The Contribution of the Rwanda Tribunal to the Development of International Law [1 ed.] 9789047408130, 9789004145801

Citation preview

THE CONTRIBUTION OF THE RWANDA TRIBUNAL TO THE DEVELOPMENT OF INTERNATIONAL LAW

Developments in International Law VOLUME 53

The Contribution of the Rwanda Tribunal to the Development of International Law

by

L.J. VAN DEN HERIK

MARTINUS NIJHOFF PUBLISHERS LEIDEN / BOSTON

A C.I.P. Catalogue record for this book is available from the Library of Congress.

Layout and camera-ready copy: Anne-Marie Krens – Oegstgeest – The Netherlands Printed on acid-free paper ISBN 90 04 14580 X © 2005 Koninklijke Brill NV, Leiden, The Netherlands Brill Academic Publishers incorporates the imprint Martinus Nijhoff Publishers http//www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands

ACKNOWLEDGEMENTS

There are many people who have supported me in different ways while I carried out the research for this book. I would like to thank some of them here. First of all, I was very fortunate to have Professor Nico Schrijver as my supervisor. He has been an excellent mentor, sharing with me his in-depth knowledge of international law and providing me with his perceptive comments on draft chapters. I would like to take this opportunity to express my gratitude for his excellent supervision and guidance. I am also grateful to Professor Jan Watse Fokkens for his valuable suggestions and advice. The atmosphere in the meetings that I had with both my supervisors was always pleasant and stimulating. I would also like to thank the members of the board of examiners of this thesis: Professor Jean-Pierre Cot, Professor Cees Flinterman, Professor Nico Keijzer, Professor Filip Reyntjens, and Professor Tom Schalken. Moreover, I would like to thank Adriaan Bos, Professor Jaap van den Herik, Howard Morrison QC, and Elies van Sliedregt for having taken the time to read the whole manuscript and for having given me their useful comments. Thanks are also due to all my colleagues in the Law Faculty of the Free University. In particular, I would like to mention Erik Denters. I would like to thank him as well as Esther Kentin, Kenneth Manusama, and Marije Smit, for having created a wonderful working environment. I would also like to express my appreciation to Tony Langham and Plym Peters for editing the English text, and to Anne-Marie Krens for taking care of the layout. They contributed to preparing the final version of this book in a very professional and friendly manner. Of course, I am also grateful to my parents and my sisters for their continuous support and enthusiasm. And finally and most importantly, I would like to thank the two persons who encouraged me, each in their own way, when I most needed it: Fabián and Julia Raimondo. Larissa van den Herik Amsterdam, March 2005

TABLE OF CONTENTS

LIST OF ICTR JUDGEMENTS, DECISIONS AND OTHER DOCUMENTS

XIII

LIST OF ICTY JUDGEMENTS, DECISIONS AND OTHER DOCUMENTS

XXIII

TABLE OF OTHER CASES TABLE OF TREATIES LIST OF UNITED NATIONS DOCUMENTS LIST OF ABBREVIATIONS

I

XXVII XXXI XXXV XLV

INTRODUCTION

1

1 2 3

3 5 7

Aim of the research and statement of the problem Structure of the thesis Methodology

HISTORICAL AND POLITICAL CONTEXT OF THE EVENTS IN RWANDA IN 1994

11

I.1 I.2 I.3 I.4 I.5 I.6

Reasons for providing background information Rwanda before the colonisation The colonisation of Rwanda Renewed independence for Rwanda The four years before the genocide (1990-1994) The genocide (April-July 1994)

11 14 17 19 21 25

II

THE ESTABLISHMENT, ORGANISATION AND JURISDICTION OF THE ICTR

27

II.1

The Rwandan conflict and the international community II.1.1 The Security Council II.1.2 Special Rapporteurs II.1.3 The Commission of Experts The establishment of the ICTR II.2.1 The motion on jurisdiction in the Kanyabashi case II.2.2 Rwanda: a threat to the peace? II.2.3 Article 41 of the UN Charter

27 28 29 30 31 33 34 37

II.2

viii

Table of contents

II.6

II.2.4 The ICTR as subsidiary organ: impartial and independent? The pros and cons of an international tribunal II.3.1 Facilitating several goals II.3.2 Rwanda’s opposition against the Tribunal II.3.3 An abundance of objectives II.3.4 Critical notes II.3.5 The relationship with national courts II.3.6 Moderate expectations The organisation of the ICTR II.4.1 Chambers II.4.2 The Prosecution II.4.3 The Registry The jurisdiction of the ICTR II.5.1 Substantive jurisdiction II.5.2 Personal jurisdiction II.5.3 Territorial jurisdiction II.5.4 Temporal jurisdiction Conclusion

38 41 41 42 43 46 49 56 57 59 63 66 67 68 71 80 80 84

III

ICTR CASE LAW ON GENOCIDE

87

III.1

The development of the concept of genocide III.1.1 The doctrinal concept III.1.2 The legal concept III.1.3 The definition of the Convention III.1.4 The Draft Codes of the ILC III.1.5 Two Special Rapporteurs III.1.6 The ICTY, ethnic cleansing and genocide III.1.7 The ICC Statute and Elements of Crimes The legality of including genocide in the ICTR Statute Genocide in Rwanda The mental element III.4.1 Travaux préparatoires of the 1948 Genocide Convention III.4.2 Required level of the mental element III.4.3 Evidence required to prove the mental element III.4.4 Motive III.4.5 ‘In whole or in part’ III.4.6 Evaluation The protected group III.5.1 Travaux préparatoires of the 1948 Genocide Convention and early writings

II.3

II.4

II.5

III.2 III.3 III.4

III.5

88 89 91 92 95 96 96 98 99 102 105 106 108 110 115 117 121 124 124

Table of contents

ix

127 132 135 135 137 138 140

III.7

III.5.2 The Tutsi as a protected group III.5.3 Evaluation The physical element III.6.1 Different types of genocide III.6.2 Travaux préparatoires of the 1948 Genocide Convention III.6.3 Killing members of the group III.6.4 Causing serious bodily or mental harm to members of the group III.6.5 Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part III.6.6 Imposing measures intended to prevent births within the group III.6.7 Forcibly transferring children of the group to another group III.6.8 Evaluation Conclusion

IV

ICTR CASE LAW ON CRIMES AGAINST HUMANITY

151

IV.1 IV.2

Notion and development of the term crimes against humanity The ICTR definition and rationale of crimes against humanity IV.2.1 The Commission of Experts IV.2.2 ICTR case law Part of a widespread or systematic attack against any civilian population IV.3.1 ‘A widespread or systematic attack’ IV.3.1.1 The word ‘attack’ IV.3.1.2 The phrase ‘widespread or systematic’ IV.3.2 ‘Any civilian population’ IV.3.3 ‘Part of’ The mental element The discriminatory element IV.5.1 Nature of the element: jurisdictional or substantive? IV.5.2 Enumeration of the grounds The physical element IV.6.1 Murder IV.6.2 Extermination IV.6.3 Imprisonment IV.6.4 Torture IV.6.5 Rape IV.6.6 Persecution on political, racial and religious grounds IV.6.7 Other inhumane acts Conclusion

152 158 158 159 160 161 161 163 167 171 172 174 175 178 179 180 183 188 189 191 194 195 196

III.6

IV.3

IV.4 IV.5

IV.6

IV.7

142 143 144 145 147

x

Table of contents

V

ICTR CASE LAW ON WAR CRIMES

199

V.1 V.2 V.3

200 204 207 207 211 213 214 215 220 221 224 225

V.7 V.8

The regulation of non-international armed conflicts The drafting of Article 4 of the ICTR Statute The legality of Article 4 of the ICTR Statute V.3.1 Relevant ICTY findings V.3.2 ICTR case law V.3.3 Evaluation of the case law of the two ad hoc Tribunals The armed conflict in Rwanda: was it really non-international? V.4.1 A non-internal armed conflict V.4.2 The impact of UN peace operations V.4.3 The involvement of third States V.4.4 The role of Uganda V.4.5 The involvement of France V.4.6 Evaluation of the ICTR’s characterisation of the conflict in Rwanda Temporal and territorial applicability of common Article 3 and Additional Protocol II A direct link between the alleged crime and the armed conflict V.6.1 The class of perpetrators V.6.2 The class of victims V.6.3 Further details on the requirement of a link V.6.4 Some ICTY cases V.6.5 A shift in the ICTR application of the requirement of a connection V.6.6 Evaluation The criminal acts Conclusion

VI

THE INTERRELATIONSHIP BETWEEN THE THREE CRIMES

245

VI.1 VI.2 VI.3

The hierarchy of the three crimes Concurrence and cumulative convictions Correspondence between the specific crime definitions VI.3.1 Genocide and crimes against humanity VI.3.2 Genocide and war crimes VI.3.3 Crimes against humanity and war crimes: the requirement of a connection Conclusion

245 249 253 254 256

V.4

V.5 V.6

VI.4

226 226 228 229 231 232 233 235 239 240 244

257 259

Table of contents

VII

CONCLUSIONS: CONTRIBUTIONS, CHALLENGES AND CONCERNS

xi

261

VII.1 VII.2 VII.3 VII.4 VII.5 VII.6 VII.7

Rwanda and the ICTR 262 The creation of an international criminal tribunal 265 The ICTR case law on genocide 266 The ICTR case law on crimes against humanity 270 The ICTR case law on war crimes 273 The ICTR and sources of international law 274 The contribution of the ICTR to the development of public international law 278 VII.8 The ICTR’s legacy: looking towards the future 283 BIBLIOGRAPHY

285

INDEX

301

APPENDICES I: Security Council Resolution 955, 8 November 1994 II: Statute of the ICTR

307 311

LIST OF ICTR JUDGEMENTS, DECISIONS AND OTHER DOCUMENTS (The numbers refer to sections) APPEAL JUDGEMENTS Jean Kambanda v. The Prosecutor, Case No. ICTR-97-23-A, A.Ch., Appeal Judgement, 19 October 2000: VI.1. The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, A.Ch., Appeal Judgement, 1 June 2001: III.5.3, IV.4, IV.5.1, V.6.3, VI.1. Dissenting Opinion of Judge Nieto-Navia: V.6.3. The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, A.Ch., Appeal Judgement, 1 June 2001: III.3, III.4.3, III.4.4, III.6.3. Alfred Musema v. The Prosecutor, Case No. ICTR-96-13-A, A.Ch., Appeal Judgement, 16 November 2001: II.4.1, VI.1-VI.3. Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, A.Ch., Appeal Judgement, 26 May 2003: V.6.5. Separate Opinion of President Meron and Judge Jorda: V.6.5. Dissenting Opinion of Judge Pocar: V.6.5. Separate Opinion of Judge Shahabuddeen: V.6.5. Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A, A.Ch., Appeal Judgement, 9 July 2004: III.4.4. The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Case Nos. ICTR96-10-A and ICTR-96-17-A, A.Ch., Appeal Judgement, 13 December 2004: II.5.2, III.4.2, IV.6.1, IV.6.2. JUDGEMENTS The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, T.Ch.I, Judgement, 2 September 1998: I.1-I.6; II.3.3, II.3.4, III.2, III.3, III.4.2-III.4.5, III.5.2, III.6.3-III.6.7, IV.2.2, IV.3.1.1, IV.3.1.2, IV.3.2, IV.3.3, IV.4, IV.5.1, IV.5.2, IV.6.1, IV.6.2, IV.6.4, IV.6.5, V.3.2, V.4.1, V.5, V.6, V.6.1, V.6.2, VI.1, VI.2, VII.3. The Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-S, T.Ch.I, Judgement, 4 September 1998: II.3.3, III.4.2, III.5.2, VI.1.

xiv

List of ICTR judgements, decisions and other documents

The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, T.Ch., Sentencing Judgement, 2 October 1998: VI.1. The Prosecutor v. Clément Kayishama and The Prosecutor v. Obed Ruzindana, Case Nos. ICTR-95-1-T and 1:ICTR-95-1; 2:ICTR-96-10, T.Ch.II, Judgement, 21 May 1999: I.1-I.6, II.3.4, II.5.2, III.3, III.4.2, III.4.3, III.4.5, III.5.2, III.6.3-III.6.7, IV.3.1.1, IV.3.1.2, IV.3.2, IV.4, IV.5.1, IV.5.2, IV.6.1, IV.6.2, IV.6.7, V.3.2, V.4.1, V.5, V.6, V.6.1, V.6.2, V.6.5, V.7, VI.2, VII.4. Separate and Dissenting Opinion of Judge Khan regarding the Verdicts under Charges of Crimes Against Humanity/Murder and Crimes Against Humanity/Murder: VI.2. The Prosecutor v. Georges Anderson Nderubumwe Rutaganda, Case No. ICTR-96-3-T, T.Ch.I, Judgement, 6 December 1999: I.6, II.5.2, III.2, III.4.2, III.4.3, III.5.2, III.6.4III.6.7, IV.3.1.1, IV.3.1.2, IV.3.2, IV.4, IV.5.1, IV.6.1, IV.6.2, V.3.2, V.4.1, V.5, V.6, V.6.1, V.6.2, V.7, VI.1, VI.2. The Prosecutor v. Alfred Musema, Case No. ICTR-96-13, T.Ch.I, Judgement and Sentence, 27 January 2000: I.1, III.4.2, III.4.3, III.5.2, III.6.4-III.6.7, IV.3.1.1, IV.3.1.2, IV.3.2, IV.4, IV.5.1, IV.6.1, IV.6.2, IV.6.5, IV.6.7, V.3.2, V.4.1, V.5, V.6, V.6.1, V.7, VI.1, VI.2. The Prosecutor v. Georges Ruggiu, Case No. ICTR-97-32-I, T.Ch.I, Judgement and Sentence, 1 June 2000: II.5.3, IV.6.6. The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, T.Ch.I, Judgement, 7 June 2001: III.4.2, III.4.3, III.5.2, III.6.4, IV.3.1.1, IV.3.1.2, IV.3.2, IV.4, IV.5.1, IV.6.1, IV.6.2, IV.6.7, V.3.2. Separate Opinion of Judge Gunawardana, 7 June 2001: III.4.3. The Prosecutor v. Elizaphan and Gérard Ntakirutimana, Case Nos. ICTR-96-10 & ICTR96-17-T, T.Ch.I, Judgement, 21 February 2003: IV.33.1.1, IV.3.1.2, IV.4, IV.5.1, IV.6.1, IV.6.2, V.7. The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, T.Ch.III, Judgement, 15 May 2003: I.5, III.3, III.4.3, III.4.5, III.5.2, III.6.1, III.6.4, IV.3.1.1, IV.3.1.2, IV.3.2, IV.3.3, IV.4, IV.5.1, IV.6.1, IV.6.2, IV.6.4-IV.6.6, V.5, V.6.5, VI.1, VI.2. Separate Opinion of Judge Ostrovsky: III.3, V.6.5. Separate and Dissenting Opinion of Judge Dolenc: VI.2, VI.3. The Prosecutor v. Eliézer Niyitegeka, Case No. 96-14-T, T.Ch.I, Judgement, 16 May 2003: II.4.1, II.6, III.4.4, IV.3.1.1, IV.3.1.2, IV.4, IV.6.1, IV.6.5, IV.6.7. The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, T.Ch.II, Judgement, 1 December 2003: III.4.3, III.5.2, III.6.4, IV.3.1.2, IV.3.2, IV.3.3, IV.4, IV.6.2, IV.6.5, VI.2. The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwize, and Hassan Ngeze, Case No. ICTR-99-52-T, T.Ch.I, Judgement, 3 December 2003: I.1, I.3, I.5, I.6, II.5.2, II.5.4, III.3, III.4.3, III.5.2, IV.6.6, V.6, VI.2.

List of ICTR judgements, decisions and other documents

xv

The Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-95-54A-T, T.Ch.II, Judgement, 22 January 2004: III.4.3, III.4.5, III.6.1, III.6.4, IV.3.1.2, IV.3.2, IV.3.3, IV.4, IV.6.2, IV.6.5, IV.6.7, V.5, V.6.3, V.6.5, V.7, VI.2, VI.3. The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T, T.Ch.III, Judgement, 25 February 2004: I.4, I.5, II.5.2, II.5.4, III.3, III.6.4, III.6.8, IV.4, IV.6.1-IV.6.4, V.5, V.6.5, V.7, VII.8. Separate and Dissenting Opinion of Judge Dolenc: VI.2. The Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, T.Ch.III, Judgement, 17 June 2004: I.1, III.6.4, IV.3.1.2, IV.4, IV.5.2, IV.6.2, IV.6.5. The Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-I, T.Ch.I, Judgement, 15 July 2004: I.1, III.4.5, III.5.2, IV.3.1.2, IV.5.2, IV.6.1, IV.6.2, VI.3. The Prosecutor v. Vincent Rutaganira, Case No. ICTR-95-1C-T, T.Ch., Judgement, 14 March 2005: IV.7, VI.3.1. APPEAL DECISIONS The Prosecutor v. Théoneste Bagosora and 28 others, Case No. ICTR-98-37-A, A.Ch., Decision on the admissibility of the Prosecutor’s appeal from the Decision of a confirming judge dismissing an Indictment against Théoneste Bagosora and 28 others, 8 June 1998: II.3.3, II.5.2. Anatole Nsengiyumva v. The Prosecutor, Case No. ICTR-96-12-A, A.Ch., Decision on appeal against Oral Decision of Trial Chamber II of 28 September 1998, 3 June 1999. Joint and Separate Opinion of Judge McDonald and Judge Vohrah, 3 June 1999: II.3.3. Joseph Kanyabashi v. The Prosecutor, Case No. ICTR-96-15-A, A.Ch., Decision on the defence motion for interlocutory appeal on the jurisdiction of Trial Chamber I, 3 June 1999. Joint and Separate Opinion of Judge McDonald and Judge Vohrah, 3 June 1999: II.3.3. The Prosecutor v. Jean-Bosco Barayagwiza, Case No. ICTR-97-19-AR72, A.Ch., Decision (Prosecutor’s request for review or reconsideration), 31 March 2000: II.4.1. Separate Opinion of Judge Shahabuddeen, 31 March 2000: II.4.1. Declaration of Judge Vohrah, 31 March 2000: II.4.1. Hassan Ngeze and Ferdinand Nahimana v. The Prosecutor, Case Nos. ICTR 97-27-AR72 and ICTR 96-11-AR 72, A.Ch., Decision on interlocutory appeal, 5 September 2000: II.5.4. Joint Separate Opinion of Judge Vohrah and Judge Nieto-Navia: II.5.4. Separate Opinion of Judge Shahabuddeen: II.5.4. Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, A.Ch., Decision, 14 September 2000: II.5.4.

xvi

List of ICTR judgements, decisions and other documents

André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44-AR72.4, A.Ch., Decision on interlocutory appeal regarding application of joint criminal enterprise to the crime of genocide, 22 October 2004: II.5.2. DECISIONS The Prosecutor v. Radio Télévision Libre des Mille Collines SARL, Case No. ICTR-96-6D, T.Ch.I, Decision on the formal request for deferral presented by the Prosecutor of 12 March 1996, 17 May 1996: II.5.2. The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-T, T.Ch.II, Decision on the defence motion on jurisdiction, 18 June 1997: II.2.1-II.2.4, II.4.1, II.5.2, III.2, V.4.1. The Prosecutor v. Théoneste Bagosora and 28 others, Case No. ICTR-98-37-I, Judge Khan, Dismissal of Indictment, 31 March 1998: II.5.2. The Prosecutor v. Théoneste Bagosora, Decision on the amicus curiae application by the Government of the Kingdom of Belgium, Case No. ICTR-96-7-T, T.Ch.II, 6 June 1998: IV.3.2. The Prosecutor v. Bernard Ntuyahaga, Case No. ICTR-98-40-I, Judge Ostrovsky, Decision on the review of the Indictment, 29 September 1998: IV.3.2. The Prosecutor v. Bernard Ntuyahaga, Case No. ICTR-98-40-T, T.Ch.I, Decision on the Prosecutor’s motion to withdraw the Indictment, 18 March 1999: II.3.3, II.4.2, IV.3.2. The Prosecutor v. Hassan Ngeze, Case No. ICTR-97-27-I, T.Ch.I, Decision on the Prosecutor’s request for leave to amend the Indictment, 5 November 1999: II.5.4. The Prosecutor v. Ferdinand Nahimana, Case No. ICTR-96-11-T, T.Ch.I, Decision on the Prosecutor’s request for leave to file an Amended Indictment, 5 November 1999: II.5.4. The Prosecutor v. Jean-Bosco Barayagwiza, Case No. ICTR-97-19-I, T.Ch.I, Decision on the Prosecutor’s request for leave to file an Amended Indictment, 11 April 2000: II.5.4. The Prosecutor v. Anatole Nsengiyumva, Case No. ICTR-96-12-I, T.Ch.III, Decision on the defence motion objecting to the jurisdiction of the Trial Chamber on the Amended Indictment, 13 April 2000: II.5.2, II.5.4. The Prosecutor v. Gratien Kabiligi and Aloys Ntabakuze, Case No. ICTR-96-34-I, T.Ch.III, Decision on the defence motions objecting to a lack of jurisdiction and seeking to declare the Indictment void ab initio, 13 April 2000: II.5.2, II.5.4. The Prosecutor v. Gratien Kabiligi, Case No. ICTR-97-34-I, T.Ch.III, Decision on the defence motion seeking supplementary investigations, 1 June 2000: II.5.1.

List of ICTR judgements, decisions and other documents

xvii

The Prosecutor v. Joseph Nzirorera, Case No. ICTR-97-20-I, T.Ch.II, Decision on the defence motion seeking an order to the Prosecutor to investigate the circumstances of the plane crash of president Habyarimana’s plane, 2 June 2000: II.4.2, II.5.1. The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, T.Ch.I, Decision on the request of the defence for an order for service of an United Nations memorandum prepared by Michael Hourigan, former ICTR investigator, 8 June 2000: II.5.1. Separate and Dissenting Opinion of Judge Güney: II.5.1. The Prosecutor v. Ferdinand Nahimana, Case No. ICTR-96-11-T, T.Ch.I, Decision on the defence preliminary motion, pursuant to rule 72 of the rules of procedure and evidence, 12 July 2000: II.5.4. The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-I, T.Ch.III, Decision on the Prosecutor’s motion for judicial notice and presumptions of facts pursuant to rules 94 and 54, 3 November 2000: I.1, I.4, II.5.3, V.4.1, V.5. The Prosecutor v. Eliézer Niyitegeka, Case No. ICTR96-14-T, T.Ch.II, Decision on defence motion on matters arising from Trial Chamber Decisions and preliminary motion based on defects in the Indictment and lack of jurisdiction, 20 November 2000: II.5.2, II.5.4. The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, T.Ch.II, Decision on the defence motion objecting against the jurisdiction of the Tribunal, 13 March 2001: II.5.4. The Prosecutor v. Édouard Karemera, Case No. ICTR-98-44-T, T.Ch.II, Decision on the defence motion, pursuant to rule 72 of the rules of procedure and evidence, pertaining to, inter alia, lack of jurisdiction in the form of the indicment, 25 April 2001: II.2.1-II.2.3, II.4.1. The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Case No. ICTR96-10-T and Case No. ICTR-96-17-T, T.Ch.I, Decision on the Prosecutor’s motion for judicial notice of adjudicated facts, 22 November 2001: I.1. The Prosecutor v. Jospeh Nzirorera, Case No. ICTR-98-44-T, The President’s Decision on review of the Decision of the Registrar withdrawing Mr. Andrew McCartan as lead counsel of the accused Joseph Nzirorera, 13 May 2002: II.4.3. The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR97-21-T, The Prosecutor v. Sylvain Nsabimana and Alphonse Nteziryayo, Case No. ICTR-97-29A and B-T, The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15T, The Prosecutor v. Elie Ndayambaje, Case No. ICTR-96-8-T (Case No. 98-42-T), T.Ch.II, Decision on the Prosecutor’s motion for judicial notice and admission of evidence, 15 May 2002: I.1. The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T, Oral Decision on the proposed expert reports and evidence of Antoine Nyetera, Uwe Friesecke, and Wayne Madsen, 4 July 2002: V.4.1.

xviii

List of ICTR judgements, decisions and other documents

The Prosecutor v. Théoneste Bagosora, Gratien Kabiligi, Aloys Ntabakuze, and Anatole Nsengiyumva, Case No. ICTR-98-41-T, T.Ch.III, Decision on the defence motion for release, 12 July 2002: II.4.1. The Prosecutor v. Justin Mugenzi et al., Case No. ICTR-99-50-I, Decision on Justin Mugenzi’s motion for stay of proceedings or in the alternative provisional release (Rule 65) and in addition severance (Rule 82(B)), T.Ch.II, 8 November 2002: II.5.2. The Prosecutor v. Joseph Nzirorera, Case No. ICTR-98-44-T, The President’s Decision on a motion filed by the Defence appealing the Registrar’s Decision of 16 August 2002, 22 January 2003: II.4.3. The Prosecutor v. Théoneste Bagosora, Gratien Kabiligi, Aloys Ntabakuze, and Anatole Nsengiyumva, Case No. ICTR-98-41-T, T.Ch. I, Decision on admissibility of proposed testimony of witness DBY, 18 September 2003: II.5.4. The Prosecutor v. Simon Bikindi, Case No. ICTR-01-72-I, T.Ch.III, Decision of the defence motion challenging the temporal jurisdiction of the Tribunal and objecting to the form of the indictment and on the Prosecution’s motion seeking leave to file an Amended Indictment, 22 September 2003: II.5.4 The Prosecutor v. Édouard Karemera, Mathieu Ngirumpatse, Joseph Nzirorera, and André Rwamakuba, Case No. ICTR-98-44-T, T.Ch. III, Decision rélative à la requête en exception préjudicielle de Nzirorera aux fins de l’acte d’accusation pour défaut de compétence: Chapitre VII de la Charte des Nations Unies, 29 March 2004: II.2.1, II.2.2. The Prosecutor v. Édouard Karemera, Mathieu Ngirumpatse, Joseph Nzirorera, and André Rwamakuba, Case No. ICTR-98-44-T, T.Ch.III, Decision on the preliminary motions by the defence of Joseph Nzirorera, Édouard Karemera, André Rwamakuba and Mathieu Ngirumpatse challenging jurisdiction in relation to joint criminal enterprise, 11 May 2004: V.7. INDICTMENTS The Prosecutor v. Georges Anderson Nderubumwe Rutaganda, Case No. ICTR-96-3-I, Indictment, 12 February 1996: III.5.2. The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-I, Indictment, 6 June 1997: III.5.2. The Prosecutor v.Georges Ruggiu, Case No. ICTR-97-32-I, Indictment, 30 September 1997: III.5.2. The Prosecutor v. Emmanuel Bagambiki and Samuel Imanishimwe, Case No. ICTR-97-36I, Indictment, 9 October 1997: I.1. The Prosecutor v. Théoneste Bagosora, Case No. ICTR-96-7-I, Indictment, 12 August 1999: I.1, I.5, II.5.3, IV.3.2, IV.5.2.

List of ICTR judgements, decisions and other documents

xix

The Prosecutor v. Emmanuel Bagambiki, Samuel Imanishimwe, and Yussif Munyakazi, Case No. ICTR-97-36-I, Indictment, 2 December 1999: III.5.2. The Prosecutor v. Elizaphan and Gérard Ntakirutimana, and Charles Sikubwabo, Case No. ICTR-96-10-I, Indictment, 20 October 2000: III.5.2. The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55-I, Indictment, 7 November 2000: II.3.3. The Prosecutor v. Jean Baptiste Gatete, Case No. ICTR-00-61-I, Indictment, 14 December 2000: III.5.2. The Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-01-71-I, Indictment, 1 June 2001: III.5.2. The Prosecutor v. Simon Bikindi, Case No. ICTR-01-72-I, Indictment, 27 June 2001: III.5.2. The Prosecutor v. Protais Zigiranyirazo, Case No. ICTR-01-73-I, Indictment, 20 July 2001: II.3.3. The Prosecutor v. Joseph Nzabirinda, Case No. ICTR-01-77-I, Indictment, 6 December 2001: I.1. The Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Prosecutor’s submission of the Harmonised Amended Indictment, 25 November 2002: I.1. TESTIMONIES Expert Witness dr. Alison Des Forges in the matter of Jean-Paul Akayesu, Case No. ICTR-96-4-T, 11 February 1997: I.2. Expert Witness dr. Alison Des Forges in the matter of Jean-Paul Akayesu, Case No. ICTR-96-4-T, 12 February 1997: I.3, I.4. Expert Witness Filip Reyntjens in the matter of Georges Anderson Nderubumwe Rutaganda, Case No. ICTR-96-3-I, 13 October 1997: I.2, I.4, I.5, I.6. EVIDENTIARY DOCUMENTS Political Background to the 1994 Rwandan Crises, expert report prepared at the request of the International Criminal Tribunal for Rwanda, by André Guichaoua, April 1997, Arusha (Tanzania), Document I: I.2. Political Background to the 1994 Rwandan Crises, expert report prepared at the request of the International Criminal Tribunal for Rwanda, by André Guichaoua, April 1997, Arusha (Tanzania), Document II: I.2.

xx

List of ICTR judgements, decisions and other documents

PETITION Petition by the Kingdom of Belgium to appear as amicus curiae, Prosecutor v. Laurent Semanza, Case No. ICTR-97-20, T.Ch.III, 8 December 2000: V.6.5. ANNUAL REPORTS UN Docs. A/51/399 and S/1996/778: First annual report of the international criminal tribunal for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in neighbouring states between 1 January and 31 December 1994, pursuant to article 32 of the Statute, 24 September 1996: II.3.5, II.4.2. UN Docs. A/52/582 and S/1997/868: Second annual report of the international criminal tribunal for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in neighbouring states between 1 January and 31 December 1994, pursuant to article 32 of the Statute, 2 September 1997: II.3.5, II.4.2. UN Docs. A/53/429 and S/1998/857: Third annual report of the international criminal tribunal for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in neighbouring states between 1 January and 31 December 1994, pursuant to article 32 of the Statute, 23 September 1998: II.4.2, II.5.2. UN Docs. A/54/315 and S/1999/943: Fourth annual report of the international criminal tribunal for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in neighbouring states between 1 January and 31 December 1994, pursuant to article 32 of the Statute, 7 September 1999: II.4.2. UN Docs. A/55/435 and S/2000/927: Fifth annual report of the international criminal tribunal for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in neighbouring states between 1 January and 31 December 1994, pursuant to article 32 of the Statute, 2 October 2000: II.4.2, II.5.1. UN Docs. A/56/351 and S/2001/863: Sixth annual report of the international criminal tribunal for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda

List of ICTR judgements, decisions and other documents

xxi

and Rwandan citizens responsible for genocide and other such violations committed in neighbouring states between 1 January and 31 December 1994, pursuant to article 32 of the Statute, 14 September 2001: II.3.3, II.4.2. UN Docs. A/57/163 and S/2002/733: Seventh annual report of the international criminal tribunal for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in neighbouring states between 1 January and 31 December 1994, pursuant to article 32 of the Statute, 2 July 2002: II.3.5, II.4.2. UN Docs. A/58/140 and S/2003/707: Eight annual report of the international criminal tribunal for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in neighbouring states between 1 January and 31 December 1994, pursuant to article 32 of the Statute, 11 July 2003: II.3.5, II.4.2. UN Docs. A/59/183 and S/2004/601: Ninth annual report of the international criminal tribunal for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in neighbouring states between 1 January and 31 December 1994, pursuant to article 32 of the Statute, 27 July 2004: II.4.2.

LIST OF ICTY JUDGEMENTS, DECISIONS AND OTHER DOCUMENTS (The numbers refer to sections) APPEAL JUDGEMENTS The Prosecutor v. Dražen Erdemovic´, Case No. IT-96-22-A, A.Ch., Appeal Judgement, 7 October 1997: VI.1. Joint Separate Opinion of Judge McDonald and Judge Vohrah: VI.1. Separate and Dissenting Opinion of Judge Li: VI.1. Separate and Dissenting Opinion of Judge Cassese: VI.1. The Prosecutor v. Duško Tadic´, Case No. IT-94-1, A. Ch., Appeal Judgement, 15 July 1999: III.1.7, III.4.4, IV.1, IV.5.1, V.4.3, V.6.4, VII.5. Separate Opinion of Judge Shahabuddeen: V.4.3. The Prosecutor v. Duško Tadic´, Case No. IT-94-1-A and IT-94-1-Abis, A.Ch., Judgement in Sentencing Appeals, 26 January 2000: VI.1. Separate Opinion of Judge Shahabuddeen: VI.1. Separate Opinion of Judge Antonio Cassese: VI.1. The Prosecutor v. Zlatko Alekovski, Case No. IT-95-14/1-A, A.Ch, Appeal Judgement, 24 March 2000: II.4.1: V.3.1. The Prosecutor v. Zejnil Delalic´, Zdravko Mucic´, Hazim Delic´, and Esad Landžo (‘Cˇelebic´i’ case), Case No. IT-96-21-A, A.Ch., Appeal Judgement, 20 February 2001: II.4.1, V.3.1, V.6.3, V.7, VI.2, VI.3.1. Separate and Dissenting Opinion of Judge Hunt and Judge Bennouna: VI.2. The Prosecutor v. Goran Jelisic´, Case No. IT-95-10-A, A.Ch., Appeal Judgement, 5 July 2001: III.1.6, III.4.2, III.4.4, VI.2. Partial Dissenting Opinion of Judge Shahabuddeen: VI.2. The Prosecutor v. Anto Furundžija, Case No. It-95-17/1-A, A.Ch., Appeal Judgement, 21 July 2000: IV.6.4, VI.1. Declaration of Judge Vohrah: VI.1. The Prosecutor v. Dragoljub Kunarac, Radomir Kovac´, and Zoran Vukovic´ (‘Focˇa’ case), Case Nos. IT-96-23-A & IT-96-23/1-A, A.Ch., Appeal Judgement, 12 June 2002: II.4.1, IV.3.1.2, IV.3.2, IV.6.4, IV.6.5, V.6.4, V.6.5, VI.2, VII.4, VII.5.

xxiv

List of ICTY judgements, decisions and other documents

The Prosecutor v. Radislav Krstic´, Case No. IT-98-33-A, A.Ch., Appeal Judgement, 19 April 2004: III.1.6, III.3, III.4.2, III.4.3, III.4.5, VI.3. Partial Dissenting Opinion of Judge Shahabuddeen: III.4.6, III.6.1. JUDGEMENTS The Prosecutor v. Duško Tadic´, Case No. ICTY-94-1-T, T.Ch. II, Opinion and Judgement, 7 May 1997: IV.3.2, IV.4, IV.6.6, V.6.4, V.7. The Prosecutor v. Zejnil Delalic´, Zdravko Mucic´, Hazim Delic´, and Esad Landžo (‘Cˇelebic´i’ case), Case No. IT-96-21-T, T.Ch.II, Judgement, 16 November 1998: IV.6.1, IV.6.4, IV.6.5, V.3.1, V.7. The Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1, T.Ch., Judgement, 25 June 1999. Dissenting Opinion of Judge Rodrigues, Presiding Judge of the Trial Chamber: V.3.1. The Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, T.Ch.II, Judgement, 10 December 1998: III.1.4, III.1.7, IV.6.4-IV.6.6. The Prosecutor v. Duško Tadic´, Case No. ICTY-94-1-Tbis-R117, T.Ch. II, Sentencing Judgement, 11 November 1999. Separate Opinion of Judge Robinson: VI.1. The Prosecutor v. Goran Jelisic´, Case No. IT-95-10-T, T.Ch.I, Judgement, 14 December 1999: III.4.3, III.5.2, III.5.3, IV.6.1, V.7. The Prosecutor v. Zoran Kupreškic´, Mirjan Kupreškic´, Vlatko Kupreškic´, Drago Josipovic´, Dragan Papic´, and Vladimir Šantic´, Case No. IT-95-16-T, T.Ch.II, Judgement, 14 January 2000: II.4.1, IV.2.2, IV.3.1.1, IV.4, IV.6.1, VI.2, VII.4. The Prosecutor v. Tihomir Blaškic´, Case No. IT-95-14-T, T.Ch.I, Judgement, 3 March 2000: IV.3.11.2, IV.3.2, IV.4, IV.6.1, V.7, VI.1. The Prosecutor v. Dragoljub Kunarac, Radomir Kovac´, and Zoran Vukovic´ (‘Focˇa’ case), Case No. IT-96-23 and IT-96-23/1-T, T.Ch.II, Judgement, 22 February 2001: III.1.7, IV.6.4, IV.6.5, V.3.1, V.6.4, VI.1, VI.2. The Prosecutor v. Dario Kordic´ and Mario Cˇerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001: IV.6.3, VI.2. The Prosecutor v. Radislav Krstic´, Case No. IT-98-33-T, T.Ch.I, Judgement, 2 August 2001: III.1.6, III.4.3, III.4.5, III.5.3, III.6.4, IV.6.2, VI.2. The Prosecutor v. Duško Sikirica, Damir Došen, and Dragan Kolundžija, Case No. IT-958-T, T.Ch., Judgement, 3 September 2001. The Prosecutor v. Miroslav Kvocˇka, Milojica Kos, Mlado Radic´, Zoran Žigic´, and Dragoljub Prcac´, Case No. IT-98-30/1-T, T.Ch.I, Judgement, 2 November 2001: IV.6.1, IV.6.4, IV.6.6, V.6.4. The Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, T.Ch., Judgement, 15 March 2002: IV.6.1, IV.6.3.

List of ICTY judgements, decisions and other documents

xxv

The Prosecutor v. Mitar Vasiljevic´, Case No. IT-98-32-T, T.Ch.II, Judgement, 29 November 2002: III.1.4, IV.6.2, V.3.2, V.7, VII.6. The Prosecutor v. Mladen Naletilic´ and Vinko Martinovic´, Case No. IT-98-34-T, T.Ch.I, Judgement, 31 March 2003: V.7. The Prosecutor v. Milomir Stakic´, Case No. IT-97-24-T, T.Ch.II, Judgement, 31 July 2003: III.1.6, III.3, III.4.5, III.5.2, III.6.8, IV.6.2. The Prosecutor v. Radoslav Brdjanin, Case No. IT-99-36-T, T.Ch.II, Judgement, 1 September 2004: III.1.6, III.4.5, III.5.2, IV.6.1, IV.6.2. The Prosecutor v. Vidoje Blagojevic´ and Dragan Jokic´, Case No. IT-02-60-T, T.Ch.I, Judgement, 17 January 2005: III.4.3, III.4.6, III.6.1, III.6.4. APPEAL DECISIONS The Prosecutor v. Radoslav Brdjanin, Case No. IT-99-36-A, A.Ch., Decision on interlocutory appeal, 19 March 2004: III.1.6. Separate Opinion of Judge Shahabuddeen: III.1.6. The Prosecutor v. Milan Milutinovic´, Nikola Šainovic´, and Dragoljub Ojdanic´, Case No. IT-99-37-AR72, A.Ch., Decision on Dragoljub Ojdanic´’s motion challenging jurisdiction – joint criminal enterprise, 21 May 2003: V.3.2. The Prosecutor v. Duško Tadic´, Case No. IT-94-1-AR72, A.Ch., Decision on the defence motion for interlocutory appeal on jurisdiction, 2 October 1995: II(intro), II.2.1-II.2.4, III.2, IV.1, IV.5.1, V.3.1, V.4.1, V.5, V.6.4, V.7, VII.2. Separate Opinion of Judge Li: II.2.1. Separate Opinion of Judge Abi-Saab: V.3.1. Separate Opinion of Judge Sidhwa: II.2.1. DECISIONS The Prosecutor v. Duško Tadic´, Case No. IT-94-1-T, T.Ch.I, Decision of the defence motion on jurisdiction, 10 August 1995: II.2.1. The Prosecutor v. Mile Mrkšic´, Miroslav Radic´, Veselin Šljivancˇanin, and Slavko Dokmanovic´, Decision on Prosecutor’s motions, 3 April 1996: IV.3.2. The Prosecutor v. Radovan Karadžic´ and Ratko Mladic´, Case nos. IT-95-5-R61 and IT95-18-R61, T.Ch., Review of the Indictments pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996: III.4.3. The Prosecutor v. Dario Kordic´ and Mario Cˇerkez, Case No. IT-95-14/2, T.Ch., Decision on the joint defence motion to dismiss the Amended Indictment for lack of jurisdiction based on the limited jurisdictional reach of Articles 2 and 3, 2 March 1999: V.3.1.

xxvi

List of ICTY judgements, decisions and other documents

The Prosecutor v. Miroslav Kvocˇka, Milojica Kos, Mlado Radic´, Zoran Žigic´, and Dragoljub Prcac´, Case No. IT-98-30/1, T.Ch.I, Decision on judicial notice, 8 June 2000: V.6.4. The Prosecutor v. Slobodan Miloševic´, Case No. IT-02-54-T, T.Ch., Decision on motion for acquittal, 16 June 2004: III.1.6. Dissenting Opinion of Judge O-Gon Kwon: III.1.6. INDICTMENTS The Prosecutor v. Sikirica, Case No. IT-95-8-I, Indictment, 30 August 1999: III.5.2.

TABLE OF OTHER CASES

(The numbers refer to sections) INTERNATIONAL COURT OF JUSTICE (www.icj-cij.org) Reparations for injuries suffered in the service of the United Nations, Advisory Opinion, 11 April 1949, ICJ Reports 1949, p. 174: II.5.2. Reservations to the Convention for the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 25 May 1951, ICJ Reports, p. 15: III.1.2, III.1.3. Effects of awards of compensation made by the U.N. Administrative Tribunal, Order, 14 January 1954, ICJ Reports 1954, p. 47: II.2.4. Nottebohm case, Liechtenstein v. Guatamala, Second Phase, Judgement, 6 April 1955, ICJ Reports 1955, p. 4: III.5.2 Case concerning military and paramilitary activities in and against Nicaragua, Nicaragua v. United States of America, Jurisdiction and Admissibility, Judgement, 26 November 1984, ICJ Reports 1984, p. 392: II.2.1. Case concerning military and paramilitary activities in and against Nicaragua, Nicaragua v. United States of America, Merits, Judgement, 27 June 1986, ICJ Reports 1986, p. 14: V.1, V.4.3, VII.5. Application of the Convention of the Prevention and Punishment of the Crime of Genocide, Bosnia-Herzegovina v. Yugoslavia (Serbia and Montenegro), Order on further Requests for the Indication of Provisional Measures, 13 September 1993, ICJ Reports 1993, p. 325: III.4.5. Legality of the threat or use of nuclear weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, p. 226: VII.6. SPECIAL COURT FOR SIERRA LEONE (www.sc-sl.org) The Prosecutor v. Moinina Fofana, Case No. SCSL-2004-14-AR72(E), A.Ch., Decision on preliminary motion on lack of jurisdiction materiae: nature of the armed conflict, 25 May 2004: V.4.6.

xxviii

Table of other cases

EUROPEAN COURT OF HUMAN RIGHTS (www.echr.coe.int) Soering v. the United Kingdom, ECtHR, Judgment, 7 July 1989, Publications ECHR, Series A vol. 161: II.3.3. Naletilic´ v. Croatia, ECtHR, Admissibility Decision, 4 May 2000, App. No. 51891/99: II.3.3. INTER-AMERICAN COURT OF HUMAN RIGHTS (www.corteidh.or.cr/index_ing.html) Caballero-Delgado and Santana case, Series C, No. 22, Dissenting Opinion of President Nieto-Navia, Judgement, 8 December 1995: VI.2. NUREMBERG TRIBUNAL International Military Tribunal (Nuremberg), Judgment and sentences, 1 October 1946, Am. J. of Int. L. 41: 172-333: II.5.2. CANADA Regina v. Finta, Ontaria Court of Appeal, 29 April 1992, Int. L. Rep. 98: 520-663: IV.1. FRANCE Barbie, Court of Cassation (criminal chamber), 6 October 1983 and 26 January 1984; Fédération Nationales des Déportés et Internés Résistants et Patriotes and others v. Barbie, Court of Cassation (criminal chamber), 20 December 1985; Barbie, Court of Cassation (criminal chamber), 3 June 1988, resp. Int. L. Rep. 78: 124-148 and Int. L. Rep. 100: 330-337: IV.1, IV.2.2, IV.3.2. Touvier, Court of Appeal of Paris (first chamber of accusation), 13 April 1992; Court of Cassation (criminal chamber), 27 November 1992, Int. L. Rep.: 100: 337-364: IV.1, IV.2.2, IV.3.2. ISRAEL Attorney-General of the Government of Israel v. Eichmann, District Court of Jerusalem, 21 December 1961, para. 16, Int. L. Rep. 36: 5: III(intro), III.6.4, IV.1, IV.2.2. Attorney-General of the Government of Israel v. Eichmann, Supreme Court, 29 May 1962, Int. L. Rep. 36: 277: III(intro): IV.1, IV.2.2.

Table of other cases

xxix

SWITZERLAND Public Prosecutor v. Niyonteze, Tribunal Militaire d’Appel 1A, 26 May 2000, Part III, Chapitre 3, Section 2. (www.vbs.admin.ch/internet/OA/e/urteile.htm): II.3.5, V.6.5. Public Prosecutor v. Niyonteze, Tribunal Militaire de Cassation, 27 April 2001, para. 9 (www.vbs.admin.ch/internet/OA/e/urteile.htm): II.3.5, V.6.5. THE NETHERLANDS Public Prosecutor v. Menten, The Netherlands District Court of Amsterdam (extraordinary penal chamber), 14 December 1977; Supreme Court, 29 May 1978; District Court of The Hague (extraordinary penal chamber), 4 December 1978; Supreme Court, 22 May 1979; District Court of Rotterdam (extraordinary penal chamber), 9 July 1980; Supreme Court, 13 January 1981, Int. L. Rep.75: 331-368: IV.1. UNITED STATES OF AMERICA Blockburger v. United States, Supreme Court of the United States, 4 January 1932, 284 US 299, 52 Supreme Court Reporter 180: VI.2.

