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The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment

Published online by Cambridge University Press:  27 February 2017

Payam Akhavan
Payam Akhavan*
Affiliation:
Office of the Prosecutor, International Criminal Tribunal for Former Yugoslavia and Rwanda, The Hague
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Type
Current Developments
Information
American Journal of International Law , Volume 90 , Issue 3 , July 1996 , pp. 501 - 510
Copyright
Copyright © American Society of International Law 1996

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References

1 SC Res. 827 (May 25,1993), reprinted in 32 ILM 1203 (1993). For a comprehensive overview of the legislative history and Statute of the Yugoslav Tribunal, see James C. O’Brien, The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, 87 AJIL 639 (1993).

2 SC Res. 955 (Nov. 8, 1994) (with annexed Statute), reprinted in 33 ILM 1602 (1994).

3 According to the June 1994 report on the human rights situation in Rwanda, submitted by Special Rapporteur R. Degni-Ségui of the UN Commission on Human Rights:

[T]he number of persons killed throughout the territory is to be numbered in the hundreds of thousands, estimates ranging from 200,000 to 500,000. In fact, even the latter figure is probably less than the reality. Some observers think that the figure is close to a million. It is not sure that the exact number of victims will ever be known.

UN Doc. E/CN.4/1995/7, at 7, para. 24.

4 According to the statement of the Rwandese representative before the Security Council: “The international community, through its diplomatic representatives and international organizations in Kigali, as well as many reports by human rights organizations, was well aware of [previous] massacres and cannot claim that it became cognizant of the situation only in the wake of the tragedy of April 1994.” UN Doc. S/PV.3453, at 15 (1994). In this respect, see, e.g., the report of Bacre Waly Ndiaye, Special Rapporteur on extrajudicial, summary or arbitrary executions of the Commission on Human Rights, UN Doc. E/CN.4/1994/7/Add.1. See also the report of Degni-Ségui, supra note 3, at 7–8, para. 26.

5 See, e.g., Payam Akhavan, Enforcement of the Genocide Convention: A Challenge to Civilization, 8 Harv. Hum. Rts. J. 229 (1995).

6 SC Res. 935 (July 1, 1994).

7 UN Doc. S/1994/1125, at 30, para. 148.

8 Id. at 31, para. 150.

9 Id., para. 152.

10 The request was made in SC Res. 808 (Feb. 22, 1993), followed by the submission of a Report by the Secretary-General, UN Doc. S/25704 (1993), reprinted in 32 ILM 1159 (1993), which included a draft Statute that was approved by SC Res. 827, supra note 1.

11 See Report of the Secretary-General pursuant to paragraph 5 of Security Council resolution 955 (1994), UN Doc. S/1995/134, at 2–3, para. 7.

12 Id. at 3, para. 9.

13 In the seminal case of Prosecutor v. Tadić, the appellate chamber of the Tribunal unanimously held:

It is by now a setded rule of customary international law that crimes against humanity do not require a connection to international armed conflict. Indeed, as the Prosecutor points out, customary international law may not require a connection between crimes against humanity and any conflict at all. Thus, by requiring that crimes against humanity be committed in either internal or international armed conflict, the Security Council may have defined the crime in Article 5 [of the Yugoslav Statute] more narrowly than necessary under customary international law.

UN Doc. IT-94-1-AR72, at 73, para. 141 (1995), reprinted in 35 ILM 32, 72 (1996).

14 Unlike the Yugoslav Statute (Art. 5), the Rwanda Statute expressly requires that the enumerated inhumane acts be committed against a civilian population “on national, political, ethnic, racial or religious grounds.” Article 6(c) of the Nuremberg Charter, however, does not condition crimes against humanity as such on the existence of discriminatory grounds. It prohibits serious inhumane acts against any civilian population or persecution on political, racial or religious grounds, indicating two separate categories of crimes against humanity. On this point, see the formulation of the Principles of International Law Recognized in the Charter of the Nurnberg Tribunal and in the Judgment of the Tribunal, [1950] 2 Y.B. Int’l L. Comm’n 374, 377, para. 120, UN Doc. A/CN.4/SER.A/1950/Add.1.

15 UN Doc. S/25704, at 9, para. 34 (1993).

16 See statement of the United States representative, UN Doc. S/PV.3217, at 15 (1993); see also statement of the French representative, id. at 11, and the United Kingdom representative, id. at 19.

17 See Tadić, UN Doc. IT-94-1-AR72, at 71, para. 137, 35 ILM at 71 (emphasis added).

18 UN Doc. S/1995/134, at 3–4, para. 12.

19 Id. For a recent discussion of the customary law status of common Article 3 and Protocol II, see Theodor Meron, International Criminalization of Internal Atrocities, 89 AJIL 554 (1995).

