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IN THE APPEALS CHAMBER

INTERNATIONAL CRIMINAL TRIBUNAL FOR REVATE

ALIJAHAN
v.
PROSECUTOR

MEMORIAL FOR THE APPELLANT

TABLE OF CONTENTS

Page No

1. Index of Authorities -

11

2. Statement of Jurisdiction

22

3. Statement of Facts

33

4. Statement of Issues

44

5. Summary of Arguments

55

6. Written Pleadings

66

A. The Trial Chamber Judgement violates the rights of the Appellant

77

B. The Appellant is not guilty of the crime of Genocide

88

C. The Appellant is not guilty of the crime of Conspiracy to Commit Genocide

99

D. The Appellant is not guilty of the crime of Direct and Public Incitement to
Commit Genocide -

E. THE Appellant is not part of the alleged Joint Criminal Enterprise

00

11

F. The Appellant does not incur Superior Responsibility for all the crimes charged
against him

7. Prayer -

22

33

INDEX OF AUTHORITIES
[ARTICLES]
1. Allison M. Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal
Enterprise, Command Responsibility, and the Development of International Criminal
Law, 93 CAL. L. REV. 75-170 (2005)
2. Matthew Lippman, GENOCIDE, ed. M.C.Bassiouni, International Criminal Law,
Second Edition, Volume I
3. Pamela Hediger, Mens rea: The Impasse of Law and Psychiatry. Gonzaga Law
Review 26 (1991) 615
4. Susan Benesch, Vile Crime or Inalienable Right: Defining Incitement to Genocide,
Virginia Journal Of International Law,2008, Volume 48: 3
5. Tilman Blumenstock, The Judgement of the ICTY in the Brdjanin Case, Leiden
Journal of International Law 18, No. 1(March 2005):71
[BOOKS]
1. William A. Schabas, Genocide In International Law: The Crime of Crimes, The Press
Syndicate of the University of Cambridge, Cambridge (UK), 2000, 1st Edition
[CASES]
[Domestic Cases]
1. Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100:
2005 SCC 40
2. People v. Carter, 415 Mich. 558 (1982)
3. R v. O'Brien, [1978] 1 S.C.R. 591
4. State of Minnesota v. Christopher, 305 Minn. 226, 231 (1975)
[International Cases]
[ICTR]
1. Prosecutor v. Akayesu, ICTR-96-4
2. Prosecutor v. Bagilishema, ICTR-95-1A
3. Prosecutor v. Bikindi, ICTR-01-72
4. Prosecutor v. Karemera et al., ICTR-98-44-A
5. Prosecutor v. Kayishema and Ruzindana, ICTR-95-1
6. Prosecutor v. Musema, ICTR-96-13
7. Prosecutor v. Nahimana, Barayagwiza, & Ngeze, ICTR 99-52
8. Prosecutor v. Nahimana, ICTR-96-11

9. Prosecutor v. Niyitegeka, ICTR-96-14


10. Prosecutor v. Ntagerura, ICTR-96-10A
11. Prosecutor v. Ntakirutimana and Ntakirutimana, ICTR-96-10 and ICTR-96-17
12. Prosecutor v. Nyiramasuhuko, ICTR-97-21
13. Prosecutor v. Ruggiu, ICTR-97-32
14. Prosecutor v. Rutaganda, ICTR-96-3
15. Prosecutor v. Semanza, ICTR-97-20
[ICTY]
1. Prosecutor v. Blaskic, ICTY, IT-95-14
2. Prosecutor v. Brdjanin, ICTY, IT-99-36
3. Prosecutor v. Furundija, ICTY, IT-95-17/1
4. Prosecutor v. Gali, ICTY, IT-98-29
5. Prosecutor v. Kordi and erkez, ICTY, IT-95-14/2
6. Prosecutor v. Kuprekic, ICTY, IT-95-16
7. Prosecutor v. Muci et al, ICTY, IT-96-21
8. Prosecutor v. Stakic, ICTY, IT-97-24
9. Prosecutor v. Tadic, ICTY, IT-94-1
[INTERNATIONAL INSTRUMENTS]
1. Convention on the Prevention and Punishment of the Crime of Genocide, 1948
2. Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda
3. Statute of the International Criminal Tribunal for Rwanda
[OTHERS]
1. Memorandum to Deputy Prosecutor of the International Criminal Tribunal for
Rwanda from Lorin Einhorn

STATEMENT OF JURISDICTION
Jurisdiction of this Appeals Chamber of the International Criminal Tribunal for
Revate is invoked under Article 24 of the Statute of the Tribunal, as an appeal from a final
judgment of conviction and sentence in the Trial Chamber of this Tribunal. Notice of appeal
was timely filed with the Registrar in accordance with Rule 108 of Part Seven of the Rules of
Procedure and Evidence of the Tribunal.
The Appellant has the honour to submit the Memorial of the present case filed under
Rule 111 of the Rules of Procedure and Evidence of the Tribunal to the Honourable Appeals
Chamber.