TABLE OF TREATIES

(The numbers refer to sections) 1864 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, Geneva, 22 August 1864, entry into force: 22 June 1865 (no longer in force), www.icrc.org: V.1 1899 Convention (II) with respect to the Laws and Customs of War on Land, The Hague, 29 July 1899, entry into force: 4 September 1900, Schindler and Toman (1988: 63): III.1.1, IV.1, V.1. 1907 Convention (IV) respecting the Laws and Customs of War, The Hague, 18 October 1907, entry into force: 26 January 1910, Schindler and Toman (1988: 63): III.1.1, IV.1, V.1. 1929 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Geneva, 27 July 1929, entry into force: 19 June 1931 (no longer in force), www.icrc.org: V.1. 1929 Convention relative to the Treatment of Prisoners of War, Geneva, 27 July 1929, entry into force: 19 June 1931 (no longer in force), www.icrc.org: V.1. 1945 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, London, 8 August 1945, entry into force: 8 August 1945, 82 UNTS 279: II.5.2, III.1.2, IV.1. 1945 Charter of the United Nations, San Francisco, 26 June 1945, entry into force: 24 October 1945, 1 UNTS xvi: I.4, II.1.1, II.2, II.2.2-II.2.4, II.3.1, II.4, III.2, IV.3.1.1, V.4.1, V.4.2, VII.2, VII.4, VII.6. 1945 Statute of the International Court of Justice, San Francisco, 26 June 1945, entry into force: 24 October 1945, ICJ Acts and Documents, 4, 61: Intro.3, III.1.4, III.2, III.5.3, VII.6. 1948 Convention on the Prevention and Punishment of the Crime of Genocide, New York, 9 December 1948, entry into force: 12 January 1951, 78 UNTS 277: Intro.1, Intro.3, II.1.2, II.3.3, III(intro), III.1.2, III.1.3, III.1.5, III.2, III.4, III.4.1, III.4.5, III.5.1, III.5.2, III.5.3, III.6, III.6.1, III.6.2, III.6.8, III.7, IV.1, VII.3, VII.7.

xxxii

Table of treaties

1949 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (with annexes), Geneva, 12 August 1949, entry into force on 21 October 1950, 75 UNTS 970: Intro.3, II.3.3, IV.6.4, IV.6.5, V(intro), V.1, V.2, V.3.1, V.3.2, V.3.3, V.4.1, V.6.3. 1949 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (with annex), Geneva, 12 August 1949, entry into force: 21 October 1950, 75 UNTS 971: Intro.3, II.3.3, IV.6.4, IV.6.5, V(intro), V.1, V.2, V.3.1, V.3.2, V.3.3, V.4.1, V.6.3. 1949 Geneva Convention (III) relative to the Treatment of Prisoners of War (with annexes), Geneva, 12 August 1949, entry into force: 21 October 1950, 75 UNTS 972: Intro.3, II.3.3, IV.6.4, IV.6.5, V(intro), V.1, V.2, V.3.1, V.3.2, V.3.3, V.4.1, V.6.3. 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (with annexes), Geneva, 12 August 1949, entry into force; 21 October 1950, 75 UNTS 973: Intro.3, II.3.3, II.3.5, IV.6.4, IV.6.5, V(intro), V.1, V.2, V.3.1, V.3.2, V.3.3, V.4.1, V.6.3. 1966 International Covenant on Civil and Political Rights, New York, 16 December 1966, entry into force: 23 March 1976, 999 UNTS 171: II.3.5, VII.3, VII.6. 1966 International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, entry into force: 3 January 1976, 993 UNTS 3: VII.6. 1969 Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, entry into force: 27 January 1980, 1155 UNTS 331: Intro.3, II.3.3, III(intro), III.5.2, III.5.3; IV.3.1.2, IV.6.1. 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Montreal, 23 September 1971, entry into force: 26 January 1973, 974 UNTS 177: VII.7 1977 Protocol Additional to the Geneva conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, entry into force: 7 December 1978, 1125 UNTS 17512: Intro.3, II.3.3, IV.3.2, IV.6.4, IV.6.5, V.1. 1977 Protocol Additional to the Geneva conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, entry into force: 7 December 1978, 1125 UNTS 17513: Intro.3, II.3.3, IV.6.4, IV.6.5, V(intro), V.1, V.2, V.3.1, V.3.2, V.3.3, V.4.1. 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984, entry into force: 26 June 1987, 1465 UNTS 85: IV.6.4, V.7. 1992 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Geneva, 3 September 1992, entry into force: 29 April 1997, 1974 UNTS 45: V.2.

Table of treaties

xxxiii

1994 Convention on the Safety of the United Nations and Associated Personnel, New York, 9 December 1994, entry into force: 15 January 1999, 2051 UNTS 363: V.4.2. 1998 Rome Statute of the International Criminal Court, Rome, 17 July 1998, entry into force: 1 July 2002, 2187 UNTS 3: Intro.1, Intro.3, II.3.1, II.5.1, II.5.4, III.1, III.1.7, III.4.6, III.6.8, III.7, IV.1, IV.2, IV.3, IV.3.1.2, IV.4, IV.5.1, IV.6.1, IV.6.6, V.3.3, V.4.2, VI.1, VII.5, VII.7.

LIST OF UNITED NATIONS DOCUMENTS

UN SECURITY COUNCIL RESOLUTIONS UN Doc. S/RES/161 (S/4741): The situation in Congo, 21 February 1961. UN Doc. S/RES/678: Iraq-Kuwait, 29 November 1990. UN Doc. S/RES/748: Letters dated 20 and 23 December 1991, from France, the United Kingdom of Great Britain and Northern Ireland and the United States of America (S/23306, S/23307, S/23308, S/23309 and S/23317) (Libya), 31 March 1992. UN Doc. S/RES/788: The situation in Liberia, 19 November 1992. UN Doc. S/RES/794: The situation in Somalia, 3 December 1992. UN Doc. S/RES/808: Establishment of an international tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia, 22 February 1993. UN Doc. S/RES/812: The situation in Rwanda, 12 March 1993. UN Doc. S/RES/814: The situation in Somalia, 26 March 1993. UN Doc. S/RES/827: Establishment of an international tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia, 25 May 1993. UN Doc. S/RES/841: The question concerning Haiti, 16 June 1993. UN Doc. S/RES/846: Establishment of UN Observers Mission Uganda Rwanda, 22 June 1993. UN Doc. S/RES/868: The security of United Nations operations, 29 November 1993. UN Doc. S/RES/872: Establishment of UN Assistance Mission for Rwanda, 5 October 1993. UN Doc. S/RES/891: Extension of UN Observers Mission Uganda Rwanda, 20 December 1993. UN Doc. S/RES/909: Extension of the mandate of the UN Assistance Mission for Rwanda and implementation of the Arusha Peace Agreement, 5 April 1994 UN Doc. S/RES/912: Adjustment of the mandate of the UN Assistance Mission for Rwanda due to the current situation in Rwanda and settlement of the Rwandan conflict, 21 April 1994. UN Doc. S/RES/918: Expansion of the mandate of the UN Assistance Mission for Rwanda and imposition of an arms embargo on Rwanda, 17 May 1994.

xxxvi

List of United Nations documents

UN Doc. S/RES/925: Extension of the mandate and deployment of the 2 additional battalions of the UN Assistance Mission for Rwanda and settlement of the conflict in Rwanda, 8 June 1994. UN Doc. S/RES/929: Establishment of a temporary multinational operation for humanitarian purposes in Rwanda until the deployment of the expanded UN Assistance Mission for Rwanda, 22 June 1994. UN Doc. S/RES/935: Request to the Secretary-General to establish a Commission of Experts to examine violations of international humanitarian law committed in Rwanda, 1 July 1994. UN Doc. S/RES/936: Appointment of the Prosecutor of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, 8 July 1994. UN Doc. S/RES/955: Establishment of an International Tribunal and adoption of the Statute of the Tribunal, 8 November 1994. UN Doc. S/RES/977: Decision to designate Arusha as the seat of the International Tribunal for Rwanda, 22 February 1995. UN Doc. S/RES/1047: Appointment of the Prosecutor for the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia and the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for such Violations Committed in the Territory of Neighbouring States, 29 February 1996. UN Doc. S/RES/1165: The International Tribunal for the former Yugoslavia (ICTY), 30 April 1998. UN Doc. S/RES/1259: The International Tribunal for the Former Yugoslavia and Rwanda – appointment of the Prosecutor, 11 August 1999. UN Doc. S/RES/1267: The situation in Afghanistan, 15 October 1999. UN Doc. S/RES/1269: The responsibility of the Security Council in the maintenance of international peace and security, 19 October 1999. UN Doc. S/RES/1315: The situation in Sierra Leone, 14 August 2000. UN Doc. S/RES/1329: International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda, 30 November 2000. UN Doc. S/RES/1373: Threats to international peace and security caused by terrorist acts, 28 September 2001. UN Doc. S/RES/1411: International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda, 17 May 2002. UN Doc. S/RES/1431: International Criminal Tribunal for Rwanda, 14 August 2002. UN Doc. S/RES/1477: International Criminal Tribunal for Rwanda, 29 April 2003.

List of United Nations documents

xxxvii

UN Doc. S/RES/1503: International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda, 28 August 2003. UN Doc. S/RES/1512: International Criminal Tribunal for Rwanda, 27 October 2003. UN Doc. S/RES/1528: The situation in Côte d’Ivoire, 27 February 2004. UN Doc. S/RES/1529: The question concerning Haiti, 29 February 2004. UN Doc. S/RES/1539: Children and armed conflict, 22 April 2004. UN Doc. S/RES/1564: Report of the Secretary-General on the Sudan, 18 September 2004. STATEMENTS OF THE PRESIDENT OF THE UN SECURITY COUNCIL UN Doc. S/PRST/1994/8: Statement by the President of the Security Council expressing concern over delays in establishing a transitional Government and the deteriorating security situation in Rwanda, 17 February 1994. UN Doc. S/PRST/1994/21: Statement by the President of the Security Council condemning the slaughter of civilians in Kigali and other parts of Rwanda, 30 April 1994. UN Doc. S/PRST/1994/55: Statement by the President of the Security Council announcing that Rwanda will hold the presidency of the Council in December 1994, 16 September 1994. UN Doc. S/PRST/2002/21: Statement [made on behalf of the Security Council, at the 4582nd meeting, held on 23 July 2002, in connection with the Council’s consideration of the item entitled “International tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”], 23 July 2002. LETTERS TO THE PRESIDENT OF THE UN SECURITY COUNCIL UN Doc. S/25355: Letter dated 28 February 1993 from the Permanent Representative of Rwanda to the United Nations addressed to the President of the Security Council, requesting circulation of his letter of 22 February 1993 requesting deployment of United Nations military observers to the Rwanda-Uganda border, 3 March 1993. UN Doc. S/25356: Letter dated 22 February 1993 from the Permanent Representative of Uganda to the United Nations addressed to the President of the Security Council, requesting establishment of a United Nations observer force on the Uganda side of the border with Rwanda, 3 March 1993. UN Doc. S/1994/428: Letter dated 13 April 1994 from the Permanent Representative of Rwanda to the United Nations addressed to the President of the Security Council, 13 April 1994. UN Doc. S/1994/445: Letter from the Permanent Representative of Belgium to the United Nations addressed to the President of Security Council, transmitting similar letters dated 15 April 1994 to the President of the Security Council and to the Secretary-

xxxviii

List of United Nations documents

General from the deputy Prime Minister and the minister for Foreign Affairs of Belgium recommending the suspension of UNAMIR and conveying the decision of the Belgium Government to immediately withdraw the Belgian battalion, 15 April 1994. UN Doc. S/1994/518: Letter from the Secretary-General to the President of the Security Council requesting that the Council re-examine the revised mandate given to UNAMIR in Resolution 912 (1994) and consider what action it could take in order to restore law and order in Rwanda and end the massacres, 29 April 1994. UN Doc. S/1994/906: Letter dated 29 July 1994 from the Secretary-General addressed to the President of the Security Council, 29 July 1994. UN Doc. S/1994/1115: Letter dated 28 September 1994 from the Permanent Representative of Rwanda to the United Nations addressed to the President of the Security Council, transmitting a statement dated 28 September 1994 of the Government of Rwanda on the establishment of an International Tribunal for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law in relation to Rwanda, 29 September 1994. UN Doc. S/1994/1125: Preliminary Report of the Independent Commission of Experts established in accordance with Security Council Resolution 935, annex to letter dated 1 October 1994 from the Secretary-General addressed to the President of the Security Council, 4 October 1994. UN Doc. S/1994/1230: Letter dated 31 October 1994 from the Charge d’Affaires a.i. of the permanent mission of Uganda to the United Nations addressed to the President of the Security Council, 31 October 1994. UN Doc. S/1994/1267: Letter dated 7 November 1994 from the Charge d’Affaires a.i. of the permanent mission of Zaire to the United Nations addressed to the President of the Security Council, 9 November 1994. UN Doc. S/1994/1405: Letter from the Secretary-General to the President of the Security Council transmitting the final report of the Commission of Experts, 9 December 1994 UN Doc. S/1995/861: Letter dated 11 October 1995 from the Charge d’Affaires a.i. of the permanent mission of Kenya to the United Nations addressed to the President of the Security Council, 11 October 1995. UN Doc. S/1995/848: Progress report of the Secretary-General on the UN Assistance Mission for Rwanda, 7 October 1995. UN Doc. S/1999/1257: Report of the Independent Inquiry into the actions of the United Nations during the 1994 genocide in Rwanda, 16 December 1999. UN Doc. S/2000/865 (and A/55/382): Identical letters dated 7 September 2000 from the Secretary-General addressed to the President of the General Assembly and the President of the Security Council, Annex I (Letter dated 12 May 2000 from the President of the International Tribunal for the Former Yugoslavia addressed to the Secretary-

List of United Nations documents

xxxix

General), and Annex II (Letter dated 14 June 2000 from the President of the International Criminal Tribunal for Rwanda), 14 September 2000. UN Doc. S/2000/915: Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, 4 October 2000. UN Doc. S/2001/764 (and A/56/265): Identical letters dated 14 September 2001 from the Secretary-General addressed to the President of the General Assembly and the President of the Security Council, Annex (Letter dated 9 July 2001 from the President of the International Criminal Tribunal for Rwanda addressed to the Secretary-General), 19 September 2001. UN Doc. S/2002/241 (and A/56/861): Identical letters dated 4 March 2002 from the Secretary-General addressed to the President of the General Assembly and the President of the Security Council, Annex (Letter dated 6 February 2002 from the President of the International Tribunal for Rwanda addressed to the Secretary-General), 8 March 2002. UN Doc. S/2002/678: Letter dated 17 June 2002 from the Secretary-General addressed to the President of the Security Council, 19 June 2002. UN Doc. S/2002/847: Letter dated 26 July 2002 from the President of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994 addressed to the President of the Security Council, 29 July 2002. UN Doc. S/2002/923:Letter dated 8 August 2002 from the President of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994 addressed to the President of the Security Council, 13 August 2002. UN Doc. S/2002/1043: Letter dated 17 September 2002 from the Permanent Representative of Rwanda to the United Nations addressed to the President of the Security Council, 19 September 2002. UN Doc. S/2003/766: Letter dated 28 July 2003 from the Secretary-General addressed to the President of the Security Council, 29 July 2003. UN Doc. S/2003/794: Letter dated 5 August 2003 from the Permanent Representative of Rwanda to the United Nations addressed to the President of the Security Council, and Annex (Statement on the proposal for the appointment of a separate Prosecutor for the International Criminal Tribunal for Rwanda), 5 August 2003. UN Doc. S/2004/341: Letter dated 30 April 2004 from the President of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory

xl

List of United Nations documents

of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994 addressed to the President of the Security Council, 3 May 2004. UN Doc. S/2004/616: The rule of law and transitional justice in conflict and post-conflict societies; report of the Secretary-General, 23 August 2004. UN Doc. S/2004/867: Letter dated 29 October 2004 from the Permanent Representative of Burundi to the United Nations addressed to the President of the Security Council, 2 November 2004. LETTERS TO THE UN SECRETARY-GENERAL UN Doc. S/25266: Letter dated 10 February 1993 from the permanent representative of France to the United Nations addressed to the Secretary-General, 10 February 1993. UN Docs. A/48/824 and S/26915: Letter dated 23 December 1993 from the Permanent Representative of the United Republic of Tanzania to the United Nations addressed to the Secretary-General, transmitting the Peace Agreement signed at Arusha on 4 August 1993, the N’sele cease-fire agreement and related Protocols of Agreement, 23 December 1993. REPORTS OF THE UN SECRETARY-GENERAL UN Doc. S/25704: Report of the Secretary-General pursuant to paragraph 2 of the Security Council Resolution 808 (1993), 3 May 1993. UN Doc. S/25810/Add.1: Interim report of the Secretary-General on Rwanda, recommending the establishment of a United Nations Observer Mission Uganda-Rwanda (UNOMUR), UN Doc. S/25810, 20 May 1993, and addendum, 2 June 1993. UN Doc. S/1994/470: Special Report of the Secretary-General on UNAMIR, containing a summary of the developing crisis in Rwanda and proposing three options for the role of the United Nations in Rwanda, 20 April 1994. UN Doc. S/1994/565: Report of the Secretary-General on the situation in Rwanda, noting that for UNAMIR to provide safe conditions for persons in need and to assist in the provision of humanitarian assistance, the mission would need to be expanded to at least 5,500 troops and be rapidly deployed, 13 May 1994. UN Doc. S/1994/640: Report of the Secretary-General on the situation in Rwanda, reporting on the political mission he sent to Rwanda to move the warring parties towards a cease-fire and recommending that the expanded mandate for UNAMIR be authorized for an initial period of six months, 31 May 1994. UN Doc. S/1994/879: Report of the Secretary-General on the establishment of the Commission of Experts pursuant to paragraph 1 of Security Council Resolution 935 (1994) of 1 July 1994, 26 July 1994.

List of United Nations documents

xli

UN Doc. S/1995/134: Report of the Secretary-General pursuant to para. 5 of Security Council Resolution 955 (1994), 13 February 1995. UN Doc. S/2004/616: The rule of law and transitional justice in conflict and post-conflict societies; Report of the Secretary-General, 23 August 2004. UN HUMAN RIGHTS REPORTS UN Doc. E/CN.4/Sub.2/416: Study of the question of the prevention and punishment of the crime of genocide, by Special Rapporteur N. Ruhashyankiko, Commission on Human Rights, 4 July 1978. UN Doc. E/CN.4/Sub.2/1985/6: Revised and updated report on the question of the prevention and punishment of the crime of genocide prepared by Mr. Special Rapporteur B. Whitaker, Commission on Human Rights, 38th session, 2 July 1985. UN Doc. E/CN.4/1994/7/Add.1: Report by Mr. B.W. Ndiaye, Special Rapporteur on extrajudicial, summary and arbitrary executions, on his mission to Rwanda from 8 to 17 April 1993, 11 August 1993. UN Doc. E/CN.4/S-3/3: Report of the UN High Commissioner for Human Rights, Mr. J.A. Lasso, on his mission to Rwanda of 11 and 12 May 1994, 19 May 1994. UN Docs. A/49/508 and S/1994/1157, annex I: Reports on the situation of human rights in Rwanda prepared by the Special Rapporteur of the Commission on Human Rights, mr. René Degni-Ségui, in accordance with Commission resolution S-3/1 and Economic and Social Council decision 1994/223, visit from 9 to 20 June 1994, 13 October 1994. UN Doc. E/CN.4/1995/7: Report on the situation of human rights in Rwanda prepared by the Special Rapporteur of the Commission on Human Rights, Mr. R. Degni- Ségui, in accordance with Commission resolution S-3/1 and Economic and Social Council decision 1994/223, visits from 9 to 20 June 1994, 28 June 1994. UN Doc. E/CN.4/1995/12: Report on the situation of human rights in Rwanda prepared by the Special Rapporteur of the Commission on Human Rights, Mr. R. Degni- Ségui, in accordance with Commission resolution S-3/1 and Economic and Social Council decision 1994/223, visits from 28 to 31 July 1994, 12 August 1994. UN Doc. E/CN.4/1995/70: Report on the situation of human rights in Rwanda prepared by the Special Rapporteur of the Commission on Human Rights, Mr. R. Degni- Ségui, in accordance with Commission resolution S-3/1 and Economic and Social Council decision 1994/223, visits from 16 to 25 October 1994, 11 November 1994. UN Doc. E/CN.4/1995/71: Report on the situation of human rights in Rwanda submitted by Mr. René Degni-Ségui, Special Rapporteur of the Commission on Human Rights under paragraph 20 of Resolution S-3/1 of 25 May 1994, 17 January 1995. UN Doc. E/CN.4/2000/NGO/25: Written statement submitted by Human Rights Watch to the Commission on Human Rights, 1 February 2000.

xlii

List of United Nations documents

INTERNATIONAL LAW COMMISSION UN Doc. A/1316 (A/5/12): Formulation of the Principles of International Law which were Recognized in the Charter of the Nürnberg Tribunal, ILC Report Chapter III, 5 June to 29 July 1950. UN Doc. A/49/10: Draft Statute for an International Criminal Court, ILC Report Chapter II, 2 May to 22 July 1994. UN Doc. A/51/10: Draft Code of Crimes Against the Peace and Security of Mankind, ILC Report Chapter II, 6 May to 26 July 1996. UN Doc. A/56/10: Draft Articles on State Responsibility, ILC Report Chapter IV, 23 April to 1 June and 2 July to 10 August 2001. GENERAL ASSEMBLY DOCUMENTS UN Doc. A/1775: General Assembly Resolution 377(V), ‘Uniting for peace’, 3 November 1950. UN Doc. A/9631: General Assembly Resolution 3314 (XXIX), ‘Definition of Aggression’, 14 December 1974. UN Doc. A/760 and Corr.2: Report of the Sixth Committee, J. Spiropoulos (Rapporteur), December 1948. UN Doc. A/51/789: Financing of the International Criminal Tribunal for the Prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring states between 1 January and 31 December 1994, Report of the Secretary-General on the Activities of the Office of Internal Oversight Services, 6 February 1997. UN Doc. A/52/784: Financing of the International Criminal Tribunal for the Prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring states between 1 January and 31 December 1994, Report of the Secretary-General on the Activities of the Office of Internal Oversight Services, 6 February 1998. UN Doc. A/RES/53/43: Fiftieth anniversary of the Convention on the Prevention and Punishment of the Crime of Genocide, 2 December 1998. UN Doc. A/53/659: Financing of the International Criminal Tribunal for the Prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring states between 1 January and 31 December 1994, Revised estimates for 1998 and

List of United Nations documents

xliii

estimates for 1999, report of the Advisory Committee on Administrative and Budgetary Questions, 11 November 1998. UN Doc. A/54/634: Identical letters dated 17 November 1999 from the Secretary-General addressed to the President of the General Assembly and the Chairman of the Advisory Committee on Administrative and Budgetary Questions, Report of the Expert Group to conduct a review of the effective operation and functioning of the international tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, 22 November 1999. UN Doc. A/55/305 and S/2000/809: Report of the Panel on United Nations Peace Operations (‘Brahimi report’), 21 August 2000. UN Doc. A/55/759: Report of the Office of Internal Oversight Services on the investigation into possible fee-splitting arrangements between defence counsel and indigent detainees at the International Criminal Tribunal for Rwanda and the International Tribunal for the Former Yugoslavia, 1 February 2001. UN Doc. A/56/836: Follow-up investigation into possible fee-splitting arrangements between defence counsel and indigent detainees at the International Tribunal for Rwanda and the International Tribunal for the Former Yugoslavia, 26 February 2002. UN Doc. A/RES/58/234: International Day of Reflection on the 1994 Genocide in Rwanda, 23 February 2004. UN Doc. A/59/565: Note [transmitting report of the high-level panel on threats, challenges and change, entitled “a more secure world: our shared responsibility”], 2 December 2004. OTHER UN DOCUMENTS UN Doc. S/96/Rev.7: Provisional Rules of Procedure of the Security Council, 21 December 1982.

LIST OF ABBREVIATIONS

A.Ch. Afr. Affairs Am. J. of Int. L. APROMOSA

Appeals Chamber African Affairs American Journal of International Law Association pour la promotion sociale de la masse Boston College Third World L. J. Boston College Third World Law Journal British Yb. of Int. L. British Yearbook of International Law Cal. W. Int. L. J. California Western International Law Journal CDR Coalition pour la défense de la République Cf. Conform Col. Hum. R. L. Rev. Columbia Human Rights Law Review Colum L. Rev. Columbia Law Review Colum. J. Transnat. L. Columbia Journal of Transnational Law Crim. L. F. Criminal Law Forum Duke J. of Comp. and Int. L. Duke Journal of International and Comparative Law e.g. exemplum gratia (for instance) ECHR European Court of Human Rights ECOSOC Economic and Social Council et al. et aliis Eur. J. of Crime, Crim. L. and Crim. Justice European Journal of Crime, Criminal Law and Criminal Justice Eur. J. of Int. L. European Journal of International Law FAR Forces Armées Rwandaises fn. footnote fns. footnotes Fordham Int. L. J. Fordham International Law Journal FRY Federal Republic of Yugoslavia

xlvi

Harv. Hum. R. J. Hum. R. L. J. Hum. R. Q. i.e. ICC ICG ICJ ICRC ICTR ICTY ILC ILM ILSA J. of Int. and Comp. L. Int. Affairs Int. and Comp. L. Q. Int. Crim. L. Rev. Int. J. of Ref. L. Int. L. Rep. Int. Rev. of Penal L. Int. Rev. of the Red Cross J. of Int. Crim. Justice J. of Modern Afr. Studies J. of Ref. Studies Leiden J. of Int. L. Max Planck Yb. of UN L. McGill L. J. MDR Melbourne Univ. L. Rev. MRND MSM Murdoch Univ. Elec. J. of L. Neth. Int. L. Rev. Neth. Yb. of Int. L. NGO NJCM no.

List of abbreviations

Harvard Human Rights Journal Human Rights Law Journal Human Rights Quarterly id est International Criminal Court International Crisis Group International Court of Justice International Committee of the Red Cross and the Red Crescent International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia International Law Commission International Legal Materials ILSA Journal of International and Comparative Law International Affairs International and Comparative Law Quarterly International Criminal Law Review International Journal of Refugee Law International Law Reports International Review of Penal Law International Review of the Red Cross Journal of International Criminal Justice Journal of Modern African Studies Journal of Refugee Studies Leiden Journal of International Law Max Planck Yearbook of United Nations Law McGill Law Journal Mouvement democratique républicain Melbourne University Law Review Mouvement révolutionnaire national pour le développement Mouvement social muhutu Murdoch University Electronic Journal of Law Netherlands International Law Review Netherlands Yearbook of International Law Non-governmental organisation Nederlands Juristen Committee Mensenrechten number

List of abbreviations

Nordic J. of Int. L. nos. NRA OAU OIOS OTP p. para. paras. PARMEHUTU PDC PL pp. PSD RADER Res. RPE RPF RTLM T.Ch. Temple Int. and Comp. L. J. Third World Q. UN Doc. UN Docs. UN UNAMIR UNAR UNTS USA USSR Virgina J. of Int. L. Virginia L. Rev. viz. vol. Wisconsin Int. L. J. Yale J. of Int. L. Yale L. J. Yb. of Int. Hum. L.

xlvii

Nordic Journal of International Law numbers National Resistance Army Organisation of African Unity Office of Internal Oversight Services Office of the Prosecutor page paragraph paragraphs Mouvement démocratique rwandais/parti du mouvement et de l’émancipation hutu Parti democrate chrétien Parti liberal pages Parti social democrate Rassemblement démocratique rwandais Resolution Rules of Procedure and Evidence Rwandese Patriotic Front Radio Télévision Libre des Mille Collines Trial Chamber Temple International and Comparative Law Journal Third World Quarterly United Nations Document United Nations Documents United Nations United Nations Assistance Mission for Rwanda Union nationale rwandaise United Nations Treaty Series United States of America Soviet Union Virginia Journal of International Law Virginia Law Review videlicet (namely) volume Wisconsin International Law Journal Yale Journal of International Law Yale Law Journal Yearbook of International Humanitarian Law

INTRODUCTION

On 8 November 1994, the UN Security Council established the International Criminal Tribunal for Rwanda (ICTR), following the hundred days of genocide in Rwanda in early 1994.1 The ICTR was given the mandate to prosecute individuals for crimes of genocide, crimes against humanity, and war crimes committed in an internal armed conflict. The ICTR was in line with the spirit of the 1990s. The end of the Cold War had set the scene for fundamental changes in the international legal order. Just before the turn of the century, the then bipolar world, in which international relations were characterised by obstruction and in which international law was State-centred and mainly based on reciprocity and peaceful co-existence, became more complex. It was hoped that a new era would begin, in which the international legal order would become more advanced and more comparable to national legal orders; an order that would show more respect for values other than merely the interests of States; in particular, for values such as peace, human rights and sustainable development. As a result of efforts that started to realise these hopes, human rights became more evident in public international law than had previously been the case. As ‘constitutionality’ and the ‘rule of law’ became common concepts in international legal discourse, the interests of human beings were taken into account more seriously. Scholars characterised this trend as the ‘humanisation of public international law’.2 However, the hopes for a more peaceful world in the new century soon disappeared. Journalists who enthusiastically attended the ceremony in South Africa in which President Mandela took office, interrupted their flight home to cover the genocide in Rwanda.3 To deal with this and other new conflicts that arose at the beginning of the 1990s, the human-oriented approach of international law turned to new initiatives. It was in this spirit that the Security Council established two criminal tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY)4 and the ICTR. These Tribunals

1 2 3 4

UN Doc. S/RES/955, 8 November 1994. Meron (2000b). Also see Kamminga (2001). Keane (1996). UN Doc. S/RES/808, 22 February 1993 and UN Doc. S/RES/827, 25 May 1993.

2

Introduction

were based on a desire to end the prevailing ‘culture of impunity’5 in the international legal order, and on the premise that in a fully-fledged, modern international community, the individual had to be viewed as a more autonomous player. In brief, these Tribunals started the process that may be typified as the ‘criminalisation of international law’.6 By establishing the ICTR, the Security Council followed the example that it had set with the creation of the ICTY in 1993. However, the conflict situations leading to the creation of the two ad hoc Tribunals were quite different: First, in the case of Rwanda, there were strong indications that the massacres which had taken place could be characterised as genocide. In the case of Yugoslavia this was not so clear at the time. Secondly, in the case of Rwanda all the crimes were committed during an armed conflict that had been classified as a non-international armed conflict. Conversely, the Statute of the ICTY had been drafted with regard to an international armed conflict, as demonstrated by its Articles 2 and 3.7 Other differences include the political landscapes in Yugoslavia and Rwanda at the time of the establishment of the respective tribunals. In Yugoslavia, the regime continued to remain in power for some time after the establishment of the ICTY. Not surprisingly, the regime in Belgrade vehemently opposed the establishment of a tribunal before which its members could be held to account. Moreover, given that the conflict was still ongoing, some scholars initially perceived the ICTY as an obstacle to the peace process, rather than a contribution.8 In Rwanda, the genocide had already ended when the ICTR was established, and change of regime had taken place.9 The new Rwandan regime represented the victims of the genocide, or at least claimed to do so. In contrast to Belgrade’s opposition, the new rulers in Kigali had issued a specific request for an international tribunal to be established.10 The establishment of both tribunals is an important landmark in contemporary international law. In fact, these tribunals revived a branch of law that had been dormant almost from its first application in 1945. However, the ICTR has not received the same amount of scholarly attention as the ICTY which, it deserves, in my opinion, given the above-mentioned differences between the two tribunals.

5 6 7 8 9 10

This phrase was used by the Secretary-General in relation to Rwanda, UN Doc. S/1995/848, 7 October 1995, para. 49. This term comes from Meron (1998). Also see Meron’s (1995) article on the criminalisation of internal atrocities. As Meron pointed out “the offences listed in Articles 2 and 3 of the Yugoslavia Statute (...) indicate that the Security Council considered the armed conflicts in Yugoslavia as international”, see Meron (1995: 556). For further details on this so-called ‘peace versus accountability debate’, see Akhavan (1998). For a more detailed discussion, see chapter I and II. For a more detailed discussion, see chapter I.

Introduction

1

3

AIM OF THE RESEARCH AND STATEMENT OF THE PROBLEM

The ICTR was neither the first nor the last international criminal tribunal to be established. Well-known predecessors include the Nuremberg and Tokyo Tribunals. Moreover, reference may be made to the mixed law of the sea tribunals at the beginning of the nineteenth century, which had the mandate to prosecute those still engaged in the slave trade,11 and to the Rhine Navigation Chamber of Appeal, which has criminal jurisdiction over traffic offences committed on the Rhine.12 These are less well-known examples of international criminal courts. The permanent International Criminal Court established in 1998 is an example of a successor institution. Furthermore, the so-called ‘internationalised courts’ for Sierra Leone13 and East Timor were set up, building on the experiences of both tribunals.14 All of the above-mentioned international courts had their own specific characteristics, as each was addressing a unique situation and was faced with distinct legal questions at different times in history. Given these differences, each court should be assessed separately to allow the particular intricacies of its operation to be analysed. The analysis may be made from different perspectives, based on historical, political or legal research. This study addresses the ICTR, from a legal perspective. As noted above, when the ICTR commenced its procedures, substantive international criminal law was a dormant branch of public international law.15 In fact, since the establishment of the ICTY and the ICTR, a distinction has been drawn between ‘new’ international criminal law and ‘traditional’ international criminal law. New international criminal law is understood as the law that concerns the three international crimes: genocide, crimes against humanity, and war crimes. This is the domain in which the ICTR operates. In contrast, traditional international criminal law, also called transnational criminal law, deals with issues such as extradition and other forms of international co-

11

12

13 14 15

Emmer (2000: 192-193). On the initiative of England, four mixed tribunals on the law of the sea were established in Freetown, in what is now Sierra Leone. In addition to English judges, these tribunals had Dutch, Brazilian, Spanish and Portuguese judges. In Surinam, there was also a mixed English-Dutch court. The Rhine Navigation Chamber of Appeal was established by the Strasbourg Convention of 20 November 1963 amending the Revised Convention for Rhine Navigation signed in Mannheim on 17 October 1868, which came into force on 14 April 1976. The Chamber of Appeal is composed of ten judges, viz. two from each State Party. The State Parties are Belgium, France, Germany, the Netherlands, and Switzerland. For more information, see Haak (1989). UN Doc. S/RES/1315, 14 August 2000 and UN Doc. S/2000/915, 4 October 2000. For more information, see Linton (2001). UNTAET Regulation 2000/15 on the Establishment of Panels with the Exclusive Jurisdiction over Serious Criminal Offences, UNTAET/REG/2000/15. For more information, see Linton (2001). On the inception of international criminal law as an independent branch of public international law, see Szurek (2000: 7).

4

Introduction

operation.16 Given the underdevelopment of new international criminal law at the start of the ICTR’s activities, the general aim of this thesis can be formulated as : To identify and analyse the contribution of the ICTR to the development of public international law; in particular to the development of international humanitarian law and international criminal law. The establishment and the Statute of the ICTR are reviewed to achieve this research aim. The main focus is on an analysis of the case law of the ICTR with regard to the three crimes mentioned above. These three crimes had not been coherently and solidly codified in 1994, when the ICTR was established. Despite many discussions in the UN International Law Commission (ILC), there was no international code of crimes, let alone an international criminal court that would actually apply such a criminal code. The definitions of the crimes that were included in the ICTR Statute were derived from various treaties and customary international law, though most of them had not yet been applied to an individual case by an international institution. More specifically, it may be noted that while the Genocide Convention was adopted in 1948, it was not until 1998 that the ICTR became the first international criminal tribunal to convict an individual for this crime. Of course, the ICTR faced challenges in the interpretation and application of this crime. These difficulties, as well as the solutions adopted by the ICTR, are examined in this study. In this exercise, other relevant international documents and jurisprudence, such as ILC drafts, ICTY practice, and the ICC Statute, are also examined. Moreover, the findings for each crime are assessed in the light of the findings for the other two crimes to assess the consistency of the ICTR’s case law. The assessment is evaluated in a broader perspective, by taking into consideration the relationship between the ICTR and the State of Rwanda , as well as the era in which the ICTR operated. Given the earlier statement in this section that international criminal law was quite immature when the ICTR was established, the question arises whether a relatively isolated international tribunal, such as the ICTR, could have a decisive and positive impact on this state of affairs. Furthermore, the question arises of what the actual influence can be of a tribunal that deals with crimes committed in a small, land-locked African State; a State that was allegedly considered too insignificant to warrant international intervention

16

In French, the distinction is more apparent. New international criminal law is called ‘droit international pénal’, whereas traditional international criminal law is called ‘droit pénal international’. For more details on the distinction between ‘old’ and ‘new’ international criminal law, see Warbrick (2003) and Leanza – Ciciriello (2003).

Introduction

5

during the genocide.17 In line with these queries, the problem addressed in this research is twofold: 1) Does the ICTR, as a tribunal that deals with crimes committed in a small State that appeared to have no strategic interest whatsoever, serve as a laboratory for international law? 2) If so, how should the work of the ICTR be evaluated?

2

STRUCTURE OF THE THESIS

Chapter I provides background information about Rwanda to provide a context for understanding the ICTR’s case law and its functioning. It explains why this background description of events is necessary. One of the criteria for ascertaining whether a crime can be classified as genocide is whether the crime was committed against a national, ethnic, racial or religious group. To apply the definition of genocide to the case of Rwanda, the ICTR had to determine whether the victim group, the Tutsi, could actually be classified as a national, ethnic, racial or religious group. In the author’s view, some insights into Rwandan society are imperative to understand the ICTR’s case law on this issue. Therefore, chapter I examines the pre-colonial and colonial periods. Further background information on the relationship between the armed conflict in Rwanda and the genocide is also important. In the first days of the genocide, the Rwandan government presented the mass killings as a horrible but unavoidable consequence of the ongoing civil war, which it could not stop, given its lack of resources resulting from that civil war. Another interpretation could be that the armed conflict sowed the seeds for the outbreak of the genocide. In cases before the ICTR, the question concerning the link between the genocide and the armed conflict was primarily discussed on a legal basis. The ICTR had to determine whether the massacres could also be classified as war crimes. For a clear understanding of this issue, it is essential to have some knowledge of the situation in Rwanda in 1990, when the armed conflict started. Therefore, chapter I also describes the four-year prelude to the genocide, as well as the genocide itself. Given the focus of the research as a whole, the case law of the ICTR is taken as a starting point for the account of the historical and political events in Rwanda in chapter I. Two of the first cases are of special relevance in this respect, viz. the Akayesu Judgement in 1998, and the Kayishema and Ruzindana Judgement in 1999.

17

In the conference commemorating the 10 year anniversary of the genocide, the former UNAMIR commander Dallaire claimed that the inactivity of the West during the genocide was due to Rwanda’s lack of strategic value and resources, see Hirondelle press release, 6 April 2004.

6

Introduction

Chapter II discusses the establishment, organisation, and jurisdiction of the ICTR. It reveals the underlying reasons for and analyses the formal process of its establishment. The following two questions are considered: i) What are the objectives of the ICTR? ii) Does the establishment of the ICTR lead to a broadened interpretation of the powers of the Security Council under Chapter VII of the UN Charter? Subsequently, the organisation and jurisdiction of the ICTR are studied, and the question whether and how the objectives are reflected in the ICTR’s constitution is examined. Chapter II aims to provide a broader perspective on the ICTR, and to consider allencompassing questions, such as: iii) Was the organisation and jurisdiction of the ICTR adequate to achieve the objectives for which it was established? Chapter III reviews the ICTR’s case law on genocide by first describing the previous situation. The summary provides a framework for assessing the contributions of the ICTR. The following questions are addressed: i) Does the ICTR widen the definition of the groups of potential victims against whom genocide can be committed? ii) Does the ICTR extensively define the physical acts that can constitute genocide? iii) How does the ICTR define the mental element? iv) What kind of proof is needed to sustain a count of genocide, particularly with regard to the elements mentioned above? Chapter IV presents the ICTR’s views on crimes against humanity. Some background on the origin of this crime is given, followed by an analysis of the case law of the ICTR. The analysis is complemented with references to the extensive jurisprudence of the ICTY. Four specific questions are addressed in this chapter: i) In what way does the ICTR contribute to establishing a common definition of ‘crimes against humanity’? ii) How does the ICTR interpret ‘widespread and systematic attack’ and ‘any civilian population’? iii) How does the ICTR define acts such as ‘extermination’ and ‘rape’? iv) What standard does the ICTR apply for ‘other inhumane acts’?

Introduction

7

Chapter V covers war crimes committed in an internal armed conflict. The chapter starts by giving some insights into the development of international humanitarian law as applicable to internal armed conflicts. Subsequently, the case law on war crimes of the ICTR is investigated, addressing four main questions: i) Has the ICTR contributed to the creation of a new international crime, viz. war crimes in internal armed conflicts? ii) How does the ICTR apply the principle of nullum crimen sine lege with regard to war crimes in internal conflicts? iii) How did the ICTR define an internal armed conflict? iv) How did the ICTR define the link that is needed between a certain act and an armed conflict to be classified as a war crime? Chapter VI examines the interrelationship between the three crimes. The main tool used is the doctrine of concurrence and, in particular, the ICTR’s case law on this matter. The relationship between the three crimes and the purpose of each crime in the context of Rwanda is examined in considerable detail. The principal question in this chapter is: To what extent do the three crime definitions result in an overlap in practice? Lastly, chapter VII presents an overall assessment of the ICTR. This concluding chapter summarises the contributions of the ICTR as described and analysed in the previous chapters. This provides a response to the statement of the problem, and there is a discussion of the challenges which the ICTR has faced throughout its existence. Moreover, specific questions are discussed, such as: Did the ICTR address the circumstances in Rwanda that necessitated the establishment of an international tribunal? Was the establishment of the ICTR in accordance with international law and to what extent does it serve as a precedent? And: What has been the quality of the ICTR’s case law, or more particularly: how can its use of sources of law be evaluated? The chapter ends with an overall evaluation of the ICTR’s performance, and a look towards the future.

3

METHODOLOGY

The main component of the research is a legal analysis of the Statute and the case law of the ICTR. Therefore the ICTR Statute, created as a legal instrument by a binding Security Council resolution, and the ICTR case law are the primary sources for every chapter. To an international lawyer, these are remarkable sources given the traditional list of sources of international law, as enshrined in Article 38 of the Statute of the International Court of Justice (ICJ Statute). In brief, the traditional sources are: treaties, customary international law and general principles of law as primary sources of law,

8

Introduction

and judicial decisions and doctrine as secondary means for the determination of international law.18 The first source used in this research, the ICTR Statute, is included in an annex to Security Council Resolution 955. As an annex, the Statute forms an integral part of the Resolution.19 In contrast, the ICTY Statute was first drawn up in a report of the Secretary-General to which the Security Council referred in the establishing resolution.20 The Security Council can consolidate customary international law in its resolutions. In these cases, the resolutions may be perceived as a collective act of States; an indication of State practice.21 Yet, given its innovative character, the Statute of the ICTR does not reflect existing customary international law in its entirety. It is rather a step forward in the progressive development of the law. In relation to the assumption that the list in the ICJ Statute is not exhaustive, this view leads to the conclusion that the Security Council resolution which established the ICTR should be viewed as an independent source of international law.22 The concluding chapter reflects more comprehensively on the special role of this Security Council resolution. The second source for this research, the ICTR case law, comes within the realm of Article 38(1)(d) of the ICJ Statute.23 However, according to the ICJ Statute, judicial decisions are only a “subsidiary means for the determination of rules of law.” Why is it then that case law plays such a pivotal role in this study? This is due to the lack of an all-inclusive treaty, which might be explained by the fact that, for a long time, States were not ready to surrender their prerogatives in the domain of criminal law. More specifically, State representatives were unwilling to create binding rules that could be used so directly to their disadvantage. Furthermore, case law may be so important, because central values of international criminal law, such as the requirement of a fair trial and the principle of nullum crimen sine lege, call for a large measure of specificity of the law. In other domains of international law, case law is a considerably less dominant source. For example, in the domain of international environmental law, treaties are by far the most important source, despite a growing body of international case law. A whole

18

19 20 21 22 23

Apart from the primary sources of international law, Cassese (2001: 149) distinguishes between secondary sources and subsidiary sources. According to this distinction, binding decisions of international organisations and judicial decisions are secondary sources “because they are provided for by rules produced by primary sources”. Cassese considers general principles of law to be a subsidiary source, because of their complementary nature. Wood (1998: 86). UN Doc. S/RES/827, 25 May 1993, preamble and op. paras. 1-2. Also see Wood (1998: 87). See Higgins (1963: 1-10, especially p. 2). Also see Higgins (1994: 34). Article 38(1)(d) of the ICJ Statute reads: “The Court, whose function it is to decide in accordance with international law such disputes as are submitted to it, shall apply: … (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”

Introduction

9

range of treaties addresses all kinds of environmental problems and regulates many issues in considerable detail.24 In contrast, the central role of case law in the domain of international criminal law underlines the dynamic and unconventional way in which international criminal law has developed in recent years. A few crucial treaties constitute an important third source for this research. These are the treaties which deal with the crimes that are enshrined in the ICTR Statute, namely the 1948 Genocide Convention and the 1949 Geneva Conventions and the 1977 Additional Protocol II. Furthermore, the 1998 ICC Statute is a very pertinent treaty, as it codified some of the developments initiated by the ICTY and the ICTR. In addition, some general treaties have been included in this research. In particular, reference can be made to the 1969 Vienna Convention on the Law of Treaties. In addition to the primary sources, other documents and authorities have been consulted for this study. Chapter I, which considers the situation in Rwanda before and during the genocide, evaluates the ICTR’s case law on the basis of socio-anthropological and political science literature. It should be noted that, given the legal character of this research, chapter I primarily draws upon the ICTR case law. It employs the socio-anthropological and political science literature only as a supplementary source in order to assess whether this case law is sound. Chapter II on the establishment, organisation, and jurisdiction of the ICTR, is based on an analysis of all the relevant Security Council resolutions as primary sources, while the verbatim records of Security Council meetings, the annual reports of the ICTR to the General Assembly and the Security Council and other UN reports, NGO reports, and doctrine serve as supplementary sources.25 Chapters III to V on the three crimes all have a similar structure and method of research. In order to determine what the contributions of the Statute and the case law have been, state-of-the-art international criminal law is first described in each of the chapters on the basis of various sources of international law, such as treaties, customary international law and doctrine, including the work of the ILC. In addition, the jurisprudence of the ICTY was used throughout the research. The Statute and case law of the ICTR are thoroughly analysed. References to the ICC Statute are included in order to assess whether the contributions of the ICTR have been sustained. Chapter VI on the interrelationship between the three crimes builds upon chapters III to V, and refers to some relevant literature as a complementary source to the jurisprudence. Lastly, chapter VII evaluates all the findings of the research, based on the previous chapters. In addition, certain UN documents, ICTY jurisprudence and doctrine are used to offer final conclusions on the legal operation of the ICTR.

24

25

An example is the 1997 Kyoto Protocol to the 1992 UN Framework Convention on Climate Change, as reprinted in ILM 37: 22 (1998). The Kyoto Protocol provides a detailed scheme for the reduction of the emission of greenhouse gases. See on supplementary means to interpret Security Council resolutions, Wood (1998: 93-95).

Chapter I

HISTORICAL AND POLITICAL CONTEXT OF THE EVENTS IN RWANDA IN 1994 This chapter provides a brief description of the historical and political context of the events in Rwanda in 1994. The chapter consists of six sections. Section I.1 explains why it is useful to gain some historical and political insight into Rwanda’s situation. Section I.2 considers the pre-colonial period (up to 1890) and examines whether the current structure of the population of Rwanda, i.e., the three co-existing groups Hutu, Tutsi, and Twa, is rooted in this period. In anticipation of the ICTR’s legal qualification,1 a preliminary definition of these groups is put forward. Furthermore, this section gives some insight into the organisation of Rwandan society. Section I.3 describes the colonial period: German rule in the period 1890-1916; and Belgian rule in the period 1916-1962. The focus is on the changes that colonisation brought to Rwanda. As history shows, colonial rule had an enormous impact on the development of Rwanda. Section I.4 is devoted to the struggle for independence and the first steps of Rwanda as a renewed independent State (1959-1990). Section I.5 considers the four years that preceded the genocide of 1994 (1990-1994). This section considers the civil war and the Arusha Peace Agreements. Section I.6 gives an account of the unfolding genocide (April-July 1994).

