially given thatBosnia v. Serbia was the first case to establish such a duty.

76. One potential basis for establishing France's failure to punish genocidesubmitted by the Agent for Rwanda is the role of Operation Turquoise inhelping Hutu militia to escape to Zaire. It is therefore necessary to determinewhether the scope of Article 1 can be widened to allow a failure to punishoutside of the limitations imposed by Article 6 of the Genocide Convention.

77. One argument for extending the duty to punish beyond a failure tocomply with international penal tribunals (in accordance with Article 6) can befounded on the opening words of Article 6 itself: "[p]ersons charged withgenocide or any of the other acts enumerated in Article 3 shall be tried ... "

78. On this construction, since the Hutu militia who escaped from Rwandainto Zaire were not "persons charged with genocide" given that they had not yetbeen indicted by the ICTR, the duty to punish genocide might not be limited byArticle 6. However, this construction is difficult to maintain in light of theCourt's reliance on the existence of the ICTY in Bosnia v. Serbia.

79. On the basis that the ICTR had not yet been established when Franceallegedly allowed Hutu militia to escape into Zaire and the InternationalCriminal Court had not yet been formed, the Court cannot find that France hadan obligation to arrest Hutu militia attempting to escape into Zaire given thatthere was no relevant court in which to prosecute those persons. As such, it isnot necessary to consider the evidence put forward by the Agent for Rwanda.

80. However, this does not limit the possibility of finding a failure to punishgenocide in similar situations in the future in the case of States which are partiesto both the Genocide Convention and the Rome Statute of the InternationalCriminal Court, because those States would effectively be put on notice of thepossibility of prosecuting perpetrators of genocide. 52

52 See Paul Schmitt, The Future of Genocide Suits at the International Court of Justice:France's Role in Rwanda and Implications of the Bosnia v Serbia Decision GeorgetownJournal ofIntemational Law

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VIII. REPARATION81. This case can be distinguished from Bosnia v. Serbia, due to the fact thatthis Court did not find complicity in that case but did in the present case, inrespect of Incident Three. Failure to prevent and failure to punish genocide havealso been made out, as detailed above. In order to consider the necessaryreparation that ought to result from the abovementioned breaches, the Court hadreference to the ILC's Articles on State Responsibility.

a) Article 35: Restitution82. This article states:

"A State responsible for an internationally wrongful act is under anobligation to make restitution, that is, to re-establish the situation whichexisted before the wrongful act was committed, provided and to theextent that restitution:(a) is not materially impossible;(b) does not involve a burden out of all proportion to the benefit derivingfrom restitution instead of compensation."83. Loss of human life cannot be made good by restitution - which seeks tore-establish the situation that existed before the wrongful act was committed -given that it is materially impossible.

b) Article 36: Compensation84. This article states:

"1. The State responsible for an internationally wrongful act is under anobligation to compensate for the damage caused thereby, insofar as suchdamage is not made good by restitution.2. The compensation shall cover any financially assessable damageincluding loss of profits insofar as it is established."85. Article 36 thus has three elements: a damage which is established, and not

made good by restitution, and which is financially assessable.86. In Incident Three, where complicity was found, there is no issue ofcausation. Therefore compensation can be given for all financially assessableloss. In relation to failure to prevent and punish genocide, the Court must alsolook to the nexus test as set out in Bosnia v. Serbia:"Whether there is a sufficiently direct and certain causal nexus betweenthe wrongful act and the Respondent's breach of the obligation to prevent

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genocide, and the injury suffered by the applicant, consisting of alldamage of any type, material or moral, caused by the acts of genocide,such a nexus could be considered established only if the court were ableto conclude from the case as a whole and with a sufficient degree ofcertainty that the genocide at Srebrenica would in fact have been avertedif the Respondent had acted in compliance with its legal obligations.r='

87. In regard to Incident One, the interahamwe would not have been able toperpetrate this act of genocide but for the French provision of grenades.Therefore there is sufficient nexus for compensation to be given for allfinancially assessable loss.