SYNOPSIS OF FACTS
Revate, a state within the Union of Timoshine consists of a majority of Tilen and a
minority of Cotene population and have experienced numerous incidents of religious tension
between them between the years 1947-2005. The Accused, Alijahan, chief-minister of Revate
is a prominent member of the YLS political party. Between the 15 th and the 18th of August,
2005, clashes between the two groups took place in various villages, towns and cities across
Revate, where thousands were killed. The media reports attributed these clashes as the result
of the killing of Bebe Remedeev, a Tilen spiritual leader on 14/08/2005.
The matter was referred to the United Nations Security Council, on 15/08/2006, after
extensive discussions between various groups, namely, political parties, NGOs etc. On
20/11/2006, a Tribunal was set up, pursuant to Security Council Resolution No. 101/06, to
prosecute persons responsible for the tragic events in Revate. The Tribunal is governed by the
Statute, and Rules of Procedure and Evidence, of the UN International Criminal Tribunal for
Rwanda. The Prosecutor submitted an indictment against Alijahan charging him with crimes
of Genocide (Commission of Genocide, Conspiracy to Commit Genocide and Direct and
Public Incitement to Commit Genocide) and also ascribed Alijahan as a part of the Joint
Criminal Enterprise between him, his wife Yashode, businessman K.R. Dolme, area
Superintendent of Police Mr. Ricardo Melena and another leader Xen; it was also stated that,
in the alternative, Alijahan would incur superior responsibility for the crimes. The Accused
plead not guilty to all charges. The Trial Chamber issued its judgement on 10/12/2008 finding
Alijahan guilty of all charges and was sentenced for life imprisonment. The legal findings of
the Trial Chamber were based on extensive evidence, which included factual findings
(Allegations A-L) given as follows:
Allegation A Speech of Alijahan during Bebe Remedeevs funeral on 15/08/2005
Allegation B Killings in village Zenotia on 15/08/2005
Allegation C Killings in town Rodin on 15/08/2005
Allegation D Meeting of Alijahan with 5 leaders of the YLS youth wings at his residence.
Allegation E Meeting and rally at Yuvkone cricket stadium in City Diew on 16/08/2005
Allegation F Killing at MRF housing colony in City Diew on 16/08/2005
Allegation G Meeting between the members of the Joint Criminal Enterprise.
Allegation H-L History of meetings between the members of the Joint Criminal Enterprise
between the years 1996 to 15th August 2005.
It was the Trial Chambers first ever judgement and Alijahan has appealed the judgement.

STATEMENT OF ISSUES

A. WHETHER THE TRIAL CHAMBER JUDGEMENT VIOLATES THE RIGHTS OF


THE APPELLANT?
B. WHETHER THE APPELLANT IS GUILTY OF THE CRIME OF GENOCIDE?
C. WHETHER THE APPELLANT IS GUILTY OF THE CRIME OF CONSPIRACY
TO COMMIT GENOCIDE?
D. WHETHER THE APPELLANT IS GUILTY OF THE CRIME OF DIRECT AND
PUBLIC INCITEMENT TO COMMIT GENOCIDE?
E. WHETHER THE APPELLANT IS PART OF THE ALLEGED JOINT CRIMINAL
ENTERPRISE?
F. WHETHER THE APPELLANT INCURS SUPERIOR RESPONSIBILITY FOR ALL
THE CRIMES CHARGED AGAINST HIM?

SUMMARY OF ARGUMENTS

A. THE TRIAL CHAMBER JUDGEMENT VIOLATES THE RIGHTS OF THE


APPELLANT.
B. THE APPELLANT IS NOT GUILTY OF THE CRIME OF GENOCIDE.
C. THE APPELLANT IS NOT GUILTY OF THE CRIME OF CONSPIRACY TO
COMMIT GENOCIDE.
D. THE APPELLANT IS NOT GUILTY OF THE CRIME OF DIRECT AND PUBLIC
INCITEMENT TO COMMIT GENOCIDE.
E. THE APPELLANT IS NOT PART OF THE ALLEGED JOINT CRIMINAL
ENTERPRISE
F. THE APPELLANT DOES NOT INCUR SUPERIOR RESPONSIBILITY FOR ALL
THE CRIMES CHARGED AGAINST HIM.

WRITTEN PLEADINGS

A. THE TRIAL CHAMBER JUDGEMENT VIOLATES THE RIGHTS OF THE


APPELLANT.
The order of the trial chamber not permitting the Accused to examine witnesses to give
evidence regarding the murder of Bebe Remedeev is in gross violation of the rights of the
Accused. The ICTR statute pursuant to Article 20 (4) (e) under the heading Rights of the
Accused entitles the Accused to examine, or have examined, the witnesses against him or
her and obtain the attendance and examination of witnesses on his or her behalf under the
same conditions as the witnesses against him or her.
The order of the Trial Chamber in its order dated 3rd June 2008 ordered in favour of the
Special Prosecutor, refusing the Accused to examine witness. Consequently the request for
certification was also turned down citing non- compliance with the standards for certification
as the reason.
Article 24 of the Statute enumerates the grounds of appeal as an error of law invalidating
the decision or an error of which has occasioned miscarriage of justice. A Trial Chamber does
not have to explain every decision it makes, as long as the decision, with a view to the
evidence, is reasonable. But, in the instant case, the chamber refused the Accused to adduce
evidence on an area on which no evidence whatsoever was given by the prosecution.
The murder of Bebe Remedeev is not only a necessary context of the case but also the
crux of the case. Had it been proved that the events subject matter to the indictment were only
a natural outcome of the death of Bebe Remedeev, then there would be reasonable doubt as to
the guilt of the Accused. Pursuant to Article 20 (3) of the ICTR Statute, the Accused shall be
presumed to be innocent until proven guilty according to the provisions of the present Statute.
In this case, the parties disagree on the standard that the Trial Chamber should have applied
and on the standard on appeal regarding challenges to inferences drawn from circumstantial
evidence. It is settled jurisprudence that a Trial Chamber may only find an Accused guilty of
a crime if the Prosecution has proved each element of that crime and the applicable mode of
liability, as well as any fact indispensable for entering the conviction beyond a reasonable
doubt.[1]