I.1

REASONS FOR PROVIDING BACKGROUND INFORMATION

In some of its first judgements, in the case of the former Mayor Akayesu and in the joint case against the former Prefect Kayishema and the businessman Ruzindana, the Trial Chambers provided a brief description of the history of Rwanda.2 The aim was to ensure a full understanding of the events alleged in the indictments, as well as the evidence presented to the Trial Chambers.3 One Trial Chamber explicitly stated that it did not

1 2 3

For a legal qualification of the Rwandan population groups, see chapter III, section III.5. The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 78-111; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 31-54. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 78; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 31.

12

Chapter I

seek to clarify why the atrocities of 1994 had occurred. It considered that this would be inappropriate in the setting of a criminal trial.4 As the Chambers did not attempt to explain the genocide, the question could arise whether there is any point in including a historical account in a judgement. It could be argued, as the Trial Chambers did, that some historical context is necessary to understand the facts of each case. However, it is also possible to argue that a judge is neither a historian, nor should he5 try to be one. Both positions have been adopted in the ICTR. For example, this is reflected by the two different kinds of indictments that were issued by the Prosecution. On the one hand, there are indictments including a section on general history, even though that historical information does not necessarily pertain to that specific case.6 On the other hand, there are short indictments concentrating on the facts and accusations of the particular case concerned in the indictment.7 After the two judgements in the cases of Akayesu and Kayishema and Ruzindana, the Trial Chambers no longer included general historical accounts in their judgements. They concentrated instead on the facts and allegations relevant to the case in hand. In the case of Musema, the Trial Chamber still set out some general facts, on which the Prosecution and the defence agreed.8 Later on, even that was considered inappropriate. Hence, in the case of Gacumbitsi, the Trial Chamber stated that the Hutu, Tutsi, and Twa constituted three different ethnic groups, without addressing the defence’s contention that this population structure derived from the colonial or pre-colonial era.9 This was apparently considered irrelevant to the charges. Moreover, the Trial Chamber refrained from pronouncing any findings on the general situation in Rwanda after 6 April 1994, and emphasised that it was only interested in the events that had occurred in Rusumo Commune,10 the Commune of which Gacumbitsi had been Mayor in April 1994.11 In the case of Ndindabahizi, in which the defence protested against contextual evidence presented by the Prosecution,12 the Trial Chamber also agreed that there was a “need to exclude consideration of matters which have little probative value in relation to the

4 5

6 7 8 9 10 11 12

The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 32. Taking due account of the fact that a significant number of female judges serve and have served at the ICTR, in the remainder of this thesis only the masculine gender will be used in all cases where the person referred to could be either male or female. E.g., The Prosecutor v. Bagosora, Indictment, 12 August 1999; The Prosecutor v. Niyitegeka, Indictment, 25 November 2002. E.g., The Prosecutor v. Bagambiki and Imanishimwe, Indictment, 9 October 1997; The Prosecutor v. Nzabirinda, Indictment, 6 December 2001. The Prosecutor v. Musema, Judgement, 27 January 2000, paras. 303-316, 354-360. The Prosecutor v. Gacumbitsi, Judgement, 17 June 2004, paras. 27-28. The Prosecutor v. Gacumbitsi, Judgement, 17 June 2004, paras. 29-34. The Prosecutor v. Gacumbitsi, Judgement, 17 June 2004, para. 6. The Prosecutor v. Ndindabahizi, Judgement, 15 July 2004, paras. 45-47.

Historical and political context of the events in Rwanda in 1994

13

charges”.13 In contrast, the so-called Media case does devote some attention to historical facts and to the findings in the Akayesu Judgement on the historical context of the genocide. This can no doubt be attributed to the fact that the accused in that case stressed the importance of understanding the history of Rwanda in order to understand their acts.14 The position adopted in the debate on the importance of taking the historical background into account is related to views on the goals of criminal justice. Either a trial should have the broader goal of revealing the truth, or the tasks of the judges should be confined to establishing whether the accused is guilty of the accusations beyond any doubt. The definition of the purpose of a criminal trial depends largely on individual legal backgrounds. Civil lawyers tend to be more devoted to ‘revealing the truth’, whereas common law lawyers generally take the second approach which has as its central focus a fair trial with two equal parties.15 Although the ICTR is most probably not in a position to unveil the ultimate truth on what happened in Rwanda in 1994, some insights into the historical and political context are imperative to comprehend and evaluate the ICTR’s case law. Therefore, this chapter outlines the history of Rwanda. The record is primarily based on the first judgements and on the testimonies of expert witnesses who appeared before the ICTR. Complementary information is obtained from UN documents,16 socio-anthropological and political science literature17 and accounts of journalists.18 It should be noted at the outset that the history of Rwanda is rather complex. Landmark events have been subject to political manipulation and now there are many contradictory interpretations from different authoritative sources.19 It should also be emphasised that several requests by the Prosecu-

13 14 15 16

17 18 19

The Prosecutor v. Ndindabahizi, Judgement, 15 July 2004, para. 50. The Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Judgement, 3 December 2003, para. 105. One judge of either the ICTR or the ICTY described the common law adversarial system as “a combat situation between two parties”, UN Doc. A/54/634, 22 November 1999, para. 67. In various instances, the Trial Chambers took judicial notice of UN documents, e.g., The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 157, 165 and 627. Facts of which judicial notice is taken need no further proof. Also see Rule 94 RPE as last amended on 15 May 2004. The Appeals Chamber has indicated that judicial notice may indeed be taken of the existence and authenticity of UN documents, but not of their contents. Therefore, these documents can only be used in a complementary manner. With regard to Security Council resolutions and statements of the President of the Security Council, judicial notice can be taken of the contents as well, since it was the Security Council that established the Tribunal, The Prosecutor v. Semanza, Decision, 3 November 2000, para. 38. Key literature on the history and the genocide in Rwanda includes Lemarchand (1970), Reyntjens (1994), Prunier (1997), Des Forges (1999), and Mamdani (2001). For instance, Keane (1996). Another more comprehensive account of the situation in the region is Braeckman (1997). This was also remarked in the OAU report, Rwanda: The Preventable Genocide, Report of the Panel of Eminent Personalities to Investigate the Genocide in Rwanda and the Surrounding Events, CM 12048 (LXVII) (hereinafter OAU report), 29 May 2000, paras. 2.1-2.3.

14

Chapter I

tion to take judicial notice of some historical ‘facts’, as described in this summary, have been denied by different Trial Chambers.20

I.2

RWANDA BEFORE THE COLONISATION

Rwanda has not always been one united country. There were several separate minor entities throughout the country which all wished to expand. The Kingdom of Rwanda started its expansion in the 16th century. During the next centuries, neighbouring territories were gradually conquered. Some subjected Kingdoms were easily assimilated, whereas other areas, in particular in the North and Northwest, retained a certain degree of autonomy or even full autonomy.21 The Kingdom of Rwanda had a centralised State structure.22 The smallest territorial unit in Rwandan society was the ‘hill’. Usually several households or lineages, extended families, had their living on a hill. These lineages were either Hutu or Tutsi; both were based on a patriarchal system. Moreover, clans could comprise Hutu and Tutsi. Several hills together constituted a district. The King, Mwami, wielded his power through a balanced system of chiefs. Many districts were governed by three chiefs; all three were directly appointed by the King. One chief governed the cattle of the district, a second chief the land, and a third was the army chief. In most cases, the first chief was a Tutsi, the second a Hutu, and the third either a Hutu or a Tutsi. The competences of the first two chiefs concerned taxes and the administration of justice, while the third chief had military tasks.23 By the end of the nineteenth century, when colonialism was about to arrive in Rwanda, the strong and most famous King Rwabugiri ruled Rwanda.24 Under his leadership the Kingdom had expanded substantially, mainly towards the north. However, some of these new areas of the Kingdom retained autonomy.25 The degree of control of the Mwami therefore ranged from direct control to only nominal government and everything in between, depending on factors such as the time of incorporation into the Kingdom and whether the population was only Hutu or also Tutsi.26 Arable and cattle farmers, as well as some hunters-gatherers, lived together. The population was divided into three groups: Hutu, Tutsi, and Twa. The three groups spoke

20

21 22 23 24 25 26

E.g., The Prosecutor v. E. and G. Ntakirutimana, Decision, 22 November 2001; The Prosecutor v. Nyiramasuhuko and Ntahobali, The Prosecutor v. Nsabimana and Nteziryayo, The Prosecutor v. Kanyabashi, The Prosecutor v. Ndayambaje, Decision, 15 May 2002. Lemarchand (1970: 18-21). Also see the testimony of Des Forges, 11 February 1997, pp. 27, 28, 47, 48. Lemarchand (1970: 27). Also see The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 80. Testimony of Reyntjens, 13 October 1997, p. 26. Also see the testimony of Des Forges, 11 February 1997, p. 30. Also see Reyntjens (1984: 333) and Prunier (1997: 11-13). Prunier (1997: 15). A good description on this process is offered by Prunier (1997: 16-23). Reyntjens (1984: 330).

Historical and political context of the events in Rwanda in 1994

15

the same language. The groups were, and still are, unequal in number. The Hutu constituted the vast majority. The Tutsi were a smaller elite group, while the Twa formed a tiny minority, at the bottom of society. There are various theories about the characterisation of these groups. Scientific researchers in the 1960s and 1970s, such as d’Hertefelt, Maquet, and Lemarchand, argued that the three population groups and the three main occupations in Rwandan society were divided along the same lines. The Twa were the hunter-gatherers and were the first inhabitants of Rwanda. The Hutu arable farmers arrived after the Twa, or possibly at the same time, followed by the Tutsi cattle farmers in the thirteenth century. Building upon pre-existing Hutu Kingdoms, the Tutsi cattle farmers established the Kingdom of Rwanda by conquering, infiltrating, and assimilating into the society of Hutu cultivators. According to this theory, the Twa derive from a pygmy race, the Hutu from the Bantu, and the Tutsi are most likely to have their roots in what is now called Ethiopia. The three groups are said to have distinct physical features.27 D’Hertefelt classified these groups as castes. He defined a caste as a hereditary, endogamous group with a specific occupation, structured in a hierarchical system.28 Prunier agreed that the invading Tutsi might have originated from a distinct racial stock. However, he indicated that the Hutu and Tutsi categories were not fixed categories in the pre-colonial era.29 Intermarriage was common and blurred the distinction. Moreover, two social processes stimulated the intermingling of the two population groups. First, ubuhake: a contract between a shebuja (a patron), and a mugaragu (a client), concerning the fief of a cow. Since only the Tutsi kept cows, a Hutu client and his lineage could accede to the Tutsi group when concluding a ubuhake contract.30 Secondly, the process of igikingi: royal land concession. The King, who owned Rwanda, granted land to the Tutsi. If Hutu were granted land through this process, it meant that they were tutsified; they entered the nobility. This process started under King Rwabugiri.31 In their testimony to the Trial Chambers, the expert witnesses Des Forges and Guichaoua maintained that the racial theory is currently no longer accepted. Des Forges noted that a distinction certainly existed between cultivators and pastoralists in the precolonial era. However, she argued that the division between the two occupations did not necessarily coincide with the ethnic division between Hutu and Tutsi made by the colonisers.32 In the pre-colonial period, the prevailing groups were mainly clan-based, and the clans consisted of Hutu, Tutsi, and Twa. Des Forges remarked that the Kinyar-

27 28 29 30 31 32

D’Hertefelt (1962: 16-24), Maquet (1954: 22-26), Maquet (1961: 10-12), and Lemarchand (1970: 18-19). D’Hertefelt (1962: 16). Prunier (1997: 5-23). Prunier (1997: 12-14). Prunier (1997: 20-22). Testimony of Des Forges, 11 February 1997, pp. 39 and 40. Also see the testimony of Reyntjens, 13 October 1997, pp. 23-25.

16

Chapter I

wandan word ugoko could refer to clan as well as to ethnicity.33 Furthermore, Des Forges indicated that the word ‘Tutsi’, originally meaning a person rich in cattle, was later used to refer to the elite group as a whole. Similarly, the word ‘Hutu’, in its original sense a subordinate or a follower of a more powerful person, changed to apply to the mass of ordinary people.34 In its first judgement, in the Akayesu case, the Trial Chamber incorporated Des Forges’ viewpoint. It stated: “The terms Hutu and Tutsi were already in use but referred to individuals rather than to groups. In those days, the distinction between the Hutu and Tutsi was based on lineage rather than ethnicity. Indeed, the demarcation line was blurred: one could move from one status to another, as one became rich or poor, or even through marriage.”35

Based on testimonies of the other expert witness, Guichaoa, another Trial Chamber reached a similar conclusion that differences between the three groups have a social origin rather than an ethnic or racial one. The following statement may be quoted: “Thus, it is recognised that prior to the colonisation of Rwanda, by Germany and later Belgium, the line separating the Hutus and Tutsis was permeable as the distinction was class-based. In other words, if a Hutu could acquire sufficient wealth, he would be considered a Tutsi.”36

During cross-examination, Guichaoa pointed out that is has never been scientifically proven that the Twa and the Hutu were the first inhabitants and that the Tutsi invaded at a later date.37 In his expert report, Guichaoua categorically denied that all the crises suffered by Rwanda after independence could be traced back to an age-old conflict between the two groups. Guichaoua asserted that in each crisis there had been unique reasons for exploiting the ethnic distinction.38 In the end, the ICTR adhered in its case law to the contemporary theory that the structure of the Rwandan population has a social background. Therefore the ICTR rejected the idea that the Hutu, the Tutsi, and the Twa derive from distinct racial stocks.

33 34 35 36 37 38

Testimony of Des Forges, 11 February 1997, pp. 30-32. Testimony of Des Forges, 11 February 1997, p. 41. Also see Des Forges (1999: 32-33). The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 81. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 34. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 36. Political Background to the 1994 Rwandan Crises, expert report prepared at the request of the International Criminal Tribunal for Rwanda, by André Guichaoua, April 1997, Arusha (Tanzania), Document I, p. 10.

Historical and political context of the events in Rwanda in 1994

I.3

17

THE COLONISATION OF RWANDA

The colonial period in Rwanda was relatively short. It lasted from approximately 1890 until 1959. After the death of the great King Rwabugiri in the 1890s, the Germans established control in Rwanda.39 They administered Ruanda-Urundi through the local political structure, i.e., by indirect rule. Upon their arrival as colonisers, the Germans were manipulated in the power struggle that had arisen after Rwabugiri’s death. They subsequently consolidated the reign of the new Mwami Yuhi Musinga.40 During World War I, in 1916, the Belgians took over Ruanda-Urundi from the Germans. After the war, Ruanda-Urundi was officially assigned to Belgium in the MilnerOrts agreement between Great Britain and Belgium on 31 March 1919.41 This was legally ratified three years later. As a territory that had formerly been governed by Germany, Ruanda-Urundi was entrusted to the ‘advanced nation’ of Belgium in 1922, pursuant to Article 22 of the Covenant of the League of Nations. Belgium was entrusted with the well-being and development of the people of Ruanda-Urundi according to the class B mandate, stipulated in Article 22(5) of the Covenant.42 At first, the Belgians claimed that they would govern both Rwanda and Burundi through indirect rule.43 However, after some time they severely intruded into both societies, though in a different manner in the two territories because of the different prevailing situations in each territory. Since the Burundi King did not exercise as much authority as the Rwandan King, the Belgian policy in Burundi was to divide and rule by playing off the different chiefs against the Mwami, in this way weakening the latter’s position. In contrast, the Belgian policy in Rwanda was aimed more at governing through the Mwami, thus strengthening his control.44 As regards Rwanda, Reyntjens identified four interconnected changes resulting from Belgian rule.45 First, between 1920 and 1930, the Belgians sought to simplify the State structure and they established uniform direct control in all the governed districts. The Northern and Northwestern parts, which had, up to that time, only been nominally subjected, were incorporated in the centralised system. Although Hutu chiefs had always governed these areas, Tutsi chiefs now replaced them. Secondly, in their efforts to establish a more uniform state, the Belgians abolished the smallest unit, the hill. In 1927, the great variety of units was regrouped into a smaller number of more equal administra-

39 40 41 42 43 44 45

Political Background to the 1994 Rwandan Crises, expert report prepared at the request of the International Criminal Tribunal for Rwanda, by André Guichaoua, April 1997, Arusha (Tanzania), Document II, p. 4. Lemarchand (1970: 48, 56-63) and Prunier (1997: 23-25). Lemarchand (1970: 63). League of Nations on the Mandate System, LoN/1945.VI.A.1, 30 April 1945. Lemarchand (1970: 65-66). Lemarchand (1970: 48-63). Reyntjens (1984).

18

Chapter I

tive chiefdoms and sub-chiefdoms. Thirdly, the threefold hierarchy of Hutu and Tutsi chiefs in those administrative units, which had ensured the balance of power in the precolonial constitution, was replaced by a more simplistic structure. Every chiefdom had one Tutsi chief. Thus, leadership became a Tutsi monopoly.46 In 1923, the Belgians had already taken over the King’s competence to appoint chiefs. The ethnic element which became more important as a result of these changes was further emphasised by the introduction of identity cards in 1931. These cards indicated to which population group an individual belonged. The fluid lines that had existed between the population groups, making it quite easy to shift from one group to the other and back, were now rigidly determined once and for all. Fourthly, the Belgians dismissed the Mwami, and replaced him with his son.47 Although the colonial policy had an immense impact on Rwandan society,48 the Trial Chambers did not devote much attention to it. They merely noted that identity cards were issued by the Belgians, as these cards played such a prominent role in the genocide.49 The omission may be understandable, as there is no conclusive answer to the question to what extent the colonial policy set the scene for later violence. It may also be that the Trial Chambers wanted to avoid any assumption that a reference to Rwanda’s colonial past could in any way diminish the criminal responsibility of current perpetrators of genocide and other crimes. A position that, in my view, cannot be stressed enough. This last position was expressly adopted in the Media case. In this case, which regarded three individuals who were involved in the media that incited genocide, the accused stressed the importance of pre-1959 history. The Trial Chamber replied that “[t]his backdrop to the events [apparently referring to pre-colonial and colonial times] that transpired in Rwanda in 1994 may explain to a large extent the otherwise almost incomprehensible level and intensity of the violence that erupted in April 1994 and continued relentlessly for several months. However, the Chamber recalls and underlines that this history cannot be used to justify such violence.”50

46 47 48 49 50

This monopoly was strongly supported by the Catholic Church, testimony of Des Forges, 12 February 1997, pp. 17-19. Also see Lemarchand (1970: 69-70) and Prunier (1997: 30-31). Lemarchand (1970: 47). The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 83; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 35. The Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Judgement, 3 December 2003, para. 109.

Historical and political context of the events in Rwanda in 1994

I.4

19

RENEWED INDEPENDENCE FOR RWANDA

In the wake of the Second World War, the colonial order came soon under attack in international relations. With the transition of the League of Nations to the United Nations system in 1945, Ruanda-Urundi became a UN Trust Territory of Belgium, pursuant to chapter XII of the UN Charter. Consequently, Belgium changed its policy and commitment towards Rwanda. Since the Tutsi openly pursued the struggle for independence, the sympathy of the Belgians shifted to the Hutu population group.51 Parallel to this development, Catholic priests started to take a more democratic and egalitarian stand in favour of the Hutu.52 Moreover, the newly arrived Flemish priests identified more easily with the oppressed Hutu; this was because they implicitly drew a comparison with their own home situation and the Walloons.53 As a result of the pressure of the Trusteeship Council and the above-mentioned social changes in Rwanda, the Trusteeship started to evolve towards independence during the 1950s.54 The independence process is marked by some significant events.55 The most important are mentioned here. In 1952, the Belgians introduced elections for the administrative levels. Despite a Hutu majority of the voting population, the elite Tutsi retained all the power. In response to this, the Bahutu Manifesto was published in 1957 by a group of Hutu intellectuals of central Rwanda, which included was Grégoire Kayibanda, who later became President of the Republic of Rwanda. The full title of the manifesto was Notes on the Social Aspect of the Racial Native Problem in Rwanda. It protested against the exclusion of power of the Hutu population. Later that year the first political parties were created. First, the Mouvement social muhutu (MSM) was founded by Grégoire Kayibanda. Two years later this party was transformed into the Mouvement démocratique rwandais/parti du mouvement et de l’émancipation hutu (PARMEHUTU). This party was mainly based around the Gitarama Prefecture. Another Hutu party seceded from this party at the end of 1957, the Association pour la promotion sociale de la masse (APROMOSA), led by Joseph Gitera. That party focused on the southern Hutu of Butare. In 1959, the Tutsi created the Union nationale rwandaise (UNAR), which was fiercely monarchist. Rassemblement démocratique rwandais (RADER) was the most moderate party and was not ethnically based.56 During the ‘social revolution’ from 1959 to 1961,

51 52 53 54 55 56

The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 86. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 85. The Trial Chamber’s view is based on the testimony of Des Forges, 12 February 1997, pp. 19-22. Prunier (1997: 42-45). The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 87. Also see the testimony of Reyntjens, 13 October 1997, pp. 28-31, and Lemarchand (1970: 79-89). Prunier (1997: 41-54). The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 88. Also see the testimony of Reyntjens, 13 October 1997, pp. 31-34, and the testimony of Des Forges, 12 February 1997, pp. 25-26.

20

Chapter I

the Hutu took over power from the Tutsi57 and tensions between the two groups increased. The situation first exploded at the end of 1959 when a PARMEHUTU member was severely beaten by UNAR activists.58 As a reaction, the Tutsi were harshly persecuted and emigrated to the neighbouring countries of Burundi, Uganda, Tanganyika, and Congo.59 In 1960, the Tutsi, nick-named Inyenzi (cockroaches), started uncontrolled guerrilla fights from Uganda. In the period of unrest that followed the attack of 1959, the Belgians openly favoured the Hutu. They did not act decisively against the Hutu violence. Instead, they organised elections at several levels which led to a take-over of power by the Hutu and ultimately to the Hutu Kayibanda becoming the first President in September 1961.60 Rwanda officially became independent on 1 July 1962.61 In December 1963, Tutsi refugees launched quite a successful attack from Burundi, leading to severe retaliation against the Tutsi population within Rwanda. As a result, some 10,000 Tutsi were killed.62 In terms of power stratification, Kayibanda excluded the Tutsi from power and introduced ethnic quota, according to which only nine per cent of the civil service could be Tutsi. To suppress any tensions between Hutu from the north and from the south, Kayibanda excluded politics from Rwandan society.63 A decade later, Kayibanda saw his position weakened, due to tensions between Hutu from Gitarama, Kayibanda’s home base, and those from the Northern Prefectures of Ruhengeri and Gisenyi. Kayibanda refuelled the hate campaign against the Tutsi in order to remain in power, but in vain: Habyarimana, a Hutu from the North of Rwanda, took over power on 5 July 1973, and installed the second Republic.64 Habyarimana continued some of his predecessor’s policies, for example, formalising the one-party system with the creation of his own party Mouvement révolutionnaire national pour le développement (MRND).65 In contrast to Kayibanda’s government, Rwanda initially experienced some peace and stability under Habyarimana.66 The President’s power was directly passed down to the ten Prefects – eleven after Kigali became a separate Prefecture in 1992 – and to all Mayors of the approximately

57 58 59 60 61 62 63

64 65 66

Testimony of Des Forges, 12 February 1997, pp. 39-42. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 37. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 37. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 89. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 89. For a description of Kayibanda’s government, see Prunier (1997: 54-61). The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 90. The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 90 and 91, based on the testimony of Des Forges, 12 February 1997, pp. 52-53, and The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 39. The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 91-92. Also see the testimony of Des Forges, 12 February 1997, pp. 64-66. The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 91-93. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 93.

Historical and political context of the events in Rwanda in 1994

21

145 Communes, who were directly appointed by the President.67 The most significant figure after the President was the Minister of Interior.68 With regard to the importance of Mayors, the expert witness Des Forges pointed out that Mayors were generally influential political players, who exercised a great deal of power over their citizens.69 In the late 1980s, economic recession led to increasing protests against the nepotism of Habyarimana’s regime. Opposition against Habyarimana mainly came from Hutu from other regions than the favoured northern Prefectures of Ruhengeri and Gisenyi, which were Habyarimana’s home base.70

I.5

THE FOUR YEARS BEFORE THE GENOCIDE (1990-1994)

Two concurrent developments mark the four years that preceded the genocide. These developments first concern the external attack on Rwanda by Rwandan refugees residing in Uganda, and secondly the changes on the internal political scene of Rwanda. The events were interrelated: the invasion of the Rwandese Patriotic Front (RPF) from Uganda on 1 October 1990 added to the volatile political situation and eventually led to a complete radicalisation of the political scene of Rwanda.71 This section first describes the invasion and its background, and then describes the political reforms in Rwanda. The invasion As observed above, the retaliatory politics of Kayibanda had resulted in a diaspora of Tutsi refugees over the neighbouring countries of Burundi, Uganda, Tanzania, and Zaire.72 The way in which the refugees were received varied from country to country. While the Tanzanian government made a successful effort to integrate the newcomers, the Ugandan government, led by Milton Obote, made the Tutsi scapegoats after an initial welcome, and used the refugees as pawns in its power struggle with Museveni.73

67 68 69

70

71 72 73

In 1993, some Mayors were dismissed and replaced by indirectly elected mayors, testimony of Reyntjens, 13 October 1997, pp. 65-67. Testimony of Reyntjens, 13 October 1997, pp. 62-63. Testimony of Des Forges, 12 February 1997, pp. 66-76. Later on judicial notice was taken of certain aspects of the position of the Mayor, see The Prosecutor v. Semanza, Decision, 3 November 2000. For an indication of the powers of a Prefect, see The Prosecuter v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004, paras. 191-196, 631-643. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 93; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 43. Also see the testimony of Des Forges, 12 February 1997, pp. 77-78. OAU report, 29 May 2000, para. 6.1. Also see Prunier (1997: 61-74). Van der Meeren (1996).

22

Chapter I

Marginalised by Obote, many Tutsi in Uganda joined Museveni’s National Resistance Army (NRA). When Museveni conquered Kampala in 1986, 20 to 30 per cent of his army was Tutsi.74 Under Museveni’s regime, the Tutsi were given important roles in Ugandan politics and in the Ugandan national army. Four years later, their influence decreased due to internal politics. Subsequently the Tutsi again became increasingly marginalised in Ugandan society. Their deteriorating position stimulated the establishment of the RPF. On 1 October 1990, the RPF actually invaded Rwanda. By then, the Front consisted of a few thousand deserters from the Ugandan national army, who took the military equipment they needed.75 The RPF invoked the right of exiles to return to their home country to justify its invasion.76 It also asserted that the lack of democracy in Rwanda and the violation of human rights by the Rwandan government legitimised the attack. Initially the RPF invasion was quite successful. So much so, that the Rwandan government found it necessary to fake an attack on Kigali in the night of 4 October 1990.77 This manoeuvre served two purposes. First, it was used as a pretext to arrest thousands of presumed opponents, and secondly it was aimed at acquiring foreign military aid. At Rwanda’s request, France sent substantial military aid, some 600 troops. Belgium and Zaire also offered some support.78 The RPF was effectively halted on its way to Kigali. In subsequent years, the armed conflict between the Rwandan government forces and the RPF lingered on,79 resulting in hundreds of thousands internally displaced people in Rwanda who fled the zones occupied by the RPF.80 The expert witness Des Forges, working for Human Rights Watch, told the Trial Chamber in the Media case that she had documented human rights violations committed by the RPF.81 In the earlier judgements in the Akayesu case and the Kayishema and Ruzindana case, there was no mention at all of any RPF crimes. Thus the reference in the Media case denoted the ICTR’s late acknowledgement that the conflict in Rwanda was more complex than it appeared at first sight. As a more general response to the RPF invasion, Habyarimana resorted to the wellknown tactics of retaliation against the Tutsi in Rwanda itself.82 In the Media case, the expert witness Des Forges named 17 major attacks against Tutsi during the years pre-

74 75 76 77 78 79 80 81 82

Testimony of Reyntjens, 13 October 1997, pp. 78-79. Testimony of Reyntjens, 13 October 1997, pp. 73-74. Also see Prunier, (1997: 93). The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 95; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 45. Also see Reyntjens (1996). The Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Judgement, 3 December 2003, para. 110. Also see Prunier (1997: 101-102). Testimony of Reyntjens, 13 October 1997, pp. 74, 77, 81-82. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 45. Prunier (1997: 135-136). The Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Judgement, 3 December 2003, para. 110. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 93.

Historical and political context of the events in Rwanda in 1994

23

ceding the genocide.83 As an expert witness in the case of Rutaganda, Reyntjes had also indicated that ethnic massacres had taken place as preludes to the genocide in the years 1990-1994. In this respect, he referred to the speech of Leon Mugesera in March 1992, as a very clear and direct incitement to commit genocide.84 Relying in addition on the testimony of the expert witness Des Forges, the Trial Chamber noted in its judgement in the Media case that from 1991 there was a tendency to picture all Tutsi as the enemy, as evidenced, inter alia, by a secret military report on “how to defeat the enemy in the military, media and political domains”.85 The Akayesu Judgement had also pointed out that radio station Radio Télévision Mille Collines played an important role in spreading anti-Tutsi propaganda.86 The Trial Chambers in the cases of Akayesu, Kayishema and Ruzindana and in the Media case stated that youth wings of the political parties MRND and the CDR, known as Interahamwe and Impuzamugambi respectively, turned into militias.87 In his testimony in the Rutaganda case, Reyntjes explained that, behind the scenes, the violence was organised by ‘Zero Network’, which was composed of members of the Akazu, the small circle around the wife of Habyarimana.88 Political reforms The RPF attack resulted in increased tension in Rwanda. With the addition of some external pressure the tension led to political reform during the years 1990-1994. The La Baule Declaration can be cited as an example of foreign pressure. This declaration was adopted at a Franco-African summit in June 1990. It required the initiation of a process of democratisation as a precondition for economic aid.89 It was felt that the ‘wind of democracy’ was gradually starting to blow softly over French Africa. Rwanda

83 84 85

86 87

88 89

The Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Judgement, 3 December 2003, para. 110. Testimony of Reyntjens, 13 October 1997, pp. 180-207. The Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Judgement, 3 December 2003, para. 112. According to the Indictment of Bagosora, President Habyarimana had set up a military commission on 4 December 1991 to report on how to defeat the enemy, The Prosecutor v. Bagosora, Indictment, 12 August 1999, para. 5.5. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 100. On the role of the media, also see Chrétien (2002). The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 99; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 52; The Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Judgement, 3 December 2003, para. 113. In the case of Ntagerura, Bagambiki, and Imanishimwe, the Trial Chamber found that the youth movement Interahamwe was “associated with, but not necessarily incorporated into the MRND party.” The Prosecutor v. Ntagerura, Bagambiki, Imanishimwe, Judgement, 25 February 2004, para. 84. In the case of Semanza, the Trial Chamber also acknowledged that the Interahamwe as such was not easy to qualify in general terms. It started out as a youth wing of the MRND, but a large part of its members later turned into militia. Moreover, a defence expert witness in the latter case pointed out that during the genocide, the term Interahamwe was used to denote all extreme youths and other people participating in the genocide, The Prosecutor v. Semanza, Judgement, 15 May 2003, paras. 286-289. Testimony of Reyntjens, 13 October 1997, pp. 118-126. Also see Reyntjens (1995b). See Prunier (1997: 89-90, 106-107) and Bertrand (2000: 20-21, 41).

24

Chapter I

responded to the demands of this political reform, even though the unconditional nature French support for Habyarimana was evident, given their military presence. In 1991, a new constitution introduced a multiparty system.90 New political parties were established. The biggest new party was the Mouvement democratique républicain (MDR). There were also four other parties, viz. the Coalition pour la défense de la République (CDR), a radical Hutu party, and the more moderate parties Parti liberal (PL), Parti social democrate (PSD), and Parti democrate chrétien (PDC).91 In 1992, the regime accepted sharing power with the MDR. A few months later negotiations with the RPF started in Arusha, Tanzania aimed at restoring peace and discussing power-sharing.92 In the course of these negotiations, several cease-fire agreements were concluded, the final one on 12 July 1992.93 The CDR, as well as some elements of the MRND, fiercely opposed the peace process. Other parties accepted the RPF as a partner at the negotiation table until 8 February 1993, when the RPF broke the cease-fire. This seriously undermined the trust and belief in the RPF’s motives, leading to divisions in the internal opposition parties (the MDR, the PL, the PSD, and the PDC). The political scene became bipolar, with the RPF on the one hand, and the MRND on the other hand.94 On 4 August 1993, the last Arusha Peace Agreement was concluded. The warring parties once again confirmed the cease-fire, and they agreed on (i) a transitional government that would include the RPF, (ii) the partial demobilisation and integration of the armed forces of both parties, (iii) the return of the refugees, and (iv) the resettlement of displaced persons.95 The Agreement would be monitored by United Nations Assistance Mission for Rwanda (UNAMIR).96 UNAMIR was a so-called peacekeeping mission,97 and had many tasks to fulfil according to its mandate. These tasks included contributing to the security of Kigali, monitoring the observance of the cease-fire agreement, and investigating and reporting on incidents regarding the activities of the gendarmerie and the police.98

90 91 92 93 94 95 96 97 98

The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 46. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 47. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 96. N’Sele Ceasefire Agreement between the Government of the Rwandese Republic and the Rwandese Patriotic Front, as amended at Gdabolite, 16 September 1991, and at Arusha, 12 July 1992. Testimony of Reyntjens, 13 October 1997, pp. 91-101. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 102. Also see the testimony of Reyntjens, 13 October 1997, pp. 82-86. The establishment of UNAMIR was proposed in the Arusha peace agreement and realised by a Security Council Resolution, UN Doc. S/RES/872, 5 October 1993. For more details on peacekeeping missions in general, see Bothe (2002: 648-700) and Shaw (2003: 11071117). UN Doc. S/RES/872, 5 October 1993, para. 3.

Historical and political context of the events in Rwanda in 1994

25

Pursuant to its Rules of Engagement, as drafted by General Dallaire, UNAMIR soldiers were permitted to use force in self-defence and to prevent crimes against humanity.99 This power was not specifically attributed to UNAMIR through its official mandate. Therefore in practice there was some confusion regarding the powers of UNAMIR. The main contributors to UNAMIR were Bangladesh, Ghana, and Belgium.100 It proved impossible to implement the Arusha Peace Agreement, and the transitional government was never installed. The situation became increasingly tense. The murder of the first Hutu President in neighbouring Burundi, Ndadaye, in October 1993, contributed dramatically to the spread of fear.101

I.6

THE GENOCIDE (APRIL-JULY 1994)

In February 1994, the situation in Rwanda worsened after two ‘political’ assassinations,102 and it exploded on 6 April 1994, when the presidential aircraft was shot down, killing, amongst others, President Habyarimana of Rwanda and President Ntaryamira of Burundi.103 This act triggered the outbreak of the genocide of the Tutsi population of Rwanda.104 Although it is still officially unresolved, there are serious allegations that it was the RPF which shot down the plane.105 Subsequently, the cease-fire was broken, and the civil war restarted.106 Directly after the aircraft crashed, the military took over power under the lead of former Colonel Bagosora. However, an interim government was officially formed. The first killings occurred in the capital, and targeted the Hutu opposition. Despite surveillance by UNAMIR soldiers, key opponents of the Akazu were taken from their houses and assassinated. Among these victims were the Prime Minister Uwilingiyimana, and the

99 100 101 102 103

Dallaire and Breadsley (2003: 72, 144). Prunier (1997: 204). The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 103. Testimony of Reyntjens, 13 October 1997, pp. 214-222. The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 103-106; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 53-54. 104 The Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Judgement, 3 December 2003, para. 121. In a Report of 31 May 1994, the Secretary-General stated that there was little doubt that the killings amounted to genocide. Report of the Secretary-General on the situation in Rwanda, reporting on the political mission he sent to Rwanda to move the warring parties to a cease-fire and recommendations that the expanded mandate for UNAMIR be authorized for an initial period of six months, UN Doc. S/1994/640, 31 May 1994, para. 36. For the legal determination that genocide was committed in Rwanda, see chapter III, section III.3. 105 For further details, see chapter II, section II.5.1 106 Testimony of Reyntjens, 13 October 1997, pp. 85-87.

26

Chapter I

President of the Supreme Court, Kavaruganda.107 Ten Belgian peacekeepers who were protecting the Prime Minister were also targeted and, after they had laid down their weapons and surrendered, they were brutally murdered. UN peacekeepers protecting other political figures failed to intervene.108 At the same time, roadblocks were set up around Kigali in order to check identity cards and identify the Tutsi population.109 The genocide immediately spread through the country to other Prefectures. Mass killings took place in the Prefectures of Kibuye, Gikongoro, and Cyangugu in particular. All over the country, Tutsi sought refuge in churches, schools and other traditional places of refuge; in some cases they did so on the instructions of the authorities. To no avail. The hundreds or thousands of people that had gathered together in such places of refuge were prevented from leaving again, and were subsequently attacked. The Southern Prefecture of Butare initially remained quite calm under the leadership of Prefect Habyalimana, a Tutsi. However, on 19 April 1994, President Sindikubwabo, Prime Minister Kambanda, and a number of other Ministers of the interim government paid a visit to this Prefecture. Speeches were given at a rally, and Prefect Habyalimana was dismissed and replaced by Nsabimana. In the following days, the genocide that had already engulfed other parts of Rwanda, became a reality in Butare as well.110 In the hundred days of genocide in Rwanda, an estimated 937,000 people were killed.111 In a report, the Special UN Rapporteur for Rwanda identified three direct causes for the genocide, namely the rejection of alternative political power, the effective incitement to racial hatred, and the existence of a culture of impunity.112 The following chapter examines whether and how these causes were taken into account when the international community decided to establish the ICTR.

107 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 107. Also see the report by the Special Rapporteur of the Commission on Human Rights, UN Docs. A/49/508 and S/1994/1157, 13 October 1994, para. 23. 108 In the ICTR judgements, UNAMIR’s failure is not expressly mentioned. The Judgement in the case of Rutaganda did touch upon the inability of UNAMIR to provide protection. It noted that thousands of Tutsi sought protection in the ETO compound where UNAMIR troops were based, and that armed Interahamwe surrounded the compound. The Trial Chamber observed that “[w]hen the UNAMIR troops left the ETO on 11 April 1994, the Interahamwe and members of the Presidential Guard entered and attacked the compound,…”, The Prosecutor v. Rutaganda, Judgement, 6 December 1999, para. 299. With regard to this incident, Akhavan (1997: 331-332) remarked that the Indictment of Rutaganda may in a way also be read as an indictment of the international community. 109 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 123; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 287-288. 110 For more detailed descriptions of the unfolding genocide, see Des Forges (1999: 180-594) and Prunier (1997: 213-280). 111 This number is based on an official census of the Rwandan government, Hirondelle press release, 5 April 2004. 112 UN Doc. E/CN.4/1995/71, 17 January 1995, paras. 22-25.

Chapter II

THE ESTABLISHMENT, ORGANISATION AND JURISDICTION OF THE ICTR Four months after the genocide, the Security Council established the ICTR. This Tribunal was the second ad hoc Tribunal to be created by the Security Council. The first ad hoc Tribunal was the ICTY. The organisation of the ICTR was modelled on the ICTY, as were the provisions on jurisdiction. In special circumstances, adjustments were made, when and where necessary. In many respects, the ICTY paved the way for the ICTR. In the Tadic´ case, the ICTY gave an affirmative answer to the question whether the Security Council actually had the power to establish an international tribunal.1 The ICTR largely adhered to this precedent. This chapter studies the establishment, organisation, and jurisdiction of the ICTR. Section II.1 investigates the legal and political path that led to the ICTR’s establishment. The actual process of its establishment, as it was assessed by the ICTR itself in the Kanyabashi case, is considered in section II.2. Section II.3 describes the (legal) arguments in favour and against the ICTR as put forward by different parties during the course of its establishment, and as evaluated by various scholars. Subsequently, this chapter examines the organisation and jurisdiction of the ICTR. Section II.4 considers the organisation of the ICTR, while section II.5 describes the parameters of the ICTR’s jurisdiction. These sections address the question whether the objectives that the drafters had in mind are accurately reflected in the ICTR’s organisation and its jurisdiction. They also examine whether any other principles guided the Security Council in its undertaking to define the jurisdiction. Section II.6 makes some concluding remarks regarding the ICTR’s establishment, organisation, and jurisdiction.

II.1

THE RWANDAN CONFLICT AND THE INTERNATIONAL COMMUNITY

From 1993, the international community was involved in the Rwandan conflict.2 During their peace negotiations, the warring parties as well as neighbouring Uganda asked the

1 2

The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995. The first resolution of the Security Council on the Rwandan conflict, which started in 1990, is UN Doc. S/RES/812, 12 March 1993.

28

Chapter II

United Nations for assistance.3 In response to these requests the Security Council first established the United Nations Observer Mission Uganda – Rwanda (UNOMUR) which monitored the border between Uganda and Rwanda.4 The comprehensive Arusha Peace Agreement of 4 August 19935 envisaged the creation of the UNAMIR peacekeeping operation to monitor the implementation of the Agreement.6 UNAMIR was established, but the rest of the Peace Agreement was not carried out. Instead, the situation deteriorated7 and the atrocities committed from 6 April 1994 were on an unprecedented scale. In the turmoil, ten Belgian peacekeepers were targeted and killed, whereupon Belgium reconsidered its contribution to UNAMIR and decided to retreat.8 This section analyses the international community’s involvement in Rwanda. Subsection II.1.1 describes the Security Council’s interference. Subsection II.1.2 sets out which Special Rapporteurs visited Rwanda before, during, and after the genocide, and subsection II.1.3 introduces the Commission of Experts.

II.1.1 The Security Council Following the withdrawal of the Belgian battalion, the first response of the Security Council was to formally reduce the size and mandate of UNAMIR.9 Even the urgent recommendation of the Secretary-General on 29 April 1994 to consider the use of force did not produce an effective response.10 Some of the subsequent resolutions of the Security Council to reinforce UNAMIR were neither adequate nor successful.11 Yet these resolutions, aimed at revising UNAMIR’s mandate, recognised for the first time

3 4 5 6 7 8 9

10 11

UN Doc. S/25356, 3 March 1993, and UN Doc. S/25355, 3 March 1993. UN Doc. S/RES/846, 22 June 1993, based on recommendations of the Secretary-General, UN Doc. S/25810, 20 May 1993. The mandate was extended for six months, UN Doc. S/RES/891, 20 December 1993. The comprehensive agreement is annexed to UN Docs. A/48/824 and S/26915, 23 December 1993. UNAMIR was established by UN Doc. S/RES/872 (1993), 5 October 1993. On the eve of the genocide, the mandate was extended by UN Doc. S/RES/909, 5 April 1994. UN Doc. S/PRST/1994/8, 17 February 1994. UN Doc. S/1994/445, 15 April 1994. UN Doc. S/RES/912, 21 April 1994, pursuant to the second alternative given in the Special Report of the Secretary-General on UNAMIR, UN Doc. S/1994/470, 20 April 1994. UNAMIR was formally downgraded from 2500 men to 270. UN Doc. S/1994/518, 29 April 1994. On 13 May 1994, the Secretary-General wrote a compelling report on the situation in Rwanda, UN Doc. S/1994/565, 13 May 1994. In response, the Security Council envisaged expanding the size and mandate of UNAMIR, UN Doc. S/RES/918, 17 May 1994, and UN Doc. S/RES/925, 8 June 1994. However, with these moves UNAMIR II remained within the realms of a peacekeeping operation. The contributions of Member States required for these authorised expansions of UNAMIR were not made in time, and the resolutions were therefore not properly implemented. In Resolution 925, the Council acted for the first time under Chapter VII, and imposed an arms embargo.

The establishment, organisation and jurisdiction of the ICTR

29

that genocide was being committed.12 Earlier, debates in the Security Council had focused on the resumed civil war,13 apparently regarding the genocide as a collateral event. Finally, at the very end of the genocide, the Security Council authorised a multinational force to undertake a humanitarian operation led by France, under Chapter VII of the UN Charter.14 The mandate of this operation, entitled Opération Turquoise by the French, was to use all necessary means to achieve two humanitarian objectives, namely “(a) Contribute to the security and protection of displaced persons, refugees and civilians at risk in Rwanda, including the establishment and maintenance, where feasible, of secure humanitarian areas; (b) Provide security and support for the distribution of relief supplies and humanitarian relief operations.”

II.1.2 Special Rapporteurs Parallel to the actions of the Security Council, several rapporteurs to the UN Commission on Human Rights on the one hand,15 and the UN High Commissioner for Human Rights on the other hand,16 reported on the situation in Rwanda.17 These human rights efforts and the peace and security efforts mutually affected each other. For instance, the Secretary-General and the Security Council at first appeared reluctant to qualify the killings in Rwanda as genocide, due to the legal and moral obligations that such a qualification would entail under the 1948 Genocide Convention.18 In contrast, the Special Rapporteur on extrajudicial, summary or arbitrary executions had already referred to the

12 13 14 15

16 17 18

In Resolution 918 (1994), the Council stated in descriptive words that genocide was a crime under international law, whereas Resolution 925 (1994) was more explicit, using the actual word ‘genocide’. Melvern (2001: 108). UN Doc. S/RES/929, 22 June 1994. There were two Special Rapporteurs who reported on the situation in Rwanda, one on the subject of summary and arbitrary executions and the other country-related, and thus specially focussed on Rwanda. UN Doc. E/CN.4/1994/7/Add.1, 11 August 1993, UN Doc. E/CN.4/1995/7, 28 June 1994, UN Doc. E/CN.4/1995/12, 12 August 1994, UN Doc. E/CN.4/1995/70, 11 November 1994; the last three reports are brought together in UN Doc. E/CN.4/1995/71, 17 January 1995. UN Doc. E/CN.4/S-3/3, 19 May 1994. The post of High Commissioner of Human Rights was created by the General Assembly, following the World Conference on Human Rights held in Vienna, 14-25 June 1993. For a detailed description and analysis of the UN Human Rights System and Rwanda, see Nygren Krug (1998) and Ouguergouz (1996). Article 1 of the 1948 Genocide Convention reads: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” For more on the duty to prevent genocide, see chapter VII, subsection VII.3. On the United States’ efforts to avoid using the word ‘genocide’, see Power (2003: 358-364).