88. In regard to Incident Two, sufficiently direct and certain causal nexuscannot be established because the genocide would have occurred even if Francehad satisfied its legal obligations to take reasonable steps.

c) Article 37: Satisfaction89. This article states:

"1. The State responsible for an internationally wrongful act is under anobligation to give satisfaction for the injury caused by that act insofar as itcannot be made good by restitution or compensation.2. Satisfaction may consist in an acknowledgement of the breach, anexpression of regret, a formal apology or another appropriate modality.3. Satisfaction shall not be out of proportion to the injury and may nottake a form humiliating to the responsible State."

90. Satisfaction is given in cases in which loss cannot be made good byrestitution or compensation. The Agent for Rwanda is seeking a formal apology.

91. The Court finds that in the present case, it is not out of proportion forFrance to issue a formal apology for injuries suffered in all three incidents asdetailed in this judgment. Notably, in all three instances, financial compensationis not sufficient to fully make good the non-financial damage suffered, such asthe loss of human life. For this reason, the Court finds that satisfaction isavailable for loss of this nature.

92. Though the Court notes that French President Nicolas Sarkozy hasrecently admitted "mistakes" in respect of France's involvement in Rwanda, theCourt finds that this does not constitute satisfaction.

53 Bosnia v. Serbia, Ie] Reports, 2007, at 'I [ 462.

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RWANDA . FRANCE(JUDGMENT)

(5) by ten votes to one,Finds that France has violated the obligation to prevent genocide, under theConvention on the Prevention and Punishment of the Crime of Genocide;INFAVOUR: Judges CAO, CHIENG, CROWTHER, Fox, GODDARD, KO,

O'CONNOR, PANDITHARATNE,PANG; Judge ad hoc WORRALLAGAINST: Judge ad hoc VANDERWESTHUIZEN

(6) by ten votes to one,Finds that France has violated the obligation to punish genocide, under theConvention on the Prevention and Punishment of the Crime of Genocide;INFAVOUR: Judges CAO, CHIENG, CROWTHER, Fox, GODDARD, KO,

O'CONNOR, PANDITHARATNE,PANG; Judge ad hoc WORRALLAGAINST: Judge ad hoc VANDERWESTHUIZEN

Done in English and in French, the English text being authoritative, at the HighCourt in Canberra, this fourteenth day of July, two thousand and eleven, in threecopies, one of which will be placed in the archives of the Court and the otherstransmitted to the Governments of the Republic of Rwanda and of the FrenchRepublic, respectively.

(Signed) ...(Applicant)

(Signed) ...(Respondent)

(Signed) ...(Registrar)

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JOINT DECLARATION OF JUDGES CAO, CROWTHER, O'CONNOR,PANDITHARATNE

The issue of complicity in genocide

Affirming the principles expounded in Bosnia v. Serbia, in order to provecomplicity the Court to needs to establish that firstly there was commission ofgenocide, secondly that the accused state had provided aid or assistance in theperpetration of genocide, and thirdly that the accused state had subjectiveknowledge that the assistance they provided was used for the purpose ofperpetrating genocide.The Court in this case was pressed to consider the question of the degree ofcoincidence required between the second and third elements of the crime ofcomplicity. That is, the Court was required to determine whether the subjectiveknowledge requirement is knowledge that assistance is used in a specificinstance of a genocidal act, or whether it is knowledge of genocide more broadly.In the case of the latter, it was necessary to determine whether any spatio-temporal nexus was necessary, and if so, the scope of that nexus. The judgmentof the Court applied the decision in Bosnia v. Serbia to identify the necessity fora significant spatio-temporal connection between subjective knowledge, andinstances of genocide. The Court stated that:

"The massacres at Srebrenica comprised a number of acts over severaldays or weeks, though they were related to the extent that they alloccurred in the same location. Itwould be a further stretch, however, toassert that the accused state need simply possess subjective knowledgethat genocide generally is occurring or is about to occur." (at p. 6)The inevitable result of such a high threshold for the satisfaction for complicityin genocide is that it is extremely difficult to establish given that theinternational community's historical experience of the crime of genocide hasbeen of a series of compartmental events amounting to a systematic persecution,notwithstanding the fact that each particular instance of killing may notnecessarily satisfy the definition of 'genocide' articulated in Article 1 of theGenocide Convention individually.In the present case, the Rwandan genocide is especially complicated withevidence showing that various rebel groups, government agents and privateindividuals were involved in the killing of the Tutsi people in various instancesover a brief period of time. The Republic of France cannot be held to becomplicit in all acts of genocide in relation to the mass killing of the Tutsi


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RWANDA v . FRANCE (JOINT DECLARATION OF JUDGES CAO et aZ.)

people, as it would then be necessary to establish a relational and spatial-temporal link in each case whether the French government had provided aid toassist the commission of that particular instance of genocide perpetrated by thatparticular individual or association.In our view, the Court, which is not bound by the principle of stare decisis,should take this opportunity to elaborate on the jurisprudence of what constitutesan act of genocide under the Convention.It is our opinion that the requirement to establish a link between a specificinstance of aid to a specific instance of genocide should not be a requisiteelement of complicity to be used in all future cases involving application of theConvention on Genocide. This, moreover, would be consistent with the objectand purpose of the Convention should we interpret 'an act of genocide' toconsist of a series of linked events rather than contriving an artificial distinctionbetween separate and specific instances of genocidal acts. Itmay be the case thatif the accused state is proven to hold specific knowledge that a specificindividual or association were perpetrating genocide, and nonetheless providedaid or assistance to the individual or association that they understood would beused in the overall genocidal campaign. In this event, they may be held by theCourt to have specific knowledge that their aid was used to perpetrate acts ofgenocide committed by that specific individual or association.

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DECLARATION OF JUDGE PANG

The issue of complicity in genocide

I. INTRODUCTION

I agree with the judgment of the Court except on the legal matter of complicityto genocide. In spite of my respect for the Court, I am compelled with deepregret, to avail myself of the right to express a partial dissent, on the matter ofcomplicity of genocide.The evidence, although prima facie biased in nature and "not fully conclusive orconvince[ing]" due to the fact that they were delivered by the same party, it isfundamentally wrong in the nature of jurisprudence that the majority of theCourt should reach this inference without further basis. One must remember theCourt must refer to the evidence as a whole, noting the variety of sources of theevidence, including the Human Rights Watch article. Although the conclusionsare the same, the reasons are essentially different and hence I must make adeclaration on this issue. For those who accepted the evidence as conclusive andfound France liable to the complicity to genocide, I hereby establish my partialdissent.As each evidence appears to be designed as a separate whole, I shall treat themseparately, in such a way as to ensure that the conclusions drawn therefrom willserve as a proper basis for my general conclusion concerning the application ofArticle III(e) and I of the Genocide Convention.

II. COMPLICITY IN GENOCIDE

The Court understands that the tests applied to interpret Article III(e) of theGenocide Convention are, relying on the Bosnian Genocide Case, which wasalso relied on by Agent of France:54A. Positive act supplying aid or assistanceB. Subjective knowledge of the perpetrators' specific intent (dolusspecialis) to commit genocide.

54 Bosnia v. Serbia, Ie] Reports, 2007, at 'I [ 420-421.


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RWANDA v . FRANCE (DECLARATION OF JUDGE PANG)

The definition of genocide must be sourced from Article II of the GenocideConvention. To satisfy the second arm of the above test, the subjectiveknowledge must include knowledge that satisfies Article II in order to reach theconclusion that complicity in genocide is proved. The article is as follows:"In the present Convention, genocide means any of the following actscommitted with intent to destroy, in whole or in part, a national,ethnical, racial or religious group, as such:(a) Killing members of the group;(b) Causing serious bodily or mental harm to members of the group;(c) Deliberately inflicting on the group conditions oflife calculated tobring about its physical destruction in whole or in part;(d) Imposing measures intended to prevent births within the group;(e) Forcibly transferring children of the group to another group."