Prosecutor v. Stakic, ICTY, IT-97-24, Appeals Chamber, Judgement, para 219; Prosecutor v. Kuprekic, ICTY,
IT-95-16, Appeal Chamber, Judgement, para 303; Prosecutor v. Kordi and erkez, ICTY, IT-95-14/2, Appeals
Chamber, Judgement, para 834; Prosecutor v. Ntagerura, ICTR-96-10A, Appeals Chamber, Judgement, para
174-175

Pursuant to Rule 73 (B), certification may be granted if the challenged decision involves
an issue that would significantly affect the fair and expeditious conduct of the proceedings
or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate
resolution by the Appeals Chamber may materially advance the proceedings.
A decision on the circumstances leading to the events which is subject matter of the
instant case would significantly affect the fair and expeditious conduct and also materially
advance the proceedings. The trial chamber has erred in its finding to the contrary and has
abused the discretion vested in it by not certifying the order for appeal.
While the chamber permitted 60 prosecution witnesses to testify, the total number of defence
witnesses remained to be just 40. The chamber unfairly restricted the number of defence
witnesses. There is an unacceptable appearance of bias if: the circumstances would lead a
reasonable observer, properly informed, to reasonably apprehend bias.[2] Thus there is
reasonable apprehension of bias in the instant case.
Under the Statute of the International Tribunal the principle of equality of arms must be
given a more liberal interpretation than that normally upheld with regard to proceedings
before domestic courts. The principle of equality of arms between the Prosecutor and
Accused in a criminal trial goes to the heart of the fair trial guarantee. At a minimum,

equality of arms obliges a judicial body to ensure that neither party is put at a disadvantage
when presenting its case.[3] This principle means that the Prosecution and the Defence must
be equal before the Trial Chamber. It follows that the Chamber shall provide every
practicable facility it is capable of granting under the Rules and Statute when faced with a
request by a party for assistance in presenting its case. [4] The trial chamber has denied the
Accused the right to equality of arms by denying him the possibility of providing full answer
and defence to the prosecution.[5] Thus the order of the Trial Chamber is in gross violation of
the rights of the Accused.

Prosecutor v. Akayesu, ICTR-96-4, Appeal Chamber, Judgement, para 203; Prosecutor v. Furundija, ICTY,
IT-95-17/1, Appeals Chamber, Judgement, para 189; See also, Prosecutor v. Gali, ICTY, IT-98-29, Appeals
Chamber, Judgement, para 38-39; Prosecutor v. Rutaganda, ICTR-96-3, Appeals Chamber, Judgement, para
39; Prosecutor v. Muci et al, ICTY, IT-96-21, Appeals Chamber, Judgement, para 682
3

Prosecutor v. Nyiramasuhuko, ICTR-97-21, Appeals Chamber, 4 October 2004, para 26; Prosecutor v.
Karemera et al., ICTR-98-44-AR15bis.3, Decision on Appeals pursuant to Rule 15bis(D), 20 April 2007, para.
27
4

Prosecutor v. Tadic, ICTY, IT-94-1, Appeals Chamber, July 15, 1999, para. 43, 44, 48, 52

Prosecutor v. Nahimana, ICTR-96-11, Appellants brief, para 173-181

B. THE APPELLANT IS NOT GUILTY OF THE CRIME OF GENOCIDE.


Article 2 (2) of the Statute of the Tribunal defines Genocide as any of the acts including
killing members of the group; causing serious bodily or mental harm to the members of the
group; deliberately inflicting on the group, conditions of life, calculated to bring about its
physical destruction in whole or in part; imposing measures intended to prevent births within
the group; [and] forcibly transferring children of the group to another group, with the intent to
destroy in whole or in part, a national, ethnical, racial, or religious group.[6]
A crime of genocide is proven if it is established beyond reasonable doubt, firstly, that
one of the acts listed under Article 2 (2) of the Statute was committed and, secondly, that this
act was committed against a specifically targeted national, ethnical, racial or religious group,
with the specific intent to destroy, in whole or in part, that group. Genocide therefore invites
analysis under two headings: the prohibited underlying acts and the specific Genocidal intent
or dolus specialis.[7] In addition to showing that an Accused possessed an intent to destroy the
group as such, in whole or in part, the Prosecutor must show the following elements: (1) the
perpetrator intentionally killed one or more members of the group, without the necessity of
premeditation; and (2) such victim or victims belonged to the targeted ethnical, racial,
national, or religious group.[8]
In order to commit a crime of Genocide, it as a prerequisite element that the perpetrator killed
one or more members of the protected group. No evidence implying that the Accused had
killed any member of the Cotene group has been produced. The Accused was not even
present during the alleged event of Genocide in the village of Zenotia on 15 th August 2005.
He was driving in the opposite direction towards the town of Rodin. Thus the Accused had
not killed any one, nor was he present anywhere near the venue of genocide.
PLEA OF ALIBI
The Accused was not present in the village of Zenotia at the time of Genocide; he would not
have rendered any kind of participation in the genocidal activities subject to his absence.
Thus pursuant to Rule 67 (A) (2) (a), the appellants have the benefit of alibi. In raising the
defence of alibi, the Accused not only denies that he committed the crimes for which he is
charged but also asserts that he was elsewhere than at the scene of these crimes when they
were committed. The onus is on the Prosecution to prove beyond a reasonable doubt the guilt
of the Accused. In establishing its case, when an alibi defence is introduced, the Prosecution
6

As defined in the Convention on the Prevention and Punishment of the Crime of Genocide, 1948