30

Chapter II

1948 Genocide Convention on his visit in April 1993.19 In its third special session of 24 and 25 May 1994, the UN Human Rights Commission also plainly stated that it believed that genocidal acts were being committed in Rwanda, and appointed a Special Rapporteur for Rwanda to investigate the human rights situation. By doing this, the Human Rights Commission forced the Secretary-General and the Security Council to recognise that genocide was being committed and to act on it.20

II.1.3 The Commission of Experts Lacking the will to intervene effectively in Rwanda,21 a statement of the President of the Security Council of 30 April 1994 and the subsequent resolution focused on the investigation of violations of international humanitarian law and requested the SecretaryGeneral to make proposals in that respect.22 The Security Council emphasised that individual responsibility applied for these violations and underlined that killing members of an ethnic group with the intention of destroying such a group in whole or in part was a crime punishable under international law. The Council initially avoided using the word genocide. Following the recommendations of the Secretary-General,23 the Security Council decided that a Commission of Experts had to be established.24 The Commission was given the task of drawing up conclusions on the basis of the evidence of grave violations of international humanitarian law, including possible acts of genocide.25 To a great extent, the Commission could rely upon the investigations that had already been conducted by the Special Rapporteur. In its interim report, the Commission of Experts concluded that individuals from both parties to the armed conflict had committed serious violations of international humanitarian law and crimes against humanity.26 With regard to the crime of genocide, the Commission stated it had only found evidence of the genocide of the Tutsi population

19

20 21

22 23 24 25 26

As noted in the Report of independent inquiry into the actions of the UN during the 1994 genocide in Rwanda, UN Doc. S/1999/1257, 16 December 1999, the recommendations of Ndiaye given with a view to prevent further massacres were ignored by key players within the UN. The Secretary-General did so in UN Doc. S/1994/640, 31 May 1994, para. 36. The Security Council followed Resolution 925, see above, notes 11 and 12. This lack of political will was not admitted at the time. However, it clearly follows from the steps that the Council took and afterwards it was explicitly stated that the main failure of the UN vis-à-vis Rwanda concerned the lack of resources and the lack of political will to take the actions necessary to prevent or stop the genocide, UN Doc. S/1999/1257, 16 December 1999, para. 3.10. UN Doc. S/PRST/1994/21, 30 April 1994, and UN Doc. S/RES/918, 17 May 1994. UN Doc. S/1994/640, 31 May 1994. UN Doc. S/RES/935, 1 July 1994. UN Doc. S/RES/935, 1 July 1994. Also see UN Doc. S/1994/879, 26 July 1994, and on the finally appointed members of the Commission, UN Doc. S/1994/906, 29 July 1994. For more on the Commission of Experts, see Sunga (1995).

The establishment, organisation and jurisdiction of the ICTR

31

in Rwanda.27 The Commission consequently recommended expanding the jurisdiction of the ICTY, so that this Tribunal would be empowered to deal with the Rwandan crimes.28 In his first report, the Special Rapporteur had already hinted at the possibility of prosecution at the international level.29 In the Commission’s final report, the recommendation was not repeated, as the ICTR had already been established by the time that the report came out.30

II.2

THE ESTABLISHMENT OF THE ICTR

Based on the recommendation of the Commission of Experts and in response to the request of the Rwandan government31 – although Rwanda eventually disagreed with the conditions – the Security Council established the ICTR, acting under Chapter VII.32 The full name was: “The International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994”.

Occasionally the ICTR is also referred to as the Genocide Tribunal. In pursuance of Article 8 of the ICTR Statute, the ICTR has primacy over national courts. The process of establishing the ICTR as described above, followed the lead of the ICTY. O’Brien, who worked at the Office of the Legal Advisor of the US Department of State, identified the steps that were taken to arrive at the establishment of the ICTY as follows.33 He indicated that, first, the situation in Yugoslavia had been qualified as a threat to the peace under Article 39 of the UN Charter and that there were no other, politically feasible, remedies. The subsequent steps identified by O’Brien were the condemnation of the atrocities as international crimes in Security Council resolutions, the publication of the atrocities after requesting States and other bodies to submit substantiated information to the Secretary-General, the investigation by a Commission of Experts and finally, the establishment of an ad hoc Tribunal.

27 28 29 30 31 32 33

UN Doc. S/1994/1125, 4 October 1994, paras. 146-149. The findings were reiterated in the final report, UN Doc. S/1994/1405, 9 December 1994, paras. 181-187. UN Doc. S/1994/1125, 4 October 1994, para. 152. UN Doc. E/CN.4/1995/7, 28 June 1994, para. 11. UN Doc. S/1994/1405, 9 December 1994. UN Doc. S/1994/1115, 29 September 1994; UN Doc. A/49/PV.21, 6 October 1994, p. 5. UN Doc. S/RES/955, 8 November 1994. O’Brien (1993: 640).

32

Chapter II

This reconstruction explains how the ICTY came to be established. The reason why these means were chosen was purely political, since, as O’Brien pointed out, there were no other politically feasible remedies. This applies for the ICTR as well. The entire process outlined above shows that the major incentive for establishing an ad hoc Tribunal for Rwanda was the disgraceful lack of activity on the part of the international community during the genocide. The precedent of the ICTY34 and the specific request of the Rwandan government undoubtedly played an important role as well. Despite the subsequent protests of the Rwandan government against some aspects of the ICTR,35 the Rwandan government consequently pledged to cooperate. The traditional way of establishing an international tribunal would have been with negotiations at the State level culminating in a treaty, most likely through the forum of the General Assembly. Each State would then have been able to choose for itself whether or not to ratify the treaty. Despite Rwanda’s consent, this tradition was not followed in case of the ICTR. Instead, the ICTR was established by a binding measure of the Security Council under Chapter VII as a subsidiary organ of the Council as had previously been done with the ICTY. In his report on the ICTR, the Secretary-General indicated that this approach would ensure the continued cooperation of Rwanda, as well as cooperation of other States where suspects might have found refuge. In addition, the chosen way of establishing the ICTR was far more expedient than establishing it by treaty.36 These reasons have a practical ring to them. At the legal level, the method was questioned by defendants appearing before the ICTR. The defence put forward several arguments to challenge the ICTR. Relevant arguments, as well as the ICTR’s response, are considered in the subsections that follow. Subsection II.2.1 deals with the preliminary question of whether the ICTR had the competence to review its own establishment. Subsection II.2.2 enquires whether the situation in Rwanda was appropriately qualified as a threat to the peace. Subsection II.2.3 considers whether the choice to establish a tribunal fell within the remit of Article 41 of the UN Charter, and subsection II.2.4 reviews the character of the ICTR as a subsidiary organ.

34

35 36

As pointed out by the Representative of New Zealand in the meeting when Resolution 955 was adopted, “the response [to the genocide in Rwanda] could be no less than it was in Nuremberg or Tokyo decades ago or in respect of war crimes in the former Yugoslavia last year.” UN Doc. S/PV.3453, 8 November 1994, p. 4. See subsection II.3.2. UN Doc. S/1995/134, 13 February 1995, para. 6.

The establishment, organisation and jurisdiction of the ICTR

33

II.2.1 The motion on jurisdiction in the Kanyabashi case Kanyabashi, a former Mayor, was the first to dispute the legality of the ICTR.37 In a preliminary motion, Kanyabashi challenged the competence of the Security Council to establish a tribunal. The motion also contested the ICTR itself. It claimed that the ICTR infringed on the sovereignty of States, that it exercised unjustified primacy over national courts, and that such an international tribunal could not exert direct jurisdiction over individuals. The latter claim is addressed in section II.6 on jurisdiction, while the current section deals with the Security Council’s powers to establish the ICTR. Before Kanyabashi’s challenge to the legality of the ICTR could be considered on its merits, there was a preliminary issue of whether an ad hoc tribunal is competent to review its establishment by the Security Council. As the majority of the ICTY Appeals Chamber in the Tadic´ case had already pointed out, this question touches on the sensitive issue of whether decisions of the Security Council can be subjected to review by a judicial body. In the Kanyabashi Decision, the ICTR Trial Chamber did not explicitly delve into that question, despite its comment that the motion deserved “full consideration”.38 It seems that the Trial Chamber tacitly followed the view of the ICTY Appeals Chamber in the Tadic´ case that the motion challenging the legality of the establishment fell within its inherent jurisdiction. According to the ICTY Appeals Chamber, such a review was different from a general judicial review, since it concerned an incidental review undertaken solely to determine whether the ICTY could exercise its primary or substantive jurisdiction as laid down in the ICTY Statute.39 However, in a later Decision in the case of Karemera, an ICTR Trial Chamber stated that it did not “have the authority to review or assess the legality of Security Council decisions and, in particular, that of Security Council Resolution 955.”40 The initial adherence of the ICTR Trial Chamber to the views of the ICTY Appeals Chamber may be welcome for reasons of legal unity. However, in the process of the Tadic´ case, the views displayed by the ICTY Trial Chamber and in the Appeals Chamber

37 38 39 40

The Prosecutor v. Kanyabashi, Decision, 18 June 1997. The Prosecutor v. Kanyabashi, Decision, 18 June 1997, para. 6. The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, paras. 14-22. The Prosecutor v. Karemera, Decision, 25 April 2001, para. 25. The Chamber referred in this instance to the ICJ judgement in the Nicaragua case on admissibility, Case concerning military and paramilitary activities in and against Nicaragua, Nicaragua v. United States of America, Jurisdiction of the Court and Admissibility of the Application, Judgement, 26 November 1984, ICJ Reports 1984, p. 392. This reference is rather misplaced, since the ICJ stated in this instance, as was even cited by the Karemera decision, that it was not asked to review the Security Council’s decision. The ICJ did not say whether, if asked, it had the power to do so. Also see The Prosecutor v. Karemera, Ngirumpatse, Nzirorera, and Rwamakuba, Decision, 29 March 2004, paras. 9-10.

34

Chapter II

differed significantly.41 Moreover, the issue of a judicial review of Security Council resolutions is highly controversial and the Tadic´ Decision has been endorsed as well as contested on different grounds by various distinguished authors.42 Therefore one could argue that the ICTR need not have followed a precedent that had not been clearly established, and that the ICTR should have reinforced the debate for the benefit of the development of law. The Trial Chamber in the Karemera case adopted its own approach. However, since the necessary legal arguments to support those findings were lacking, this Decision cannot be considered sufficient either. In contrast with this issue on the admissibility, the merits of the motion were fully reconsidered, although the Trial Chamber regularly referred to the ICTY precedent in the Tadic´ case. The most interesting aspects of the Decision are those that relate to circumstances which differ from those addressed by the ICTY. Most notable in this respect is the conclusion that the situation in Rwanda constituted a threat to the peace, even though the armed conflict had already ended.43 The debate on the powers of the Security Council to establish an ad hoc tribunal as a subsidiary organ was mainly conducted with regard to the ICTY, as was the discussion on the precise legal basis. It was not discussed in detail by the ICTR.

II.2.2 Rwanda: a threat to the peace? This section deals with the conclusion of the Security Council that the situation in Rwanda posed a threat to the peace. The UN Charter invests the Security Council with the primary responsibility for maintaining international peace and security. Specific powers have been granted to the Council in Chapters VI, VII, VIII, and XII.44 To use its powers under Chapter VII, the Security Council must first determine that a certain situation poses a threat to, or breach of the peace in accordance with Article 39 of the UN Charter. In

41

42 43 44

The Prosecutor v. Tadic´, Decision, 10 August 1995 (The Trial Chamber stated that it had no authority to review the legality of the establishment by the Security Council, but nevertheless addressed the Defence’s submissions for reasons of legitimacy). The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, and the Separate Opinions of Judge Li, paras. 2-4, and of Judge Sidhwa, paras. 13-36. Judge Li argued that the Security Council had never given the Tribunal the power to review the legality of its resolutions, and further that the questions of whether there was a threat to the peace and how to address that threat were of a political nature. He considered that the Appeal Chamber’s review was ultra vires and unlawful. Judge Sidhwa emphasised the difference between the ICJ, which has jurisdiction by consent, and the ICTY, which has obligatory jurisdiction over individuals. He considered that the ICTY could exercise judicial review for the purpose of determining the legal consequences of the Council’s actions. However, he indicated that, ultimately, only the Security Council has the power to address any legal flaw in the establishment that the ICTY might note in such judicial review. Aldrich (1996), Alvarez (1996), Sassòli (1996), Warbrick (1996), and Klabbers (2002: 186-187). Schraga and Zacklin (1996: 505). Article 24(1) and (2) of the UN Charter.

The establishment, organisation and jurisdiction of the ICTR

35

the Kanyabashi case, the defence argued that the non-international armed conflict in Rwanda had not posed a threat to the peace and that consequently the Security Council had not been competent to act within the remit of Chapter VII. The defence further submitted that peace and security had already been re-established at the time of the Security Council’s action, since the civil war had finished by then. In several resolutions the Security Council determined that a threat to the peace and security existed in Rwanda.45 Whereas the first two of these resolutions defined the situation in Rwanda as a threat to the peace and security in the region, the latter assessed the situation as a threat to international peace and security. The Security Council mentioned various elements as a basis for its decision. It is notable that in Resolution 929 (1994) no specific reference was made to the impact of flows of refugees on neighbouring countries.46 Instead, the Council deemed the genocide as such to be a “threat to the peace and security.” Thus it appraised the internal humanitarian situation in itself to be a matter of international concern, lifting it outside the scope of Article 2(7) of the UN Charter, which defines the domestic jurisdiction of States.47 Some people argue that the Council has unlimited discretion to determine when there is ‘a threat to the peace’ and that determining this cannot be subject to judicial review.48 In the Kanyabashi case, the Trial Chamber also stated that the Council enjoys a wide discretion under Article 39 of the UN Charter and that decisions taken within this discretion are not subject to judicial review.49 In comparison, the Trial Chamber in the Karemera Decision was slightly less outspoken, merely stating that the Security Council had a discretionary power under Article 39 of the UN Charter.50 In the Kanyabashi Decision, the Trial Chamber considered that the Council was bound by the provisions of Chapter VII of the UN Charter and in particular by Article 39,51 but it is unclear what that means in the present situation, since the decision had already been taken under Article 39. In contrast, the ICTY Appeals Chamber contended in the Tadic´ case that the Security Council’s power under Article 39 was not totally unrestricted, since it had to

45 46

47 48

49 50 51

UN Doc. S/RES/918, 17 May 1994, UN Doc. S/RES/929, 22 June 1994, and UN Doc. S/RES/955, 8 November 1994. In this Resolution, the Council determined that the magnitude of the humanitarian crisis constituted a threat to the peace and security in the region. According to Österdahl (1998: 59-65), the genocidal killings were considered as a threat to international peace, regardless of international linkages. In so doing, the Security Council broke new ground, according to Lee (1996: 42). Based on authoritative sources, Akande (1997: 336-341) convincingly argued that a decision under Article 39 of the UN Charter is solely political and therefore inherently unreviewable, regardless of the question whether any organ can review Security Council actions at all. The Prosecutor v. Kanyabashi, Decision, 18 June 1997, para. 20. The Prosecutor v. Karemera, Decision, 25 April 2001, para. 25. The Prosecutor v. Kanyabashi, Decision, 18 June 1997, para. 20.

36

Chapter II

correspond with the Purposes and Principles of the Charter.52 The ICTR Trial Chambers did not expressly adhere to this view. Despite noting the Security Council’s discretion, the ICTR Trial Chamber in the Kanyabashi case did consider it necessary to rebut the defence’s contentions that there was no threat to the peace. In so doing, the Chamber recalled that the Security Council had determined in various cases, such as Congo, Somalia, and Liberia, that non-international armed conflicts could constitute a threat to international peace because of their impact on neighbouring countries.53 However, on closer examination, it becomes clear that the determination of a threat to the peace in these cases had not primarily been based on their repercussions for other States. In the cases of Congo and Liberia it appeared that the civil war itself was regarded as a threat to the peace.54 The Security Council went even further when it determined that the conflict in Somalia was a threat to the peace, as to some extent that referred to the magnitude of the human tragedy.55 Thus in the Somalia case, human suffering in itself was an element that was considered to constitute a threat to the peace. Regarding the specific conflict of Rwanda, the Trial Chamber deemed two facts to be relevant for the Security Council’s determination. First, it pointed to the enormous flows of refugees into neighbouring countries, including many armed refugees. Secondly, according to the Chamber, there was a real risk that the conflict would spread through the region, as a result of ethnic links within certain groups of the population of the countries concerned.56 The considerations of the Chamber are rather conservative, because Security Council practice demonstrates that international links are not necessarily required.57 Moreover, the Chamber could have pointed to other examples of creative applications of Article 39 of the UN Charter to underline the Security Council’s wide discretion. For instance, it could have referred to the Council’s determination that the non-reinstatement of the legitimate government of Jean-Bertrand Aristide in Haiti constituted a threat to the peace,58 or to Resolution 748 (1992) concerning Libya, in which the failure of the Libyan

52 53

54

55 56 57 58

The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, paras. 28 and 29. The Chamber did not clearly indicate the exact Security Council resolutions. Presumably, these are resp. UN Doc. S/4741, 21 February 1961, UN Doc. S/RES/794, 3 December 1992 and UN Doc. S/RES/788, 19 November 1992. Österdahl (1998: 43 and 56 resp.). Miller (1961: 2-3) argued that in the Congo case there were international links, since some members of the Security Council characterised the situation in Congo as a threat to the peace because of the Belgian intervention. Österdahl (1998: 53). The Prosecutor v. Kanyabashi, Decision, 18 June 1997, paras. 19-24. Chapter V, section V.4, answers the question of whether these links made this an international armed conflict. Frowein (2002: 723-726). UN Doc. S/RES/841, 16 June 1993. Also see Österdahl (1998: 65-70), Sands and Klein (2001: 49), and Frowein (2002: 725).

The establishment, organisation and jurisdiction of the ICTR

37

government to hand over two suspects of the terrorist attacks on the Pan Am flight was characterised as a threat to the peace.59 Reference to these examples would have indicated that the notion of a ‘threat to the peace’ is extremely broad, and such reference would therefore have supported the determination that the situation in Rwanda posed a threat to the peace, even though the civil conflict had already ended.60 The Chamber now failed to explain clearly why a threat to the peace still existed in November 1994, four months after the end of the armed conflict and the concurrent genocide. Instead, the Chamber vaguely noted that peace and security could not be established adequately without justice being done.61 Österdahl clarified the Chamber’s vague statement. He explained that the term ‘peace’ apparently has a broader meaning than the mere absence of war. It also encompasses a process of national reconciliation and the prosecution of persons who are responsible for genocide and other violations of international humanitarian law.62 These are certainly the objectives that the Security Council referred to in its resolution establishing the ICTR. In 2004, some of the accused submitted that as the situation in Rwanda no longer constituted a threat to the peace, the Prosecution did not have the power to bring new charges. The Trial Chamber dismissed this argument and emphasised that only the Security Council could decide when and whether a threat to the peace had ceased to exist.63

II.2.3 Article 41 of the UN Charter A rather academic question arose after the discussion of the Security Council’s ability to qualify the Rwandan conflict as a threat to the peace. This concerned the specific legal basis of the measure to establish a tribunal, since the enabling resolution and the verbatim records of the meeting in which the resolution was adopted did not indicate an exact provision, but merely spoke of a Chapter VII resolution. In the Tadic´ case, the ICTY Appeals Chamber had indicated that the establishment of a tribunal had to be considered a measure under Article 41 of the UN Charter, i.e., a measure not involving the use of force.64 The Trial Chamber followed this judgement in the Kanyabashi case. The defence argued that the establishment of a tribunal was a measure which the drafters of Article 41 had never contemplated. The Chamber reiterated that the list of measures in Article

59 60 61 62 63 64

UN Doc. S/RES/748, 31 March 1992. Also see Frowein (2002: 725-726) and Österdahl (1998: 77). Sunga (1997: 334) argued that the determination of a threat to the peace should be broad enough to encompass the aftermath of a civil war in which there is still a risk that the fighting may resume. The Prosecutor v. Kanyabashi, Decision, 18 June 1997, paras. 25-26. Österdahl (1998: 63-64). The Prosecutor v. Karemera, Ngirumpatse, Nzirorera, and Rwamakuba, Decision, 29 March 2004, para. 7. The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, paras. 33-35.

38

Chapter II

41 was not exhaustive, and that they merely served as examples.65 In the Karemera Decision, the Trial Chamber emphasised that the Security Council had the discretion to take the appropriate measures to address a threat to the peace and security.66

II.2.4 The ICTR as a subsidiary organ: impartial and independent? A subsequent matter raised in the Kanyabashi case concerned the question of whether a political organ such as the Security Council could establish a judicial subsidiary organ without compromising the latter’s independence and impartiality.67 Following the Decision of the ICTY Appeals Chamber in the Tadic´ case, the Trial Chamber pointed out that criminal courts are usually created by political legislative bodies. This in itself does not affect the independence of such a court. The independence of a court is guaranteed by international standards on a fair trial and by the personal independence of the judges. This argument does not explicitly address the issue of whether, in the international order, the Security Council could attribute powers to a subsidiary organ that it does not possess itself. In the Tadic´ case, the ICTY Appeals Chamber stated that the ICTY should be viewed as an instrument for the exercise of the Council’s main function, viz. the maintenance of peace and security.68 The question on the legality of the ICTR as a subsidiary organ has two components.69 The first is the lawfulness of its establishment by the Security Council, and mainly concerns the compatibility of the Council’s actions with the UN Charter. The second is the lawfulness of the activities of the subsidiary organ, in this case of the ICTR. This pertains mainly to whether the ICTR’s actions are in conformity with its mandate as well as with other rules of international law. The motion in the Kanyabashi case attacked the lawfulness of the establishment of the ICTR as a subsidiary organ, and did not allege that any specific acts of the ICTR, as a subsidiary organ, violated its mandate or other rules of international law. However, the ICTR seemed to blur this distinction when it based the legitimacy of its establishment on the lawful execution of the ICTR’s activities and the judges’ independence. In his report on the ICTR, the Secretary-General explained that as a subsidiary organ in the meaning of Article 29 of the UN Charter, the ICTR was financially and administratively dependent on various UN bodies. However, he stressed that from a judicial perspective, the ICTR was completely independent, even from its parent body, the Security

65 66 67 68 69

The Prosecutor v. Kanyabashi, Decision, 18 June 1997, para. 27. The Prosecutor v. Karemera, Decision, 25 April 2001, para. 25. The Prosecutor v. Kanyabashi, Decision, 18 June 1997, paras. 37-50. The Prosecutor v. Tadic´, Appeal Decision , 2 October 1995, paras. 37-38. See Sarooshi (1996: 413-414).

The establishment, organisation and jurisdiction of the ICTR

39

Council.70 This explanation touches upon the relationship between a subsidiary organ and its parent organ, but does not explain either the exact nature of the relationship or on what legal basis the subsidiary organ is founded. According to Sarooshi, a body is defined as a subsidiary organ when four preconditions are met.71 First, the subsidiary organ must be established by one of the principal organs of the United Nations as enumerated in Article 7(1) of the UN Charter.72 Secondly, the subsidiary organ must be under the authority and control of a United Nations principal organ. This authority concerns the membership, structure, mandate, and duration of the existence of the subsidiary organ. Thirdly, the establishment of the subsidiary organ may not violate the scope of the powers of the principal organs conferred upon them by the UN Charter. The Security Council enjoys the primary responsibility for maintaining peace and is therefore fully authorised in this respect. In contrast, the establishment of an ad hoc tribunal to address a specific threat to the peace on behalf of the General Assembly, though it has only a secondary responsibility, would arguably trespass on the Assembly’s powers.73 Fourthly, there must be a certain independence of the subsidiary organ from the parent organ. With regard to this last precondition, the ad hoc tribunal may differ from other subsidiary organs; it needs to enjoy more independence because of its juridical character. The UN Charter contains two bases for the establishment of subsidiary organs by the Security Council, a general one in Article 7(2) of the UN Charter: “Such subsidiary organs as may be found necessary may be established in accordance with the present Charter.”

And a specific one in Article 29 of the UN Charter: “The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions.”74

70 71 72 73

74

UN Doc. S/1995/134, 13 February 1995, para. 8. Sarooshi (1996: 414-416). Also see Jaenicke (2002: 218-219), who employed an even broader definition. The principal organs are: the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court of Justice, and the Secretariat. Although in the ‘Uniting for Peace Resolution’ the General Assembly emphasised its secondary responsibility for the maintenance of international peace and security, it does not have the power to take enforcement measures in case of a threat to the peace. Moreover, in the underlying case, there was no failure to act on the side of the Security Council, UNGA Res. 377, UN Doc. A/1775, 3 November 1950. See for the latter argument Schrijver (2002: 506). The specific provision does not subsume the more general one, see Effects of awards of compensation made by the U.N. Administrative Tribunal, Order, 14 January 1954, ICJ Reports 1954, pp. 58-61. Also see Paulus (2002: 541). Sarooshi (1996: 422-431) substantiated this view and stated that Article 7(2) must be read in conjunction with Article 7(1), that Article 7(2) would otherwise be redundant, and that as part of a constituent document, Article 7(2) should be interpreted broadly.

40

Chapter II

A narrow interpretation suggests that Article 29 could be interpreted in a more restricted way than Article 7(2), in the sense that it only allows the establishment of subsidiary organs that perform the functions of the parent organ. The ICTR performs judicial functions, which the Security Council itself could not perform. Therefore, Sarooshi argued that the establishment of the ICTR by the Security Council as a subsidiary organ could not be based on Article 29, in contrast to the statement of the Secretary-General on this matter. In Sarooshi’s view, Article 7(2) did not include such a functional limitation and therefore provided a broader and more adequate legal basis.75 In his commentary on Article 29 of the UN Charter, Paulus disagreed with this view. He explained that Article 29 of the UN Charter offered the procedural basis for the Security Council to establish a subsidiary organ. In line with the Tadic´ Appeal Decision, Paulus also maintained that the substantive competence of the Security Council to establish a tribunal had to be found in Article 39 et seq. of the UN Charter.76 Hence, according to Paulus’s argument, Article 29 of the UN Charter can serve as a procedural basis. According to this view, a principal organ may establish any subsidiary organ that it deems necessary, as long as the principal organ has the express or implied power to do so. Thus it can be argued that even though the Security Council does not have the express power to establish an ad hoc tribunal, it may have this power implicitly if the establishment of an ad hoc tribunal is considered necessary for the effective discharge of the Council’s primary responsibility to maintain international peace and security.77 Thus according to this argument, the system of the UN Charter allows for the establishment of a subsidiary organ that performs functions that the parent organ could not execute itself, as long as the parent organ possesses the overall competence to act in the area concerned. The lawfulness of the activities of the subsidiary organ is another issue, which should be considered on its own merits and independently of the question of its establishment by the parent organ. The creation of an ad hoc tribunal as a subsidiary organ is quite unique because of its purely judicial character. This influences its relationship with its parent organ, the Security Council. However, looking at some other subsidiary organs that have been created, it may be concluded that this unique character is not so apparent.78 The establishment of the ICTR as a subsidiary organ seems to confirm that the lawful establishment of a subsidiary organ depends more on the power of the parent organ in the specific area of competence than on the form and substance of the organ itself.

75 76 77

78

Sarooshi (1996: 428-431). Also see Klabbers (2002: 180-181). Paulus (2002: 541-542). According to Schermers and Blokker (2003:171), doubts continued to exist as to whether the Security Council could ‘delegate’ powers that it did not possess itself, but the authors also pointed out that there was agreement that in the case concerned there was no “viable alternative for the timely creation of an international tribunal”. For some examples, see Jaenicke (2002: 219-223).

The establishment, organisation and jurisdiction of the ICTR

41

Therefore, it can be concluded that the legality of the ICTR as a subsidiary organ depends entirely on the scope of the powers of the Security Council and the interpretation thereof, rather than on the actions of the ICTR itself. The independence and impartiality of the ICTR as a judicial institution is another issue This is related more to the powers of the ICTR and depends, amongst other things, on its organisation and jurisdiction. This issue is dealt with in subsequent sections, viz. sections II.4 and II.5. Prior to this, section II.3 examines the objectives of the ICTR.

II.3

THE PROS AND CONS OF AN INTERNATIONAL TRIBUNAL

The Commission of Experts saw clear advantages in establishing an international tribunal for Rwanda. Subsection II.3.1 describes these advantages in more detail. In the end, the State of Rwanda was not content with the tribunal that was proposed. The specific grievances of Rwanda are considered in subsection II.3.2. Section II.3.3 contains an inventory of all the advantages and objectives mentioned with regard to the ICTR. Subsequently, the ability of the ICTR to achieve all the objectives is critically assessed in subsection II.3.4. Subsection II.3.5 answers the question of whether an international tribunal was better suited to achieve the objectives, or whether in fact it would have been better to have left this up to the national courts of Rwanda. Finally, subsection II.3.6, adopts a realistic approach to what could be expected of the ICTR.

II.3.1 Facilitating several goals To support its argument that those considered responsible for the crimes should be brought to justice before an international criminal tribunal rather than a municipal court, the Commission argued that an international tribunal provided more guarantees for a fair trial in the context of Rwanda, and stipulated that the crimes concerned the whole international community, because of their extreme gravity. An international tribunal would not only bring justice in the specific case under investigation, but would also help to deter such crimes from being committed anywhere else in the world.79 In its interim report, the Commission suggested expanding the jurisdiction of the ICTY to implement its recommendation. This would ensure a consistent interpretation of international law, as well as an efficient operation as regards resources. However, expanding the scope of the ICTY would have gone a long way towards establishing an international criminal court. This would not only have been time consuming, if indeed politically feasible, but it was also argued that this does not fall within the competence

79

UN Doc. S/1994/1125, 4 October 1994, paras. 150-152, and also paras. 133-142.

42

Chapter II

of the Security Council,80 because the Security Council can only act under Chapter VII if it has determined that there is a specific threat to the peace. To establish a universal criminal court, the Security Council would have had to arrive at a general determination that certain crimes constitute such a threat, without referring to a specific situation. The preamble of the ICC Statute does confirm that certain grave crimes are a threat to the peace, security, and well-being of the world. Nevertheless, it would have been quite unique for the Council to arrive at such a similar general determination at the time.81 Therefore instead of taking the course of action suggested by the Commission of Experts, the Security Council established a separate ad hoc tribunal, which shared its Prosecution and its Appeals Chamber with the ICTY for the sake of preserving legal unity and for reasons of economy and efficiency of resources.82 The new Rwandan government also asked for the establishment of an international tribunal to prosecute the génocidaires.83 According to the Rwandan government, an international tribunal would facilitate achieving several goals. First, it would prosecute those responsible for the genocide in a “completely open setting”. Secondly, Security Council endorsement would make it possible to arrest perpetrators who had found refuge in other countries. Thirdly, an international institution would help to prevent the recurrence of the genocide.84

80 81

82

83 84

See UN Doc. S/25266, 10 February 1993, p. 11. In Resolution 1373 (2002), the Security Council did arrive at a general determination that any act of international terrorism constituted a threat to the peace, UN Doc. S/2002/1373, 28 September 2001. In a preceding resolution, the Council had condemned all acts of terrorism, in particular those which could threaten international peace and security, thus still leaving to its discretion in the actual determination whether a certain terrorist act constituted a threat to the peace, UN Doc. S/RES/1269, 19 October 1999. It may be questioned whether the Council can make a broad determination as in Resolution 1373 (2002) under Article 39 of the UN Charter, although Article 39 of the UN Charter does not expressly require a specific determination. UN Doc. S/1995/134, 13 February 1995, para. 9. The construction that was chosen was not without its critics. According to Bassiouni (1997: 48), the task of being a Prosecutor for two Tribunals that are located miles apart cannot realistically be carried out satisfactorily; he also questioned the notion of legal unity in the current case, since the two Tribunals have different Statutes, and therefore the Appeal Chamber must apply different bodies of substantive law; and finally he exposed the system of rotation which is to the disadvantage of the ICTR. The ICTR got a separate Prosecutor in 2003, see subsection II.4.2. UN Doc. S/1994/1115, 29 September 1994; UN Doc. A/49/PV.21, 6 October 1994, p. 5. See the statement of the representative of Rwanda in the Security Council prior to voting on the resolution establishing the ICTR, UN Doc. S/PV.3453, 8 November 1994, p. 14.

The establishment, organisation and jurisdiction of the ICTR

43

II.3.2 Rwanda’s opposition against the Tribunal Interestingly, Rwanda happened to be a non-permanent member of the Security Council at the time.85 Even though it had initially requested the establishment of an international tribunal, it eventually voted against the enabling resolution because it considered the tribunal proposed in the Resolution to be inadequate.86 Rwanda put forward several arguments in support of its negative vote. These arguments concerned: the temporal jurisdiction, the organisation of the ICTR, possible nominations of judges from certain countries that had played a role in the civil war, imprisonment of convicted persons outside Rwanda, the ban on capital punishment, and the possibility that the ICTR might not be located in Rwanda.87 Furthermore, Rwanda was not satisfied with the substantive jurisdiction. In the first place, it argued that the ICTR should only try genocide and not ‘minor’ war crimes, and secondly that the Statute should at least indicate an order of priority for the Prosecution. It is true that war crimes are generally perceived as a lesser crime.88 However, it should be noted that the new Rwandan government was led by the RPF at the time of voting and that the Commission of Experts had stated that there was no evidence that the RPF had committed genocide, though there was evidence that the RPF had committed crimes against humanity and war crimes. Nevertheless, there may be some merit in the argument put forward by Rwanda, since it was the genocidal nature of the killings that constituted the incentive for the Security Council to characterise the situation in Rwanda as a threat to the peace in the first place.89

II.3.3 An abundance of objectives The main objectives arising from the mode of establishment outlined in section II.2 above are explicitly articulated in Security Council Resolution 955 (1994). This Resolution states

85

86 87

88 89

Rwanda was elected as a non-permanent member of the Security Council for the term 1994-1995 and held its seat throughout the genocide. In fact, Rwanda should have held the Presidency in October 1994, following rule 18 of the provisional rules of procedure of the Security Council, UN Doc. S/96/Rev.7, 21 December 1982, but this was postponed until December 1994, UN Doc. S/PRST/1994/55, 16 September 1994. Rwanda stood alone in its negative vote, while China abstained from voting, UN Doc. S/PV.3453, 8 November 1994, p. 3. In the end, the ICTR was not established in Rwanda, but in Arusha, Tanzania, UN Doc. S/RES/977, 22 February 1995. For the reasons to opt for Arusha, Tanzania instead of Rwanda, see the comprehensive report of the Secretary-General on practical arrangements for the effective functioning of the International Tribunal for Rwanda, recommending Arusha as the seat of the Tribunal, UN Doc. S/1995/134, 13 February 1995, paras. 35-45. Meron (1995: 558). On the hierarchy between the three crimes, see chapter VI, section VI.1. This is explained in more detail in subsection II.2.2.

44

Chapter II

that the ICTR is established for the sole purpose of prosecuting persons responsible for genocide and other serious violations of international humanitarian law. In the preamble, the Council expressed its conviction that the ICTR would achieve the aim of bringing an end to the genocide and other violations of international humanitarian law, and that it would contribute to the process of national reconciliation and the restoration and maintenance of peace. In addition to these objectives spelled out by the Council, some other aims can be identified. At the time of voting for Resolution 955, several State representatives on the Security Council expressed the hope that the creation of an independent and impartial tribunal would ultimately encourage refugees to return to their homeland.90 The aim that a tribunal would deter future crimes was rather ambitious.91 According to more moderate views, an international tribunal might be a vehicle of justice, but could not be expected to achieve reconciliation on its own.92 Furthermore, it was felt that the establishment of a tribunal would send a message to the world that such grave crimes are not left unpunished,93 would restore confidence in all sections of the Rwandan polity,94 and would promote tolerance and understanding and mitigate ethnic tensions in Rwandan society.95 On another occasion the belief was voiced that a tribunal would assist in reconstructing the truth.96 In addition to the objectives of the ICTR referred to in the establishing process, the ICTR has also, on occasion, alluded to the objectives of its Statute. This was mainly in the context of interpreting various provisions of the Statute. In that respect, the ICTR used the teleological interpretation method also included in Article 31 of the 1969 Vienna Convention on the Law of Treaties.97 For instance, in a Separate Opinion of Judges McDonald and Vohrah of the Appeals Chamber on a procedural matter, the umbrella

90 91 92 93 94 95 96 97

Representatives of Russia, New Zealand and Oman, UN Doc. S/PV.3453, 8 November 1994, pp. 2, 6, 17. Representative of United Kingdom, UN Doc. S/PV.3453, 8 November 1994, p. 6. Representative of the Czech Republic, UN Doc. S/PV.3453, 8 November 1994, p. 7. Representative of Argentina, UN Doc. S/PV.3453, 8 November 1994, p. 8. Representative of Pakistan, UN Doc. S/PV.3453, 8 November 1994, p. 10. Representative of Oman, UN Doc. S/PV.3453, 8 November 1994, p. 17. Representative of Costa Rica, UN Doc. S/PV.3453, 8 November 1994, p. 5. Article 31(1) of the 1969 Vienna Convention on the Law of Treaties states: “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” (my emphasis). On the applicability of the 1969 Vienna Convention on the Law of Treaties to the ICTR Statute, see e.g., Kanyabashi v. The Prosecutor, Appeal Decision, Joint and Separate Opinion of Judge McDonald and Judge Vohrah, 3 June 1999, paras. 15 and 16. In this Decision, the two Judges held that the 1969 Vienna Convention on the Law of Treaties is not applicable as such to the Statute, since the Statute is not a treaty. However, under customary international law, the rules enshrined in the 1969 Vienna Convention on the Law of Treaties are also applicable to other international instruments. Also see The Prosecutor v. Bagosora and 28 others, Appeal Decision, 8 June 1998, paras. 25, 28, 29; and Nsengiyumva v. The Prosecutor, Appeal Decision, Joint and Separate Opinion of Judge McDonald and Judge Vohrah, 3 June 1999, paras. 14.

The establishment, organisation and jurisdiction of the ICTR

45

object and purpose were said to be to ensure a fair and expeditious trial for the accused.98 For the interpretation of certain elements of the crimes, the ICTR has tended to refer to the specific object and purpose of the underlying treaties that principally covered these crimes.99 Although very relevant, these specific objects and purposes do not necessarily correspond with the umbrella object and purpose as they are enshrined in the Statute. The objectives of the Statute can be regarded as necessary preconditions for the more general objectives of the ICTR. Other specific purposes of the ICTR that have been mentioned in one way or another include deterrence,100 incapacitation,101 retribution,102 truth finding,103 restoration, and education.104 Some scholars have mentioned additional advantages of prosecution at an international level. Most importantly, the work of an international tribunal would reaffirm that genocide was committed preventing a denial of what happened.105 Furthermore, international jurisprudence could serve as an example and as a source of law for national genocide trials. An international tribunal could also have a legitimising effect on national trials, in the sense that it confirmed that genocide had been committed and that it underlined the importance of investigating and prosecuting this crime.106 A more practical advantage of an international tribunal concerned the transfer of suspects. Some States could not extradite genocide suspects to Rwanda even if they had wanted to, because of the death penalty that Rwanda could impose if these suspects were found guilty.107 The inhumane conditions in Rwandan prison cells might also have

98

99

100 101 102 103

104

105 106 107

Nsengiyumva v. The Prosecutor, Appeal Decision, Joint and Separate Opinion of Judge McDonald and Judge Vohrah, 3 June 1999, paras. 15; and Kanyabashi v. The Prosecutor, Appeal Decision, Joint and Separate Opinion of Judge McDonald and Judge Vohrah, 3 June 1999, para. 16. The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 633 and 701. These examples respectively concerned the object and purpose of the 1949 Geneva Conventions and the 1977 Additional Protocols, and the intent of the drafters of the 1948 Genocide Convention. The Prosecutor v. Kambanda, Judgement, 2 September 1998, para. 28. In Resolution 1329 (2000), the Security Council noted the position of both ad hoc Tribunals that they should try leaders instead of minor actors, UN Doc. S/RES/1329, 30 November 2000. The Prosecutor v. Kambanda, Judgement, 2 September 1998, para. 28. In The Prosecutor v. Ntuyahaga, Decision, 18 March 1999, the Prosecution wanted to withdraw the indictment, because, inter alia, “the judicial proceedings instituted by the Prosecutor should be within the framework of a global policy aimed at shedding light on the events that occurred in Rwanda in 1994 and highlighting the complete landscape of the criminal acts perpetrated at the time,…”. In the completion strategy, it is submitted that the ICTR will “establish a record of facts that can aid reconciliation in Rwanda”, UN Doc. S/2004/341, 3 May 2004, para. 62. Also see the fourth updated version of the completion strategy, 19 November 2004, para. 63. In the sixth annual report, the President of the ICTR argued that through its case law the ICTR developed international criminal and humanitarian law, and through its outreach programme the ICTR played a role in the national reconciliation process, UN Docs. A/56/351 and S/2001/863, 14 September 2001, paras. 212 and 215. Akhavan (1997: 340-341). Meier Wang (1995: 189-190). Cissé (1998: 164).

46

Chapter II

prevented States from extraditing. For instance, European State Parties to the 1950 European Convention on Human Rights could not extradite a suspect if there was a real risk that this suspect would be subjected to inhuman or degrading treatment in the receiving country.108 Had there been no tribunal, important suspects such as Tharcisse Muvunyi109 and Protais Zigiranyirazo110 might have escaped trial.

II.3.4 Critical notes As the ICTR proceeded, more criticisms were made regarding the contribution of the ICTR to the objectives for which it was established. One compelling preliminary observation was that the establishment of an international tribunal could never make up for the failure to intervene, and that any contribution of the ICTR should be assessed from that perspective.111 Another fundamental criticism concerned the one-sided approach of the ICTR. Mutua asserted that international trials could only be successful as part of a more comprehensive resolution, including explicit efforts for reconstruction and reconciliation. He stated that war is a political reality that cannot be solved in an isolated manner, and he condemned the fact that only Hutu suspects were prosecuted, seemingly legitimising the Tutsi invasion that had started the war in 1990. This modus operandi would certainly not contribute to solving the Hutu-Tutsi power struggle.112 The Rwandan scholar Bucyana also indicated that confining the prosecution to one crime, genocide, might seriously obstruct the reconciliation process rather than promoting it. He further submitted that if witnesses of one ethnic group testified against suspects of another ethnic group, this might deepen the animosity between the two population groups.113 The large number of objectives set out in the previous subsection has been criticised by scholars as being over-ambitious and at the risk of being incoherent.114 Furthermore,

108 Soering v. the United Kingdom, Judgement, 7 July 1989, paras. 88-91. Exceptionally, even the risk of a flagrant denial of a fair trial may violate Article 6 ECHR and could thus obstruct an extradition, Soering case, para. 113. This line of reasoning does not apply to acts of surrender to the ad hoc Tribunals of which the impartiality and independence is guaranteed by their Statutes and Rules of Procedure and Evidence (RPE), Naletilic´ v. Croatia, Admissibility Decision, 4 May 2000. Also see Buisman (2001: 50-57). 109 The Prosecutor v. Muvunyi, Indictment, 7 November 2000. Muvunyi, a commander of École Sous Officiers, was arrested in the United Kingdom on 5 February 2000. 110 The Prosecutor v. Zigiranyirazo, Indictment, 20 July 2001. Zigiranyirazo, a businessman and the brother-inlaw of President Habyarimana, was arrested in Belgium on 26 July 2001. 111 Akhavan (1997: 332-333). 112 Mutua (1997). 113 Bucyana (1996). The ICTR mainly relies on witness testimonies, in the absence of an in-depth documentation of the massacres, Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 65. In the first case, there were already allegations of witness syndicates, Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 44. 114 Howland and Calathes (1998: 143, 145) and Harvard Law Review Association (2001: 1961).

The establishment, organisation and jurisdiction of the ICTR

47

each of these objectives has been evaluated separately with regard to the ICTR proceedings in terms of their adequacy and feasibility.115 The most fundamental criticism regarding the ICTR as regards these objectives concerns the ICTR’s incapability to deal with the mass participation of the perpetrators.116 In his outstanding article, Alvarez set forth two perspectives to consider the genocide in Rwanda. The international lawyers’ perspective views genocide as a State crime, committed with the collaboration, or at least the acquiescence of the State.117 In contrast, many journalists take a grassroots point of view and stress the elements of popular involvement and mass (ethnic) hatred.118 Alvarez questioned the narrower lawyers’ perception of genocide as a State crime, as well as the consequent institution of the ICTR as a means to examine and address the situation properly. He argued that the ICTR did not and could not deal with the masses of perpetrators and with the ethnic element involved in the killing at the grassroots level. Yet the two views described above appear to be complementary rather than mutually exclusive in their explanation of how the genocide was able to take place. This means that both aspects, State involvement and mass perpetration, must be addressed, though not necessarily by one institution. Alvarez’ fundamental objections against the ICTR, and more specifically against its primacy over Rwandan courts, primarily seem to concern the institution of the ICTR as an overall means to address all the aspects of the genocide ex post facto. Alvarez, along with other important scholars, doubts that individual criminal prosecutions effectively address the problematic fact that the perpetrators of the genocide represent a substantial part of one of the ethnic groups of the population.119 Alvarez favoured a more prominent role for national courts. Indeed, other scholars have also underlined the need for an integrated approach to the problems of post-genocidal Rwanda. Mutua even labelled the ICTR as “virtually irrelevant” since it did not form part of a more comprehensive settlement of the ethnic power struggle between the Hutu and the Tutsi.120 In her book Justice in the shadows of war, Mani endorsed the view that criminal prosecution was not enough

115 Howland and Calathes (1998: 143, 145) and Harvard Law Review Association (2001: 1961). Also see Amann, (2002: 117), stating that the traditional objectives of criminal law call for national rather than international prosecution. For a more positive assessment of international prosecution, see Akhavan (1997). 116 E.g., Howland and Calathes (1998: 154), arguing that incapacitation of some of the leaders does not address the problem of mass participation in the genocide, and Alvarez (1999: 400), submitting that an account must be comprehensive and is only relevant to a certain victim if it includes specifics on what happened to that victim. Alvarez concluded that conducting a few trials which focus on high-level perpetrators does not establish such effect. 117 Alvarez (1999: 367-368). 118 Alvarez (1999: 368). 119 Also see Harvard Law Review Association (2001: 1968), arguing that holding particular individuals responsible may be inconsistent with the purpose of establishing a comprehensive historical record, as it may not take account of factors such as the tacit international complicity and other societal factors. 120 Mutua (1997: 187).

48

Chapter II

in a post-conflict situation. She submitted that justice to rectify the situation might require “means beyond the criminal justice system.”121 The criticisms described above indicate that establishing an international tribunal does not solve all the problems, and that other initiatives are required to address each individual aspect of the conflict. However, in my view, this does not lead to the conclusion that an international tribunal is superfluous. Often, an international tribunal will be the most appropriate forum to deal with the aspect of State involvement. In the particular case of Rwanda, the strength of the ICTR as an external institution is that it should be able to impose the law on the victors. As underlined by both Mutua and Bucyana, prosecuting only genocide, and thus only Hutu perpetrators, may impede the process of national reconciliation. Therefore the investigation of RPF crimes is also necessary. Admittedly, even though the ICTR’s mandate allows for the possibility of prosecuting the RPF, the Prosecution wishing to do so faces many obstacles. First of all, the Rwandan government fiercely opposes any intention on the part of the Prosecution to investigate RPF cases. The Prosecution announced that it wished to do so in December 2000.122 In response, prosecution witnesses refused to cooperate and testify in ongoing cases.123 In its 2002 report, the NGO International Crisis Group (ICG) accused the Rwandan government of blackmailing the ICTR either directly through the threat of suspending its cooperation,124 or more indirectly through the victims’ organisations Ibuka and Avega.125 The ICG noted that these actions, supported or organised by the Rwandan government, surprisingly coincided with the announced change of direction in the Prosecutor’s strategy in order to accommodate the investigation of alleged RPF crimes. The report also referred to the concern of the Rwandan government about the ongoing investigations into the plane crash by the French investigating judge Jean-Louis Brugière.126 Thus the Prosecution seems to be dependent on the whims of the Rwandan government in a rather unfortunate way. If its office, as well as that of the entire ICTR,

121 Mani (2002: 101). 122 See the ICTR press release of 13 December 2000. 123 In a letter of 17 September 2002 to the Security Council, the Prosecution complained about Rwanda’s obstructive position towards the ICTR. The Prosecution stated that it had been informed by reliable sources that the lack of cooperation was a direct consequence of its announcements to investigate alleged RPF crimes, UN Doc. S/2002/1043, 19 September 2002. 124 For example, in June 2002 the Rwandan government suddenly introduced new rules pertaining to visa requirements for witnesses travelling to the ICTR, causing great delays in several cases, see the letters of the President of the ICTR to the Security Council of 26 July and 8 August 2002, UN Docs. S/2002/847 and S/2002/923. 125 These victims’ organisation suspended their cooperation with the ICTR and for some time they called upon their members not to testify any longer. For their reasons, see the letter to the Security Council, UN Doc. S/2002/1043, 19 September 2002. 126 ICG (2002: 10-15).