In construing complicity under article III (e), the Court applied by analogyArticle XVI of the ILC's Articles on State Responsibility, which deals with theresponsibility of state for a wrongful act by another state. Article XVI provides:"A State which aids or assists another State in the commission of aninternationally wrongful act by the latter is internationally responsible fordoing so if:(a) That State does so with knowledge of the circumstances of theinternationally wrongful act; and(b) The act would be internationally wrongful if committed by thatState."

I shall now identify the facts adduced by Agent of Rwanda that is used to provethese elements to satisfy that France was complicit to the genocide.

a) Incident One (Nyarushishi)Rwanda alleges that there is a positive act supplying aid or assistance by givinggrenades and food to Hutu, whereas the subjective knowledge of Hutuinterahamwe specific intent (dolus specialis) to commit genocide. Quotationsinclude:

"After killing [Tutsis], we threw them in a mass grave near the roadblock.French troops came to see what we were doing and said we were realmilitary men. As a reward they offered us combat rations. They also camealong on our night patrols."''Not only did they advise us, but they even ensured we had enough food.Sometimes they would meet the prefect, Manichimwe. He would comeand give us the instructions that he'd received from the French. 'You cango wherever you want, without fear - we've got the French supporting us,

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and they certainly don't want to see the country in the hands ofcockroaches."" ... there was never the slightest problem or misunderstanding in ourrelations with the French."

The supplying of aid or assistance is definitely evident here. The witness heredoes not show subjective knowledge of the specific intent to commit genocide.There was no mentioning of genocide or "phrases" that have any substantialconnection of the definition of genocide. Considering the available evidence,even assuming them to be accurate, just because that the agents of France givessupport generally to the military and praised the people as real military men, thisdoes not mean that France had any subjective knowledge of genocide. And justbecause Manichimwe said that the instructions were received from the French, itis merely hearsay evidence and would definitely be fundamentally unreliableespecially if it was coming from the person in the same "camp".Even in the event that, if I were to accept that as evidence, not supporting thecountry to be controlled by that specific race does not itself, automaticallyconstitute the support of genocide. I respectfully disagree that the French hadsuch knowledge and thus this evidence fails to prove the second limb of this test.

b) Incident Two (Bissero)This evidence originally adduced by the agent of Rwanda attempts to argue thatthe failure to intervene a genocidal incident that occurred 5 km outside the areaof French control. I would respectfully agree with the majority that geographicalproximity and the refusal to intervene cannot be considered as a Positive Act,since the lack of original purpose to conduct military intervention in that areaindicates the lack of duty to protect. Thus the refusal to intervene by the Frenchtroops cannot be considered a positive act as it is merely an omission, and not anactive positive act to provide assistance of any extent.In addition, since Agent of Rwanda did not maintain this evidence as part of thecontentious issue on the matter of complicity, I would also agree with themajority that this shall not be pursued by this Court, to the extent of the violationof Article III(e) of the Genocide Convention.

c) Incident Three (Bissero)It is argued that the "positive action" was withdrawing from the assembledTutsi's and left to the mercy of the armed militia. And that hypothetically, atleast in the doctrinal basis of the interpretation, if they had stayed where theywere and refused to act, then there would lack a positive act. It is therefore put