Prosecutor v. Bagilishema, ICTR-95-1A, Trial Chamber, June 7, 2001, para 55

Prosecutor v. Semanza, ICTR-97-20, Trial Chamber, May 15, 2003, para 319

must prove, beyond any reasonable doubt, that the Accused was present and committed the
crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does
not carry a separate burden of proof. If the defence is reasonably possibly true, it must be
successful[9]. Thus the Accused have a strong defence of alibi.
Genocide is distinct from other crimes insomuch as it embodies a special intent or
dolus specialis. Special intent of a crime is the specific intention, required as a constitutive
element of the crime, which demands that the perpetrator clearly seeks to produce the act
charged.[10] It is this specific intent that distinguishes the crime of genocide from the ordinary
crime of murder. The Trial Chamber opines that for the crimes of genocide to occur, the mens
rea must be formed prior to the commission of the genocidal acts. [11] The Accused does not
have any prima facie intention to exterminate the Cotenes. The membership of the Accused in
any particular political party need not be construed to constitute the mens rea of the Accused.
The allegation regarding the meetings held by the Accused before 2005 is inadmissible as
evidence as they are outside the tribunals temporal jurisdiction. [12] Moreover no evidence
regarding the intention of the Accused to destroy in whole or in part any particular group has
been adduced.
An argument that the acts or the speech of the Accused had caused mental harm to
the members of any group also cannot be sustained as, The drafters of the Genocide
Convention . . . unequivocally chose to restrict the meaning of destroy to encompass only
acts that amount to physical or biological genocide.[13]
Pursuant to Article 20 (3) of the Statute, the Accused is presumed to be innocent until
proven guilty. Thus while considering circumstantial evidence, where there was another
conclusion reasonable open from that evidence inconsistent with the guilt of the Accused, the
chamber need not enter a finding of guilt.[14]
No findings that the Accused was involved in planning, aiding, abetting, instigating,
and/or ordering the crimes were made making the Accused not liable for any events subject
matter of the charge. Thus the Accused Alijahan is not guilty of the charge of genocide.

Prosecutor v. Musema, ICTR-96-13, Trial Chamber, para 108; Confirmed on appeal (Appeals Chamber) para
205-206
10

Prosecutor v. Akayesu, ICTR-96-4, Trial Chamber, September 2, 1998, para 498, 517-522

11

Prosecutor v. Kayishema and Ruzindana, ICTR-95-1, Trial Chamber, May 21, 1999, para 91

12

Prosecutor v. Nahimana, Barayagwiza, & Ngeze, ICTR 99-52, Appeals Chamber, Judgement, para 695

13

Prosecutor v. Semanza,ICTR-97-20, Trial Chamber, May 15, 2003, para 315

14

Prosecutor v. Bikindi, ICTR-01-72, Trial Chamber, Judgement, para 30

C. THE APPELLANT IS NOT GUILTY OF THE CRIME OF CONSPIRACY TO


COMMIT GENOCIDE.
Conspiracy is one of the four "punishable acts" of genocide, in addition to the crime of
genocide itself, declared punishable in Article III of the 1948 United Nations Convention on
the Prevention and Punishment of the Crime of Genocide. The reference to conspiracy to
commit the crime of genocide in Article III of the Genocide Convention is somewhat
enigmatic, and there is nothing further in the text to suggest exactly what is meant. It is not
necessarily helpful to look at national legal provisions for guidance, because the
term conspiracy means different things in different criminal codes. Conspiracy to commit
genocide is to be defined as an agreement between two or more persons to commit the crime
of genocide.[15] The offence of conspiracy requires the existence of an agreement, which is
the defining element of the crime of conspiracy.[16]
Mr. Alijahan is charged of conspiracy to commit genocide as per Article 2 (3) (b) of the
Statute of UNICTR. Article 2 (3) (b) of the ICTR statute states that conspiracy to commit
genocide is a punishable act.
The crime of conspiracy to commit genocide can be proved on the successful satisfaction
of the following elements:
a) an agreement to act,
b) concerted wills to act, and
c) the common goal to achieve the substantive criminal act.[17]
In the present case concerning Mr. Alijahan, none of the above mentioned elements are
satisfied. The first element of having entered into an agreement to act is not satisfied in the
instant case. Mr. Alijahan though discussed the state of affairs of the State of Revate with his
wife and friends, never entered into any agreement to commit any genocidal acts. If a
conspiracy is arbitrarily defined as an agreement of intentions, a meeting of the minds, and
not merely of language, that where there is no such agreement of intentions then there is no
conspiracy.[18] Thus Mr. Alijahan cannot be found guilty as there was no agreement of
intention between him and the other alleged members of the criminal enterprise.
15

Prosecutor v. Musema, ICTR-96-13, Trial Chamber, January 27, 2000, para 191; See also, Prosecutor v.
Ntakirutimana and Ntakirutimana, ICTR-96-10 and ICTR-96-17, Trial Chamber, February 21, 2003, para 798;
Prosecutor v. Niyitegeka, ICTR-96-14, Trial Chamber, May 16, 2003, para 423; Prosecutor v. Nahimana,
Barayagwiza, & Ngeze, ICTR 99-52, Trial Chamber, December 3, 2003, para 1041
16

Prosecutor v. Nahimana, Barayagwiza, & Ngeze, ICTR 99-52, Trial Chamber, December 3 2003, para 1042

17

Memorandum to Deputy Prosecutor of the International Criminal Tribunal for Rwanda from Lorin Einhorn;
January 9, 2004
18

State of Minnesota v. Christopher, 305 Minn. 226, 231 (1975)