The establishment, organisation and jurisdiction of the ICTR

49

is to function well, the firm backing of the Security Council is imperative.127 In this respect, the Council could have reacted more decisively to the letters of the President of the ICTR about Rwanda’s uncooperative attitude towards the ICTR, rather than merely reiterating that all States have the obligation to cooperate with the ICTR.128 Of all the States, the ICTR depends on Rwanda most for cooperation. As the scene of the crime, Rwanda is obviously the crucial source of evidence. Many witnesses come from Rwanda and the ICTR investigators perform a great deal of their work in Rwanda. Therefore it is critical for Rwanda to give legal assistance to the ICTR proceedings.129 This is an important trump card for the Rwandan government in the case of undesired developments. Nevertheless, the Prosecution can and should investigate RPF crimes with the backing of the Security Council. If the Prosecution finds that no crimes were committed, it should publish its findings in a report, comparable to the ICTY report on the NATO bombing campaign.130 Such a report is required given the persistent allegations that RPF crimes were committed and given the overarching objective of national reconciliation. If the Prosecution finds that crimes amounting to crimes against humanity were actually committed, these crimes must, without any doubt, be prosecuted, and the ICTR as an international institution is the appropriate forum to do so.

II.3.5 The relationship with national courts131 As noted above, many criticisms were made about the role of the ICTR vis-à-vis the national courts of Rwanda. Alvarez argued that the role of the ICTR should be complementary; the ICTR should act as a watchdog and come into action when national cases were grossly unfair. In addition, the ICTR could act for pragmatic reasons in cases that were out of reach of the Rwandan national courts, for instance, in cases where the accused was in a third State.132 However, pursuant to Article 8 of its Statute, the ICTR enjoys primacy over national courts. This provision was simply taken over from the ICTY Statute. In his report, the Secretary-General stressed that by establishing the ICTY:

127 Also see the plea for this backing by the ICG, ICG (2002: iii), and see the letter of Human Rights Watch sent to the US Ambassador John Negroponte, President of the Security Council, 9 August 2002, requesting the Security Council to support the Prosecution in its efforts in this regard. 128 Resolution 1431 (2002), UN Doc. S/RES/1431, 14 August 2002, para. 3. 129 On the scope and exact contents of the obligations in this respect, see Sluiter (2002). 130 Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 13 June 2000. Also see Freeland (2003). 131 This section is based on an earlier publication: Van den Herik (2002). 132 Alvarez (1999: 463-466).

50

Chapter II

“(…) it was not the intention of the Security Council to preclude or prevent the exercise of jurisdiction by national courts with respect to such acts. Indeed national courts should be encouraged to exercise their jurisdiction in accordance with their relevant national laws and procedures.”133

The emphasis was therefore on concurrent jurisdiction. Only in cases of a conflict of jurisdiction would the jurisdiction of the Tribunals prevail. Some insights into national proceedings of genocide cases in Rwanda are provided below. This is followed by a discussion of the relationship between these national proceedings and the work of the ICTR. The national genocide law At the national level, serious efforts were made to provide “solutions to impossible problems”.134 In 1997, more than 120.000 people were imprisoned.135 These people either had to be prosecuted, which would take an interminable time, or they had to be released, which was also inconceivable in the immediate aftermath of the genocide. Between January and April 2003, approximately 25.000 people were provisionally released from prison. In principle, these people will still appear in gacaca proceedings.136 Two years after the genocide, a special genocide law was adopted, the so-called ‘Organic Law on the Organization of Prosecutions for Offenses Constituting the Crime of Genocide or Crimes Against Humanity Committed Since October, 1 1990’.137 The duration of this special law was set from 1 October 1990 to 31 December 1994.138 This law created specialised genocide chambers in the 12 Courts of First Instance. The law identified four categories of perpetrators. The first category included leaders and organisers of genocide, as well as particularly zealous murderers and sexual torturers. The second category concerned perpetrators of homicide. The third category penalised grave assaults without the intention to kill, and the fourth category related to property crimes. Therefore, although the title of the law implied that it dealt solely with genocide and crimes against humanity, in fact it also governed other crimes committed in connection with the genocide.139

133 134 135 136 137

UN Doc. S/25704, 3 May 1993, para. 64. Schabas (1996). Amnesty International (2002: para. III(2)). Amnesty International (2003). For more information on gacaca, see below. Organic Law no. 8196 of 30 August 1996, Official Gazette of the Republic of Rwanda, 1 September 1996, http://www.asf.be/AssisesRwanda2/fr/fr_JUSTICE_loiorganique.htm (visited on 8 October 2004). 138 On 20 November 2001, a Rwandan court convicted 12 people of genocide committed in a Northwestern province of Rwanda in 1991, see Hirondelle press release, 21 November 2001. These crimes could not have been adjudicated by the ICTR, because of its more limited temporal jurisdiction. 139 Moreover, the law refers to the 1949 Fourth Geneva Convention regulating the protection of civilians during an international armed conflict. This reference seems to imply that war crimes can also be prosecuted under the heading of crimes against humanity, Article 1a, Organic Law, no. 8196.

The establishment, organisation and jurisdiction of the ICTR

51

A special feature of the law was its emphasis on plea agreements. Perpetrators who confessed, pleaded guilty to the crimes committed and apologised to their victims, were entitled to a significant reduction of their sentence. Only the perpetrators of the most serious category of crimes, the leaders and organisers, were not able to claim such a reduction. The penalty imposed on these perpetrators was life imprisonment or the death penalty.140 The system of plea agreements served several goals. Obviously, it alleviated the task of the prosecutor. Moreover, detailed confessions could serve to record history, and thus have an educational value for future generations in Rwanda, whereas apologies to victims were intended to have a direct impact on the process of national reconciliation.141 In theory, plea agreements could reduce the pressure on the overloaded criminal system. However, the law prescribed a rather detailed procedure for the acceptance of pleas, which did not actually help to speed up the process.142 Moreover, innocent suspects who had been accused were afraid of being presumed guilty rather than innocent, and might have opted to plead guilty in exchange for a lighter sentence.143 Therefore the inherent encouragement by the special law for suspects to plead guilty required a sound criminal justice system that ensured all the fundamental rights of the accused. It would be unrealistic to expect such a system in Rwanda in the given circumstances. Indeed, Amnesty International wrote a very critical report on the first trials in 1997: Rwanda, unfair trials: justice denied.144 The NGO mainly attacked the lack of proper defence for the accused and the apparent partiality of the courts, which violated Article 14 of the 1966 International Covenant of Civil and Political Rights.145 Amnesty also opposed the application of the death penalty. The African Commission of Human Rights joined this opposition when it appealed to Rwanda not to execute 23 persons convicted of genocide.146 This rather weak gesture was not successful. A more recent report of Amnesty International, Rwanda, the troubled course of justice, emphasised other problems such as the length and circumstances of pre-trial detention.147 Article 9 of the 1966 International Covenant of Civil and Political Rights requires that those detained on a criminal charge are promptly brought before a court and have a trial

140 The highest sentence that the ICTR can impose is life imprisonment. The majority of convicted persons have received this sentence, and most others have received stiff sentences ranging between 25 to 35 years. Lower sentences were imposed in only four cases. Three of the individuals concerned, Serushago, Ruggiu and Rutaganira, had confessed. The fourth individual, Elizaphan Ntakirutimana, was 78 years of age at the time of sentencing and in poor health. 141 Morris (1997: 359-361). 142 Uvin, p. 7. 143 Morris (1997: 362). 144 Amnesty International (1997). Also see the more recent report, Amnesty International (2002). 145 Rwanda acceded to the 1966 International Covenant on Civil and Political Rights on 16 April 1975. 146 Amnesty International (1998). 147 Amnesty International (2000).

52

Chapter II

or be released within a reasonable time. During their imprisonment, the accused must be treated humanely. Most accused had been in prison since 1994, awaiting their trial under harsh circumstances, which clearly violated the above-mentioned provisions, and may even amount to torture or inhuman and degrading treatment.148 However, it should be noted that some detainees of the ICTR have also waited for years now, and that their basic human rights may have been violated as well, although the circumstances of their detention are a great deal better. All in all, the special penal law of Rwanda proved unable to deal adequately with the large number of the accused. For this reason, the Rwandan government introduced an alternative: gacaca courts.149 The gacaca courts These popular courts are based on traditional Rwandan courts, where solutions were found to civil and minor criminal problems, originally in an informal and small-scale setting. The new style gacaca courts are based on the involvement of the people. Individuals who are not affiliated with the government, the military, religious organisations or any NGO can be elected as judges, and all the other members of the community have to participate as well. The first category of perpetrators, the organisers and particularly zealous murderers, as well as rapists, are excluded from the gacaca proceedings. RPF crimes are excluded as well. The main criticisms expressed against the newly proposed system concerned the absence of a defence lawyer, the combination of the prosecutor and the judge in one institution, and the lack of a proper legal education of the judges.150 It was argued that the gacaca courts were bound to violate the fundamental rights of the accused, as enshrined in the 1966 International Covenant of Civil and Political Rights, a treaty ratified by Rwanda. However, resolving these objections to the gacaca system would very probably undermine its basic character and its main goal, which is to speed up the process. Moreover, it was alleged that the people of Rwanda, the genocide survivors as well as the accused, accepted the new justice system as the only viable alternative.151 Another important point of criticism is that RPF crimes were excluded from the gacaca proceedings. Military courts were supposed to deal with these crimes. At the end of 2004, no

148 As prohibited by Article 7 of the 1966 International Covenant of Civil and Political Rights. Amnesty International (2002: para. III(2)). 149 Organic Law no. 40/2000 of 26 January 2001 setting up ‘gacaca jurisdictions’ and organising prosecutions for offences constituting the crime of genocide or crimes against humanity committed between 1 October 1990 and 31 December 1994, Official Gazette of the Republic of Rwanda, 15 March 2001, as modified and finalised by Organic Law no. 33/2001, 22 June 2001. 150 See, for example, the written statement submitted by Human Rights Watch to the Commission on Human Rights, UN Doc. E/CN.4/2000/NGO/25, 1 February 2000, para. 9 and Amnesty International (2000: para. V). 151 See Hirondelle press releases, 7 and 17 October 2001. Some NGOs also acknowledge the need to give this alternative a chance, such as les avocats sans frontières, see www.asf.be under gacaca.

The establishment, organisation and jurisdiction of the ICTR

53

gacaca trials had started yet. Preparations were in full swing and some pilot projects had started. On the basis of these developments, Amnesty International warned that the gacaca proceedings lacked institutional guarantees to safeguard the minimum standards of a fair trial. Moreover, it pointed out that the prevailing human rights environment in Rwanda undermined the government’s credibility with regard to its efforts to punish the perpetrators of genocide.152 No principle of distribution In Rwanda, high-ranking suspects who have committed category 1 offences must appear before the regular courts. They are excluded from the gacaca proceedings. No specific principle has been formulated for the distribution of the accused between Rwanda and the ICTR.153 The ICTR Prosecution developed a strategy that was aimed at the leaders and organisers of the genocide,154 leaving the mass participation of perpetrators to the national courts of Rwanda. However, the ICTR strategy did not produce a clear division of cases. In some instances, the allocation of cases depended more on the practical issue of who had custody of a particular suspect, rather than being the result of a strategic decision on the part of the ICTR Prosecution. For instance, the ICTR tried the RTLM commentator Ruggiu, but not the equally virulent RTLM commentator Bémériki. The latter has testified before the ICTR in the Media case, but she herself awaits trial before a Rwandan national court. The only difference between the two cases is that Ruggiu was surrendered to the ICTR by Kenya, whereas Bémériki was arrested in Rwanda. On another occasion, both Rwanda and the ICTR requested Ethiopia to detain Karamira, suspected of being one of the leaders of the genocide. This conflict was solved informally, to the advantage of Rwanda, and Karamira was deported to Rwanda.155 All in all, there is a general division of labour between the ICTR and the national courts, but this is not strictly adhered to. ICTR referrals The ICTR responded to the Security Council’s exhortation to wind things up by 2010 at the latest156 by incorporating into the ICTR completion strategy the idea of transferring cases to national jurisdictions.157 In addition, negotiations started with Rwanda

152 Amnesty International (2002). 153 Morris (1997: 365). 154 First annual report, UN Docs. A/51/399 and S/1996/778, 24 September 1996, para. 42; second annual report, UN Docs. A/52/582 and S/1997/868, 2 September 1997, para. 52. Also see UN Doc. S/RES/1329, 30 November 2000. 155 Morris (1997: fn. 91). 156 UN Doc. S/RES/1503, 28 August 2003, para. 7. 157 ICTR completion strategy, UN Doc. S/2004/341, 3 May 2004, paras. 36-39.

54

Chapter II

for the transfer of persons convicted by the ICTR to Rwandan prisons. These initiatives made the relationship between the ICTR and national courts even more complex. Rule 11bis of the Rules of Procedure and Evidence (RPE) promoted the idea of referring cases to national jurisdictions.158 The idea of referral was first mentioned in the seventh annual report of the ICTR.159 The idea was based on the ICTY completion strategy.160 In the ICTY context, the idea of referral was presented as an ‘avenue of thought’, and the inherent political complexities of this idea were acknowledged. Furthermore, attention was paid to legal obstacles that are also applicable to the ICTR context. In this respect, it was pointed out that initially Rule 11bis only envisaged the referral of cases of accused who were already in the custody of the Tribunal. Individuals who were still at large could not be transferred to a third State as soon as they were arrested. Moreover, pursuant to Rule 11bis, cases could only be referred from the Tribunal to the State where the defendant was originally arrested, and not to a third State. It was also unclear whether the obligation for States to cooperate with the Tribunal161 was so broad that it included the obligation to prosecute a defendant before a State’s national court on the basis of an indictment issued by the Prosecution, rather than its own indictment.162 In the 14th Plenary Session, on 24 April 2004, Rule 11bis of the ICTR RPE was amended with a view to overcoming these obstacles. The ICTR completion strategy noted the criteria, on the basis of which the Prosecution would choose the cases that were fit for referral. These criteria were: -

158 159 160 161

the alleged status and extent of participation of the individual during the genocide; the alleged connection an individual may have with other cases; the need to cover the major geographical areas of Rwanda in which the crimes were allegedly committed; the availability of evidence with regard to the individual concerned; the concrete possibility of arresting the individual concerned; the availability of investigative material for transmission to a State for national prosecution.163

Rule 11bis of the RPE was adopted at the Plenary Session of 5 and 6 July 2002. UN Docs. A/57/163 and S/2002/733, 2 July 2002, para. 10. UN Doc. S/2002/678, 19 June 2002. Article 28(1) of the ICTR Statute reads: “States shall cooperate with the International Tribunal for Rwanda in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.” 162 UN Doc. S/2002/678, 19 June 2002, paras. 8, 37-44. 163 UN Doc. S/2004/341, 3 May 2004, para. 14. Also see the fourth updated version of the completion strategy, 19 November 2004, para. 14.

The establishment, organisation and jurisdiction of the ICTR

55

The completion strategy indicated that five cases of detainees in the custody of the ICTR had been elected for referral. It did not specify to which State or States these cases would be referred, but it mentioned that discussions with more than one State were ongoing.164 In total, 41 cases were earmarked for referral. Many of these cases were intended to be referred to Rwanda. However, earlier annual reports had already noted that cases could only be transferred to Rwanda, if there was a guarantee that the death penalty would not be imposed.165 Another practical obstacle was whether Rwanda could actually deal with the referred cases, given its overburdened judicial system.166 Nevertheless, Rwanda was very keen for cases to be referred from the ICTR, and it showed some willingness to revoke the death penalty for referred cases.167 The completion strategy indicated that cases could only be referred to Rwanda on condition that the above-mentioned problems were satisfactorily resolved. However, other national jurisdictions were also considered for referral. Preference was given to African States in which the suspects were residing, but in some instances this gave rise to the legal problem that the State being considered did not have jurisdiction according to its national system. In the end, the decision to transfer would be a judicial decision. Only a Trial Chamber could determine whether the conditions for transfer were met.168 Evaluation The relationship between the ICTR and Rwandan national courts is therefore rather obscure. Both jurisdictions seem to operate in isolation from each other. The question arises what impact the new possibility of referral has on the position of the ICTR. In particular, this could re-open the discussion about the necessity of an international tribunal for Rwanda. In February 2005, the Prosecution transferred 15 case files it had been investigating to Rwanda. These cases concerned individuals who were still at large and who had not yet been indicted by the ICTR.169 Therefore the Prosecution could transfer these cases without approval of a Trial Chamber. It is still uncertain whether cases where judicial approval is necessary can actually be referred to Rwanda. In any event, it seems unlikely that these will include cases of the most senior leaders during the genocide. Pursuant to a motion of the Prosecution, it is a Trial Chamber that decides on the referral, taking

164 UN Doc. S/2004/341, 3 May 2004, paras. 14-15. Also see the fourth updated version of the completion strategy, 19 November 2004, paras. 14-15. 165 UN Docs. A/57/163 and S/2002/733, 2 July 2002, para. 10, and UN Docs. A/58/140 and S/2003/707, 11 July 2003, para. 11. 166 UN Doc. S/2004/341, 3 May 2004, para. 38. Also see the fourth updated version of the completion strategy, 19 November 2004, para. 38. 167 Hirondelle press release, 26 and 27 August 2004. 168 UN Doc. S/2004/341, 3 May 2004, paras. 36-39. Also see the fourth updated version of the completion strategy, 19 November 2004, paras. 36-39. 169 Hirondelle press release, 23 February 2005.

56

Chapter II

into account the specific circumstances of the case. Similarly, in the ICC construction, which is based on the principle of complementarity, it is the ICC that decides whether a certain State is unable or unwilling to initiate proceedings. Thus in all these constructions – primacy, referral, and complementarity – the international jurisdiction in some way predominates the national jurisdiction. As indicated above, it is probable, on the basis of the criteria for referral specified above, that the ICTR will still try the senior leaders of the genocide. Given the prevailing situation in Rwanda, it is highly improbable that these leaders would be given a fair trial in a national setting there. The human rights record of the Rwandan government has been criticised on a number of occasions. Moreover, Reyntjens, as well as Amnesty International, has denounced the government’s efforts to replace a significant number of Hutu officials by Tutsi officials at many State levels, including the judiciary. Reyntjens described this as the process of Tutsi-ization.170 Bearing this situation in mind, it remains to be seen whether any Trial Chamber can rightfully approve the referral of any case to Rwanda, taking into account the rights of the accused. Therefore, the fact that referral to national courts is now being considered cannot automatically lead to the conclusion that the ICTR did not achieve any of the objectives for which it was established, or that an international tribunal was in fact redundant in the case of Rwanda. It may be that referrals mainly take place to other national jurisdictions, such as Belgium or African States in which the suspects reside. Sporadic trials of genocide perpetrators have already taken place in third States, for example, in Belgium and Switzerland.171 However, had there been no tribunal, these States would certainly not have tried all those who are now in ICTR custody or who have already been tried by the ICTR. Therefore, trials in third States cannot be seen as an equivalent alternative to an international tribunal.

II.3.6 Moderate expectations In 1994 there was still much enthusiasm for the development of international criminal law in general, and this area of law was expected to become a new tool for the maintenance of peace and security. It was too early to reflect on the experiences of the ICTY or to consider alternative criminal law institutions, like the subsequent establishment of the so-called internationalised courts, such as the Special Court for Sierra Leone.172 Thus, in the spirit of a belief in new post-cold war possibilities, the establishment of a second ad hoc Tribunal seemed appropriate.

170 Reyntjens (2004: 187-190); Amnesty International (2002: para. IV(3)). 171 See Reydams (1996) and (2002), Schabas (2003). 172 UN Doc. S/RES/1315, 14 August 2000.

The establishment, organisation and jurisdiction of the ICTR

57

The subsequent criticisms of the inadequate and insufficient response of the international community to the Rwandan genocide during and after the event are wholly valid and must be taken very seriously. However, a distinction should be made between the exaggerated aims that the ICTR is expected to achieve as an institution, and the specific contributions that may be expected on the basis of a more realistic approach. The ICTR cannot achieve national reconciliation on its own, though it may, in a moderate but nevertheless important way, contribute to that process. Practice has shown that the ICTR did not set an example for Rwandan national courts, as these two jurisdictions operated in isolation from each other. The ICTR cannot deal with the element of mass perpetration in the sense that it cannot effectively and directly address the masses of ‘ordinary perpetrators’. Alternative national and international means must be considered and monitored to address the volatile political situation in Rwanda. The ICTR is more concerned with dealing with another element of genocide, namely its organisation and the de facto State involvement. With regard to these elements, it should be stressed that national adjudication may not be a viable alternative as the former leaders sought refuge abroad and it is unlikely that they would receive a fair trial at home. Even Rwanda acknowledged its own inability to get hold of those persons shielded by third States, and this was one of the reasons put forward in its plea for international prosecution.173 Bearing in mind these moderate expectations, the following sections examine the organisation and jurisdiction of the ICTR as enshrined in the Statute. In so doing, they also examine to what extent the objectives mentioned above played a role in determining these two aspects of the ICTR.

II.4

THE ORGANISATION OF THE ICTR

This section examines the internal organisation and management of the ICTR, and more specifically the operation of three organs of the ICTR, viz. Chambers, the Prosecution and the Registry.174 Throughout the section, specific attention is devoted to two relevant questions hinted at above, viz.: (i) is the independence and impartiality of the ICTR guaranteed by the way it is organised internally? And (ii) is the organisation of the ICTR suitable for achieving the objectives for which the Tribunal was set up? It is obvious that only a tribunal which functions adequately can fulfil the ambitious objectives described in the previous section. However, the ICTR has certainly not always operated. The first years of the ICTR particularly were characterised by severe management problems. These problems are recorded in reports of the UN Office of Internal

173 UN Doc. A/PV.21, 6 October 1994, p. 5. 174 Articles 10 to 16 of the ICTR Statute.

58

Chapter II

Oversight Services (OIOS)175 and in a report of an Expert Group,176 all of which were drafted at the request of the General Assembly, and in particular of the Fifth Committee.177 In the first OIOS report of February 1997, serious criticisms were expressed with respect to the Registry.178 Not only did the Registry fail to execute its assigned tasks; the Registrar’s initial position that he could not be subjected to the authority of the President of the ICTR, as provided in the RPE, was also problematic.179 This power struggle between the Registrar and the President did not help the smooth operation of the ICTR. As regards the Prosecution, the report stated that the absence of a clear prosecution strategy was “the single most significant failing”.180 For their part, the ICTR judges said to the OIOS investigators that part of the management and operational problems were due to a lack of assistance by the UN Secretariat, in particular, by the Department of Administration and Management, and the Department of Legal Affairs. Both Departments replied that they could not give any assistance given the ICTR’s judicial independence. The OIOS did not accept this line of reasoning. It stated: “[t]he judicial independence of the Tribunal is beyond question, being firmly established by the resolutions of the Security Council. However, the essential independence of judicial and operational decision-making by the Chambers and by the Prosecution should not be confused with total separation. Administrative, financial and other support services are necessary support functions to the Chambers and to the Prosecution, for which the Secretariat, as the mechanism by which the Secretary-General may implement the Security Council resolution, cannot shun responsibility on the basis of interpreting the judicial independence as all barring.”181

175 UN Doc. A/51/789, 6 February 1997, UN Doc. A/52/784, 6 February 1998, UN Doc. A/55/759, 1 February 2001, UN Doc. A/56/836, 26 February 2002. 176 UN Doc. A/54/634, 22 November 1999. 177 The Fifth Committee is the Advisory Committee on Administrative and Budgetary Questions of the General Assembly. Pursuant to Article 17 of the UN Charter, the General Assembly has the power to approve the UN budget. On the financing of the Tribunal, also see Article 30 of the ICTR Statute, and Johnson (1996: 230-231). 178 “The review disclosed that not a single administrative area of the Registry (Finance, Procurement, Personnel, Security, General Services) functioned effectively: Finance had no accounting system…; lines of authority were not clearly defined; internal controls were weak in all sections; personnel in key positions did not have the required qualifications; …; United Nations rules and regulations were widely disregarded; …” UN Doc. A/51/789, 6 February 1997, para. 9. While expressing this severe criticism, the report also acknowledged the vacuum and the difficult conditions under which the Registry had to start operating. 179 UN Doc. A/51/789, 6 February 1997, para. 8. For further details on the position and tasks of the Registry, see below, subsection II.4.3. 180 UN Doc. A/51/789, 6 February 1997, para. 59. 181 UN Doc. A/51/789, 6 February 1997, paras. 64-65. For a similar observation, see UN Doc. A/54/634, 22 November 1999, para. 22.

The establishment, organisation and jurisdiction of the ICTR

59

The follow-up OIOS report noted improvements,182 but still indicated some serious shortcomings.183 Subsequently, the Fifth Committee asked the Secretary-General to have an expert report prepared on the operation of the ICTR as a whole.184 The group of experts appointed for this task in particular included Justice Hassan B. Jallow, who later became the Prosecutor of the ICTR.185 To avoid any overlapping, the experts focussed mainly on the judicial operation of the ICTR. The experts gave recommendations on how to expedite trials, but they also acknowledged that such international trials were complex events and that the ICTR was “a precedent-setting institution”.186 Some of the most important findings of the experts are considered in the following subsections, which briefly examine the powers of each of the organs of the ICTR.

II.4.1 Chambers The Chambers are composed of judges. The independence and the impartiality of the judges are guaranteed by the qualification requirements,187 and by the procedure through which the judges are elected.188 In the Kanyabashi case, the Trial Chamber also referred to Rule 89 of the RPE to demonstrate the independence of the judges.189 This Rule stipulates that Chambers are not bound by national rules of evidence. In the Karemera case, the defence submitted that the judges lacked functional impartiality as a small number of judges were rendering judgements in all cases before the ICTR, and that these cases concerned identical or in any case similar facts, given the limited jurisdiction of the ICTR. The Trial Chamber dismissed this objection and stressed that all the judges were jurists who could distinguish facts relating to individual cases from points of law.190 Proceedings in the Barayagwiza case tested the presumed independence of the judges, and of the ICTR as a whole. When the Appeals Chamber dismissed the indictment against Barayagwiza as a consequence of grave violations of the defendant’s rights, the Rwandan government openly threatened to withdraw all further cooperation with the ICTR.191

182 E.g., UN Doc. A/52/784, 6 February 1998, paras. 6, 7, 13, 17, 20, 96, 97-99, 106-107. 183 E.g., UN Doc. A/52/784, 6 February 1998, paras. 12, 17, 19, 24, 27-29, 30, 31, 33, 34, 42-45, 58-61, 63, 79, 83-86, 107, 109-117. 184 UN Doc. A/53/659, 11 November 1998, paras. 84-86. 185 See below, subsection II.4.2. 186 UN Doc. A/54/634, 22 November 1999, para. 27. Also see the recommendations in paras. 1-46. 187 Article 12(1) of the ICTR Statute requires “judges shall be persons of a high moral character, impartiality and integrity …” 188 Article 12(3) of the ICTR Statute describes this procedure. 189 The Prosecutor v. Kanyabahsi, Decision, 18 June 1997, para. 40. 190 The Prosecutor v. Karemera, Decision, 25 April 2001, para. 27. 191 The Prosecutor v. Barayagwiza, Appeal Decision, 31 March 2000, para. 34.

60

Chapter II

The Prosecution pleaded for a reversal of the decision. At the subsequent oral hearing, the Prosecution pointed to the impasse that would arise if the Rwandan government refused to continue to cooperate.192 The Appeals Chamber subsequently reversed its first Decision on the basis of ‘new facts’. The judges in the Appeals Chamber claimed that they did not yield to political considerations.193 However, in its decision the Appeals Chamber constructed the conditions of Rule 120 of the RPE (Request for review) remarkably creatively.194 This case showed that the ICTR’s dependence on State cooperation could result in an infringement of the requirement of judicial independence. The judges appoint a President from their midst.195 The first President of the ICTR was the late Judge Laïty Kama from Senegal, and the first Vice-President was Judge Yakov Ostrovsky from the Russian Federation. Both were elected in 1995, and re-elected in 1997. In 1999, Judge Navanethem Pillay from South Africa took over the post of President, and Judge Erik Møse from Norway became the Vice-President. Again, both were re-elected, and in 2003, Judge Møse was promoted to President, while Judge Andrésia Vaz from Senegal was elected Vice-President. Pursuant to Article 32 of the ICTR Statute, the President must report annually to the General Assembly and the Security Council on the functioning of the ICTR. In the Kanyabashi case the defence argued that this duty to report derogated from the independence of Chambers. The Trial Chamber retorted that this duty had an administrative character and that it did not infringe upon the judicial independence of the judges.196 As in the expert report cited above, a distinction was therefore made between administrative functions, for which the requirement of independence does not apply, and judicial functions, which must be exercised with full independence. Originally, Chambers consisted of two Trial Chambers of three judges of different nationalities, and it shared its Appeals Chamber of five judges of different nationality with the ICTY.197 As noted above, the idea behind the shared Appeals Chamber was to preserve legal unity. In the Aleksovski case, the ICTY Appeals Chamber submitted that its decisions were binding on ICTY Trial Chambers.198 Despite many cross-refer-

192 The Prosecutor v. Barayagwiza, Appeal Decision, 31 March 2000, para. 24. 193 The Prosecutor v. Barayagwiza, Appeal Decision, 31 March 2000, paras. 1-18. See especially the Separate Opinion of Judge Shahabuddeen, and the Declaration of Judge Vohrah. These two Judges had also been part of the bench that rendered the first decision, in which the indictment against Barayagwiza was dismissed. 194 The Prosecutor v. Barayagwiza, Appeal Decision, 31 March 2000, paras. 63-70. Also see the comment on this decision by Schabas (2000d: 567-568). 195 Article 13(1) of the ICTR Statute. 196 The Prosecutor v. Kanyabahsi, Decision, 18 June 1997, para. 45. 197 Article 11 and 12(2) of the ICTR Statute. Persons with a dual nationality are regarded as nationals of the State in which they ordinarily exercise their civil and political rights. Article 12(2) was amended in this respect by UN Doc. S/RES/1411, 17 May 2002. 198 The Prosecutor v. Aleksovski, Appeal Judgement, 24 March 2000, paras. 112-113. Also see the commentary on this Judgment by Nollkaemper and Zegveld (2002).

The establishment, organisation and jurisdiction of the ICTR

61

ences, there is no formal decision by the ICTY/ICTR Appeals Chamber that its findings are also binding upon the Trial Chambers of the other Tribunal.199 Such a decision would have been in line with the construction of a shared Appeals Chamber. However, it could also have given rise to new problems and confusion since the substantive jurisdiction of the two Tribunals is not entirely identical. In chapters III to VI this study demonstrates that in general both Tribunals have duly taken each other’s case law into account.200 The construction of a shared Appeals Chamber most certainly encouraged this. However, in some instances, ICTR Trial Chambers have ignored appeal decisions of the Appeals Chamber in ICTY cases.201 In these cases, the defendant has the possibility of addressing the divergence on appeal,202 and therefore the construction of a shared Appeals Chamber was a good choice.203 It goes without saying that unity of the law enhances its acceptance. With the proliferation of international criminal tribunals and internationalised courts, the risk of divergent case law increases. In the Kupreškic´ case, an ICTY Trial Chamber discussed the value of judicial decisions, and concluded that apart from the binding force of Appeals Chamber decisions on the Trial Chambers, it could not uphold the doctrine of stare decisis given the lack of a hierarchical structure among international courts.204 The Trial Chamber even stated, “international criminal courts such as the International Tribunal must always carefully appraise decisions of other courts before relying on their persuasive authority as to existing law.”205 By stating that only well-reasoned decisions should be followed, the Chamber emphasised the necessity of sound reasoning, but it also opened the door to divergent case law. Rwanda criticised the structure of Chambers on the basis of more pragmatic reasons. According to Rwanda, the entire structure was inappropriate for the execution of the enormous task facing the ICTR. The small number of judges in particular was one of the reasons why Rwanda ultimately voted against the resolution that established the

199 Such an obligation does not follow from the Aleksovski Appeal Judgement. This Judgement only deals with an obligation for the ICTY Trial Chambers, as becomes clear from the following excerpt from para. 113: “the intention of the Security Council, which, from a plain reading of the Statute and the Report of the Secretary-General, envisaged a tribunal comprising three trial chambers and one appeals chamber ,…” 200 For instance, the Appeals Chamber in the Musema Appeal Judgement adopted the test on cumulative convictions as set forth in the Cˇelebic´i Appeal Judgement, see chapter VI, section VI.2. 201 For instance, in the Niyitegeka Judgement, the Trial Chamber did not use the definition of rape as given by the ICTY Appeals Chamber in the Focˇa Appeal Judgement, see chapter IV, subsection IV.6.5. 202 In the Niyitegeka case, the definition of rape was not an issue on appeal. 203 However, the Appeals Chamber has not always followed its own jurisprudence either, see Della Morte (2004: 218-220). 204 The Prosecutor v. Z. Kupreškic´, M. Kupreškic´, V. Kupreškic´, Josipovic´, Papic´, and Santic´, Judgement, 14 January 2000, paras. 537-542. 205 The Prosecutor v. Z. Kupreškic´, M. Kupreškic´, V. Kupreškic´, Josipovic´, Papic´, and Santic´, Judgement, 14 January 2000, para. 542.

62

Chapter II

ICTR.206 As a compromise, the Security Council promised to reconsider the number of judges and of Trial Chambers if necessary.207 It proved to be necessary when there was an increasing number of accused detainees, some of whom had to spend more than six years in pre-trial detention.208 Given the ICTR’s main objective of bringing peace through justice, and given that the ICTR is supposed to function as a role model, it was considered imperative that the ICTR’s proceedings should meet the standards of a fair and expedient trial. On the basis of the principle, ‘justice delayed is justice denied’, the Security Council established a third Trial Chamber with Resolution 1165 (1998).209 Nevertheless, the problem of lengthy trials remained the Achilles’ heel of the ICTR. In a Decision in the Bagosora case, the Trial Chamber appeared to acknowledge this, though without taking responsibility for it. The Decision concerned a request by Bagosora for provisional release. He had spent about six years in pre-trial detention.210 The Chamber was obliged to deny this request of the so-called ‘mastermind’ of the genocide, despite the lengthy detention. The Chamber noted: “[o]n the question of the perceived causes for the delays observed in this trial proceedings, the defence neglects that some of the delays in setting a date for trial of this matter are owing to congestion in the Tribunal’s calendar caused by limited human and physical resources of the Tribunal. With a growing number of accused in custody and only three Trial Chambers in place, some measure of delay in trials is inevitable.”211

Thus three Trial Chambers were still not sufficient. Furthermore, in the Bagosora Decision the Chamber emphasised that: “only the United Nations may make the necessary changes or provide the additional judicial resources to assist in expediting the trials and thereby shorten the pre-trial detention of the accused.”212

The United Nations, and in particular the Security Council, have certainly taken measures aimed at expediting the procedures. For instance, Resolution 1329 (2000) had two additional judges elected for the ICTR, and had two other judges of the ICTR assigned to the Appeals Chamber in order to increase the number of judges in this Chamber.213

206 207 208 209 210 211 212 213

UN Doc. S/PV.3453, 8 November 1994, p. 15. UN Doc. S/RES/955, 8 November 1994, op. para. 7. Representative of France, UN Doc. S/PV.3877, 30 April 1998, p. 8. UN Doc. S/RES/1165, 30 April 1998. For more on the problematic issue of provisional release, see Van den Herik (2003a). The Prosecutor v. Bagosora, Decision, 12 July 2002, para. 25. The Prosecutor v. Bagosora, Decision, 12 July 2002, para. 26. UN Doc. S/RES/1329, 30 November 2000.

The establishment, organisation and jurisdiction of the ICTR

63

Pursuant to a request of the President of the ICTY, Judge Jorda,214 the Security Council in this Resolution also decided to create a pool of ad litem judges for the ICTY with a view to concluding the ICTY’s work as quickly and efficiently as possible. In a letter with comments on the proposals of her colleague from the ICTY, President Pillay indicated that a pool of ad litem judges was not required at that moment for the ICTR, but that this might change in the future.215 A formal request for ad litem judges was actually made in 2001,216 resulting in the creation of a special pool of ad litem judges for the ICTR through Resolution 1431.217 According to the Resolution and the subsequent new Article 11 of the ICTR Statute, no more than four ad litem judges could serve at the ICTR at any one time. Later on, this number was increased to nine.218 Hence, guarantees were included in the Statute to warrant the independence and the impartiality of the judges. However, the notion of independence was not interpreted so strictly as to mean complete isolation. Independence is only required for the judicial functioning, and does not affect administrative assistance. The measures taken by the Security Council to expedite the trials are also unrelated to the judicial independence of the ICTR. Rather, these measures aim to support the ICTR in achieving its goals.

II.4.2 The Prosecution As described above, the Commission of Experts advocated the expansion of the ICTY rather than establishing a new tribunal. This would avoid the proliferation of tribunals and divergent practices. Although a separate tribunal for Rwanda was eventually established, the aim was still to “ensure a unity of legal approach, as well as economy and efficiency of resources”.219 Therefore, it was decided that the ICTR should share its Prosecutor with the ICTY.220 The ICTR would have its own Deputy Prosecutor. The First Prosecutor was Richard Goldstone from South Africa.221 On the recommendation of Goldstone, Honoré Rakotomanana from Madagascar was appointed Deputy Prosecutor by the Secretary-General.222 On 1 October 1996, Goldstone was replaced by Louise Arbour from Canada,223 and following the criticism in the OIOS report regarding the

214 UN Doc. S/2000/865, 14 September 2000, Annex I. This request followed a recommendation of the Expert Group, UN Doc. A/54/634, 22 November 1999, para. 108 (recommendation 21). 215 UN Doc. S/2000/865, 14 September 2000, Annex II. 216 UN Doc. S/2001/764, 19 September 2001, and UN Doc. S/2002/241, 8 March 2002. 217 UN Doc. S/RES/1431, 14 August 2002 and UN Doc. S/RES/1477, 29 April 2003. 218 UN Doc. S/RES/1512, 27 October 2003. 219 UN Doc. S/1995/134, 13 February 1995, para. 9. 220 Article 15(3) of the ICTR Statute. 221 UN Doc. S/RES/936, 8 July 1994. 222 Article 15(3) of the ICTR Statute. 223 UN Doc. S/RES/1047, 29 February 1996.

64

Chapter II

Deputy Prosecutor, Rakotomanana was replaced by Bernard Muna from Cameroon in 1997. In 1999, Carla Del Ponte became the new Prosecutor for both Tribunals.224 In May 2001, the post of Deputy Prosecutor became vacant, a situation which lasted until the appointment of Bongani Christopher Majola from South Africa in January 2003. As a result of Del Ponte’s outspoken aim to prosecute RPF leaders, tensions arose between the regime in Rwanda and the Prosecutor. When the time came to renew Del Ponte’s mandate, the Secretary-General proposed to do so only with regard to the ICTY, and to finally give the ICTR its own Prosecutor. According to the Secretary-General, it was necessary to split these positions, given that both Tribunals had entered their completion phase.225 The Secretary-General’s proposal was warmly welcomed by Rwanda, which had requested a separate Prosecutor from the beginning.226 On the other hand, in 1999, a Group of Experts still advised against splitting up the post.227 In 2003, the NGO International Crisis Group (ICG) endorsed the Secretary-General’s argument that a single Prosecutor might no longer be necessary to preserve legal unity, as unifying jurisprudence had already been established at the time of the split in 2003. The ICG did note, however, that there were political reasons to withdraw Del Ponte, because of his determination to initiate prosecutions of RPF crimes. In its report, the ICG stressed the need to prosecute RPF crimes.228 Pursuant to Article 15(1) of the ICTR Statute, the Prosecution has the duty to investigate and to prosecute. The Office of the Prosecutor (OTP) has two corresponding departments, viz. the Investigation Section and the Prosecution Section. Other sections are the Legal Section and the Information and Evidence Section. The Prosecution began operating from Kigali, Rwanda, where it still has its office. The Prosecution is independent, but must work in accordance with the Statute.229 Since the judges are the ones finally interpreting the Statute, they may be considered hierarchically superior to the Prosecution. Nevertheless, the judges cannot instruct the Prosecution to open specific investigations or prosecutions, since the Prosecution must act independently in this respect.230 In the Nzirorera case, the defence requested that the Trial Chamber direct the Prosecution to open an investigation into the plane crash that assassinated President Habyarimana, the incident that sparked off the genocide in Rwanda in 1994. The Trial Chamber dismissed this request as having no legal basis.

224 UN Doc. S/RES/1259, 11 August 1999. 225 UN Doc. S/2003/766, 29 July 2003. 226 UN Doc. S/2003/794, 5 August 2003. Rwanda even suggested altering the whole institutional character of the Tribunal into some sort of ‘Sierra Leone’ type of court. This suggestion was not given much consideration. 227 UN Doc. A/54/634, 22 November 1999, paras. 253-259. 228 ICG (2003: 7-9). 229 Rule 37 of the RPE, as last amended on 31 May 2001. Part of this paragraph is based on an earlier publication: Van den Herik and Schrijver (2003). 230 Article 15 of the ICTR Statute.

The establishment, organisation and jurisdiction of the ICTR

65

It stressed the Prosecution’s complete independence regarding investigation and prosecution, and submitted that it did not have the power to instruct the Prosecution to undertake a specific investigation or prosecution.231 In the Ntuyahaga case, the Trial Chamber also refrained from influencing the Prosecution’s strategy. In that case, the Prosecution had sought to withdraw its case against Ntuyahaga, as most of the counts of the indictment had not been confirmed. The Prosecution explained that further proceedings against Ntuyahaga would not help to pursue its policy goal of “shedding light on the events that occurred in Rwanda in 1994 and highlighting the complete landscape of the criminal acts perpetrated at the time”. The Trial Chamber granted the Prosecution’s request without assessing the substance of this argument and explicitly underlined the Prosecution’s sole responsibility for its prosecution strategy.232 There is a great deal to be said for firmly maintaining this strict division of labour. To grant the judges the power to order the Prosecution to open investigations in specific matters would directly interfere with their independence and impartiality. Initially, the Prosecution pursued a geographical strategy, focussing on the areas where the massacres had been most intense, in the Prefectures of Butare, Kibuye, Cyangugu and Kigali. This strategy was complemented with a sort of opportunity principle, i.e., that crimes were investigated that had allegedly been committed by suspects who had been captured already.233 Subsequently, the Prosecution developed a more comprehensive strategy, as outlined by the annual reports of the ICTR. The first annual report of the ICTR, covering the starting period up to 30 June 1996, stated that the Prosecution intended to give priority to those persons who were mainly responsible for the events of 1994.234 It emphasised that the Office of the Prosecutor was limited by its financial and human resources.235 As documented in subsequent annual reports, the strategy was refined various times. The second annual report indicated that investigations were aimed at individuals who had held positions of national authority during the genocide.236 According to the third and fourth annual reports, two specific crimes were investigated as part of this broader policy. These two priorities concerned conspiracy to commit genocide and sexual crimes.237 The fifth annual report took the conspiracy theory as a starting point for a “two-pronged prosecutorial strategy”. First, military and political officials of the highest level were targeted, and second indictments were added per topic,

231 The Prosecutor v. Nzirorera, Decision, 2 June 2000. 232 The Prosecutor v. Ntuyahaga, Decision, 18 March 1999. For a commentary on this decision, as well as subsequent developments relating to the release of Ntuyahaga, see Sluiter (2001). 233 UN Doc. A/51/789, 6 February 1997, para. 55 and UN Doc. A/54/634, 22 November 1999, para. 137. 234 UN Docs. A/51/399 and S/1996/778, 24 September 1996, para. 42. 235 UN Docs. A/51/399 and S/1996/778, 24 September 1996, para. 42. 236 Second annual report of the ICTR, UN Docs. A/52/582 and S/1997/868, 2 September 1997, para. 52. 237 Third and fourth annual report of the ICTR, Resp. UN Docs. A/53/429 and S/1998/857, 23 September 1998, para. 49 and UN Docs. A/54/315 and S/1999/943, 7 September 1999, paras. 52 and 53.

66

Chapter II

for example, the media, or per region.238 The sixth annual report reported the consolidation of this strategy. In general terms, the Prosecution reiterated that its aim was to investigate the most serious crimes within the jurisdiction of the Tribunal. In addition, the report mentioned that those responsible for these crimes had to be prosecuted in accordance with the highest international standards.239 Furthermore, it was stated that crimes committed by the RPF in the aftermath of the genocide could also be subject to investigation.240 Again, reference was made to the limited availability of resources, which necessitated a high decree of selectivity on the part of the Prosecution.241 The seventh annual report announced that 80 persons had been indicted at the time of reporting. Of these 80 persons, 60 were held in custody (or had been tried already) and 20 were still at large. The indicted persons included former political leaders, highranking military officers, media leaders, senior government administrators, eminent businessmen and other public figures. In the exit strategy, previously published in January 2001, the Prosecution had announced its intention to investigate 136 other cases, excluding possible RPF investigations.242 Under international pressure to achieve a closure, the Prosecution revised this strategy, and declared that only 14 more persons would be indicted in addition to the existing indictments and ongoing investigations.243 In the eighth annual report, the Prosecution announced that a total of 26 new indictments would be lodged before the end of 2004 in addition to the existing indictments. Not all of these indictments were expected to lead to trials as some of the suspects might never be found, or might be dead.244 The numbers were adjusted in the completion strategy, based on the information available on 26 April 2004. The Prosecution estimated that altogether the ICTR would try 65 to 70 persons.245 These figures were repeated in the ninth annual report.246

II.4.3 The Registry The first Registrar, appointed by the Secretary-General, was Andronico O. Adede. The criticism of the first OIOS report to a large extent concerned the Registry, and consequently Adede was replaced in February 1997 by Agwu U. Okali. This resulted

238 239 240 241 242 243 244 245

Fifth annual report of the ICTR, UN Docs. A/55/435 and S/2000/927, 2 October 2000, paras. 120 and 121. UN Docs. A/56/351 and S/2001/863, 14 September 2001, para. 91. UN Docs. A/56/351 and S/2001/863, 14 September 2001, para. 103. UN Docs. A/56/351 and S/2001/863, 14 September 2001, para. 119. ICG (2002: 7). UN Docs. A/57/163 and S/2002/733, 2 July 2002, paras. 1, 9, 74. UN Docs. A/58/140 and S/2003/707, 11 July 2003, para. 9. UN Doc. S/2004/341, 3 May 2004, para. 62. Also see the fourth updated version of the completion strategy, 19 November 2004, para. 63. 246 UN Docs. A/59/183 and S/2004/601, 27 July 2004.