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forward that the effect of the retreat by the French troops resulted in openingdoors for Hutu to come in and attack, and thus satisfy the first limb of the test.Secondly it is argued that, with regards to subjective knowledge, the Frenchsoldiers at that time had assembled around 200 Tutsis who had come out ofhiding, and facing them were armed Hutu militia that were aiming to kill theTutsis. Knowing this, the French still left, allowing the anti-Tutsi militia to stepin 'and killed more than half of the Tutsis who were there'. In the interveningthree days before the French returned about 1000Tutsis were slaughtered.On these facts, it is contended that based on the evidence, the French troops hadknowledge of the inevitable genocide because individuals who were survivors inthe incident witnessed the events first hand and presented it to the court via adocumentary. This would satisfy the second limb of the test, thus at least on thisincident France was complicit to the genocide conducted by the anti-Tutsimilitia.In my opinion, I would perceive that the positive act to aid supply aid orassistance should be extended to when there is an original duty to care or protectthe Tutsis, in this case to maintain a barrier between the Tutsis and the Hutus. Ifthe duty to care or protect is breached, then even if the breach itself is caused byan omission rather than an act, the combination of duty and its breach must becategorized as a whole and thus the combination itself constitutes the required"positive act".By relaxing the barrier I consider that the relaxation itself is the breach of theduty to care or protect as it assisted the Hutus to enter into the area, and thusleaving the Tutsis to the mercy of the armed militia. The combination is satisfiedand thus constitutes the positive act. Therefore the first limb of "positive act"vis-a-vis Article III(e) in Complicity is satisfied. However, the evidence thatshows France's subjective knowledge fails to establish that France know of theHutu's intent to destroy, in whole or in part, the ethnical group of the Tutsis(referring to article II of the Genocide Convention), but merely the intention tokill a non-specific group of people who are Tutsis. The failure to have subjectiveknowledge of this specific intent must result in the failure to find the Republic ofFrance guilty of complicity to genocide. This also resonates the basal reasoningrequired in the Bosnia Genocide Case.The judgment of the Court perceives the inclusion of the "coupling" of both theobjective knowledge of genocide occurring in Rwanda (which is arguablyevident) and the subjective knowledge of the impending massacre shouldcombine to form the second arm of this offence. I respectfully disagree andwould perceive this as a blatant distortion of the original intention of the basis ofthis law. One must again be reminded that although the crime of genocide isitself a fundamental violation of human rights and are jus cogens in nature, theallegation of the crime of genocide, as well as that of the crime of complicity of

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genocide, should also be of a serious criminal claim and the burden of proof toprove at least beyond reasonable doubt that the knowledge component of the testfor complicity should be made out. By judicially creating novel variations of thetest requirements that merely, for the sole purpose of this case, manipulated toformulate an inevitable conviction of the Republic of France, is itself, judiciallyirresponsible in the rule of law and causes jurisprudential uncertainty in therealm of public intemationallaw.

III. CONCLUSION

Therefore in conclusion, I respectfully disagree with the judgment of the Courtand find that France at all times referred to in the specified evidence adduced byAgent of Rwanda, did not breach Article III(e) of the Genocide Convention.Because of the lack of complicity I do not find it necessary to consider thematter on reparation on that basis. Satisfaction should therefore be sufficient dueto France failing to prevent and punish genocide, applying the Bosnia GenocideCase on sentencing procedure.

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DECLARATION OF JUDGEADHOCVANDER WESTHUIZEN

The issue of the standard of proof and the issue of subjective knowledge incomplicity in genocide

With great regret, I find myself in dissent with the majority of the court on twosignificant points: the onus and standard of proof, and test to establish subjectiveknowledge in complicity in genocide. As independent judges charged with theadministration of international law, it is our duty to deliver justice by applyingestablished principles of law without fear or favour. We cannot allow ouremotions and prejudices to interfere with the process of strict legal reasoning; todo so threatens the credibility of this court, the coherence of the law and thestability of the international order itself. This court, having apparently convinceditself of the need to convict France of complicity in genocide, has bothdisregarded fundamental rules of evidence and significantly departed from itsinterpretation of the Genocide Convention in Bosnia v. Serbia.? handed downonly four years ago.

I. ONUS AND STANDARD OF PROOF

This court affirmed inBosnia v. Serbia that the burden of proof lies on the partyasserting a fact to prove it, and that charges of exceptional gravity must beproved with fully conclusive evidence. This principle appears in systems ofmunicipal law in the difference between the evidentiary burden in criminalcases, where facts must be proved beyond reasonable doubt, and the evidentiaryburden in civil cases, where facts need only be proved on the balance ofprobabilities. Where a state is accused of a most egregious international crime,such as genocide or complicity therein, a heavy burden of proof follows and thecourt requires proof at a high level of certainty appropriate to the seriousness ofthe allegation. 56In Bosnia v. Serbia, the court relied heavily on the findings of the InternationalCriminal Tribunal for the former Yugoslavia (ICTY) as evidence obtained bythe examination of persons directly involved and tested by cross-examination. 57

55 Application of the Convention on the Prevention and Punishment of the Crime of Genocide(Bosnia v. Serbia), Ie] Reports, 2007.56 Bosnia v. Serbia, Ie] Reports, 2007, at '1[208-210.57 Bosnia v. Serbia, Ie] Reports, 2007, at '1[214.