The second element mentioning the will to act is also not satisfied. It can be very clearly
understood from the facts that Mr. Alijahan had no intent or interest to commit any genocidal
acts. All his actions were to bring peace in the State of Revate. Moreover he did not
personally commit any acts nor did he aid someone to do an act of genocide. He had the
dream of making Revate a Tilen state but nobody can be punished for his thoughts alone,
when there is no action in furtherance to it.[19]
The existence of a common plan cannot be established from the facts. The killings that
happened as a result of the clashes from 15 August 2005 to 18 August 2005 were a
spontaneous and a terrible reaction to the killing of Bebe Remedeev. [20] There was no
criminal plan to which Mr. Alijahan was a party to. Thus the act Mr. Alijahan has not satisfied
the elements of crime necessary for committing conspiracy to genocide.
In the case of People v. Carter, the US court held that a twofold specific intent is required
for conviction for conspiracy: intent to combine with others, and intent to accomplish the
offense which is the object of the conspiracy.[21] Mr. Alijahan possessed neither of the
intentions. He did not intent to combine with others nor did he intent to accomplish the
offence. The meetings that he held are alleged to be discussions to destroy the Cotene
population. But if Mr. Alijahan had such intention since 1996 he could have carried on an act
of violence much before, as he was a leader of a prominent political party and also had
enough support among the masses. The clashes that took place between 15 August 2005 and
18 August 2005 were a spontaneous and a terrible reaction to the killing of Bebe
Remedeev.[22] Mr. Alijahan did everything possible to control the situation with the police
force of Revate. He did not posses any guilty intent. His actions did not add momentum to
any common criminal purpose.
In the case Regina v. OBrien[23], the court held that there is no conspiracy because there is
no concurrence of purpose, intention, or determination as the law contemplates in defining
conspiracy. Mr. Alijahan too cannot be held guilty of conspiracy to commit genocide as there
was no concurrence of purpose, intention or determination. All happened as a result of the
killing of Bebe Remedeev. Mr. Alijahan did not act in furtherance to any common purpose

19

Matthew Lippman, GENOCIDE, ed. M.C.Bassiouni, International Criminal Law, Second Edition, Volume I

20

Statement of Facts

21

People v. Carter, 415 Mich. 558 (1982)

22

Statement of Facts

23

R v. O'Brien, [1978] 1 S.C.R. 591

nor did he intent to cause the death of so many people. Thus Mr. Alijahan is not guilty of the
charge of conspiracy to commit genocide.

D. THE APPELLANT IS NOT GUILTY OF THE CRIME OF DIRECT AND


PUBLIC INCITEMENT TO COMMIT GENOCIDE.
Article 2(3) of the ICTR statute classifies Direct and Public Incitement to genocide
as a punishable offence. Incitement to genocide is qualified by the terms direct& public.
Direct and public incitement to genocide has been defined as directly provoking the
perpetrators to commit genocide whether through speeches, shouting or threats uttered in
public places or at public gatherings..[24]. Under civil law the elements of provocation are
direct and public. Thus unless these criterions are met the crime of direct and public
incitement to genocide is not constituted.
Incitement must assume a direct form and specifically provoke another to engage in a
criminal act. More than mere vague and indirect suggestions goes to constitute direct
incitement.[25]
The accused Alijahan as chief minister and faithful follower of Bebe Remedeev
addressed a public rally in Town Costin. The statements made in this speech are the subject
matter of the charge. In the impugned rally no direct provocation to engage in criminal acts
were rendered. Alijahan as a faithful follower of Bebe Remedeev only expressed his deep
anguish and grief and these do not constitute as direct incitement to genocide. Moreover he
even remarked that violence is a terrible thing. This specifically implies that the accused
had no intent to incite any violence whatsoever. It is important to note that even when a
senior party member uttered the words kill them kill them Alijahan immediately put an
end the meeting and even remarked that the talk was frivolous. Alijahan is also reported to
have been looking very disturbed at this point, which would not have been the case had he
wished to incite people to commit genocide and had successfully done it.
Thus by a mere perusal of the facts in consideration and the events that are subject
mater of the charge, it is evident that no direct provocation was rendered.
The famous media case treated two key elements i.e. causation and content.
Regarding content the trial chamber focused on two criteria through which speech content
regarding race and ethnicity could be classified as legitimate expression or criminal
advocacy, its purpose and its context.[26] The purpose of the accused addressing the rally is
only to share his grief and anguish with the crowd who like he accused were faithful
followers of the deceased Bebe Remedeev. The accuseds only intention was to boost he
24

Prosecutor v. Akayesu, ICTR-96-4, Trial Chamber, 2nd September 1998, para 559

25

ibid

26

Prosecutor v. Nahimana, ICTR 99-52-, Trial Chamber, Judgement, para I004-1006

morale of the people who had lost their leader. He had asked them to be strong and stern at
the time of his demise.
The crime of incitement requires the intent to directly prompt or provoke another to
commit genocide .and the person who is inciting to commit genocide must himself have the
special intent to commit genocide, namely to destroy in whole or in part a national racial or
religious group as such.[27] No evidence implying the criminal intent of the accused to
commit or incite commission of genocide is available. The statement made by the accused to
his wife while on his way out of the rally premises does not imply the mens rea of the
accused. The context of the statement is not aware, the accused need not have necessarily
have been specking on the issue of the death of Bebe Remedeev. The accused is presumed to
be innocent until the contrary is proved beyond doubt and private statement made by the
accused to his wife need tot be construed to cause prejudice to the accused.
Thus the accused had no intent to incite genocide by his words at the rally. Thus the
acts of the accused do not satisfy the element of mens rea which is a pre requisite to
constitute the crime of direct and public incitement to genocide.
Moreover its is a settled principle of jurisprudence regarding incitement to commit genocide
that when there is more than one probable interpretation of a speech it was not clear beyond
reasonable doubt that the accused had committed incitement to genocide.[28]
As enumerated in the very recent case of Mugesera case [29] the Supreme Court of
Canada like the ICTR appeals panel found that there is no incitement to genocide where a
speech can be interpreted in more than one way.[30]
Assuming argumento but not accepting facts that some of the members of the audience did
understand the accuseds speech as a one propagating hatred, by virtue of it not having the
characters prerequisite to constitute incitement, the speech can only be brought within the
ambit of a hate speech. Incitement to genocide is codified as a crime in international treaty
law, but hate speech is not criminalized under any international treaty.[31]
27