The establishment, organisation and jurisdiction of the ICTR

67

in some improvement, as noted in the second OIOS report. A new Registrar was appointed in March 2001. This was Adama Dieng from Senegal. The Registrar is responsible for the general administration and the servicing of the ICTR. These tasks include: assisting the Chambers with the schedule of the judicial calendar and registering all the legal documents, the transportation of witnesses, maintaining detention facilities and relations with the defence counsel, and the administration of finances, staff, and housing. Initially, ‘power struggles’ were reported between the Registrar and Chambers, as was also observed above. The reporters emphasised the servicing character of the Registrar’s function.247 In principle, the Registrar works directly under the authority of the President.248 However, in his supervisory practice, the President indicated that not all the decisions of the Registrar can be the subject of review, only those where there is a protectable right or interest or where the interests of justice are at stake.249

II.5

THE JURISDICTION OF THE ICTR

The first Article of the Statute prescribes the parameters of the Tribunal’s jurisdiction. It states: “The International Tribunal for Rwanda shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, in accordance with the provisions of the present Statute.”

The jurisdiction has four dimensions, namely substantive, personal, territorial, and temporal. The ICTR was modelled on the ICTY as far as possible, and decisions on the jurisdiction only deviated from this when it was necessary because of different circumstances. This section describes all the components of the ICTR’s jurisdiction and analyses the limits thereof as imposed by the Security Council. In this respect, it examines whether the Security Council was guided in this exercise by legal principles or rather by political considerations. It also investigates whether the jurisdiction enabled the ICTR to achieve its main objectives.

247 As described in UN Doc. A/51/789, 6 February 1997, para. 8; UN Doc. A/54/634, 22 November 1999, paras. 237-247. 248 Rule 33(A) of the RPE, as last amended on 31 May 2001. 249 The Prosecutor v. Nzirorera, Decision, 13 May 2002. In another decision in the same case, the President held that only those administrative decisions can be reviewed that “involve a substantive right that should be protected as a matter of human rights jurisprudence or public policy.” Decision, 22 January 2003, para. 5.

68

Chapter II

II.5.1 Substantive jurisdiction The substantive jurisdiction of the ICTR comprises three crimes, viz. genocide (Article 2), crimes against humanity (Article 3), and war crimes (Article 4). The jurisdiction of the ICTY comprises similar crimes, although Article 4 of the ICTR Statute only concerns war crimes committed in internal armed conflicts, whereas the ICTY Statute includes two provisions on international humanitarian law, viz. Article 2 on grave breaches of the 1949 Geneva Conventions, and Article 3 on other violations of the laws or customs of war. So-called treaty crimes, such as terrorism and the unlawful seizure of aircraft are not enshrined in the ICTR Statute.250 This choice was predominantly dictated by the heritage of the Nuremberg and Tokyo Tribunals and also by the criminal behaviour that had taken place and the fact that the crimes had been committed in the context of an armed conflict. Whereas the jurisdiction of the ICTY comprised only crimes that were undoubtedly part of customary international law, the Statute of the ICTR also applied to: “international instruments regardless of whether they were considered part of customary international law or whether they customarily entailed the individual criminal responsibility of the perpetrator of the crime”.251

This meant that war crimes in internal conflicts could be included in the ICTR Statute.252 Apart from the order in which the crimes are mentioned, the ICTR Statute does not indicate a hierarchy that could influence the Prosecution’s strategy. Therefore, the representative of Rwanda expressed the fear that the ICTR would spend its precious time and means on prosecuting some minor war crimes instead of genocide.253 The representative of New Zealand, one of the main drafters of the Statute, indicated that the focus was on genocide, as requested by Rwanda.254 This can also be inferred from the full name of the ICTR, which explicitly mentions genocide. Compared to the substantive jurisdiction of its predecessors, the Nuremberg and Tokyo Tribunals, and of its successor ICC, one crime is missing, viz. the crime of aggression. This can easily be explained, since current international law on aggression relates to an

250 Treaty crimes are crimes established under or pursuant to treaty provisions, see Article 20(e) of the Draft Statute for an International Criminal Court, UN Doc. A/49/10, 2 May to 22 July 1994. 251 UN Doc. S/1995/134, 13 February 1995, para. 12. 252 For further details on the legality of the inclusion of war crimes in internal conflict into the Statute, see chapter V. 253 UN Doc. S/PV.3453, 8 November 1994, p. 15. 254 UN Doc. S/PV.3453, 8 November 1994, p. 5.

The establishment, organisation and jurisdiction of the ICTR

69

interstate conflict,255 while the conflict in Rwanda was characterised as an internal conflict. As in the past, the drafters of the ICC Statute did not succeed either in drawing up a definition of the traditional crime of aggression,256 and therefore aggression in the context of a non-international armed conflict is even further away from being recognised as an international crime.257 Thus, even if it was established that the RPF invaded Rwanda illegally, the RPF leaders could not be held responsible for the crime of aggression. Criticism The present substantive jurisdiction, has been criticised for being incomplete. The President of Kenya argued that the ICTR had to assess who was responsible for the outbreak of the genocide, as well as trying the génocidaires themselves, in order to achieve its goals of strengthening peace in Rwanda.258 This criticism may be perceived as a general condemnation of the omission of some type of ‘crime of aggression’. Defendants before the ICTR have expressed similar criticisms in a more specific manner. They argued that the Prosecution should investigate the plane crash of President Habyarimana. The Trial Chambers submitted that they did not have any power to order the Prosecution to open investigations, and they underlined the Prosecution’s discretion in this regard.259 Moreover, a Trial Chamber submitted that the defence had not demonstrated a causal link between the required investigations and the allegations against the accused. Subsequently, other defence counsel changed strategy and asked for the disclosure of an internal memorandum on the crash prepared by a former ICTR investigator while working at the OIOS, the so-called Hourigan report. For example, the defence in the Bagilishema case adopted this approach. In that case, the Trial Chamber acknowledged that the plane crash had triggered subsequent events with which the accused was charged, and ordered that the report be made available to the defence. In the same case, the Prosecution referred to ongoing French investigations regarding the plane crash. The Prosecution said it would wait for the results of these investigations before considering starting investigations of

255 See Article 16 and the related commentary of the Draft Code of Crimes against the Peace and Security of Mankind, UN Doc. A/51/10, 6 May to 26 July 1996. Also see Article 1 of UN General Assembly Resolution 3314 (XXIX), ‘Definition of Aggression’, UN Doc. A/9631, 14 December 1974. 256 The crime of aggression has been formally included in the ICC Statute, but the Court cannot exercise jurisdiction over it until this crime is defined and until the conditions have been set under which the Court can exercise jurisdiction over this crime, Article 5 of the ICC Statute. Defining aggression has always been a controversial subject, as is also demonstrated by the non-definition of the General Assembly Definition of Aggression, UN Doc. A/9631, 14 December 1974. 257 See Müller-Schieke (2001: 420). 258 UN Doc. S/1995/861, 11 October 1995. 259 The Prosecutor v. Kabiligi, Decision, 1 June 2000; Prosecutor v. Nzirorera, Decision, 2 June 2000. Also see subsection II.4.2.

70

Chapter II

its own.260 However, a few years later, the Prosecution submitted that the investigation of the plane crash fell outside its mandate.261 In the annual report, the President of the ICTR indicated that these motions regarding the plane crash marked a “politicization of the defence strategy”.262 For political reasons it is certainly important to discover the reality behind the crash. However, the legal value of the plane crash is less apparent. After all, even if the plane was shot down by the RPF, as alleged by the defendants, this does not in any way diminish the defendants’ alleged criminal responsibility for subsequent genocidal massacres. As pointed out by the Prosecution in the opening statement in the Military I case, the killing of the President by the RPF can neither justify the genocide, nor in itself negates the fact that the genocide was planned.263 The crash ‘only’ constituted the moment that the genocide began.264 Of course, if it were to be established that the RPF was indeed responsible, this should and would have severe repercussions for the RPF leaders.265 However, even if the RPF leaders shot down the plane while they were aware that massacres would follow, and intending to use that argument to break the cease-fire and take over power in Rwanda, it would be difficult to establish their criminal responsibility for genocide. Even if the scenario were true, it is highly unlikely that these RPF leaders could have been aware of the enormous scale of the massacres that would follow the plane crash. Hence, the RPF leaders were not aware of the genocidal intent of the main perpetrators. Leaving aside this theoretical scenario, it should be repeated that even if the RPF shot down the plane, that does not preclude criminal responsibility for specific genocidal acts by the defendants. Moreover, even if it is agreed that the Prosecution has the task of finding the truth, the defendants cannot force the Prosecution to investigate the plane crash. The duty to disclose the truth pertains to facts directly relevant to the criminal responsibility of the defendants for the crimes with which they are charged. This is already a difficult

260 The Prosecutor v. Bagilishema, Decision, 8 June 2000. In the Judgement acquitting Bagilishema, no further reference was made to the Hourigan report, except for the disclosure request. The said investigations are being undertaken under the leadership of the French Judge Jean-Louis Bruguière. 261 Hirondelle press release, 5 February 2004. 262 UN Doc. A/55/435 and S/2000/927, 2 October 2000, para. 142. 263 The Prosecutor v. Bagosora et al., Opening Statement, 2 April 2002. 264 In the Bagilishema decision cited above, Judge Güney also stated that the indictment against Bagilishema did not allege that there was a causal link between the plane crash and the genocide, nor did it allege that Bagilishema was involved in the attack on the plane. Judge Güney argued against releasing the Hourigan report since the defence had not demonstrated how this document could have a disculpatory nature in the sense of Rule 68 of the RPE. Therefore, the Judge maintained that the discovery of who had brought down the plane would not in any way affect the criminal responsibility of Bagilishema. The same will apply for others accused of genocide, The Prosecutor v. Bagilishema, Decision, Separate and Dissenting Opinion of Judge Güney, 8 June 2000. 265 According to an investigation undertaken by the French investigating Judge Bruguière, Paul Kagame, the former leader of the RPF and current President of Rwanda was responsible for the plane being shot down, Le Monde, 9 March 2004. Subsequently, the defendant Nzirorera asked the ICTR to request the French government to provide it with a copy of the report, Hirondelle press release, 6 April 2004.

The establishment, organisation and jurisdiction of the ICTR

71

task in itself, and the Prosecution cannot be assigned the task of unveiling the whole truth about everything that happened before and during the genocide in Rwanda. Apart from the count of genocide, crimes against humanity and war crimes were also included in the ICTR Statute. This is in line with the objective of bringing about national reconciliation, since both parties to the former armed conflict can be prosecuted for these crimes. Had genocide been the only crime of the ICTR’s jurisdiction, then justice might not have been seen to have been done.266 Another burden that the Prosecution faces when trying to prosecute RPF crimes concerns the restricted temporal jurisdiction of the ICTR, which is limited to crimes committed in the year 1994. The section on temporal jurisdiction below sets out the consequences of this restriction.

II.5.2 Personal jurisdiction The motion on jurisdiction in the Kanyabashi case challenged the personal jurisdiction and in particular the question whether an individual could be held accountable at an international level. The Trial Chamber noted that there has been controversy regarding the question whether an individual could also be a subject of international law rather than only an object of human rights. The Chamber did not consider this issue in more detail, but merely pointed to the magnitude of the crimes committed and emphasised that the approach of the Security Council to establish a tribunal was innovative. This may not be an in-depth line of argument, but the competence of the Security Council as such has already been addressed and the issue of international criminal responsibility for the specific crimes was dealt with in more detail in the context of each specific crime. From an academic perspective, the revival of international criminal law entails important consequences for the position of the individual under international law.267 The fact that individuals are assumed to have duties, that are actually enforced, increases the individual’s participation in international law, and therefore the acceptance of the individual as a subject of international law.268 In this respect, McCorquodale referred to the Reparations for Injuries case of the ICJ, in which the ICJ identified as characteristics of international legal personality, the possession of international rights and duties and the capacity to submit international claims.269 Human rights law has granted individuals rights and possibilities to complain at the international level. Fifty years after

266 Also see Bucyana (1996). 267 On the position of the individual under international law, see Cassese (2001: 77-85) and McCorquodale (2003). 268 The idea of the individual as a participant comes from Higgins (1994: 49-50), as cited by McCorquodale (2003: 303). 269 McCorquodale (2003: 301). Reparations for injuries suffered in the service of the United Nations, Advisory Opinion, 11 April 1949, ICJ Reports 1949, pp. 178-179.

72

Chapter II

the Nuremberg and Tokyo Tribunals, both the ICTR and the ICTY were crucial in reaffirming the duties of individuals under international law. Thus, even though the ICTR did not acknowledge this expressly, it certainly made significant contributions to this development, enhancing the position of the individual under international law. Under the heading of the position of the individual, the defence tackled the issue of selectivity on the part of the Security Council and advanced this argument to establish the ICTR’s lack of jurisdiction over individuals. The Trial Chamber countered the argument and on this topic argued convincingly that the inability or unwillingness of the Security Council to act in a certain case cannot prevent the legality of its actions in other cases.270 Another instance relating to the ICTR, which points to the increased participation of individuals under international law, concerns Resolution 1503 (2003). In this Resolution, the Security Council called upon States to assist in bringing the fugitive Félicien Kabuga before the ICTR, hence naming a specific individual.271 Even though the Council’s instruction is addressed to States, this example may nevertheless point to a certain acknowledgement of the role that individuals can play in specific fields of international law, such as international peace and security.272 Responsibility of States and other legal entities Personal jurisdiction as determined by the Council is set out in Article 5 of the ICTR Statute and is confined to natural persons.273 Thus, neither States nor international organisations, such as the United Nations, can be held criminally accountable before the ICTR. This is in line with the most recent Draft Articles on State Responsibility of the International Law Commission (ILC), which has ultimately abandoned the notion of crimes by State.274 Nevertheless, the actions and inaction of particular States and of the United Nations in Rwanda prior to and during the genocide have been subject to close scrutiny at various levels. Most relevant in this respect are the reports of the UN275 and of the Organisation of African Unity (OAU).276 The latter report has the telling name Rwanda: the preventable genocide. The UN report identified the “lack of resources and a lack of will to take on the commitment, which would have been necessary to

270 The Prosecutor v. Kanyabashi, Decision, 18 June 1997, para. 36. 271 UN Doc. S/RES/1503, 28 August 2003, op. para. 3. 272 This was not the first time that an individual was named in a Security Council resolution, see e.g., UN Doc. S/RES/1267, 15 October 1999, naming Osama bin Laden. 273 Article 6 of the ICTR Statute specifies the forms of individual criminal responsibility. 274 UN Doc. A/56/10, 23 April to 1 June and 2 July to 10 August 2001. Also see Crawford (2002a: 243-244). 275 UN Doc. S/1999/1257, 16 December 1999. 276 OAU report, Rwanda: The Preventable Genocide, Report of the Panel of Eminent Personalities to Investigate the Genocide in Rwanda and the Surrounding Events, CM 12048 (LXVII) (hereinafter OAU report), 29 May 2000.

The establishment, organisation and jurisdiction of the ICTR

73

prevent or to stop the genocide”.277 In particular, the report pinpointed the inadequacies of UNAMIR’s mandate and also emphasised the unwillingness of most Member States of the United Nations to contribute troops or material to UNAMIR.278 The unwillingness of individual States was revealed in other reports, mainly following parliamentary investigations. The most important national reports were those issued by parliamentary commissions in France279 and Belgium.280 Less well known is a report of the Netherlands Institute of International Relations that investigated Dutch involvement in Rwanda. It concluded that “[t]he Netherlands had never been implicated directly in the unfolding traumatic events that resulted in the genocide and the successive power transfer from a Hutu government to a Tutsi-led government.”281

The report noted the rather active involvement of the Dutch Minister of Development Cooperation and the support of the Dutch government for the deployment of UNAMIR II. The Dutch government was prepared to assist financially as well as practically, by facilitating the transport of troops. However, in view of the Belgian experience, the Dutch government had not been prepared to deploy troops of its own.282 As a result of similar hesitations on the part of many States, UNAMIR II was not installed until the end of the genocide. The OAU report was more specific in naming certain States that had played a decisive role during the genocide, such as France, the US, and Belgium. The OAU report reprimanded Belgium for its withdrawal and both Belgium and the US for their obstruction in the UN regarding attempts to prevent the genocide.283 In fact, the OAU report especially targeted France. It exposed French actions such as the supply of arms which took place during the genocide, and the shielding of génocidaires through the safety zone established in the course of Opération Turquoise.284 The OAU also noted that heads of the UN and the US, as well as Belgium, had recognised their shortcomings and offered Rwanda their apologies.285 On the other hand, the French parliamentary inquiry rejected any

277 UN Doc. S/1999/1257, 16 December 1999, p. 30 278 UN Doc. S/1999/1257, 16 December 1999, pp. 31-32, 43-44. 279 Rapport d’information sur les opérations menées par la France, d’autres pays et l’ONU au Rwanda entre 1990 et 1994, Tome 1, Rapport Nº 1271, www.assemblee-nationale.fr (visited on 9 October 2002). 280 Parlementaire commissie van onderzoek betreffende de gebeurtenissen in Rwanda; verslag namens de onderzoekscommissie uitgebracht door de heren Mahoux en Verhofstadt, Belgische Senaat, zitting 1997-1998, 6 December 1997, www.senate.be/www/webdriver?MIval=index_senate&M=1&LANG=nl (visited on 31 March 2004). 281 Douma (2000: 41). 282 Douma (2000: 44). 283 OAU report, 29 May 2000, paras. 12.32-12.50 and 15.42-15.52. 284 OAU report, 29 May 2000, paras. 12.4-12.31 and 15.53-15.85. 285 OAU report, 29 May 2000, para. 12.5.

74

Chapter II

French responsibility for the genocide and denied the allegations of arms supplies during the genocide.286 In conclusion, although reports were issued at various levels exposing the behaviour of States and the United Nations, these reports remained without real political consequences,287 let alone repercussions at the level of criminal law. Article 5 of the ICTR Statute affirms this state of affairs. The wording ‘natural persons’ in Article 5 of the ICTR Statute also excludes legal Rwandan entities other than individuals, such as the militia Interahamwe and the Rwandan armed forces, from the jurisdiction of the ICTR. The private radio station Radio Télévision Libre des Mille Collines (RTLM), the medium through which people were incited to commit genocide, does not fall within the ICTR’s jurisdiction either.288 In this respect, it is rather remarkable that a Trial Chamber allowed the deferral request of the Prosecution concerning RTLM, in which the Prosecution not only asked Belgium to refer the case against the persons involved with the radio station, but also the case against the radio station itself. Reasons mentioned for the request were that parallel investigations might lead to confusion and complications, and problems with witness cooperation. The Trial Chamber favoured the request since the Belgian case concerned an issue that was closely related to the ICTR’s work and could have implications. This argument was in accordance with Rule 9(iii) of the RPE,289 but the question remained whether it was also in accordance with the Statute. Article 8 of the ICTR Statute stipulates that the jurisdiction of the ICTR is concurrent with that of national courts. Paragraph 2 of this Article lays down the primacy of the ICTR, and accordingly allows the ICTR to request for a referral. From these provisions it cannot be inferred that the ICTR may also ask national courts to defer cases that do not fall within its own jurisdiction.290

286 OAU report, 29 May 2000, paras. 12.6-12.8. Rapport d’information sur les opérations menées par la France, d’autres pays et l’ONU au Rwanda entre 1990 et 1994, Tome 1, Rapport Nº 1271, www.assembleenationale.fr (visited on 9 October 2002). 287 In general, some reports were issued on the pitfalls of peacekeeping operations, including recommendations to avoid a second ‘Rwanda’ or ‘Srebrenica’. Most relevant in this regard is a UN report, also called the Brahimi-report, Report of the Panel on United Nations Peace Operations, UN Docs. A/53/305 and S/2000/809, 21 August 2000. There is also a Dutch report on Dutch politics regarding contributions to peace missions, the Bakker-report, Vertrekpunt Den Haag. Rapport van de Tijdelijke Commissie Besluitvorming Uitzendingen, Tweede Kamer, vergaderjaar 1999-2000, 26 454, nos. 7-8. For a comment on these reports, see Schrijver (2000a). 288 The Prosecutor v. Radio Télévision Libre des Mille Collines SARL, Decision, 17 May 1996, and Vanderbeken (2001). 289 Rule 9(iii) of the RPE, as last amended on 12 January 1996. 290 Rule 9(iii) of the RPE was amended in the Plenary Session of 8 June 1998. This was done “with a view to clarifying the procedure for request for deferral submitted to the national authorities by the Tribunal in respect of investigations and criminal proceedings”, third annual report, UN Doc. A/53/429 and S/1998/857, 23 September 1998, para. 14.

The establishment, organisation and jurisdiction of the ICTR

75

In contrast to the report of the Secretary-General with regard to the ICTY,291 the report implementing the ICTR was silent on the issue of criminal organisations. Instead, it was addressed in case law. In preliminary motions challenging the jurisdiction of the ICTR in the Military I case, Nsengiyumva, Kabiligi, and Ntabakuze, all members of the Rwandan armed forces, claimed that the ICTR lacked jurisdiction to deal with the case, as allegations in the indictment concerned the Rwandan armed forces as such, and not Nsengiyumva, Kabiligi, and Ntabakuze personally. The Trial Chambers denied the motion and pointed out that the accused were in fact charged individually. Since they had committed the alleged acts as members of the armed forces, it was understandable that the armed forces were mentioned in the indictments.292 In the case of the former Minister of Information, Niyitegeka, who alleged that it was the interim government that was charged, and not him personally, the Trial Chamber came to a similar finding.293 Hence, an indictment can contain certain references to acts of organisations of which the indicted person was a member, as long as the specific counts charge the indicted person and not the organisation. The matter also came up indirectly in the judgement in the case of Rutaganda, the former second Vice-President of the Interahamwe. Apart from other counts, Rutaganda was charged with war crimes. In the course of assessing whether Rutaganda belonged to the group of persons that could be held responsible for war crimes,294 the Trial Chamber noted that it was satisfied that Rutaganda had held a position of authority over the Interahamwe, and also that the Interahamwe had supported the Rwandan army in its war efforts against the RPF. Nevertheless, in the first instance Rutaganda himself was not held responsible for any war crimes, since it had not been proven that he had committed individual acts in conjunction with the armed conflict between the Rwandan army and the RPF.295 The Trial Chamber therefore required the Prosecution to prove the individual responsibility of Rutaganda for war crimes. The mere fact that Rutaganda was a high-ranking member of the Interahamwe, and that this organisation had participated in the war was not enough to establish Rutaganda’s criminal responsibility for war crimes

291 UN Doc. S/25704, 3 May 1993, para. 51 (“The question arises, however, whether a juridical person, such as an association or organization, may be considered criminal as such, and thus its members, for that reason alone, be made subject to the jurisdiction of the International Tribunal. The Secretary-General believes that this concept should not be retained in regard of the International Tribunal. The criminal acts set out in this statute are carried out by natural persons; such persons would be subject to the jurisdiction of the International Tribunal irrespective of membership in organisation.”). 292 The Prosecutor v. Nsengiyumva, Decision, 13 April 2000, paras. 16-18, 35-36; The Prosecutor v. Kabiligi and Ntabakuze, Decision, 13 April 2000, paras. 11, 13, 17, 20, 45-46. 293 The Prosecutor v. Niyitegeka, Decision, 20 November 2000, paras. 20, 39, 40. 294 For further details on the requirements of war crimes, see chapter V, especially subsection V.6.1. 295 The Prosecutor v. Rutaganda, Judgement, 6 December 1999, paras. 439-442. The Appeals Chamber came to a different finding regarding the connection between the armed conflict and Rutaganda’s acts. For a more elaborate discussion on the case law on war crimes, see chapter V.

76

Chapter II

committed by the organisation. The Trial Chamber did not even discuss whether Rutaganda did or did not know about the massacres committed by the Interahamwe as part of its war efforts against the RPF. By emphasising the need to prove individual responsibility, the Trial Chamber seemed to turn away from the form of collective responsibility that entails criminality of the individual on the basis of knowledge of criminal acts committed by others of the group to which the individual belongs. It therefore appears that it is not only the Statute of the ICTR that does not endorse the notion of criminal organisations, but in practice the ICTR also shies away from this form of collective responsibility.296 In this respect, the ICTR deviated from the Nuremberg legacy. Despite the notion that collective criminality contradicts fundamental principles of criminal law, such as the principle that criminal guilt is individual, Jørgenson devoted attention once again to the theory of criminal organisations in the context of Rwanda.297 She referred to the Nuremberg example, and in particular to Articles 9 and 10 of the Nuremberg Charter. These provisions granted the Military Tribunal the possibility of declaring that an organisation was criminal. Consequently, individuals could be tried for having been a member of that criminal organisation by national military tribunals.298 In its Judgement, the Nuremberg Tribunal defined a criminal organisation as “a group bound together for a common criminal purpose”. By using this definition, the Tribunal intended to include only those who had been personally involved in the crimes of the organisation or those who had had knowledge of the criminal acts of the organisation. Thus membership in itself was not sufficient to establish criminality, but the burden of proof seemed to be on the defendant.299 In its Judgement, the Nuremberg Tribunal declared several organisations to be criminal. In these declarations, the Tribunal indicated in general which groups of people within the organisation as a whole fell under the declaration.300 Jørgenson proposed assigning similar powers to the ICTR to enable it to declare organisations criminal. In her view, this could relieve national courts, especially with regard to evidentiary problems. If the ICTR were to declare organisations such as

296 So far, nobody has been convicted on the basis of the ‘common purpose doctrine’ by the ICTR, in contrast to the ICTY practice. In The Prosecutor v. Kayishama and Ruzindana, Judgement, 21 May 1999, para. 451, the Trial Chamber refrained from applying the common purpose doctrine. In The Prosecutor v. E. and G. Ntakirutimana, Appeal Judgement, 13 December 2004, paras. 448-485, the Appeals Chamber refused to apply the concept of ‘joint criminal enterprise’, because it had not been properly pleaded. In Rwamakuba v. The Prosecutor, Decision, 22 October 2004, the Appeals Chamber held that it did have jurisdiction to try an individual on a charge of genocide through the mode of liability of joint criminal enterprise. The Appeals Chamber dismissed the defence’s contention that the doctrine of a joint criminal enterprise to commit genocide was not recognised under customary international law held in 1994. Also see Van Sliedregt (2003: 94-109) and Boot (2002: 288-304). 297 Jørgenson (2001b). 298 Article 10 of the Nuremberg Charter jo. Article 2(1) d of Control Council Law no. 10. 299 Van Sliedregt (2003: 23-25). 300 Judgement and sentences of the International Military Tribunal (Nuremberg), 1 October 1946, Am. J. of Int. L. 41: 249-272.

The establishment, organisation and jurisdiction of the ICTR

77

the Interahamwe criminal, it might be easier for national courts to convict individuals for having been a voluntary member of this militia while being aware of its criminal purposes. While it is certainly thought provoking, it is doubtful whether Jørgenson’s proposal would actually relieve national courts.301 Jørgenson herself also pointed to remaining problems, for example, the lack of documentation proving the criminal purposes of the organisation, and the fact that the Interahamwe was an organisation without a clear organisational structure or membership registration. Therefore, new evidentiary problems would replace the ones that the theory of criminal organisations was supposed to solve. As an alternative way of dealing with evidentiary problems, the Prosecution started to combine indictments. Furthermore, this strategy was based on the theory that the genocide was the result of a conspiracy to commit genocide. On 6 March 1998, the Prosecution presented a comprehensive indictment against 29 persons with conspiracy as the central count. This new indictment compiled cases of accused who were in custody and who had already made their initial appearance, of accused who remained at large, but whose indictments had been confirmed, and of new suspects also still at large. The reason why the Prosecution sought to combine these ongoing and new cases was that new evidence had come up indicating a national conspiracy.302 The Prosecution submitted that this new evidence would “assist the Tribunal to fulfil its mandate, object and purpose, as provided in the Preamble of the Statute, i.e., to prosecute those responsible for the serious violations of international humanitarian law.” The reviewing Judge Khan did not consider this argument, but dismissed the indictment. He held that he could neither have concurrent jurisdiction over cases already being tried before Trial Chambers, nor assume jurisdiction over cases that had already been confirmed by other reviewing judges.303 The Prosecution appealed against the dismissal of the new indictment. It argued that this appeal was admissible, as the decision to dismiss the indictment adversely affected its ability to discharge its mandate, and therefore contravened the ICTR’s purposes and objectives.304 The Prosecution submitted that Article 1 of the ICTR Statute required positive action by Chambers towards fulfilling the ICTR’s mandate. Accordingly, the decision to dismiss the indictment resulted in a failure to complement the Prosecution in executing its tasks and therefore constituted a miscarriage of justice.305 The Appeals Chamber firmly rejected this line of reasoning.306 It stated that the decision did not

301 Moreover, Van Sliedregt (2003: 106-107) has argued that the collective criminality theory violates fundamental principles of law, such as the principle of personal fault. 302 The Prosecutor v. Bagosora and 28 others, Decision, 31 March 1998. 303 The Prosecutor v. Bagosora and 28 others, Decision, 31 March 1998. 304 The Prosecutor v. Bagosora and 28 others, Appeal Decision, 8 June 1998, paras. 25-26. 305 Article 24 of the ICTR Statute allows an appeal on only two grounds, viz. (a) an error on a question of law invalidating the decision, or (b) an error of fact which has occasioned a miscarriage of justice. 306 The Prosecutor v. Bagosora and 28 others, Appeal Decision, 8 June 1998, paras. 27-32.

78

Chapter II

pose an obstacle to the mandate of the ICTR, and pointed to other provisions that enabled the Prosecution to achieve its goals. The Appeals Chamber also stressed that the judicial organs of the ICTR could not in any way assist or complement the Prosecution in the execution of its tasks. It emphasised once again, this time to the Prosecution’s disadvantage, that the Prosecution enjoyed sole responsibility in this respect. If it had not been for these procedural limitations, one could still have questioned the Prosecution’s wish to combine as many as 29 cases from a procedural perspective. While it is understandable that the Prosecution tried to alleviate the burden for witnesses by reducing the number of times that they have to testify, it is also clear that combining too many cases may entail unnecessary delays307 and may also infringe the rights of the defence in other ways.308 Eventually, some indictments were combined in terms of region or theme. This was the origin of the so-called Butare case,309 the Military cases,310 the Government cases,311 and the Media case.312 The Butare case showed that one trial with six

307 As the expert report stated: “The greater the number of suspects joined, the greater will be the danger of multiple adjournments.” UN Doc. A/54/634, 22 November 1999, para. 164. 308 For instance, in the case of Mugenzi, the defence requested severance of trial asserting that a conflict of interest between the co-accused and criticism by the defence of Mugenzi of the co-accused might result in attempts to discredit Mugenzi, The Prosecutor v. Mugenzi et al., Decision, 8 November 2002, para. 22. The Trial Chamber was not convinced by this argument. 309 The Butare case includes: The Prosecutor v. Nyiramasuhuko (former Minister of Family and Women Affairs), The Prosecutor v. Ntahobali (former Interahamwe leader), The Prosecutor v. Kanyabashi (former Mayor), The Prosecutor v. Nteziryayo (former Prefect of Butare), The Prosecutor v. Ndayambaje (former Mayor), The Prosecutor v. Nsabimana, (former Prefect of Butare). 310 The Military I case groups the following cases: The Prosecutor v. Bagosora (former directeur de cabinet of the Ministry of Defence), The Prosecutor v. Nsengiyumva (colonel, former commander in Gisenyi) The Prosecutor v. Kabiligi (former brigadier-general in the Rwandan army) The Prosecutor v. Ntabakuze (former commander of battalion in the Rwandan army). The Military II case comprises the cases of: The Prosecutor v. Ndindiliyimana (former chief of staff of Gendarmerie Nationale), The Prosecutor v. Nzuwonemeye (former commander of the 42nd battalion), The Prosecutor v. Sagahutu (former second-in-command of the reconnaissance battalion), The Prosecutor v. A. Bizimungu (former chief of staff of the Rwandan army), The Prosecutor v. Mpiranya, (former colonel and head of the Presidential Guard). 311 The Government I case groups the following cases: The Prosecutor v. Karemera (former Minister of Interior), The Prosecutor v. Rwamakuba (former Minister of Education), The Prosecutor v. Ngirumpatse (former President of the political party MRND), The Prosecutor v. Nzirorera (former Secretary-General of the MRND). If they are captured in time, the following persons are also grouped in this case, viz. Augustin Bizimana (former Minister of Defence. Bizimana is generally presumed to have died), Callixte Nzabonimana (former Minister of Youth), and Félicien Kabuga (Businessman and former President of RTLM). The Government II case indicts: The Prosecutor v. C. Bizimungu (former Minister of Health), The Prosecutor v. Mugenzi (former Minister of Commerce), The Prosecutor v. Mugiraneza (former Minister of Civil Service), The Prosecutor v. Bicamumpaka (former Minister of Foreign Affairs). 312 The Media case consists of the following cases: The Prosecutor v. Barayagwiza (one of the founders of RTLM and former senior officer of RTLM radio station, founding member of the political party CDR), The Prosecutor v. Nahimana (one of the founders of RTLM and former senior officer of the RTLM radio station, proclaimed Minister of Higher Education, Scientific Research and Culture under the Arusha Peace

The establishment, organisation and jurisdiction of the ICTR

79

accused is certainly not necessarily faster than six individual trials. The ‘Butare experience’ led the Prosecution to change its strategy again. Henceforth, it indicted persons individually rather than in joint cases. The few joint cases that are leftovers from the previous strategy are interesting from the perspective of the theory of criminal organisations outlined above. The question is whether the ICTR will allow this concept in ‘through the back door’ or not.313 More specifically, can former Ministers tried in the Government cases, or former militaries tried in the Military cases be held responsible for the sole fact that they belonged to these ‘organisations’ which were implicated in the genocide? Van Sliedregt has compellingly argued that assuming criminal responsibility solely on the basis of membership is inconsistent with the requirement of personal culpability.314 An examination of cases of individual Ministers that have been concluded so far reveals that no Minister has been held responsible solely on the basis of participating in the Interim Government,315 and one Minister was even acquitted, despite his participation in the Interim Government.316 In the Media case, the link between Nahimana, the founder of the radio station RTLM, and the genocide was difficult to establish, and there was no proof of specific acts by Nahimana such as supervising massacres at roadblocks or leading attacks. Yet Nahimana was not convicted for being a member of a criminal organisation, but rather on the basis of high level responsibility for RTLM broadcasts, and on the basis of individual responsibility for conspiracy to commit genocide, and even on the basis of individual responsibility for genocide, as Nahimana was the person who had founded RTLM and kept the radio station going throughout the genocide.317 All in all, the ICTR’s solution to deal with mass criminality was not reflected in an expanded interpretation of Article 5 of the ICTR Statute. Rather, the Prosecution used the concept of conspiracy to commit genocide to try the main perpetrators.

313 314 315

316 317

Accords of 1993, which were never implemented), The Prosecutor v. Ngeze, (former editor-in-chief of the journal Kangura). Jørgenson (2001b: 402). Van Sliedregt (2003: 352-354). At the end of 2004, four former Ministers had been convicted, including the Prime Minister: The Prosecutor v. Kambanda, Judgement, 4 September 1998 (former Prime Minister); The Prosecutor v. Niyitegeka, Judgement, 16 May 2003 (former Minister of Information); The Prosecutor v. Kamuhanda, Judgement, 22 January 2004 (former Minister for Culture and Education); The Prosecutor v. Ndindabahizi, Judgement, 15 July 2004 (former Minister of Finance). It should be noted that Kamuhanda became Minister on 25 May 2004. His conviction concerned only acts committed before he was in office. Therefore Kamuhanda was not convicted for acts committed while he was Minister, paras. 244-247. The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004 (Ntagerura was the former Minister of Transport). The Prosecutor v. Nahimana, Barayagwize, Ngeze, Judgement, 3 December 2003, paras. 973-974, 1040-1055.

80

Chapter II

II.5.3 Territorial jurisdiction The territorial jurisdiction is laid down in Article 7 of the ICTR Statute. It covers the territory of Rwanda. There is no restriction based on nationality requirements, and therefore the ICTR was also able to prosecute the Italo-Belgian Ruggiu for the crimes he committed.318 Moreover, the absence of a passive nationality requirement made it possible for the Rwandan Bagosora to be indicted for the murder of the ten UNAMIR Belgian paracommandos as a crime against humanity.319 The territorial jurisdiction extends to the territory of neighbouring States subject to the condition that the perpetrator was a Rwandan civilian. Here, the active nationality requirement means that only crimes related to the case of Rwanda fall under the jurisdiction of the ICTR. The intention was to include crimes committed in refugee camps outside Rwanda by escaped Interahamwe.320 This extension of the ICTR’s territorial jurisdiction is in line with its objective of bringing a definite end to the genocide and restoring the peace in Rwanda. Nevertheless, the extended jurisdiction met with opposition from the neighbouring States of Uganda and Zaire. While Uganda argued that its courts would prevail in its territory,321 Zaire proposed obliging neighbouring States to waive jurisdiction in favour of the ICTR in all the Member States of the United Nations.322 In addition to limiting the ICTR’s mandate, the territorial jurisdiction is also relevant with regard to taking judicial notice of facts which are common knowledge. Rule 94 of the RPE entitles the Chamber to take judicial notice instead of requiring proof of facts which are common knowledge. A Trial Chamber decided that common knowledge encompasses facts which are generally known, such as the days of the week and the laws of nature, but also facts generally known within the territorial jurisdiction of the ICTR, such as the role of Mayors in Rwandan politics.323

II.5.4 Temporal Jurisdiction Apart from the territorial jurisdiction, Article 7 also defines the temporal jurisdiction of the ICTR. The mandate covers crimes committed in the year 1994. This is more limited than the ICTY’s temporal jurisdiction, which is open-ended. The Rwandan government was dissatisfied with the time period starting on 1 January 1994 rather than on 1 October

318 The Prosecutor v. Ruggiu, Judgement, 1 June 2000. 319 The Prosecutor v. Bagosora, Indictment, 12 August 1999. 320 As pointed out by the French representative in his statement after voting on Resolution 955 (1994), UN Doc. S/PV.3453, 8 November 1994, pp. 3-4. 321 UN Doc. S/1994/1230, 31 October 1994. 322 UN Doc. S/1994/1267, 9 November 1994. 323 Prosecutor v. Semanza, Decision, 3 November 2000, paras. 22-24.

The establishment, organisation and jurisdiction of the ICTR

81

1990, when the civil war started.324 It submitted that the ICTR’s time limit did not cover either some important preparatory acts, such as the planning of the genocide, or other criminal acts committed prior to 1994.325 The main opposition to backdating the temporal jurisdiction to 1 October 1990 came from France.326 At first, it was not entirely clear whether the time limit of 1 January 1994 concerned only the actual commission of the crime, such as killing or torturing as acts of genocide, or also other forms of criminal behaviour, such as aiding and abetting.327 Moreover, it was not clear from the Statute whether evidence dating from before 1994 could be used to prove crimes committed in 1994. In several cases, defendants argued that references in the indictment to pre-1994 events should be deleted as they fell outside the ICTR’s jurisdiction. With regard to the crime of conspiracy to commit genocide, they claimed that this crime was committed at the moment the agreement to conspire was made. If the agreement dated from before 1994, the ICTR lacked jurisdiction on that count as well.328 The Trial Chambers accepted the Prosecution’s submissions that it would only rely on the allegations that fell outside the timeframe in order to prove the elements of crimes that were allegedly committed in 1994. Hence, the pre-1994 allegations should not be considered as independent crimes, but the allegations could have evidentiary value.329 One Chamber also maintained that it could take note of events that fell outside the temporal jurisdiction to appreciate the context of the alleged crimes.330 As regards the crime of conspiracy, the Chambers considered that this was an ongoing crime, which did not end once the agreement was entered into.331

324 In fact, in its national penal legislation on genocide as well the special law regarding the gacaca courts, the Rwandan government did backdate the time limit to 1 October 1990, see subsection II.3.4. 325 The Rwandan government based its argument on the report of the Special Rapporteur on extrajudicial summary or arbitrary executions on his mission to Rwanda, 8-17 April 1993. This report already considered the genocide question, UN Doc. E/CN.4/1994/7/Add.1, 11 August 1993, paras. 78-80. 326 See Ntanda Nsereko and Ibanda Nahamya (2001: 42). 327 See Morris (1997: 354-355). 328 The Prosecutor v. Ngeze, Decision, 5 November 1999, para. 2.1; The Prosecutor v. Nahimana, Decision, 5 November 1999, para. 25; The Prosecutor v. Barayagwiza, Decision, 11 April 2000; The Prosecutor v. Kabiligi and Ntabakuze, Decision, 13 April 2000, paras. 10, 16, 19; The Prosecutor v. Nsengiyumva, Decision, 13 April 2000, paras. 9, 11; The Prosecutor v. Nahimana, Decision, 12 July 2000; The Prosecutor v. Niyitegeka, Decision, 20 November 2000, para. 9; The Prosecutor v. Kajelijeli, Decision, 13 March 2001, para. 1. 329 The Prosecutor v. Ngeze, Decision, 5 November 1999, para. 3; The Prosecutor v. Nahimana, Decision, 5 November 1999, paras. 25-28; The Prosecutor v. Barayagwiza, Decision, 11 April 2000; The Prosecutor v. Kabiligi and Ntabakuze, Decision, 13 April 2000, para. 38; The Prosecutor v. Nsengiyumva, Decision, 13 April 2000, para. 27. 330 The Prosecutor v. Nahimana, Decision, 12 July 2000. 331 The Prosecutor v. Kabiligi and Ntabakuze, Decision, 13 April 2000, para. 39-44; The Prosecutor v. Nsengiyumva, Decision, 13 April 2000, para. 28-33.

82

Chapter II

In an interlocutory appeal in the Media case, the Appeals Chamber allowed reference to pre-1994 events for introductory, historic or informative reasons.332 The question whether and to what extent these references could also be used as evidence remained unanswered in the majority decision. Several judges explored the matter in more detail in separate opinions. Judges Vohrah and Nieto-Navia emphasised that the limits of the temporal jurisdiction applied to all the crimes, including single crimes and ongoing crimes, such as incitement and conspiracy to commit genocide respectively. The opinion especially posed problems for the Prosecution’s count on conspiracy, as this alleged that the conspiracy had started before 1994 and continued into 1994. On the question as to how the pre-1994 events should be appreciated, the two Judges argued that these events could not be considered in any way in support of the charge. Therefore, the Judges claimed that a description of pre-1994 facts should henceforth be clearly separated from the charges.333 In contrast, Judge Shahabuddeen favoured a clear distinction between the elements of a crime on the one hand, and proving these elements on the other. The temporal jurisdiction concerns the presence of the elements, whereas proof of these elements may derive from pre-1994 facts. Such evidence could be used to prove the intent of the accused or to establish a “pattern, design or systematic course of conduct by the accused.”334 As regards the specific count of conspiracy, Judge Shahabuddeen stated that the fact that the agreement to conspire was made before 1994 was not decisive. The Judge argued that the conspiracy to commit genocide was a continuing threat to the State of Rwanda that persisted in the year of 1994, and could therefore be considered to be constantly renewed.335 These two separate opinions appear to be quite distinct. While Judges Vohrah and Nieto-Navia argued that the Prosecution should not be able to rely on pre-1994 facts to prove crimes committed in 1994, Judge Shahabuddeen submitted that pre-1994 facts could be used as proof for certain elements of a crime with regard to crimes committed in 1994. In subsequent decisions, the Trial Chambers relied on their earlier case law that pre1994 facts could be used to prove charges relating to crimes allegedly committed in 1994, in addition to using other proof.336 A specific claim against the admissibility of evidence can still be made during trial. In the Judgement in the first instance in the Media case,

332 Ngeze and Nahimana v. The Prosecutor, Appeal Decision, 5 September 2000. Also see Barayagwiza v. The Prosecutor, Appeal Decision, 14 September 2000. 333 Ngeze and Nahimana v. The Prosecutor, Appeal Decision, Joint Separate Opinion of Judge Vohrah and Judge Nieto-Navia, 5 September 2000, paras. 21-23. 334 Ngeze and Nahimana v. The Prosecutor, Appeal Decision, Separate Opinion of Judge Shahabuddeen, 5 September 2000, para. 20. 335 Ngeze and Nahimana v. The Prosecutor, Appeal Decision, Separate Opinion of Judge Shahabuddeen, 5 September 2000, paras. 13-14. 336 The Prosecutor v. Niyitegeka, Decision, 20 November 2000, para. 38; The Prosecutor v. Kajelijeli, Decision, 13 March 2001, para. 5; The Prosecutor v. Bikindi, Decision, 22 September 2003, para. 34; The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004, para. 86.

The establishment, organisation and jurisdiction of the ICTR

83

the Trial Chamber recalled its decision that pre-1994 events could be used as evidence. The Judgement noted the Appeals Chamber decision as well as the two Separate Opinions. Without expressly deviating from the opinion of Judges Vohrah and Nieto-Navia, the Trial Chamber adopted Shahabuddeen’s point of view.337 In practice, this resulted, for example, in the Chamber taking account of Nahimana’s role as Director of the Rwanda Office of Information, a post he had held in 1992, when radio incitements had reinforced the massacres in Bugesera.338 In a Decision in the Military I case, the Trial Chamber emphasised and elaborated on the Opinion of Judge Shahabuddeen. The Trial Chamber listed three situations in which evidence of pre-1994 events could be relevant, viz. (i) when it concerned evidence of an continuing offence that had started before 1994 and continued into 1994; (ii) when it concerned crucial background information; and (iii) when it concerned ‘similar fact evidence’. In this last situation, it was indicated that such evidence could only be used in exceptional cases,339 for instance to prove systematic conduct on the part of the accused.340 The jurisprudence of the ICTR on ongoing crimes is directly relevant to the ICC. According to Article 11 of the ICC Statute, the Court only has jurisdiction over crimes committed after the entry into force of the Statute. From a different perspective, Article 24 of the ICC Statute also states that the Court cannot try persons for conduct prior to the entry into force of the Statute. Opposing views have been expressed as to whether or not these Articles clearly exclude jurisdiction over ongoing crimes, such as forced disappearances, which started before the entry into force of the Statute and continued thereafter.341 The Separate Opinions described above of Judges Vohrah and Nieto-Navia on the one hand and Judge Shahabuddeen on the other hand, seem to reveal a similar conflict. Despite the different views regarding pre-1994 events, there is certainly agreement that massacres committed before 1994 fall wholly outside the scope of the ICTR, as independent crimes.342 As regards the final date, Rwanda proposed that the time limit should be 17 July 1994, when the RPF defeated the Hutu government and ended the war. This proposal by Rwanda is rather arbitrary, since it excludes any possible crime committed by members of the new Rwandan government after they came into power. It also conflicts with the final report of the Commission of Experts, in which the Commis-

337 The Prosecutor v. Nahimana, Barayagwize, and Ngeze, Judgement, 3 December 2003, paras. 100-106. 338 The Prosecutor v. Nahimana, Barayagwize, and Ngeze, Judgement, 3 December 2003, paras. 620, 668-691. 339 Pursuant to common law jurisdictions from which this concept originated, similar fact evidence is prejudicial and therefore inadmissible if used solely to denote the bad character of the accused, The Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva, Decision, 18 September 2003, paras. 11-13. 340 The Prosecutor v. Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva, Decision, 18 September 2003. 341 See Boot (2002: 42, 371) and Saland (1999: 196-197). 342 In contrast, the national courts of Rwanda, as well as the gacaca courts, can exercise jurisdiction over crimes committed between October 1990 and the end of 1994.