20 I.e., the Bosnian Serb administration in Pale and the Krajina Serb administration in Knin.

21 See Letter from the Permanent Representative of Rwanda Addressed to the President of the Security Council (Sept. 28, 1994), UN Doc. S/1994/1115. Furthermore, in his address to the General Assembly in October 1994, President Pasteur Bizimungu of Rwanda emphasized that “it is absolutely urgent that this international tribunal be established.” UN GAOR, 49th Sess., 21st plen. mtg., at 5 (1994), quoted in UN Doc. S/PV.3453, at 14 (1994).

22 UN Doc. S/PV.3453, at 14 (1994).

23 See Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 ICJ Rep. 15, 51 (Advisory Opinion of May 28).

24 UN Doc. S/PV.3453, at 14 (1994).

25 Id.

26 Id.

27 Id.

28 Unlike the Yugoslav Statute, annex to UN Doc. S/25704, supra note 10, which was adopted unanimously by the Security Council, the Rwanda Statute was adopted with the dissenting vote of Rwanda in addition to an abstention by China. The Chinese representative stated that it is “an incautious act to vote in a hurry on a draft resolution and statute that the Rwanda Government still finds difficult to accept” and that may also have an uncertain impact on “relevant efforts in future.” UN Doc. S/PV.3453, at 11 (1994).

29 UN Doc. S/PV.3453, at 14 (1994).

30 Id.

31 UN Doc. S/25266, at 22, para. 76 (1993).

32 UN Doc. S/1995/134, at 4, para. 14 (emphasis added).

33 There appears to be some ambiguity in the travaux préparatoires of the Genocide Convention on this point. Although early versions of the draft Convention provided expressly that incitement to commit genocide was punishable “whether such incitement be successful or not,” this phrase was deleted by a Belgian compromise amendment that “would allow the legislatures of each country to decide, in accordance with its own laws on incitement, whether incitement to commit genocide had to be successful in order to be punishable.” UN GAOR 6th Comm., 3d Sess., 85th mtg., at 220–21, UN Doc. A/C.6/SR.85 (1948). As a general rule, common law systems recognize incitement as a crime irrespective of its outcome, whereas continental systems consider incitement as a crime only when it succeeds in achieving its objective. Nonetheless, the delegates of states with continental legal systems such as France maintained that “all national legislation treated incitement to crime, even if not successful, as a separate and independent breach of the law.” Id. at 227.

34 See UN Doc. S/PV.3453, at 15 (1994); see also Interim Report of the Commission of Experts, UN Doc. S/1994/1125, at 13, para. 49. Dr. Mugesera subsequently applied for and obtained residency in Canada and currently faces deportation proceedings under the Immigration Act of Canada on the grounds that he withheld information from immigration authorities that would have otherwise made his application inadmissible.

35 UN Doc. S/PV.3453, at 15 (1994).

36 UN Doc. S/1995/134, at 3, para. 9.

37 SC Res. 955, supra note 2, operative para. 7.

38 UN Doc. S/PV.3453, at 15 (1994).

39 m See Press Statement by the Prosecutor of the International Criminal Tribunal for Rwanda, Justice Richard Goldstone (Dec. 12, 1995).

40 UN Doc. S/PV.3453, at 15 (1994).

41 Id.

42 Id.

43 SC Res. 955, supra note 2, operative para. 3.

44 UN Doc. S/PV.3453, at 16 (1994).

45 Id.

46 Significantly, during the deliberations of the Security Council, the United States representative, acting as President of the Council, stated in reference to the position of the Rwandese Government concerning capital punishment that, “indeed, on the death penalty we might even agree [but] it was simply not possible to meet those concerns and still maintain broad support in the Council.” Id. at 17.

47 There are 26 states parties and 21 signatories to the Second Optional Protocol to the International Covenant on Civil and Political Rights, GA Res. 44/128 (Dec. 15, 1989), reprinted in 29 ILM 1464 (1990), aiming at the abolition of the death penalty. Multilateral Treaties Deposited with the Secretary-General—STATUS as at 31 December 1994, at 203, UN Doc. ST/LEG/SER.E/13 (1995).

48 UN Doc. S/PV.3453, at 16 (1994).

49 Id.

50 UN Doc. ICTR-95-1-I (1995).

51 UN Docs. ICTR-96-3-I and ICTR-96-4-I (1996).

52 UN Docs. ICTR-96-2-D, ICTR-96-5-D, and ICTR-96-6-D (1996).

53 United States Institute of Peace, Special Report, Rwanda: Accountability for War Crimes and Genocide 15 (1994).

54 See Report of the International Law Commission on the work of its forty-sixth session, UN GAOR, 49th Sess., Supp. No. 10, UN Doc. A/49/10 (1994); see also Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN GAOR, 50th Sess., Supp. No. 22, UN Doc. A/50/22 (1995).