Prosecutor v. Akayesu, ICTR-96-4, Trial Chamber, 2nd September 1998, para 559; See also, Prosecutor v.
Ruggiu, ICTR-97-32, Trial Chamber, June 1, 2000, para 14; Prosecutor v. Niyitegeka, ICTR-96-14, Trial
Chamber, May 16, 2003, para 431; Prosecutor v. Nahimana, Barayagwiza, & Ngeze, ICTR 99-52, Trial
Chamber, December 3, 2003, para 1012
28

Nahimana c. Le Procureur, Affaire No. ICTR 99-52-A, Arrt, 73851 (Nov. 28, 2007). [At press time for
this Article, this decision was not yet available in English. All citations are to the French version, and
translations are the authors.] 20. Id. 738-51, 754.
29

Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100: 2005 SCC 40

30

ibid

31

Incitement to genocide is criminalized in Article 3 of the United Nations Convention on the Prevention and
Punishment of the Crime of Genocide. Convention on the Prevention and Punishment of the Crime of Genocide

To commit incitement to genocide the speaker must have authority or influence over
the audience and the audience should already be primed and ready to respond to the speakers
words.[32] Alijahan was addressing public rally and not of any particular group owing
allegiance to him. He did not have any particular influence over the audience. The audience
assembled there was not primed up in any way to respond to the words of the accused. Thus,
considering that incitement to genocide is an inchoate crime, which need not be successful to
have been committed, to restrict speeches not perfectly satisfying, the criterions for
incitement would amount to possible harmful restriction of free speech.[33]
Thus by the perusal of the facts and applicable law in the area it is humbly submitted
that the accused is not guilty of direct and public incitement to genocide.

Art. 2 (c), Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951). Moreover, there are
international tribunals (including the International Criminal Tribunal for the Former Yugoslavia (ICTY), the
ICTR, and the International Criminal Court) with jurisdiction to try defendants for incitement to genocide. By
contrast, international treaties call upon states to criminalize hate speech in their own municipal law, and it is not
codified in the statutes of any of the international tribunals. See, Vile Crime or Inalienable Right: Defining
Incitement to Genocide, Susan Benesch, Virginia Journal Of International Law,2008, Volume 48: 3, p 485
32

William A. Schabas, Genocide In International Law: The Crime of Crimes, The Press Syndicate of the
University of Cambridge, Cambridge (UK), 2000, 1st Edition, p 266
33

Vile Crime or Inalienable Right: Defining Incitement to Genocide, Susan Benesch, Virginia Journal Of
International Law,2008, Volume 48: 3, p 485

E. THE APPELLANT IS NOT PART OF THE ALLEGED JOINT CRIMINAL


ENTERPRISE
Joint criminal enterprise is an important legal tool that helps incriminate those that may
not have directly committed crimes. If there has been an establishment of some sort of
concrete agreement between parties to commit wrongdoings, JCE allows for all perpetrators
who were a part of this common criminal plan to be held responsible for the actions of
others participating in the plan whether or not all the wrong doings were desired by all
involved.[34]
Mr. Alijahan is charged of having participated in a joint criminal enterprise with the
criminal intent to destroy Cotene population together with his wife Yashode, businessman
K.R. Dolme and Mr. Ricardo Melena, the area superintendent of police.[35]
Category of Joint Criminal Enterprise
The Tadic appeals chamber has categorized joint criminal enterprise into three:

JCE Category One: where all co-defendants, acting pursuant to a common design,
possess the same criminal intention; where, in effecting this common design. . . .[36]

JCE Category Two: All of the participants in the joint criminal enterprise were
members of military or administrative groups acting pursuant to a common plan.[37]

JCE Category Three: All of the participants were parties to a common plan to pursue
one course of action, where one of the parties commits a crime outside the scope of
common plan, was nevertheless a natural and foreseeable consequence of executing
the common plan. [38]

The prosecution has charged Mr. Alijahan of being a part of joint criminal enterprise that
falls under category one and three. The prosecution alleges that the common criminal
intention is to destroy the Cotene religious group. [39] For a person to be held guilty of a crime
there need to be a course of action too.[40] Alijahan might had the desire to make the State of
Revate a Tilen state. But there had not been any action from his part. Persons can be
convicted for some crimes by holding the requisite actus reus of that crime but no criminal
34

Tilman Blumenstock, The Judgement of the ICTY in the Brdjanin Case, Leiden Journal of International
Law 18, No. 1(March 2005):71
35

Introduction, Summary of Trial Chamber Judgment

36

Prosecutor v. Tadic, ICTY, IT-94-1, Appeals Chamber, July 15, 1999, para 195-196, 202-204

37

Prosecutor v. Brdjanin, ICTY, IT-99-36, Trial Chamber, September1 2004

38

Id.