84

Chapter II

sion in particular recommended investigating crimes committed by the RPF, also in the light of the continuing violence after July 1994.343 Therefore, ignoring Rwanda’s proposal supported the overall objective of restoring peace in Rwanda. In the meeting in which Resolution 955 (1994) was adopted, the French representative indicated that the Security Council could even extend the ICTR’s temporal jurisdiction further if necessary.344

II.6

CONCLUSION

The origins of the ICTR lie in the concerted efforts of UN human rights bodies and the UN Security Council. The compelling reports of Special Rapporteurs forced the Security Council to act. The ICTR merges human rights endeavours with the primary UN aim of maintaining peace and security. In this regard, the proposals of Secretary-General Annan should also be noted. At the Stockholm International Forum 2004 on the theme ‘Preventing Genocide’, he recommended appointing a Special Advisor for the prevention of genocide. This Advisor would report directly to the Security Council, and not to the Human Rights Commission, in order to underline the link between widespread and systematic human rights violations and the existence of a threat to the peace.345 The first to occupy this post was the Argentinean Juan E. Mendez.346 The ICTR’s objectives primarily arise from a peace and security background, since it was ultimately the Security Council that created the ICTR. Nevertheless, human rights considerations play a decisive role in the ICTR’s operations. The Security Council established the ICTR to address a threat to the peace. However, the measure was not intended to address a threat to the peace in the traditional sense. Instead, the notion of peace was interpreted rather creatively in the case of Rwanda. As a consequence, the objectives of the ICTR are more specific than “merely” to maintain the peace. The overriding objectives are: 1) to prosecute the persons responsible for genocide and other violations of international humanitarian law; 2) to initiate a process of national reconciliation.

343 UN Doc. S/1994/1405, 9 December 1994, para. 186. According to Human Rights Watch, the RPF killed thousands of civilians during the civil war as well as afterwards through summary executions of suspected génocidaires, Des Forges (1999: 701-735) 344 UN Doc. S/PV.3453, 8 November 1994, pp. 3-4. 345 Press release of the Office of the UN Secretary-General, UN Doc. SG/SM/9126, 26 January 2004. In his speech, the Secretary-General also submitted that “genocide, whether imminent or ongoing, is practically always, if not by definition, a threat to the peace.” 346 Press release of the Office of the UN Secretary-General, UN Doc. SG/A/880, 14 July 2004.

The establishment, organisation and jurisdiction of the ICTR

85

The ICTR itself formulated its main objective as being to ensure a fair, quick and efficient trial. This could be seen as the human rights component of both of the objectives mentioned above. Only an impartial and independent tribunal can bring justice, and through justice it can promote peace. Thus the primary and inherent objective of the ICTR is to make sure that justice is done, by trying those responsible in a fair and impartial manner. While trying to fulfil this primary objective, the ICTR may contribute to a secondary objective, viz. national reconciliation. However, as various scholars have remarked, the process of national reconciliation is extremely complex. The ICTR could never achieve this objective on its own. Nevertheless, it could contribute in its own modest way. Ultimately, many scholars will assess the ICTR’s work on the basis of this second objective. However, in addition to its impact on Rwandan society, the ICTR is likely to produce a broader legacy that affects the whole international community. In the words of the Committee of Experts, the ICTR is a “precedent-setting institution”, developing international law by applying concepts which have never been used in practice before. This legacy of the ICTR constitutes the key focus of this thesis. From this broader angle, this chapter assesses whether the two above-mentioned objectives can be identified in the ICTR’s organisation and its jurisdiction, and what lessons can be learnt from the ICTR’s experiences. As regards the organisation of the ICTR, the main observation is that efficient management is a precondition for complying with the requirements of a fair trial. Furthermore, even though such notions as independence and impartiality are inherent in the requirement of a fair trial, outside support may still be necessary to fulfil other aspects of the fair trial standard, such as the importance of trying suspects within a reasonable period. Hence, in the ICTR context, UN support is needed at various levels in order to prosecute those responsible in accordance with the requirements of a fair trial. UN backing may also be needed to ensure the smooth operation of the ICTR in other respects. For example, the ICTR may need to ask the Security Council to call upon specific States to cooperate. Sufficient financial means and personnel are also necessary. In the course of the ICTR’s operation, the Security Council responded to these needs and appointed more judges, and ad litem judges. As regards the jurisdiction, the Security Council was guided by legal principles as well as political and pragmatic considerations. As for the substantive jurisdiction, it may be concluded that political and pragmatic considerations prevailed. The new crime of war crimes committed in an internal armed conflict was inserted into the Statute, regardless of its status as an international crime. The inclusion of provisions on crimes against humanity and war crimes as well as genocide, meant that both parties to the conflict in Rwanda were subject to the ICTR’s mandate. In practice, however, it was not so easy to carry out investigations into ‘RPF crimes’, let alone to start prosecutions. Once again, it is obvious that the ICTR needs the support of its parent body, the Security Council.

86

Chapter II

Clearly, if the ICTR is to contribute to national reconciliation, the prosecution of RPF crimes is imperative. Nevertheless, it can also be argued that the success of the ICTR does not only depend on this issue. The fact that the ICTR has tried some of the key players during the genocide, removing these persons from the political arena in Rwanda, legitimises the ICTR’s existence to a great extent. Moreover, the confirmation that genocide was committed will have lasting value for the Rwandan society. This is particularly important, as genocide denial is widespread in Rwanda today.347 The controversy about whether genocide really was committed can linger on for decades, if not centuries, as demonstrated by the case of the Armenians in Turkey.348 The personal jurisdiction as defined by the Security Council in the Statute is also based on well-established principles of international law. Given the existing controversy on the criminal responsibility of States and international organisations, and the very limited legal personality under international law of legal entities other than States, such as international organisations and individuals, only natural persons are subject to the ICTR’s jurisdiction. The territorial jurisdiction is selective and could therefore conflict with the legal principle of equality. However, this principle should not be applied at the world level, as this could lead to inactivity, while action is needed. Instead, the principle of equality should be applied within the confines of the territorial jurisdiction set by the Security Council. The Council’s conclusion that there was a threat to the peace was in this case limited to a particular territory, and therefore it is in accordance with the Council’s powers that the ICTR is subject to the same limits. The limitation of the temporal jurisdiction seems to have been mainly induced by political considerations. These were not only of a pragmatic nature. States and individuals who had played important roles during the genocide, viz. France and Rwanda, were keen to limit the ICTR’s jurisdiction for obvious reasons. It has been demonstrated that this political choice may have additional undesirable consequences to the detriment of some of the Prosecution’s most important charges, viz. conspiracy to commit genocide and incitement to commit genocide. Nevertheless, the jurisdiction as a whole should enable the ICTR to achieve some moderate objectives. Whether the ICTR can actually do so depends mainly on the actions of each individual organ, and the support that these organs receive in the course of their respective activities.

347 Also see The Prosecutor v. Niyitegeka, Judgement, 16 May 2003, paras. 376-396, for an example of genocide denial by defence witnesses. 348 Not only does Turkey vigorously deny that a genocide was committed against the Armenians in Turkey in 1915, also States with a substantial Turkish population, such as The Netherlands and Germany, are hesitant to issue official statements recognising the genocide, see www.ancsf.org/armenian-genocide/resolutions.htm# European%20P (visited on 31 March 2004).

Chapter III

ICTR CASE LAW ON GENOCIDE

This chapter analyses the ICTR case law on genocide in order to record the ICTR’s contribution to defining this international crime in more detail. Article 2(2) of the ICTR Statute enshrines the legal definition of genocide for the purposes of the ICTR, viz.: “Genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnic, 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 upon the group conditions of life calculated to bring 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.”

Article 2(2) is an exact copy of Article II of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.1 National prosecutions of genocide can be instituted pursuant to this Convention.2 The Eichmann case is probably the most notorious, as well as the most appropriate example of a national case on genocide.3 In contrast, the ICTR is the first international criminal tribunal that has convicted an individual for this crime. The case law of the ICTR, as examined in this chapter, is therefore of major importance to the development of the international crime of genocide. The structure of the chapter is as follows. First, some attention is devoted to the development of the concept of genocide in section III.1. The subsequent sections consider

1 2 3

This Convention is generally referred to as the 1948 Genocide Convention. The shorter name is also employed throughout this study. For more information on national prosecutions of genocide, see Schabas (2003). Eichmann was not charged with genocide per se, but rather with ‘crimes against the Jewish people’. However, in dealing with the challenge to its jurisdiction, the District Court held that the crime against the Jewish people was patterned on the crime of genocide as defined in the 1948 Genocide Convention, Attorney-General of the Government of Israel v. Adolf Eichmann, District Court of Jerusalem, 21 December 1961, para. 16, Int. L. Rep. 36: 5-276. Eichmann’s conviction was sustained on appeal by the Israeli Supreme Court, 29 May 1962, Int. L. Rep. 36: 277-344. For a comment on some particular aspects of this case, see Fawcett (1962).

88

Chapter III

different elements of genocide as developed by ICTR case law. Section III.2 considers the legality of including genocide in the ICTR Statute, and section III.3 provides a general description of the commission of genocide in Rwanda from a legal point of view. The other sections turn to the definition of genocide. Sections III.4 to III.6 consider the elements of the crime of genocide. These elements are the mental element of genocide (mens rea), the protected groups, and the physical element of genocide (actus reus). For each separate aspect, sections III.4 to III.6 study the travaux préparatoires of the 1948 Genocide Convention4 and the available literature for a better understanding of the difficult issues.

III.1

THE DEVELOPMENT OF THE CONCEPT OF GENOCIDE

In this section, the concept of genocide is placed in an international legal framework, in order to identify the main rationale for the concept. For this purpose, it looks at the historical and legal context in which genocide was conceived as an international crime. As Raphael Lemkin can without doubt be identified as having introduced the term ‘genocide’, his thoughts and works are examined in some detail in subsection III.1.1. Other legal developments that preceded the 1948 Genocide Convention and are relevant to it, are the Nuremberg proceedings and Resolution (96)I of the General Assembly of 11 December 1946. These developments are briefly described in subsection III.1.2. Subsequently, subsection III.1.3 outlines the drafting history of the 1948 Genocide Convention and sets out the main points of disagreement regarding the definition of genocide. Some more recent developments, such as the ILC draft codes (subsection III.1.4), the studies of the two Special Rapporteurs (subsection III.1.5), the ICTY jurisprudence (subsection III.1.6), and the ICC Statute (subsection III.1.7) are also briefly noted. These recent developments are considered in more detail, where relevant, in subsequent sections to evaluate the ICTR case law on the elements of genocide.

4

The travaux préparatoires may be relevant as a supplementary means for the interpretation of a treaty, see Article 32 of the 1969 Vienna Convention on the Law of Treaties. Also see Article 31 of that Convention for the primary means of interpretation, viz. in “good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. For the applicability of the 1969 Vienna Convention on the Law of Treaties to the ICTR Statute, see subsection II.3.3, especially fn. 97.

ICTR case law on genocide

89

III.1.1 The doctrinal concept The concept of ‘genocide’ was identified in 1944 by the Polish scholar Raphael Lemkin.5 A description is given below of how his ideas developed in this direction and how he finally arrived at the concept of ‘genocide’. At the Conference for the Unification of Penal Law held in Madrid in 1933, Lemkin indicated that the traditional instruments of international law were not entirely adequate to protect minorities, or in Lemkin’s words, ‘collectivities’.6 Lemkin proposed the creation of the new international crimes ‘barbarism’ and ‘vandalism’.7 Barbarism was defined as “acts of extermination directed against the ethnic, religious or social collectivities whatever the motive (political, religious, etc.)”. Vandalism was introduced as the materialistic corollary of “barbarism”, and was defined by Lemkin as “an attack targeting a collectivity”, taking the form of a “systematic and organised destruction of the art and cultural heritage in which the unique genius and achievement of a collectivity are revealed in fields of science, arts and literature.”8 Despite Lemkin’s urgent claims, these proposals for new international crimes were not adopted at the Conference. During the Second World War, Lemkin wrote his compelling work Axis Rule in Occupied Europe, in which the German conquest and occupation policy were meticulously analysed.9 Lemkin described the Holocaust as a ‘war against the Jewish people’. In his view, the war against sovereign States had been a means to carry out the Holocaust. The war of the Third Reich was a total war, ignoring all the rules on warfare. Moreover, Lemkin observed that there were no international rules criminalising the ‘war against the Jewish people’. Referring to this gap with regard to the international protection of minorities, Lemkin proposed the formulation of new rules to complement the Hague Regulations of 1899 and 1907. According to Lemkin, minorities had gradually become subjects of international law between the wars, as a consequence of the fact that the new borders of 1918 forced some minority groups to live in a State that was ruled by another national group.10 To support his argument, Lemkin pointed to the 1919 Treaty of

5 6 7 8 9 10

The term genocide is a composition of the Greek word genos (race, tribe) and the Latin ending ‘cide’ (derived from caedere which means to kill), Lemkin (1944: 79). Lemkin (1933). A list of international crimes had been composed that would entail universal jurisdiction at the first Conference for the Unification of Penal Law in Warsaw, in 1927, see Lemkin (1933). Translations by Jim Fussell, Education Director of the NGO Prevent Genocide, see www.preventgenocide.org (visited on 19 January 2004). Lemkin (1944). However, see Meijknecht (2001: 14-16), noting, inter alia, that the protection of minorities was not considered a fundamental principle of law, since it only applied to Eastern and Central Europe, as also cited by Boot (2002: 433, fn. 145).

90

Chapter III

Versailles, which offered special protection to national and religious groups, and he also referred to the existence of specific minority treaties.11 In line with these ideas, Lemkin introduced the new term ‘genocide’, as a successor to the two international crimes described above. In addition to other proposals for redress,12 Lemkin put forward his renewed proposal for a treaty that would regulate the prevention and punishment of the international crime of genocide. He defined genocide as follows: “A coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups with the aim of annihilating the groups themselves.”13

Lemkin conceded that some separate acts falling under this definition were already punishable under provisions of the Hague Regulations. As examples, he referred to the Preamble of the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land and Articles 46, 48, 52 and 56 of the Annex, but he argued that the problem of genocide should be recognised as such, and should be dealt with in a comprehensive manner.14 According to Lemkin, there are two stages in genocide. The first stage is the destruction of the national pattern of the oppressed group, which includes the destruction of the biological structure of the group. The second stage is the imposition of the national pattern of the oppressor. Both stages are prerequisites, and therefore denationalisation alone cannot be equated with genocide as it does not include the physical destruction of an oppressed group. Lemkin initially envisaged an amendment of the Hague Regulations to accommodate his proposals. However, he also argued that genocide could be committed in wartime, as well as in peacetime. As the Hague Regulations are solely concerned with actions in armed conflict, the inclusion of genocide was not legally feasible. To Lemkin, the most important issue was for genocide to be enshrined in an international treaty, to ensure that States would include the crime of genocide in their national criminal codes. In Lemkin’s view, such criminalisation would offer a more effective protection to minorities than the minority rights provided by national constitutions. National constitutions had been formally applicable during the Second World War, but had offered no protection to Jewish minorities in different States. An international treaty could stipulate the universal repression of genocide, and it could establish an international supervising agency.

11 12

13 14

Lemkin (1944: 90, 91). The other proposals for redress concerned, inter alia, the institution of international and national agencies for property restitution, and the creation of an international agency for the liquidation of occupied finances, Lemkin (1944: xii-xiv). Lemkin (1944: 92). Lemkin (1944: 92).

ICTR case law on genocide

91

III.1.2 The legal concept The horrors of the Holocaust were the necessary impetus to act on Lemkin’s proposals. This subsection describes the process of introducing the prohibition of genocide as a legal norm. It indicates to what extent Lemkin’s proposals were actually implemented, and which points met with resistance. In the arena of international politics and international law, the Allied States condemned the Nazi crimes during the Second World War, and began to elaborate on the idea of prosecuting the Nazis for war crimes they had committed.15 The four powers agreed to bring Nazi war criminals before an international military tribunal, the Nuremberg Tribunal. Subsequently, the Tokyo Tribunal was established by US General MacArthur. The Charters of these two Tribunals did not include genocide as a crime. The Charter provided for three crimes, viz. crimes against peace, crimes against humanity, and war crimes. All of these crimes required a connection with war. The indictment of the Nazi war criminals mentioned the word genocide under the heading of crimes against humanity. It charged: “deliberate and systematic genocide, viz. the extermination of racial and national groups against the civilian populations of certain occupied territories in order to destroy particular races and classes of people, and national, racial or religious groups, particularly Jews, Poles and Gypsies.” But the final judgement did not refer to genocide. The Nuremberg proceedings affirmed the notion of individual criminal responsibility in international law, and set out other rules, such as the absence of immunity for Heads of States and the unacceptability of a defence based on orders from superiors. This legacy was later reflected in the ILC’s Nuremberg Principles.16 The principles upheld the notion of crimes against humanity with a connection to war as formulated in the Nuremberg Charter. Simultaneous initiatives were taken regarding the notion of an international crime that could be committed outside wartime, i.e., genocide.17 The first step towards a binding prohibition on genocide in international law was General Assembly Resolution 96(I) of 11 December 1946. In this Resolution, the General Assembly stated: “Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.

15 16 17

Moscow Declaration, 1 November 1943, in Marrus (1997: 20). UN Doc. A/1316 (A/5/12), 5 June to 25 July 1950, part III, paras. 95-127. See Schabas (2000a: 42).

92

Chapter III

Many instances of such crimes have occurred when racial, religious, political and other groups have been destroyed, entirely or in part.”

Furthermore, it affirmed: “that genocide is a crime under international law which the civilized world condemns, and for the commission of which principles and accomplices – whether private individuals, public officials or Statesmen, and whether the crime is committed on religious, racial, political or any other grounds – are punishable.”

As Schabas indicated, the Resolution has been referred to in numerous legal documents, and it has thus served its purpose.18 However, due to the fact that it does not contain a clear definition and deviates from the 1948 Genocide Convention on several points, its customary law status does not so much concern its exact contents, but rather the fact that it provides an overall prohibition of genocide. In this regard, it should be recalled that the Nuremberg Tribunal had not listed the crime of genocide in its Charter, as that was considered to exceed existing international law at the time.19 The affirmation by the General Assembly that genocide is a crime under international law may therefore relate more to the overall prohibition of genocide as a general principle of international law, and may not directly concern the definition given in the resolution as reflecting customary international law.20

III.1.3 The definition of the Convention In the last paragraph of the Genocide Resolution adopted in its first session, the General Assembly “[r]equest[ed] the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide”.21 The

18 19

20

21

Schabas (2000a: 46). For example, see Reservations to the Convention for the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 25 May 1951, ICJ Reports 1951, p. 16. In its final report, the Commission of Experts that investigated the situation in Rwanda, stated that genocide committed in peacetime was not prohibited in international law before the 1948 Genocide Convention, and only certain acts committed in times of war were covered by the laws of war, UN Doc. S/1994/1405, 9 December 1994, para. 150, referring to Sunga (1992: 65). Cf. the point of view of the Commission of Experts in its final report: “This is not to say that the provisions of the entire Genocide Convention of 1948 have necessarily attained the status of ius cogens or even of customary international law. The Commission of Experts is referring here to the normative content of the rule prohibiting genocide as expressed in article II of the Convention and not to its particular material source”, thus considering the definition of the 1948 Genocide Convention rather than the definition of the General Assembly Resolution as reflecting current customary international law, UN Doc. S/1994/1405, 9 December 1994, para. 152, fn. 29. UNGA Resolution 96(I), 11 December 1946.

ICTR case law on genocide

93

Economic and Social Council asked the Secretary-General to prepare a proposal.22 The Secretariat drafted an all-inclusive proposal, and left it to other organs to decide what should and what should not be included.23 States could submit comments to the Secretariat’s draft.24 In its second session, the General Assembly instructed ECOSOC to complete the draft convention. ECOSOC created an ad hoc Committee,25 which comprised representatives of China, France, Lebanon, Poland, USA, USSR, and Venezuela. The ad hoc Committee met from 5 April to 10 May 1948 and submitted a draft convention to ECOSOC, which was forwarded to the General Assembly.26 The General Assembly referred the draft to its Sixth Committee, which deliberated on the contents from 5 October to 9 November 1948. Finally, a report was sent to the General Assembly,27 and with Resolution 260(III), the General Assembly approved the Convention unanimously with no abstentions on 9 December 1948 – one day before the Universal Declaration of Human Rights – and opened the convention for signature and ratification.28 Thus the travaux préparatoires consist of three draft conventions and corresponding deliberations, viz. of the Secretariat, of the ad hoc Committee, and of the Sixth Committee.29 The Secretariat’s draft is the least relevant, as this was merely a proposal including different options for States to choose. The Sixth Committee’s draft is the most authoritative as this comes closest to the final text. However, the deliberations in the ad hoc Committee may also provide some relevant insights into certain points of disagreement. Although the 1948 Genocide Convention was adopted unanimously, there were quite a few bones of contention. These are now introduced, in order to provide a clearer picture of the definition in the 1948 Genocide Convention, its contents and its limits. The two main controversies concerned the question whether political groups should be inserted into the definition as protected groups and the subject of jurisdiction. At the very end of the debates in the Sixth Commission, a compromise regarding these points was reached in the sense that political groups were removed from the definition at the last moment, while the possibility of adjudication by an international tribunal was in the end included.30 Other issues that provoked disagreement included the question

22

23 24 25 26 27 28 29 30

UN ECOSOC Resolution 47(I), 28 March 1947. The Secretary-General had already suggested creating a special commission for this task, and now asked the Director of the Human Rights Division to prepare a draft with three experts, including Lemkin. See Schabas (2000a: 52). UN ECOSOC Resolution 77(V), 6 August 1947. UN ECOSOC Resolution 117(IV), 3 March 1948. UN ECOSOC Resolution 153(VII), 27 August 1948. UN Doc. A/760, 3 December 1948. For more details on the drafting, see Drost (1959). The three drafts are included as appendices to Schabas’s book (2000a). For a general report see J. Spiropoulos (Rapporteur), Report of the Sixth Committee, UN Doc. A/760 & Corr.2, 3 December 1948, and on this matter especially paras. 10, 14, 21 and 22.

94

Chapter III

whether motive should be included,31 and provisions relating to cultural genocide,32 the definition of public and direct incitement,33 the authors of genocide,34 and State responsibility for genocide.35 The last issue in particular raises some interesting points for specific attention. The problem regarding State responsibility was mainly whether States could be held responsible for the commission of genocide, as well as individuals. If so, a directly related issue was whether such responsibility was of a criminal or rather a civil nature.36 Another question concerned State complicity rather than State responsibility, viz. whether the definition of genocide requires that the perpetrators of genocide are (de facto) State officials. In the drafting process there were quite lengthy debates on the character of the perpetrator. As is demonstrated below, several defendants before the ICTR claimed that they could not be convicted for genocide since they had not held an official position during the genocide. The controversial nature of the issue of State responsibility for genocide is reflected in the formulation of Article IX.37 This Article includes a clause that creates jurisdiction for the ICJ, also for disputes that concern the ‘responsibility of a State for genocide’. It is as yet unclear whether this involves criminal responsibility, or rather civil responsibility. Quite a number of States have formulated reservations to this provision.38

31 32 33 34 35 36

37

38

UN Doc. A/C.6/231, 13 October 1948. Also see UN Doc. A/760 & Corr.2, 3 December 1948, para. 10. UN Doc. A/760 & Corr.2, 3 December 1948, para. 11, and UN Doc. A/C.6/SR.82, 23 October 1948, UN Doc. A/C.6/SR.83, 25 October 1948. UN Doc. A/760 & Corr.2, 3 December 1948, para. 12, UN Doc. A/C.6/SR.85, 27 October 1948. UN Doc. A/760 & Corr.2, 3 December 1948, para. 13, UN Doc. A/C.6/SR.92, 5 November 1948, UN Doc. A/C.6/SR.96, 9 November 1948. UN Doc. A/760 & Corr.2, 3 December 1948, para. 15, UN Doc. A/C.6/SR.104, 13 November 1948. For a discussion of genocide and State responsibility, see Schabas (2000a: 418-446) and Jørgenson (1999). One of the main difficulties regarding this issue is the nature of the State responsibility. Criminal responsibility for States is highly controversial, and was outlawed in the last Draft Articles on State Responsiblity by the ILC, UN Doc. A/56/10, 23 April to 1 June and 2 July to 10 August 2001. In contrast, civil State liability for genocide is difficult to construe, given the inherent criminal nature of genocide. In this respect, the question may also arise to whom the State of Rwanda would be liable; to its own people? In that case, it could hypothetically lodge a complaint at the ICJ against itself on behalf of its people, and thus be applicant and respondent in the same case, were it not that Rwanda’s reservation to Article IX of the 1948 Genocide Convention was still maintained at the time. Article IX of the 1948 Genocide Convention reads: “Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.” In fact, most of the reservations to the 1948 Genocide Convention concern Article IX. Some States, including Rwanda, stated that they do not consider themselves bound by this provision, whereas other States accepted this provision subject to an additional requirement of express consent in specific cases. Quite a number of States have objected to these reservations. It is worth noting that Rwanda withdrew its reservation after the genocide, see Schabas (2000a: 527). For the regime on the admissibility of reservations, see the authoritative Advisory Opinion of the ICJ, Reservations to the Convention for the Prevention and Punishment of the

ICTR case law on genocide

95

III.1.4 The Draft Codes of the ILC The process of drafting an international criminal code had been launched after the Second World War and in response to the Nuremberg proceedings. It was also called the code of crimes against the peace and security of mankind. The General Assembly requested the International Law Commission (ILC) to prepare the draft.39 The ILC adopted a first draft code, as prepared by Special Rapporteur Spiropoulos, in its third session in 1951. An amended version of this draft was adopted in 1954.40 The work on this code was suspended by the General Assembly because of the lack of a definition of aggression.41 It was taken up again in 1982 by Special Rapporteur Thiam. The ILC provisionally adopted another draft code in 1991.42 The final version was adopted by the ILC in its 1996 Draft Code of Crimes Against the Peace and Security of Mankind43 (1996 Draft Code). The definition of genocide in this last version was practically identical to the definition of the 1948 Genocide Convention.44 Generally, the work of the ILC can be perceived as doctrine, and therefore a subsidiary means for interpreting the law according to Article 38(1)(d) of the ICJ Statute. In different contexts, ICTY Trial Chambers have made comments on the legal value of the work of the ILC. In the case of Furundžija, a Trial Chamber submitted in 1998: “The two international instruments useful for these purposes are the 1996 Draft Code of Crimes Against the Peace and Security of Mankind adopted by the International Law Commission, and the Rome Statute. Neither instrument is legally binding internationally. The Draft Code was adopted in 1996 by the United Nations International Law Commission, a body consisting of outstanding experts in international law, including governmental legal advisers, elected by the United Nations General Assembly. The Draft Code was taken into account by the General Assembly: in its Resolution 51/160 of 30 January 1997 it expressed its ‘appreciation’ for the completion of the Draft Code and among other things drew the attention of the States participating in the Preparatory Committee on the Establishment of an International Criminal Court to the relevance of the Draft Code to their work. In the light of the above the Trial Chamber considers that the Draft Code is an authoritative international instrument which, depending upon the specific question at issue, may (i) constitute evidence of customary law, or (ii) shed light on customary rules which are of uncertain contents or are in the process of formation, or, at

39 40 41 42 43 44

Crime of Genocide, Advisory Opinion, 25 May 1951, ICJ Reports 1951, p. 16. Also see Schabas (2000a: 534-538). GA Res. 177(II), 21 November 1947. UN Doc. A/2693, 3 June to 29 July 1954. GA Res. 897(IX), 4 December 1954. Also see Crawford (2002b: 23-25). UN Doc. A/46/10, 29 April to 19 July 1991. UN Doc. A/51/10, 6 May 1996 to 26 July 1996. Schabas (2000a: 87) noted a slight difference in that the ILC code reads “a crime of genocide means” rather than “genocide means”, implying that there may also be other types of genocide.

96

Chapter III

the very least, (iii) be indicative of the legal views of eminently qualified publicists representing the major legal systems of the world.” (footnote omitted)45

In the Vasiljevic´ case, a Trial Chamber expressed a note of caution: “It is important to underline that, when it comes to sources of international law, Draft Codes of the International Law Commission merely represent a subsidiary means for the determination of rules of law. They may reflect legal considerations largely shared by the international community, and they may expertly identify rules of international law, but they do not constitute state practice relevant to the determination of a rule of international customary law.”46

Below, it is surveyed to what extent the ICTR used the ILC codes to interpret the crime of genocide, and what level of authority it attributed to these codes.

III.1.5 Two Special Rapporteurs Subsequent to the drafting of the 1948 Genocide Convention, two Special Rapporteurs, Ruhasyankiko, actually a Rwandan citizen, and Whitaker, studied the question of the prevention and punishment of genocide in 1978 and 1985 respectively. They submitted their reports to a sub-commission of the Human Rights Commission, viz. the Sub-Commission on Prevention of Discrimination and Protection of Minorities.47 Throughout this chapter, these reports will be used as a subsidiary source for an understanding of the confines of the definition of genocide in the convention.

III.1.6 The ICTY, ethnic cleansing and genocide The crime of genocide also features in the ICTY Statute, though in a less prominent place than in the ICTR Statute. This could reflect some hesitation about whether the events that took place in the former Yugoslavia can actually be qualified as genocide. The crimes in Yugoslavia were generally characterised as ethnic cleansing. Schabas maintained that

45

46 47

The Prosecutor v. Furundžija, Judgement, 10 December 1998, para. 227, as also quoted by Schabas (2000a: 88). The Trial Chamber referred to the draft code in the context of interpreting the legal construct of ‘aiding and abetting’. The Prosecutor v. Vasiljevic´, Judgement, 29 November 2002, para. 200. This remark was made in the course of interpreting ‘violence to life and person’ as a war crime. Study of the question of the prevention and punishment of the crime of genocide, by Special Rapporteur N. Ruhashyankiko, UN Doc. E/CN.4/Sub.2/416, 4 July 1978; and Revised and updated report on the question of the prevention and punishment of the crime of genocide, by Special Rapporteur B. Whitaker, UN Doc. E/CN.4/Sub.2/1985/6, 2 July 1985.

ICTR case law on genocide

97

ethnic cleansing as such does not constitute genocide, as the aim is not necessarily to exterminate a given group but rather to have this group leave a certain area.48 Uncertainty about whether genocide was committed in the former Yugoslavia came to the fore in the ICTY case law. Apart from some decisions based on Rule 6149 and on Rule 98bis,50 the only substantive cases of genocide resulting in a conviction are the Krstic´ Judgement51 and the Blagojevic´ and Jokic´ Judgement.52 Krstic´ was convicted in first instance of genocide for the massacres committed in Srebrenica. This conviction was upheld on appeal.53 Blagojevic´ was held responsible for complicity in genocide through aiding and abetting the commission of genocide on the Bosnian Muslim group from Srebrenica. In the cases of Stakic´ and Brdjanin, there was an acquittal of genocide.54 Even though the ICTY case law on genocide cannot really be compared to the ICTR, it is still very valuable and should be taken into account. In the analysis of the ICTR case law below, cross-references will be made where this is useful.

48

49

50

51

52 53 54

Schabas (2000a: 189-201). Also see Cassese (2003a: 98-100), who set out the different findings on this matter by various courts and tribunals, and adhered to the view that ethnic cleansing can be taken into account as indicating an intent to destroy. Rule 61(c) of the ICTY RPE as last amended on 17 July 2003 reads: “If the Trial Chamber is satisfied on that evidence, together with such additional evidence as the Prosecutor may tender, that there are reasonable grounds for believing that the accused has committed all or any of the crimes charged in the indictment, it shall so determine. The Trial Chamber shall have the relevant parts of the indictment read out by the Prosecutor together with an account of the efforts to effect service referred to in paragraph (A) above.” This provision was mainly useful in the beginning of the ICTY’s work, when there was a lack of ‘real’ cases. Rule 98bis of the ICTY RPE as last amended on 17 July 2003 reads: “(A) An accused may file a motion for the entry of judgement of acquittal on one or more offences charged in the indictment within seven days after the close of the Prosecutor’s case and, in any event, prior to the presentation of evidence by the defence pursuant to Rule 85 (A)(ii); (B) The Trial Chamber shall order the entry of judgement of acquittal on motion of an accused or proprio motu if it finds that the evidence is insufficient to sustain a conviction on that or those charges.” On several occasions, the ICTY Appeals Chamber reversed a Rule 98bis acquittal entered by the Trial Chamber, The Prosecutor v. Jelisic´, Appeal Judgement, 5 July 2001; The Prosecutor v. Brdjanin, Appeal Decision, 19 March 2004, with a Separate Opinion of Judge Shahabuddeen. For another case on Rule 98bis, see: The Prosecutor v. Miloševic´, Decision, 16 June 2004, with a Dissenting Opinion of Judge O-Kon Gwon. In the Jelisic´ case, the Appeals Chamber did not consider it useful to refer the case back to the Trial Chamber, despite its reversal of the acquittal. The Prosecutor v. Krstic´, Judgement, 2 August 2001. For more information on the ICTY jurisprudence on genocide, see Schabas (2001a), Schabas (2001b), Jørgensen (2002), Tournaye (2003), and Van Sliedregt (2005). The Prosecutor v. Blagojevic´ and Jokic´, Judgement, 17 January 2005. The Prosecutor v. Krstic´, Appeal Judgement, 19 April 2004. The Prosecutor v. Stakic´, Judgement, 31 July 2003; The Prosecutor v. Brdjanin, Judgement, 1 September 2004.

98

Chapter III

III.1.7 The ICC Statute and Elements of Crimes The provision of genocide in the ICC Statute, Article 6, draws on the definition of genocide in the 1948 Genocide Convention, and therefore also on the ICTR definition. However, Article 6 of the ICC Statute only includes the second paragraph of Article 2 of the ICTR Statute. Hence, different aspects of committing genocide, such as conspiracy to commit genocide and incitement to commit genocide are not punishable as such under the ICC Statute, though they do fall within the scope of Article 25 of the ICC Statute. In addition to the Statute, there are the Elements of Crimes. This document, drafted at the instigation of the USA, provides more detailed descriptions of the elements of the three crimes, genocide, crimes against humanity and war crimes.55 The Elements of Crimes are not binding upon the Court, but “shall assist the Court in the interpretation and application” of the crimes.56 Some ICTY Trial Chambers have dealt with the relevance of the ICC documents to the work of the ICTY and the ICTR. In the Furundžija case, the Trial Chamber held: “In many areas the [ICC] Statute may be regarded as indicative of the legal views, i.e. opinio juris of a great number of States. Notwithstanding article 10 of the Statute, the purpose of which is to ensure that existing or developing law is not ‘limited’ or ‘prejudiced’ by the Statute’s provisions, resort may be had cum grano salis to these provisions to help elucidate customary international law. Depending on the matter at issue, the Rome Statute may be taken to restate, reflect or clarify customary rules or crystallise them, whereas in some areas it creates new law or modifies existing law. At any event, the Rome Statute by and large may be taken as constituting an authoritative expression of the legal views of a great number of States.”57

The elements of the crime of genocide, as laid down in the ICC Statute and the Elements of Crimes, are surveyed where appropriate below, in order to determine whether certain developments initiated by the ICTR have been endorsed.

55 56 57

For a more detailed description of the ICC Elements of Crimes, see Kirsch and Oosterveld (2002: 96-99). Article 9(1) of the ICC Statute. The Prosecutor v. Furundžija, Judgement, 10 December 1998, para. 227. As approved in The Prosecutor v. Tadic´, Appeal Judgement, 15 July 1999, para. 223; The Prosecutor v. Kunarac, Kovacˇ, and Vukovic´, Judgement, 22 February 2001, fn. 1210.

ICTR case law on genocide

III.2

99

THE LEGALITY OF INCLUDING GENOCIDE IN THE ICTR STATUTE

At the time of the genocide, Rwanda was a State party to the 1948 Genocide Convention, with its major reservation relating to the jurisdictional clause of Article IX.58 Moreover, Rwanda was committed to the prohibition on genocide as incorporated by customary international law. Nevertheless, some observations are appropriate regarding the legality of including the crime of genocide in the ICTR Statute. Therefore, this section scrutinises the ICTR’s jurisdiction on genocide. The focus is on the ‘enforcement Article’ of the 1948 Genocide Convention, viz. Article VI.59 When the 1948 Genocide Convention was drafted, the enforcement question constituted one of the major controversies. A proposal by Iran for universal jurisdiction was rejected.60 Initially, States could only agree on a territorial jurisdiction clause.61 However, it was clear that this did not assist the effective prosecution of the crime of genocide. After a prolonged debate, a vague reference to an international tribunal was ultimately included in the convention.62 Initially, this reference was rejected, but was voted back in after political groups were removed from the definition.63 Consequently, the enforcement provision of the Convention, Article VI, requires the express acceptance of the jurisdiction of an international court. This requirement of separate acceptance of the jurisdiction is more or less analogous to the system of the ICJ.64 Defendants before the ICTR could have referred to the absence of an explicit acceptance by the State of Rwanda as an argument to challenge the jurisdiction of the ICTR on genocide.65 However, the ICTR could have rejected this argument by seeing Rwanda’s request for the creation of an ad hoc Tribunal as a sort of de facto acceptance. Moreover, by acceding to the UN Charter, the State of Rwanda transferred some of its sovereignty to the Security Council pursuant to Article 25 of the UN Charter. In the

58 59

60

61 62 63 64

65

Also see fns. 37 and 38. Article VI of the 1948 Genocide Convention reads: “Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have jurisdiction.” UN Doc. A/C.6/SR.100, 11 November 1948, 29 votes to 6 with 10 abstentions. Iran’s proposal is included in UN Doc. A/C.6/218. In the ad hoc Committee, universal jurisdiction had been rejected by 4 votes to 2 with one abstention. Both the US and the USSR voted against universal jurisdiction, UN Doc. E/AC.25/ SR.8, 13 April 1948, p. 12. UN Doc. A/C.6/SR.97, 9 November 1948, by 36 votes to none, with 2 abstentions. UN Doc. A/C6/SR.129, 30 November 1948, by 33 votes to 9 with 6 abstentions. UN Doc. A/C.6/SR.130, 30 November 1948. All UN Member States are ipso facto party to the Statute of the ICJ, but do not ipso facto accept the jurisdiction of the ICJ, Article 93 of the UN Charter. Such acceptance requires a declaration to that effect. The modes by which States can accept the ICJ’s jurisdiction are listed in Article 36(2) of the ICJ Statute. As observed by Schabas (2000a: 100).

100

Chapter III

Kanyabashi case, these arguments were in fact put forward by the Trial Chamber to address the defence claim that the ICTR violated the sovereignty of Rwanda.66 No defence has chosen to challenge the legality of Article 2 of the ICTR Statute, regarding the direct applicability of the 1948 Genocide Convention by an international tribunal. Drawing on early comments on the 1948 Genocide Convention, the defence could have argued that the definition in the Convention, which had been copied in the ICTR Statute, was too vague to serve as a definition of an international crime. The defence could also have pointed to the lack of a list of penalties in the ICTR Statute.67 On the basis of these arguments, early commentators had argued that the 1948 Genocide Convention was not self-executing.68 Moreover, the Convention itself also emphasised the need for additional (national) legislation.69 Even though this argument was not presented, the Trial Chamber did consider it necessary to make an observation regarding the applicability of the crime of genocide as enshrined in the 1948 Genocide Convention. In the case of Akayesu, it noted that genocide was punishable in Rwanda, since Rwanda had acceded to the Convention in 1975.70 With this remark, the Chamber implicitly argued that, since Rwandan perpetrators of genocide could be brought before Rwandan courts, it should also be legally possible to prosecute them before an international tribunal. However, the Trial Chamber’s remark was incorrect, since genocide was not punishable as such in Rwanda in 1994. The Rwandan “Organic Law” of 1996, enacted especially for the prosecution of genocide, stated in its preamble that national prosecutions could not be based directly on the 1948 Genocide Convention, as no penalties had been provided for the crimes either in the Convention, or by Rwanda upon publication in the Official Gazette.71 Moreover, even if Rwanda had properly implemented the 1948 Genocide Convention, that would not address the complaint that the definition in the Convention was too vague to serve directly for an international tribunal. However, in this regard, Schabas noted that when they implemented the 1948 Genocide Convention in their national legislations, States generally copied the definition in the Convention with some additions or omissions.

66 67

68 69

70 71

The Prosecutor v. Kanyabashi, Decision, 18 June 1997, paras. 13-14. Also see subsection II.2.1 Article 23 of the ICTR Statute reads: “The penalty imposed by the Trial Chamber shall be limited to imprisonment” and gives some indications of which factors should be taken into account when determining the length of the sentence. Article 23(3) of the ICTR Statute provides that the Trial Chamber may also order “return of any property …”. See Kunz (1949: 744). Article V of the 1948 Genocide Convention reads: “The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.” The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 496. Also see The Prosecutor v. Rutaganda, Judgement, 6 December 1999, para. 47. Morris (1999: 352) reveals the ICTR’s mistake in this regard. Also see Schabas (2000a: 350).

ICTR case law on genocide

101

They did not define genocide in more detail.72 Hence, at the national level the definition was not considered to be too vague. Nevertheless, it could still be maintained that a more precise definition is a prerequisite in the case of an international tribunal, since an international tribunal cannot draw on a general criminal code defining criminal law concepts. As demonstrated below, this has led to difficulties in determining the level of the mental element required. A more interesting question is whether the international judges should or may take customary international law into account in their interpretations and application of the definition. This question becomes especially complex when the customary international law definition is broader than the definition in the Convention. For example, it has been argued that the customary international law definition also protects political groups from genocide.73 If this proposition is accepted, does that provide a legal basis for the ICTR to override its Statute and apply customary international law? The ICTY was confronted with a similar question related to crimes against humanity. The definition of crimes against humanity in the ICTY Statute comprises the requirement of proof that a specific act is linked to an armed conflict, comparable to the Nuremberg definition. This element of a connection with the armed conflict was not included in the ICTR definition and was considered by the ICTY to be inconsistent with customary international law.74 Nevertheless, the ICTY felt obliged to comply with its Statute, and confirmed that the connection was an element of the crime for the purposes of the ICTY.75 In practice, the ICTY applied the element in a lenient manner, but it could not override its Statute, even though customary international law provided some leeway to do so.76 Hence, the Tribunals must in the first place apply their Statutes, and they can only rely on customary international law to interpret the Statute. Since the ICTR jurisdiction adopts the definition of genocide in the Convention, any broader customary international law definition that might exist has little relevance in this context.77 Sections III.4 to III.6 analyse how the rather vague definition of genocide has been interpreted in practice and the role which customary international law has played in this. The ICTR’s general conclusion that genocide was committed in Rwanda is examined first in section III.3, with a view to placing the analysis of each separate element in its context.

72 73 74 75 76

77

Schabas (2000a: 350-353). Van Schaak (1997). The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, para. 141. The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, para. 78. The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, paras. 629-634. These paragraphs state that the requirement of a connection entails that the act must be committed during the course of an armed conflict, and must be geographically and temporally linked with the armed conflict and may not have been committed for purely personal reasons. Verdirame (2000: 581).

102

Chapter III

III.3

GENOCIDE IN RWANDA

In the first Judgements in the Akayesu case and the Kayishema and Ruzindana case, the Trial Chambers assessed in a general manner whether genocide had taken place in Rwanda.78 Clearly, many UN organs and others had already asserted that this was the case,79 but the Trial Chambers still deemed it necessary to consider this point, since it was crucial to some of the charges alleged in the indictments.80 The Trial Chambers emphasised that a general finding that genocide had occurred would not in itself in any way entail any responsibility for the accused. The main reason why the Trial Chambers undertook to qualify the events of Rwanda as genocide was to provide a better understanding of the context of the alleged crimes. However, in a footnote a Trial Chamber stated that a general finding that genocide had occurred throughout the country is not necessary per se for an individual conviction on genocide.81 In the Akayesu case, the Trial Chamber identified two main requirements for genocide, viz. the mental element, or the specific intent to destroy, in whole or in part, a particular group, and the physical element, in casu the killing and causing of serious bodily and mental harm to members of a group.82 In contrast, Maison identified three main elements of genocide, viz. the specific intent (mental element), discrimination, and the magnitude of the attacks (physical element).83 The element of discrimination refers to the singling out of a specific group. The Trial Chambers divided this aspect over the two requirements mentioned above. As regards their second requirement, both Trial Chambers established that widespread massacres had been committed throughout Rwanda.84 The first requirement, the specific intent, could not be established directly, but was inferred from several factors. The Trial Chambers mainly pointed to the systematic nature of the massacres as evidence of the specific intent to commit genocide, and also to the scale and cruelty of the killings.85 The systematic nature of the massacres was corroborated by several facts, some of which were also in themselves evidence of the specific intent. For instance, in the Akayesu case, the Trial Chamber referred to a testimony saying that the Achilles’

78 79 80 81 82 83 84 85

The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 112-129; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 273-313. See section II.1. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 112; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 273. The Prosecutor v. Akayesu, Judgement, 2 September 1998, fn 61. The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 116 and 117. Maison (1999). The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 114; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 275. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 118; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 290 and 291.

ICTR case law on genocide

103

tendons of many wounded Tutsi had been cut to prevent them from fleeing.86 Furthermore, the Trial Chamber recorded that many dead bodies had been thrown into the Nyabarongo river, a tributary of the Nile. An expert witness had explained that the idea behind this was to send these bodies home to Ethiopia.87 The Trial Chamber also remarked that newborn babies or pregnant women had not been spared. Even Hutu women carrying a Tutsi child from a Tutsi father were killed.88 According to the Trial Chamber, these facts undoubtedly pointed to the requisite intent to exterminate the Tutsi group completely. The fact that Tutsi children and pregnant women had also been killed was explicitly stressed, since that excluded the possibility that the Tutsi were targeted because of their alleged support for the RPF fighters.89 Both Trial Chambers mentioned the roadblocks that had been set up immediately after the plane crash of President Habyarimana, where identity cards were checked and where Tutsi were separated from Hutu.90 The Trial Chambers also emphasised the role of the media, and particularly the radio station RTLM and the newspaper Kangura, in indoctrinating the masses with the idea that all Tutsi were enemies.91 In addition, the expert witness Des Forges pointed to the statements of certain politicians, and to songs and slogans, mainly used by the Interahamwe, as evidence of this ‘psychological preparation’.92 Given the two constituent elements of genocide identified by the Trial Chambers – a physical and a mental element – it may be concluded that an official plan is not as such a necessary requisite for genocide. Nevertheless, as a Trial Chamber stated, the existence of a plan could reveal a specific intent. Both Trial Chambers also noted that the existence of a plan could be inferred from several circumstances, apart from those already mentioned. These circumstances included the existence of execution lists and arms caches referred to by several witnesses, and the training of militias.93 Due to the limited temporal jurisdiction of the ICTR, the Trial Chambers did not have the express opportunity to address the question whether massacres that had been committed in the years preceding 1994 could also be qualified as genocide. There are some indications that these massacres are not viewed as genocide. For example, in the

86 87 88 89 90 91 92 93

The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 119. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 120. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 121. The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 122-125. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 123; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 287-288. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 123; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 279-282. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 118. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 126; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 275-276.