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RWANDA v. FRANCE (DECLARATION OF JUDGE AD HOC VAN DER WESTHUIZEN)

Despite extensive similar evidence being available in this case in the form of thefindings of the International Criminal Tribunal for Rwanda, the agent forRwanda chose instead to rely primarily on secondhand reports by authors andjournalists and the Rapport d'Activites de la Commission Nationale, a reportcommissioned by the Rwandan government. This Court has essentially acceptedas fact witness testimony that has not been tested in cross-examination andwhich, without the persons being brought before the court, could never be sotested.No amount of untested and potentially biased evidence could ever satisfy theheavy burden of being the fully conclusive evidence required to fully convincethis court of the allegations made against France; that would be equivalent to amunicipal court convicting based on newspaper articles about the crime. Suchevidence may well satisfy a less onerous burden of proof, but it cannot be fullyconclusive evidence. As Rwanda could therefore never fully convince the courtof the facts it alleges on the evidence it has led, all the charges against Francemust necessarily fail.

II. SUBJECTIVE KNOWLEDGE IN COMPLICITY IN GENOCIDE

I must also dissent to the Court's departure from Bosnia v. Serbia in findingFrance was complicit in genocide. InBosnia v. Serbia, the court held:

"[Genocide] requires the establishment of the "intent to destroy, inwhole or in part, ... [the protected] group, as such". It is not enough toestablish ... that deliberate unlawful killings of members of the grouphave occurred. The additional intent must also be established, and isdefined very precisely. It is often referred to as a special or specificintent or dolus specialis. . .. It is not enough that the members of thegroup are targeted because they belong to that group, that is becausethe perpetrator has a discriminatory intent. Something more isrequired. The acts ... must be done with intent to destroy the group assuch in whole or in part. The words "as such" emphasize that intent todestroy the protected group.',ss [emphasis added]

In relation to complicity, the Court said:"[T]he conduct of an organ or a person furnishing aid or assistance to aperpetrator of the crime of genocide cannot be treated as complicity in

58 Bosnia v. Serbia, Ie] Reports, 2007, at'll 187.

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RWANDA v. FRANCE (DECLARATION OF JUDGE AD HOC VAN DER WESTHUIZEN)

genocide unless at the least that organ or person acted knowingly, that isto say, in particular, was aware of the specific intent (dolus specialis) oftheprincipal perpetrator.r" [emphasis added]

To establish complicity in genocide, therefore, it is necessary that the person ororgan of the state allegedly complicit had actual subjective knowledge of thespecific intent of the perpetrators of the genocide to destroy a protected group.Furthermore, the court said:"The dolus specialis, the specific intent to destroy the group in whole orin part, has to be convincingly shown by reference to particularcircumstances.,,6o [emphasis added]

It follows that the subjective knowledge of the person or organ of the stateallegedly complicit cannot be established, as the court has done, by looking atthe established subjective knowledge of the person or organ and complementingit with the general objective knowledge of France. The person or organ of thestate must have actual subjective knowledge of the specific intent of theperpetrators, which must by reference to the particular circumstances. As themajority acknowledges, in the Bissero incident, without importing furtherknowledge, the French soldiers could only have known that the genocidaires inthat case intended to kill Tutsis, not that they had the intent to destroy, in wholeor in part, the Tutsi ethnicity. As the French soldiers did therefore not havesubjective knowledge of the specific intent, complicity in genocide is notestablished.

59 Bosnia v. Serbia, IC] Reports, 2007, at 'I [ 421.60 Bosnia v. Serbia, IC] Reports, 2007, at 'I [ 373.

Documents

Final Joint Judgement