39

Introduction, Summary of Trial Chamber Judgment

40

Allison M. Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command
Responsibility, and the Development of International Criminal Law, 93 CAL. L. REV. 75-170 (2005)

mens rea.[41] Moreover, no one can be punished for his thoughts alone. Until those thoughts
manifest themselves into a criminal action, such a thinker is an innocent man, criminally
speaking.[42]
Mr. Alijahan has also been held guilty for the killing of Mr. Vas Deferentiale by Ricardo
Melina as per JCE category three. The killing of Mr. Vas Deferentiale was not a foreseeable
incident. Here Mr. Alijahan is innocent because he did not have the required mens rea and
actus reus essential for the crime. It is also proved beyond doubt that Mr. Vas Deferentiale
was a bitter enemy of Mr. Ricardo Melina for some personal reason. [43] Therefore the killing
comes outside the scope of JCE and only Mr. Ricardo Melina is responsible for that killing.
Thus Mr. Alijahan was not party to any joint criminal enterprise nor does he bear criminal
liability for the acts of others.
Elements of joint criminal enterprise
The Tadic, Appeals Chamber, has mentioned the objective elements (actus reus)
necessary to prove this mode of participation in one of the crimes provided for in the Statute
as follows:
i. A plurality of persons.
ii. The existence of a common plan, design or purpose which amounts to or involves the
commission of a crime provided for in the Statute . . .
iii. Participation of the accused in the common design involving the perpetration of one of the
crimes provided for in the Statute. [44]
Mr. Alijahan is alleged of being a part of joint criminal enterprise together with his
wife and friends. The only crime that Mr. Alijahan committed was being in the wrong place
at the wrong time and had awareness of some wrong persons. [45] When his wife spoke at the
funeral of Bebe Remedeev calling for an action to teach the Cotenes a lesson, Alijahan
noticing that the crowd was turning violent immediately ended the meeting. [46] He having
discussed the state of affairs of the State of Revate is no ground to establish that he shares the
criminal responsibility of the killings that were caused by groups led by K.R. Dolme and
Ricardo Melina. Importing guilty intent from an accomplice who perpetrates genocide, onto

41

Matthew Lippman, GENOCIDE, ed. M.C.Bassiouni, International Criminal Law, Second Edition, Volume I

42

Id

43

Allegation F, Summary of Trial Chamber Judgment

44

Prosecutor v. Tadic, ICTY, IT-94-1, Appeals Chamber, July 15, 1999, para 227

45

Interview with the Honble Judge Bonomy at the ICTY, Hague

46

Allegation A, Summary of Trial Chamber Judgment

another person is a fundamental misappropriation of the concepts of genocide and mens rea.
[47]

The existence of a common plan cannot be established from the facts. The killings that

happened as a result of the clashes from 15 August 2005 to 18 August 2005 were a
spontaneous and a terrible reaction to the killing of Bebe Remedeev. [48] There was no
criminal plan to which Mr. Alijahan was a party to. Mr. Alijahans alleged participation in the
barbaric acts that took place in Revate was not one that had any criminal intention nor did it
add momentum to any common plan. He was not physically present at any place where the
killings took place.
Thus Mr. Alijahan is not party to any joint criminal enterprise nor has he acted in
accordance to any common criminal plan or purpose.

47

Pamela Hediger, Mens rea: The Impasse of Law and Psychiatry. Gonzaga Law Review 26 (1991) 615

48

Statement of Facts

F. THE APPELLANT DOES NOT INCUR SUPERIOR RESPONSIBILITY FOR


ALL THE CRIMES CHARGED AGAINST HIM.
Superior Responsibility is attributed, in the alternative, to the Appellant, Mr. Alijahan,
pursuant to Article 6 (3) of the Statute for all the allegations (as per the trial record and the
Special Prosecutors closing brief) where Alijahan is found guilty of the crimes indicted
against him.[49] The allegation B proves that the accused committed Genocide (Under Article
2 (3) (a)), the allegations when taken as a whole proves the commission of Conspiracy to
Commit Genocide (Under Article 2 (3) (b)) and allegations A and D proves the commission
of Direct and Public Incitement to Commit Genocide (Under Article 2 (3) (c)).[50]
A plethora of decisions from both the ICTR and the ICTY have formulated the three
essential elements of superior/command responsibility[51]; which are:
i.
ii.
iii.

the existence of a superior-subordinate relationship of effective control


between the accused and the perpetrator of the crime; and,
the knowledge, or constructive knowledge, of the accused that the crime
was about to be, was being, or had been committed; and,
the failure of the accused to take the necessary and reasonable measures to
prevent or stop the crime, or to punish the perpetrator.

a) Allegation B does not attribute superior responsibility (Under Article 6 (3)) to Mr.

Alijahan for the Commission of Genocide


Since principle of command responsibility will only apply to those superiors who are able
to exercise effective control over their subordinates and since it is the touchstone of
individual responsibility under Article 6 (3)[52] the fact whether the Appellant, Mr. Alijahan,
in the case at hand had effective control over the perpetrators of the alleged crime has to be
narrowly analysed.
According to Allegation B around 500 Cotenes were killed in the Village of Zenotia
on 15th August, 2005. The attack on the Cotenes was unleashed by a group of 100 persons
which was led by Mr. K. R, Dolme. At the same time Mr. Alijahan was on travel to Town
Rodin[53] after attending Bebe Remedeevs funeral.[54] The perpetrators, Mr. K.R. Dolme and
49

Legal Findings, Summary of Trial Chamber Judgement

50

Ibid

51

Prosecutor v. Bagilishema, ICTR-95-1A, Trial Chamber, June 7, 2001, para 38, Prosecutor v Semanza, ICTR97-20, Trial Chamber, May 15, 2003, para 401, Prosecutor v. Kayishema and Ruzindana, ICTR-95-1, Trial
Chamber, May 21, 1999, para 229-231, Prosecutor v. Kordic and Cerkez, ICTY,IT-95-14/2, Trial Chamber,
February 26, 2001, para 401, Prosecutor v. Blaskic, ICTY, IT-95-14, Trial Chamber, March 3, 2000, para 294,
52

Prosecutor v. Kayishema and Ruzindana, ICTR-95-1, Trial Chamber, May 21, 1999, para 229-231, See also
Prosecutor v. Bagilishema,ICTR-95-1A, Trial Chamber, June 7, 2001, para 45
53

Allegation B and C

54

Allegation A

the 100 persons were not under the effective control of the Appellant, as there was no
existence of a superior-subordinate relationship between the Appellant and Mr. Dolme, which
is a required element to incur superior responsibility.[55] The actual control of the assailant
was in the hands of Mr. Dolme while the commission of the crimes. Thus Mr. Alijahan lacked
effective control over the perpetrators of the crime which is a prerequisite to attribute superior
responsibility.[56] Even though Mr. Alijahan was a close friend and a confidant of Mr. Dolme
he couldnt have knowledge of all the activities. Even a superior whose position significantly
indicates his/her knowledge of the crime cannot be prosecuted on the presumption on the
basis of his/her position alone.[57] Thus superior responsibility cannot be attributed to Mr.
Alijahan for the crime of Genocide.
b) All the allegations taken together does not attribute superior responsibility (Under

Article 6 (3)) to Mr. Alijahan for the commission of Conspiracy to Commit Genocide
After reading through all the allegations recorded in the trial record and the Special
Prosecutors closing brief, the only sub-ordinate present in the backdrop of the alleged
conspiracy is Mr. Ricardo Melena, area Superintendent of Police. But having a superior subordinate relationship does not by default attribute superior responsibility. There ought to have
the satisfaction of the remaining elements of knowledge and post crime actions of the
superior. The acts of Mr. Ricardo Melena as recorded in the Allegations other than that of the
attendance in the meetings between the members of the alleged Joint Criminal Enterprise
were during the rally at the Yuvkone cricket stadium and the killing at the MRF housing
colony.[58] The killing of Mr. Vas Deferentiale actually points to the exercise of a personal
vendetta between the deceased and Mr. Ricardo Melena rather than a conspired act of
genocide.[59] Thus there is an absence of an act of conspiracy from the part of Mr. Ricardo
Melena. Moreover Mr. Alijahan was not a military commander over Mr. Melena. His
superiority came under the category other superior as propounded in the Kayishema and
Ruzindana case[60] It gave the Appellant only very less active duty over Mr. Ricardo which
enabled him only to receive less information over the activities of his subordinate. So the
55

Prosecutor v. Semanza, ICTR-97-20, Trial Chamber), May 15, 2003, para 401

56

Prosecutor v. Kayishema and Ruzindana, ICTR-95-1, Trial Chamber, May 21, 1999, para 229-231; See also,
Prosecutor v. Bagilishema, ICTR-95-1A, Trial Chamber, June 7, 2001, para 45; Prosecutor v. Ntakirutimana
and Ntakirutimana,ICTR-96-10 and ICTR-96-17, Trial Chamber, February 21, 2003, para. 819
57

Prosecutor v. Bagilishema, ICTR-95-1A, Trial Chamber, June 7, 2001, para 45

58

Allegations E and F, Summary of Trial Chamber Judgement

59

Allegation F, Summary of Trial Chamber Judgement

60

Prosecutor v. Kayishema and Ruzindana, ICTR-95-1, Trial Chamber, May 21, 1999, para 227-228

requirement[61] that he must have known or consciously disregarded information which


clearly indicated, that the subordinates were committing or about to commit such crimes is
not fulfilled. So, superior responsibility cannot be attributed to Mr. Alijahan for Conspiracy to
Commit Genocide.
c) Allegations A and D does not attribute superior responsibility (Under Article 6 (3)) to

Mr. Alijahan for the commission of Direct and Public Incitement to Commit Genocide
Allegation A refers to the funeral of Bebe Remedeev during which three persons, the
Appellant, his wife Mrs Yashode and a senior member of the YLS political party made
speeches regarding the murder of Bebe Remedeev and also as to how the Tilens ought to
react.[62] This allegation along with Allegation D was used by the Trial Chamber in proving
Direct and Public Incitement to Commit Genocide. But after going through Allegation D one
can see that apart from Mr. Alijahan no one had even spoken a word. There was no act of
incitement to commit genocide committed by the sub-ordinates of Mr. Alijahan. Thus there is
an absence of the actus reus from the part of the sub-ordinates. So Allegation D does not
attribute superior responsibility to Mr. Alijahan. In Allegation A the very fact that the party
member, who exhorted the crowd to kill the Cotenes, was termed senior [63] denies the
existence of a superior-subordinate relationship between him and the Appellant. Thus
superior responsibility for commission of Direct and Public Incitement to Commit Genocide
cannot be attributed to the Appellant.

61

id

62

Allegation A, Summary of Trial Chamber Judgement

63

id

PRAYER

For all the aforementioned reasons argued in this memorial and arguments orally advanced,
the Defence humbly moves the Honourable Tribunal to rely on the authorities cited and
declare and adjudge that:
A. THE TRIAL CHAMBER JUDGEMENT VIOLATES THE RIGHTS OF THE
APPELLANT.
B. THE APPELLANT IS NOT GUILTY OF THE CRIME OF GENOCIDE.
C. THE APPELLANT IS NOT GUILTY OF THE CRIME OF CONSPIRACY TO
COMMIT GENOCIDE.
D. THE APPELLANT IS NOT GUILTY OF THE CRIME OF DIRECT AND PUBLIC
INCITEMENT TO COMMIT GENOCIDE.
E. THE APPELLANT IS NOT PART OF THE ALLEGED JOINT CRIMINAL
ENTERPRISE
F. THE APPELLANT DOES NOT INCUR SUPERIOR RESPONSIBILITY FOR ALL
THE CRIMES CHARGED AGAINST HIM,
or pass any other order that the court may deem fit, for which the Defence shall forever be
obliged.
Sd/(Counsels for the Appellant)