104

Chapter III

Media case, the Trial Chamber maintained that the genocide commenced in Rwanda on 6 April 1994.94 Moreover, in a Separate Opinion, Judge Ostrovsky wrote: “[t]here is no evidence that there was a genocide in 1990, 1991, 1992, and 1993. The policy of genocide was unleashed only after 6 April 1994, and not by the RPF, and not against the RPF and its members.”95

The Trial Chambers confirmed that genocide was committed in Rwanda in 1994. Given the criminal legal nature of genocide, the value of such a general statement could be questioned. In the summary, the Trial Chambers distinguished specific intent as one of the constituent elements of genocide. However, the Trial Chambers did not refer to any perpetrator. Since there is no mention of a perpetrator, the question arises who then may have had the specific intent. However, according to the ICTY Appeals Chamber: “the inference that a particular atrocity was motivated by genocidal intent may be drawn, …, even where the individuals to whom the intent is attributable are not precisely identified.”96

An issue which is closely related to the question of State responsibility was whether the perpetrators of genocide could only be (de facto) officials or rulers. Ruzindana brought this matter up, when he submitted that, as a businessman, he could not have committed genocide. More specifically, he argued that he himself neither had the means nor the position of authority necessary to commit genocide.97 The Appeals Chamber pointed out that the personal circumstances of an accused or his position are not elements of the crime as such, and it stressed that genocide is not a crime that can only be committed by a specific class of perpetrators. Moreover, the Appeals Chamber found that Ruzindana had not acted alone, but together with others.98 Hence, while the ICTR very clearly pointed out that State involvement was not an element of the crime of genocide, it did not deal with the question of State responsibility for genocide.99 Furthermore, the Trial Chambers did not spell out why they deemed it necessary to establish in general that genocide had been committed in Rwanda. One important reason to arrive at an abstract conclusion that genocide occurred before dealing with the individual case, relates to charges of complicity. In its first case, the ICTR argued that a person could only be convicted for complicity in genocide, if it was proved that

94 95 96 97 98 99

The Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Judgement, 3 December 2003, para. 121. The Prosecutor v. Semanza, Judgement, Separate Opinion of Judge Ostrovsky, 15 May 2003, para. 31. The Prosecutor v. Krstic´, Appeal Judgement, 19 April 2004, para. 34. The Prosecutor v. Kayishema and Ruzindana, Appeal Judgement, 1 June 2001, para. 167. The Prosecutor v. Kayishema and Ruzindana, Appeal Judgement, 1 June 2001, paras. 169-172. As Nollkaemper (2003) has pointed out, individual responsibility does not exclude State responsibility.

ICTR case law on genocide

105

the principal offence, i.e., genocide, really had been committed.100 The conclusion of the Chambers is also relevant from a political and educational perspective. The confirmation that genocide was committed in Rwanda may help to prevent genocide denial, and may be a step towards building a common history for all Rwandans. In later cases, Trial Chambers did not make comparable general qualifications.101 In these cases, the Chambers confined their observations to the statement that there were widespread killings of Tutsi throughout Rwanda,102 and only qualified massacres as genocide with respect to the area subject to their judgement in the case at hand.103 After the general survey of what happened in Rwanda in the first cases, the Trial Chambers dealt with the specific elements of the individual crime of genocide. These elements are discussed separately below.

III.4

THE MENTAL ELEMENT

One of the basic elements of a criminal definition is the mental element. The mental element concerns the wish or the awareness of the result of a certain action, or a wish with regard to the action itself. It does not concern the reasons why someone undertakes the action, as this is more concerned with motive. Motive is generally regarded as irrelevant for the criminal definition, but may be taken into account in determining the punishment.104 In the ICTR Statute, the mental element of genocide is formulated as follows ‘the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such.’ This formulation of the mental element consists of four parts, namely ‘the intent to destroy’, ‘in whole or in part’, ‘a national, ethnic, racial or religious group’, and ‘as such’. The group requirement (‘a national, ethnic, racial or religious group’) is dealt with in the next section, because of its crucial relevance for the definition of genocide as a whole. This section considers the other three requirements. Before doing so, the travaux préparatoires of the 1948 Genocide Convention on the mental element are consulted in subsection III.4.1. Subsequently, there is a review of four important questions that were left open for the ICTR. The first question, dealt with in subsection III.4.2, is exactly what kind

100 The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 527-530. It is not necessary that the principal perpetrator is convicted, or even identified, The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 531. Also see Jørgensen (2001a: 311). Equally, an ICTY Trial Chamber had to acquit Stakic´ from complicity in genocide, since there was no general finding that genocide had been committed, The Prosecutor v. Stakic´, Judgement, 31 July 2003, para. 561. 101 For similar observations regarding the exclusion of historical background information from later judgements, see section I.1. 102 E.g., The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004, para. 707. 103 E.g., The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 424. 104 Fletcher (2000: 452).

106

Chapter III

of mental element was required. Should there be specific intent in all cases of genocide, or would knowledge suffice in certain circumstances? Below, we examine whether and to what extent the ICTR built on national systems, or whether it developed its own sui generis standard for the mental element.105 The second question, addressed in subsection III.4.3, is how a certain state of mind can be proved: what level of evidence is needed with regard to this element to sustain a count of genocide? Thirdly, as discussed in subsection III.4.4, the definition of genocide did not clearly specify whether motive, implicitly included in the term ‘as such’, was an element of crime. In its practice the ICTR should therefore clarify whether motive is relevant for genocide. In the fourth and last place, subsection III.4.5 takes up the issue that the ICTR had to establish the meaning of the words ‘in whole or in part’, and in particular that it had to clarify what constituted ‘a part’.

III.4.1 Travaux préparatoires of the 1948 Genocide Convention In his definition of genocide, Lemkin spoke of a coordinated plan of action with the ulterior aim of annihilating national groups. Two forms of intent may be identified on the basis of this definition, viz. the intent included in the coordinated plan of action, and the intent to destroy the whole group. As Lemkin’s work clearly shows, the rationale of his definition is concerned precisely with the protection of the groups against destruction, and therefore the intent to destroy a group is a crucial part of the definition. Yet it is striking that General Assembly Resolution 96(I) does not contain a formulation of the mental element of genocide. This adds to the conclusion reached in subsection III.1.2 that this Resolution condemns genocide in general terms, but does not offer a clear-cut definition in terms of criminal law. In the ad hoc Committee there was no discussion of the required level of intent. The discussion concentrated mainly on how to formulate motive and intent, which were not clearly distinguished as concepts.106 Motive was expressed in the terms ‘on national, racial, religious, (political) or any other grounds’.107 France argued that motive would help to identify the reasons behind the genocide.108 The US pointed out that including

105 For a more elaborate and general survey on the mental element with references to national systems, see Van Sliedregt (2003: 41-53). 106 For example, Poland argued that the phrase “with the intent of destroying …” was not necessary, as the intent had already been expressed by the enumeration of motives, UN Doc. E/AC.25/SR.13, 20 April 1948, pp. 6, 7. 107 As formulated in China’s proposal, UN Doc. E/AC.25/SR.12, 19 April 1948, p. 5. Later on, these grounds were formulated as “on grounds of national or racial origin, religious belief or political opinion”, UN Doc. E/AC.25/SR.13, 20 April 1948, pp. 4, 8. 108 UN Doc. E/AC.25/SR.12, 19 April 1948, p. 7.

ICTR case law on genocide

107

motive as an element of crime entailed the risk that some genocidal acts might not be punishable as the accused could claim motives which fell outside the definition for his defence.109 Venezuela proposed the words ‘as such’ to include implicit motives.110 This proposal was rejected in the ad hoc Committee,111 but taken up again later and approved by the Sixth Committee, while the latter voted against an enumeration of motives, as proposed by the USSR.112 However, at the next meeting, Uruguay pointed out that each negotiating State interpreted the words ‘as such’ as it wished, either including or excluding motive.113 The idea to set up a working group to determine the meaning of the words ‘as such’ was rejected, and therefore it remains unclear whether motive is considered part of the definition. The mental element of genocide was described in the ad hoc Committee by the words ‘deliberate acts’ and ‘committed with the intention of destroying’.114 In the discussion on intent and motive, Lebanon explained that motive did not matter with regard to acts that were reprehensible in themselves, but could be relevant in case of cultural genocide which is aimed at destroying the culture of the group, rather than the individuals belonging to the group themselves.115 In the Sixth Committee the word ‘deliberate’ requiring premeditation was considered redundant in addition to the phrase ‘intent to destroy’, and was therefore deleted.116 The phrase ‘committed with the intent to destroy’ was preferred to the USSR’s proposal of the more objective words ‘aimed at the physical destruction’.117 The purpose of the USSR proposal was to exclude the possibility of a defence based on absence of intent. However, the requirement with regard to intent was maintained in order to distinguish between genocide and ordinary murder. Following a Norwegian proposal, the words ‘in whole or in part’ were added to the phrase ‘with the intent to destroy a … group’,118 to include instances in which the partial destruction of the group was intended, and in order to clarify that it was not necessary to actually achieve the destruction of the whole group for genocide to be committed. With regard to the value of the travaux préparatoires for the interpretation of the mental element, Schabas indicated that the final formulation was the result of a compromise. Therefore, there is no general intention of the drafters that can serve as a guide to the interpretation.119 Moreover, as Lebanon’s remark on the relevance of motive

109 110 111 112 113 114 115 116 117 118 119

UN Doc. E/AC.25/SR.11, 16 April 1948, pp. 1, 2. UN Doc. A/C.6/231, 13 October 1948, also see UN Doc. E/AC.25/SR.11, 16 April 1948, p. 4. UN Doc. E/AC.25/SR.12, 19 April 1948, p. 12. UN Doc. A/C.6/SR.77, 18 October 1948. Also see Greenawalt (1999: 2274-2279). UN Doc. A/C.6/SR.78, 19 October 1948. UN Doc. E/AC.25/SR.12, 19 April 1948, pp. 2, 12. UN Doc. E/AC.25/SR.13, 20 April 1948, p. 8. UN Doc. E/AC.25-SR.12, 19 April 1948, pp. 6, 7. UN Doc. A/C.6/SR.73, 13 October 1948. UN Doc. A/C.6/223, 7 October 1948. UN Doc. A/C.6/SR.73, 13 October 1948. Schabas (2000a: 217).

108

Chapter III

in the case of cultural genocide showed, the distinctive elements of genocide are interdependent, and a broader relevance of one element may have direct consequences for the scope of another element and thus for the definition of genocide as a whole. In that light it is generally very difficult to construe the intention of the drafters on the issues that were debated, as this often depended on the outcome of another issue that still had to be dealt with.

III.4.2 Required level of the mental element The discussion of the required level of the mental element is rather complicated. Simon submitted that the importance of intent as an element of genocide is that it compels the Prosecution to look beyond the actual act to the underlying rationale, and the State structure that accommodated the genocide.120 It is true that the special feature of the mental element of genocide is that it is broader than the physical element. Therefore the perpetrator not only has to intend his actions as such,121 but he must have the ulterior aim of achieving a certain goal, viz. to destroy, in whole or in part, a national, ethnic, racial or religious group, as such. This part of the mental element stands alone in the sense that the definition of genocide does not require the result (the accompanying physical element) as an element of crime.122 In setting a standard for the mental element of genocide, the ILC stated, “a general intent to commit one of the enumerated acts combined with a general awareness of the probable consequences of such an act … is not sufficient for the crime of genocide”.123 However, the ILC also argued that a lesser perpetrator did not need to know every detail of the genocidal plan, but that he should have an – undefined – “degree of knowledge of the ultimate objective of the criminal conduct”.124 In its general findings, the Trial Chamber established that genocide had occurred in Rwanda.125 Following this conclusion, the question was whether it was sufficient that the perpetrator had general intent, thus acted with the knowledge that his actions contributed to the genocide, or that it was required that the perpetrator desired and specifically intended that result.126

120 Simon (1996: 247-251, in particular p. 248) stated, “the intent requirement forces us to look more closely at cases of purported spontaneous killing to uncover the political structure and to find those in positions of responsibility.” 121 The specific mental element belonging to each act, are dealt with in the context of each specific act, in section III.6. 122 It is therefore not necessary that the genocide is successful in the sense that the group is effectively destroyed. Triffterer (2001: 399-403). 123 UN Doc. A/51/10, 6 May to 26 July 1996, pp. 87-88. 124 UN Doc. A/51/10, 6 May to 26 July 1996, pp. 89-90. 125 See subsection III.3. 126 Jørgensen (2001a: 292-293).

ICTR case law on genocide

109

The Trial Chambers defined the intent requirement as dolus specialis or special intent.127 The Chambers explained that the specific intent of genocide required that “the perpetrator clearly [sought] to produce the act charged”, but also referred back to the formulation of the definition of genocide.128 The Trial Chamber in the Rutaganda Judgement specified that a perpetrator must act with the individual desire to achieve the destruction of the group, or with the wish to achieve the ulterior purpose to destroy, in whole or in part, the group of which the individual victim of the act concerned is a member.129 In the case of Kayishema and Ruzindana, the Trial Chamber stated that the specific intent had to be “formed prior to the commission of the genocidal acts”, but at the same time indicated that the acts themselves did not have to be premeditated.130 The Chambers did not refer to national concepts as a basis for their specifications. In fact, given the lack of any references, their interpretations of the specific intent must be regarded as textual interpretations. Initially, some confusion arose with regard to the distinction between the required intent of principal perpetrators and that of accomplices.131 In the Krstic´ case the ICTY Appeals Chamber clarified that an individual could be convicted for aiding and abetting genocide, if he had knowledge of the specific intent of the principal perpetrator.132 The Appeals Chamber also observed that the broader form of ‘complicity in genocide’ could require proof of a specific intent or of knowledge, depending on the form of complicity that it concerned.133 The ICTR Appeals Chamber supported these findings in the Ntakirutimana case.134 Hence, to prove a charge of aiding and abetting genocide,

127 E.g., The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 121; The Prosecutor v. Kambanda, Judgement, 4 September 1998, para. 16; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 91. Schabas (2001a: 129) explained that the terms ‘dolus specialis’, ‘special intent’ and ‘specific intent’ were used interchangeably by the Tribunals, although they derived from different families of law and had a different meaning. In the Jelisic´ case, the ICTY Appeals Chamber condoned the use of the wording ‘dolus specialis’ but preferred the words ‘specific intent’ to denote the particular mental element of genocide, The Prosecutor v. Jelisic´, Appeal Judgement, 5 July 2001, paras. 41-52. 128 Viz. ‘the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such.’ The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 498; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 91; The Prosecutor v. Rutaganda, Judgement, 6 December 1999, paras. 59-60; The Prosecutor v. Musema, Judgement, 27 January 2000, paras. 164-165; The Prosecutor v. Bagilishema, Judgement, 7 June 2001, paras. 60-61. 129 The Prosecutor v. Rutaganda, Judgement, 6 December 1999, para. 60. 130 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 91. 131 The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 544 and 726; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 91, 205, 207; The Prosecutor v. Musema, Judgement, 27 January 2000, paras. 180-183; The Prosecutor v. Bagilishema, Judgement, 7 June 2001, para. 71. Also see Van den Herik and Van Sliedregt (2004: 544-551). 132 The Prosecutor v. Krstic´, Appeal Judgement, 19 April 2004, para. 140. 133 The Prosecutor v. Krstic´, Appeal Judgement, 19 April 2004, para. 142. The different forms of individual criminal responsibility are explained in detail by Van Sliedregt (2003: 41-114). 134 The Prosecutor v. E. and G. Ntakirutimana, Appeal Judgement, 13 December 2004, paras. 500-501.

110

Chapter III

awareness of the existence of a genocidal plan had to be established in connection with participating in its execution. This lower mental element is not at variance with the characteristic requirement of genocide that there must be a specific intent. As explained by the Prosecution in the Ntakirutimana case: “[t]o convict an accused of aiding and abetting genocide based on the ‘knowledge’ standard, the Prosecution must prove that those who physically carried out crimes acted with the specific intent to commit genocide.”135

Given the distinction between principal perpetrators and those who aid and abet, the standard set for the mental element of a principal perpetrator must be higher than a general intent. The question remains how it is possible to prove that an individual acted on the basis of a specific desire.

III.4.3 Evidence required to prove the mental element In the absence of a confession, it may be hard to determine exactly what the state of mind was of a perpetrator at the moment he committed his act.136 Most perpetrators are clever enough not to express their intentions literally, or to document their barbaric acts as precisely as the Nazis.137 The description of the unfolding genocide in Rwanda also illustrated the use of coded language, with phrases such as ‘Let’s go to work’ to incite people to kill.138 This subsection examines how the ICTR dealt with the problem of proving specific intent. Earlier, the Commission of Experts had remarked that if the Prosecution had to prove specific intent in each individual case, it might “be faced with an unreasonably high burden”.139 Special Rapporteur Whitaker and the Commission of Experts had already referred to the option to infer intent. In so doing, the Special Rapporteur had lowered the standard of intent by including “actions or omissions of such a degree of criminal

135 The Prosecutor v. E. and G. Ntakirutimana, Appeal Judgement, 13 December 2004, para. 497. 136 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 523. Also note The Prosecutor v. Kajelijeli, Judgement, 1 December 2003, para. 805; The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, para. 624, where the Trial Chambers stated “the intent to commit a crime, even genocide, may not always be difficult or impossible to discern from the circumstances of the case.” 137 As noted by Special Rapporteur Mr. B. Whitaker, UN Doc. E/CN.4/Sub.2/1985/6, 2 July 1985, para. 39. 138 Kayishema’s submissions on appeal that words such as ‘travailler’ in written communications had to be understood in their original meaning were rejected, The Prosecutor v. Kayishema and Ruzindana, Appeal Judgement, 1 June 2001, paras. 138-146. 139 UN Doc. S/1994/1405, 9 December 1994, para. 167.

ICTR case law on genocide

111

negligence or recklessness that the defendant must reasonably be assumed to have been aware of the consequences of his conduct”.140 A number of indicators The ICTR Trial Chambers readily acknowledged the difficulty. In the Akayesu case, the Trial Chamber submitted that genocidal intent could be inferred from a number of indicators, such as a general range of criminal acts systematically targeting the same group, committed by the same perpetrator or others, the scale and nature of these acts, and the fact that victims were systematically and deliberately singled out because of their membership of a group, in contrast to non-group members.141 The Chamber also referred to ICTY Rule 61 Decisions in the cases of Karadzic´ and Mladic´, which mentioned other indicators such as a general political doctrine, acts not included in the definition of genocide but nevertheless directed at the foundations of a group, as part of a ‘pattern of conduct’, speeches and other projects.142 In the case of Kayishema and Ruzindana, the Trial Chamber referred to words and deeds of the accused and a “pattern of purposeful action”.143 It referred to the same sorts of indicators as the Trial Chamber in the Akayesu case, viz.: “the physical targeting of the group or their property; the use of derogatory language toward members of the targeted group; the weapons employed and the extent of bodily injury; the methodical way of planning, the systematic way of killing. Furthermore the number of victims from the group is also important.”144

The last of these indicators, the number of victims, was taken from the final report of the Commission of Experts.145 Following the ICTY Trial Chamber in the Jelisic´ Judgement, another ICTR Trial Chamber noted that if the leadership is targeted this may also demonstrate an intent to commit genocide, regardless of the number of victims.146

140 UN Doc. E/CN.4/Sub.2/1985/6, 2 July 1985, para. 39. 141 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 523. As approved in The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 313; The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, para. 623. 142 The Prosecutor v. Karadžic´ and Mladic´, Review of the indictments, 11 July 1996, para. 94; The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 524. 143 The Trial Chamber referred in this respect to Simon (1996: 247), who in his turn cited Fein (1994: 97). 144 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 93. This quotiation was cited by the Trial Chambers in the Kajelijeli and Kamuhanda Judgements. The Prosecutor v. Kajelijeli, Judgement, 1 December 2003, para. 806; The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, para. 625. 145 UN Doc. S/1994/1405, 9 December 1994, para. 166. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 93. Also see The Prosecutor v. Kajelijeli, Judgement, 1 December 2003, para. 806. 146 The Prosecutor v. Kajelijeli, Judgement, 1 December 2003, para. 806, citing The Prosecutor v. Jelisic´, Judgement, 14 December 1999, para. 82.

112

Chapter III

The Trial Chamber in Kayishema and Ruzindana also noted that a plan was not as such an element of genocide, but could demonstrate the specific intent. Moreover, the Trial Chamber pointed out that it was hard to conceive of genocide being committed without a plan or organisational structure.147 Nevetheless, the individual does not have to be aware of all the details of the plan to have intent.148 Given all these indicators, the Trial Chamber stated in the case of Rutaganda that intent must be established on a caseby-case basis.149 In the case of Bagilishema, the Trial Chamber cautioned against relying too much on contextual elements to prove the mental element of genocide and stated, “the use of context to determine the intent of an accused must be counterbalanced with the actual conduct of the accused”. The Trial Chamber submitted that intent had to be established above all by relying on the accused’s own behaviour.150 Apart from the references described above, and some additional references to doctrine, the Trial Chambers did not mention other relevant sources, such as the work of the ILC and the Special Rapporteurs, national legislation and practice, as a legal basis from which they had derived their indicators. The application to the facts of the case For the application of the above-mentioned indicators in the case of Akayesu, the Trial Chamber specifically relied on Akayesu’s speeches, and the general context of genocide, not only in Akayesu’s own Commune but throughout Rwanda.151 In order to construe the specific intent of Kayishema, the Trial Chamber noted the existence of a genocidal plan as demonstrated in the general findings. According to the Chamber this plan was implemented at the levels of the Prefecture, i.e., by Kayishema as Prefect. In this regard, it is worth noting that the Trial Chamber also relied on a letter stating that no additional attackers were required, sent to Kayishema by Bagilishema, who was himself later acquitted of genocide, and of all other charges. Furthermore, the large number of victims of the crimes for which Kayishema was charged was noted – between 20,000 and 40,000 – as well as the wholly random nature of the killings, including women, the elderly and children. In addition, the consistent and methodical manner of the killings constituted a factor denoting intent. Tutsi refugees gathered in places that used to serve as safe havens from which they were then unable to leave. These Tutsi were denied food, medicine and sanitary facilities. Therefore they were weakened and eventually killed by the perpetrators who had surrounded the compounds. The weapons used were also the same in different attacks; the leaders who started the attack used arms and guns, and the other attackers

147 148 149 150 151

The The The The The

Prosecutor Prosecutor Prosecutor Prosecutor Prosecutor

v. v. v. v. v.

Kayishema and Ruzindana, Judgement, 21 May 1999, para. 94. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 94. Rutaganda, Judgement, 6 December 1999, paras. 61-63. Bagilishema, Judgement, 7 June 2001, para. 63. Akayesu, Judgement, 2 September 1998, paras. 728-730.

ICTR case law on genocide

113

who did the groundwork used machetes. Kayishema’s words, referring to Tutsi as Inkotanyi (RPF fighter or enemy of Rwanda), or Inyenzi (cockroach), and filth or dirt, were also taken into account. With regard to Ruzindana, the Trial Chamber relied on the testimonial evidence of Ruzindana’s statements that he would not spare babies or mothers, that he was a leader and that he purchased the bullets. All in all, the Chamber found that along with other attackers, Kayishema and Ruzindana had had a common intention to destroy the Tutsi in Kibuye Prefecture.152 In general, the Trial Chambers of the ICTR relied on specific statements of the accused in combination with their general pattern of conduct, their position in society and the general context of genocide in Rwanda.153 Possible counter indicators On appeal, Kayishema submitted that he had rescued 72 Tutsi children, which demonstrated that he could not have had the genocidal intent to destroy the whole group. However, the Appeals Chamber was not convinced that the children were brought to a hospital on Kayishema’s orders, and also stated that the Trial Chamber had lawfully inferred intent by weighing up all the relevant evidence, including this fact. Kayishema’s appeal was therefore dismissed on that point.154 Ruzindana challenged the criteria that had been used to prove intent as an error of law, but the Appeals Chamber confirmed the Trial Chamber’s approach.155 In the Media case Ngeze also submitted that he had saved several Tutsi, thereby implying that he could not have had a specific intent to destroy all Tutsi. The Trial Chamber did not accept this line of reasoning.156 Thus the argument of an accused that he saved a few Tutsi does not automatically negate a specific intent. This fact has to be weighed up against all the other evidence available. Bagilishema was acquitted on all counts in first instance, and this Judgement was endorsed on appeal.157 In a Separate Opinion, Judge Gunawardana considered the plea of insufficient resources and means as a challenge to the Prosecution’s case.158 Judge Gunawardana concluded that the resources available to the accused were insufficient to prevent the massacres, and that Bagilishema had done everything that was possible

152 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 527-545. 153 The Prosecutor v. Rutaganda, Judgement, 6 December 1999, paras. 399-400. The Prosecutor v. Musema, Judgement, 27 January 2000, paras. 927-934. 154 The Prosecutor v. Kayishema and Ruzindana, Appeal Judgement, 1 June 2001, paras. 147-149. In para. 137, the Appeals Chamber stated that the burden of proof to show alleged errors of fact lies on Kayishema. He had to demonstrate that the Trial Chamber’s findings were unreasonable. 155 The Prosecutor v. Kayishema and Ruzindana, Appeal Judgement, 1 June 2001, paras. 156-161. 156 The Prosecutor v. Barayagwiza, Nahimana, and Ngeze, Judgement, 3 December 2003, paras. 838-850, 968969. 157 The Prosecutor v. Bagilishema, Judgement, 7 June 2001, and Appeal Judgement, 3 July 2002. 158 The Prosecutor v. Bagilishema, Judgement, Separate Opinion of Judge Gunawardana, 7 June 2001, paras. 2-4.

114

Chapter III

to maintain law and order. In his Opinion, Judge Gunawardana relied on the accused’s character and actions before and during the genocidal events, on his use of the security resources at his disposal, and on additional facts such as the fact that the accused hid Tutsi in his own house, his troubled relationship with the Deputy Mayor Semanza, and his lack of control over the Abika, unknown Hutu from the North of the country who came to the Commune to carry out the genocide. As a result, Judge Gunawardana concluded that the mental element required for the charges had not been proved, and therefore he agreed to Bagilishema’s acquittal.159 Like Bagilishema, Akayesu claimed that as a Mayor with ten policemen at his disposal, he did not have the power to stop the killings.160 The Trial Chamber considered that the Prosecution had proved beyond doubt that the accused’s actions and intentions had changed after a meeting on 18 April. After this date, the accused had “witnessed, participated in, supervised and even ordered killings”.161 Therefore, according to the Trial Chamber the question was not whether he could have prevented the killings, but whether he genuinely made an attempt to do so. Since Akayesu had chosen to collaborate in the genocide, it was not relevant whether he would have had the power to prevent the genocide. The Trial Chamber did not accept the accused’s contention that he had participated in the genocide because of coercion by the Interahamwe.162 The ICTY’s approach The ICTY had even more problems in construing the ‘specific intent’, as this Tribunal did not adjudicate crimes committed in a ‘general context of genocide’. The Trial Chamber in the Krstic´ case went a step further than the ICTR and submitted that genocidal intent could also be inferred from acts such as attacks on cultural and religious property and symbols.163 The ICTY based this view on recent developments, most importantly on a German case of the Federal Constitutional Court.164 Thus, in addition to seeing the killing of all Bosnian Muslim men of Srebrenica as an indication of the genocidal intent, the Trial Chamber also took account of the destruction of the homes of Bosnian Muslims in Srebrenica and in Potocˇari and of the principal mosque in Srebrenica after the attack.165

159 The Prosecutor v. Bagilishema, Judgement, Separate Opinion of Judge Gunawardana, 7 June 2001, paras. 13-131. The other two judges acquitted Bagilishema, because the Prosecution had not adduced sufficient evidence to establish beyond doubt that the accused was responsible for the alleged crimes, The Prosecutor v. Bagilishema, Judgement, 7 June 2001, paras. 330-421. 160 The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 29-43. 161 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 191. 162 The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 30-31, 193. 163 The Prosecutor v. Krstic´, Judgement, 2 August 2001, para. 580. 164 The Prosecutor v. Krstic´, Judgement, 2 August 2001, para. 579. 165 The Prosecutor v. Krstic´, Judgement, 2 August 2001, para. 595.

ICTR case law on genocide

115

In the case of Blagojevic´, the Trial Chamber only needed to establish that Blagojevic´ had had knowledge of the specific intent of others, given that he was charged with aiding and abetting genocide.166 However, in order to do so, the Trial Chamber also had to establish that there had been a specific intent to destroy. Although the specific intent is the main element of genocide, the Trial Chamber apparently considered that a mere reference to some paragraphs mainly dealing with the physical act of genocide, causing serious bodily or mental harm, would suffice in this respect.167

III.4.4 Motive Scholars with different academic backgrounds have developed comprehensive explanatory theories to unravel the roots of the genocide.168 Most of these theories comprise an analysis of a substantial number of factors. It is argued that a combination of these factors caused the genocide in Rwanda. The factors included economic restraints due to land scarcity and the dropping of the coffee and tea prices on the global market in the 1980s which had led to increased poverty in Rwanda; cultural factors relating to Rwanda’s history and to the social structure which were both deeply rooted in the Hutu-Tutsi divide; the RPF invasion as a military factor; and the unconditional support of France and the condoning attitude of the international community as international factors. The theories can be distinguished by their different emphasis in the evaluation of these factors. Like some other scholars, Mamdani put forward the struggle for power as the main motive behind the genocide. He also discussed alternative explanations, such as economic and cultural factors, but asserted that these factors did not explain why the genocide occurred at that particular moment.169 The Special Rapporteur for the Commission of Human Rights also identified the wish to retain political power as one of the main causes of the genocide.170 This cause of the genocide has its legal connotation in the element of motive. Motive provides the ultimate reason why an individual undertakes a specific act, which may be distinct from the primary goal that the individual seeks to achieve with his act. For instance, if a son kills his father, the primary goal of his act is to achieve the death of his father, whereas the ulterior motive may be to obtain the inheritance. The difficulty

166 On appeal, Krstic´ was also eventually convicted for aiding and abetting genocide, and the trial judgement on this point was quashed, The Prosecutor v. Krstic´, Appeal Judgement, 19 April 2004, para. 144. 167 The Prosecutor v. Blagojevic´ and Jokic´, Judgement, 17 January 2005, para. 786, especially fn. 2229. 168 E.g., the thorough account of the genocide and its background by Reyntjens (1994), Prunier (1997), Uvin (1998), Hintjens (1999), and Andersen (2000). 169 Mamdani (2001: 185-233). Also see Hintjens (1999: 247), who asserted that the genocide was the regime last desperate attempt to cling to power, and see Reyntjens (1996: 240). 170 UN Doc. E/CN.4/1995/71, 17 January 1995, para. 23. Also see Lemarchand (2002).

116

Chapter III

with genocide is that there are in fact two mental elements, namely the mental element directly related to the act, and the specific mental element to destroy, in whole or in part, a national, ethnic, racial or religious group. The specific mental element may be a primary goal, a means to achieve the goal of an ulterior motive. In the case of Rwanda, the genocide could be presumed to have been committed with the ulterior motive to retain power. The question is to what extent such an ulterior motive is relevant for the prosecution of genocide. As indicated above, the words ‘as such’ may or may not require motive as an element of crime. Drost argued against motive as an element, as there was no clear reference in the text of the definition.171 Leblanc also argued against the existence of motive as an element of crime of genocide,172 and based on that submission, the Commission of Experts stated that political motive could not negate the specific intent, thus clearly distinguishing between the two concepts.173 In the Akayesu case, the Trial Chamber at first sight appeared to blur the distinction between the notions of motive and specific intent. In the general findings on the applicable law, it recapitulated that genocide is committed with “an ulterior motive, which is to destroy, in whole or in part, the group of which the individual is just one element.”174 In subsequent cases, motive was not considered as an element of crime. Ruzindana asserted on appeal that he could not have had a specific intent, because he had had a personal motive to commit genocide, viz. the elimination of business competitors. The Appeals Chamber dismissed this contention, and stressed that a personal motive did not exclude criminal responsibility.175 The Trial Chambers interpreted the words ‘as such’ as meaning that a victim had to be attacked because he was a member of the specific group. Hence, the actual victim of the attack was the group, and not only the individual.176 In the Niyitegeka case, the defence asserted on appeal that the Trial Chamber had misinterpreted the words ‘as such’. In the defence’s view these words were intended to mean ‘solely’. The defence argued that the perpetrator must have committed his crime solely because his victim was a member of the group. The Appeals Chamber rejected this view and referring to the

171 Drost (1959: 84), cited by Special Rapporteur Mr. N. Ruhashyankiko, UN Doc. E/CN.4/Sub.2/416, 4 July 1978, para. 106. 172 Leblanc (1991: 80). 173 UN Doc. S/1994/1405, 9 December 1994, para. 159. 174 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 522. 175 The Prosecutor v. Kayishema and Ruzindana, Appeal Judgement, 1 June 2001, para. 161. The Appeals Chamber referred to the Tadic´ Appeal Judgement, 15 July 1999, para. 269, in which the same view had been put forward in the context of a charge of crimes against humanity. 176 The Prosecutor v. Niyitegeka, Judgement, 16 May 2003, para. 410. Also see The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 521.

ICTR case law on genocide

117

Kayishema and Ruzindana Appeal Judgement, it held that a perpetrator could have a specific intent and other personal motives at the same time.177 It is likely that another dimension of the issue of motive will be considered in more detail in the Military cases and the Government cases, in which defendants are expected to raise the argument that they were defending their country from the RPF invasion, and that the genocide occurred as an inseparable element of this armed conflict, or alternatively they may argue that they could not prevent the genocide, as they had to devote their resources to the armed conflict. In both cases, the Trial Chambers will have to determine what the impact of this defence is on the mental element, and to what extent alleged ulterior motives concerning the defence of the country should be taken into account.178 Based on current case law, in particular the Akayesu Judgement, in which the defence of duress was dismissed,179 this author argues that once it has been determined that an accused had the specific intent, it is irrelevant that he would not have had the means to prevent the genocide had he wanted to do so.180 The argument that the genocide could not be prevented due to the armed conflict therefore fails if no real efforts to prevent the genocide can be proved. To determine whether an accused had a specific intent at all, it might therefore be relevant whether a Tutsi was targeted because he belonged to the Tutsi group, or because of his affiliation with the RPF. This issue is explored in more detail in subsection V.6.3.

III.4.5 ‘In whole or in part’ The phrase ‘in whole or in part’ has led some commentators to observe that theoretically the definition could apply to individual murder cases.181 However, this observation is largely hypothetical, as it seems impossible to infer intent to destroy a group in such cases.182 Moreover, it is necessary to emphasise here that the phrase ‘in whole or in part’ does not concern the actual destruction, but rather the intent to destroy.183 Special Representative Ruhashyankiko did not find the consideration that even the killing of one person could constitute genocide particularly useful, and indicated that

177 The Prosecutor v. Niyitegeka, Appeal Judgement, 9 July 2004, paras. 51-53. This view was also based on ICTY jurisprudence, see The Prosecutor v. Tadic´, Appeal Judgement, 15 July 1999, para. 269; The Prosecutor v. Jelisic´, Appeal Judgement, 5 July 2001, para. 49. 178 Also see the discussion below in section III.5 on the issue of political groups. 179 See subsection III.4.3. 180 For a similar observation, see the final report of the Commission of Experts, UN Doc. S/1994/1405, 9 December 1994, para. 159. 181 Drost (1959: 84-86) and Schabas (2000a: 234). 182 As noted by Special Rapporteur Mr. N. Ruhashyankiko, UN Doc. E/CN.4/Sub.2/416, 4 July 1978, para. 53. 183 Tournaye (2003: 459). Also see The Prosecutor v. Brdjanin, Judgement, 1 September 2004, para. 700.

118

Chapter III

the 1948 Genocide Convention was, in the first place, concerned with crimes committed with the intention to destroy a large number of persons.184 In addition, Special Rapporteur Whitaker remarked that the plural is used for the definition of all acts of genocide (the physical element), which means that more than one victim is required.185 He further submitted that ‘in part’ requires “a reasonably significant number.”186 Whitaker specified that in this respect, both the proportionate scale as well as the actual number were relevant. If half of the members of a small group were targeted, this could constitute genocide, even if the number of targeted persons itself was not very high.187 The ICTR case law In the Kayishema and Ruzindana case, the Trial Chamber took the deliberations of Special Rapporteur Whitaker into account, and maintained that ‘in part’ requires the intention to destroy a “considerable number of individuals”.188 In the Semanza Judgement, the Trial Chamber stressed that there was “no numeric threshold of victims necessary to establish genocide.”189 But it also noted that the intent to destroy had to relate to a “substantial part of the group”.190 Thus, the act itself need not target a vast number of people, but it must be committed with the intent to contribute to the destruction of the group in whole or in part. Or in the words of another Trial Chamber, and as based on the 1996 Draft Code: “It is not necessary to show that the perpetrator intended to achieve the complete annihilation of the group from every corner of the globe. It is sufficient to prove that the perpetrator intended to destroy more than an imperceptible number of the targeted group.”191

One might be tempted to believe that the phrase ‘in part’ is not relevant in the case of Rwanda, since the genocide was committed with the intent to destroy the Tutsi group as a whole. However, as described in Section I.1, the Trial Chambers developed a tendency to focus on the events directly relevant to the case at hand, events which had occurred in a specific Prefecture or Commune. The focus in these cases was on part of

184 UN Doc. E/CN.4/Sub.2/416, 4 July 1978, para. 54. 185 Therefore the conclusion of various ICTR Trial Chambers that the killing of one person could constitute genocide should be rejected, e.g., The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 521; The Prosecutor v. Ndindabahizi, Judgement, 15 July 2004, para. 471. Even though inconsistent with the ICC statutory definition, the approach has been followed in the ICC Elements of Crimes, which speaks of “one or more persons” who can be victims of genocide. Also see Cassese (2002a: 345, 348-349), Oosterveld (2001b: 45), and Garraway (2001: 50). 186 UN Doc. E/CN.4/Sub.2/1985/6, 2 July 1985, para. 29. 187 UN Doc. E/CN.4/Sub.2/1985/6, 2 July 1985, para. 29. 188 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 96-97. 189 The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 316. 190 The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 316. 191 The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, para. 628.

ICTR case law on genocide

119

the genocide. For example, even though the Trial Chamber in the case of Ndindabahizi noted the wider context of genocide in Rwanda and in Kibuye Prefecture as indicative of the perpetrators’ awareness that their actions were part thereof,192 it also stated: “Even in the absence of other massacres, a brutal attack targeting several thousand members of an ethnic group, is itself indicative of the requisite intent to destroy an ethnic group, in whole or in part. Those who participated in the attacks on Gitwa Hill on 26 April and preceding days, committed genocide.”193

Despite the wording, this can be seen as an example of the relevance of the phrase ‘in part’ to the case of Rwanda, since only a part of the Tutsi group, viz. those hiding at Gitwa Hill, was targeted, and since other massacres were not taken into account to infer the intent. An ICTY Trial Chamber warned against the case law, where “the specific intent extend[ed] only to a limited geographical area, such as a municipality”.194 However, it is curious that this Chamber referred, inter alia, to the Akayesu Judgement as an example of this. This should be rejected, as Akayesu’s intent was partially inferred from the general context of genocide in Rwanda.195 In he present author’s view, it is certainly necessary to be cautious in ‘isolated’ cases, i.e., in cases where there was no general context of genocide, as for instance in the former Yugoslavia. The ICTY jurisprudence: the Krstic´ case In the case of the former Yugoslavia, and more specifically Bosnia Herzegovina, the phrase ‘in part’ was especially relevant, since it was not immediately clear that genocide had occurred there. As observed above in subsection III.1.6, the conflict in Yugoslavia was characterised as ethnic cleansing. However, in some ICTY cases concerning Bosnia Herzegovina there were charges of genocide.196 The examination of the phrase ‘in part’ is most instructive in the Krstic´ case. This concerned the massacre of approximately 7,500 men197 in Srebrenica in July 1995. In the Judgement in first instance, the Trial Chamber had to determine whether the Bosnian Muslim men of Srebrenica were covered by the definition of genocide as such. To this end, the Trial Chamber took account of, inter alia, scholarly writing, the work of the ILC, the final report of the Commission of Experts, the study of Special Rapporteur

192 193 194 195 196 197

The Prosecutor v. Ndindabahizi, Judgement, 15 July 2004, para. 460. The Prosecutor v. Ndindabahizi, Judgement, 15 July 2004, para. 461. The Prosecutor v. Stakic´, Judgement, 31 July 2003, para. 523. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 730. Also see subsection III.4.3. For further details, see Schabas (2001b) and Tournaye (2003). This number is an estimate, see The Prosecutor v. Krstic´, Judgement, 2 August 2001, paras. 80-84.

120

Chapter III

Whitaker, a Separate Opinion of Judge ad hoc Lauterpacht to an Order of the ICJ,198 and national case law.199 Consequently, the Trial Chamber decided that the group of men was covered, as this group constituted a substantial part of the group of Bosnian Muslims in general. As regards the fact that only the Muslim men of military age in Srebrenica were targeted, and not the women, children, and elderly people, the Chamber maintained that: “the combination of those killings with the forced transfer of the women children and elderly would inevitably result in the physical disappearance of the Bosnian Muslim population in Srebrenica.”200

Various scholars have criticised the Trial Chamber’s approach.201 In the first place, they argued that the phrase ‘part of’ was in fact applied twice: the Bosnian Muslim men of Srebrenica were part of the group of Bosnian Muslims of Srebrenica, which was part of the Muslim group in Bosnia Herzegovina as a whole. In the second place, they pointed out that the fact that a group disappears from a certain place does not necessarily constitute genocide, but is actually an indication of ethnic cleansing. Genocide is the annihilation of a group, not the removal of a group.202 The ICTY Appeals Chamber rejected the first criticism. It considered that the Trial Chamber had not characterised the Bosnian Muslim men of Srebrenica as part of the group of Bosnian Muslims of Srebrenica. In the Appeals Chamber’s view: “the Trial Chamber treated the killing of the men of military age as evidence from which to infer that Krstic´ and some members of the VRS Main Staff had the requisite intent to destroy all the Bosnian Muslims of Srebrenica, the only part of the protected group relevant…”203

However, this statement does not properly address the fact that women, children and the elderly were not killed, a counter indication which reveals that there was no specific intent. In this respect the Appeals Chamber noted that this fact could be explained by “the Bosnian Serbs’ sensitivity to public opinion”.204 However, as observed in the previous subsection, ulterior motives are irrelevant in determining whether there was

198 Application of the Convention of the Prevention and Punishment of the Crime of Genocide, Bosnia-Herzegovina v. Yugoslavia (Serbia and Montenegro), Order on further requests for the indication of provisional measures, 13 September 1993, ICJ Reports 1993, pp. 407-448. 199 The Prosecutor v. Krstic´, Judgement, 2 August 2001, paras. 585-589. 200 The Prosecutor v. Krstic´, Judgement, 2 August 2001, para. 595. 201 Schabas (2001b), Tournaye (2003), and Van Sliedregt (2005). 202 In the Stakic´ case, the Trial Chamber also observed that the expulsion or dissolution of a group does not constitute genocide, The Prosecutor v. Stakic´, Judgement, 31 July 2003, para. 519. 203 The Prosecutor v. Krstic´, Appeal Judgement, 19 April 2004, para. 19. 204 The Prosecutor v. Krstic´, Appeal Judgement, 19 April 2004, para. 31.

ICTR case law on genocide

121

a specific intent. In the Akayesu Judgement, the Trial Chamber determined that there was genocidal intent because even newborn babies and pregnant women had not been spared.205 In line with this case law, the fact that women and children were spared should have been seriously considered as counter evidence, indicating that there was no specific intent to destroy. From the failure to do so in the Krstic´ case, one could conclude that it was irrelevant that these people were spared. That would certainly be an untenable conclusion. Therefore the characterisation of the massacre of Srebrenica as genocide is, arguably, legally unsound. That does not mean, however, that what happened in Srebrenica in July 1995 was not atrocious or impermissible. Undoubtedly, it was. As expressed by Special Rapporteur Whitaker: “[o]ther attacks and killings do, of course, remain heinous crimes, even if they fall outside the definition of genocide.”206

III.4.6 Evaluation In its pioneering work of exploring the unique mental element of genocide, the ICTR was able to rely on various sources, such as the reports of the Special Rapporteurs, the Final Report of the Commission of Experts, the 1996 Draft Code, and national legislation and case law. However, it should be noted that in the first cases the Trial Chambers did not – explicitly – employ these sources. There was no mention of national concepts to determine what level of intent was necessary, and the Chambers did not provide any insight into how they chose the indicators that could be used to infer the specific intent. As regards the interpretation of the phrase ‘in part’, there were some useful references, especially in later Judgements, such as the Bagilishema Judgement and the Kajelijeli Judgement. In sharp contrast, the Krstic´ Judgement of the ICTY started its section on the specific intent with a summary of relevant sources, including arguments on the legal authority and value of the sources used. Despite the above-mentioned conclusion that the ICTY may have gone too far in declaring that the Srebrenica massacre constituted genocide, it cannot be denied that the underlying reasoning is far more extensive than the reasoning of most of the ICTR Judgements. This is a harsh conclusion, given that it is the ICTR that is referred to as the Genocide Tribunal. As regards the ICTR case law on the specific intent, it appears that the ICTR did not in practice adhere to the legal standards it identified in theory. While setting a high standard of specific intent in its general findings on the applicable law, it lowered the threshold in the actual application. In the case of Akayesu in particular, it relied to quite a significant extent on contextual factors, such as the fact that genocide occurred through-

205 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 121. Also see section III.3. 206 UN Doc. E/CN.4/Sub.2/1985/6, 2 July 1985, para. 29.

122

Chapter III

out Rwanda, and in the case of Kayishema and Ruzindana, the Trial Chamber construed a common intent. In these cases, the general conclusion that genocide had occurred in Rwanda following a genocidal plan – denoting some sort of ‘collective genocidal intent’ – significantly contributed to the establishment of specific intent at the individual level.207 This led Triffterer to conclude that in fact the ICTR required general intent, instead of the more stringent Absicht which involves an emotional will.208 Maison criticised the inference of individual intent from general facts. She submitted that this would only be appropriate in the case of the members of actual national leadership who drafted the genocidal plan and whose intent therefore concurred with the ‘collective intent’.209 In her view, qualifying participation such as Akayesu’s as complicity as defined by the ICTR – having knowledge of the genocidal plan rather than genocidal intent – would reflect the collective character of genocide as a State crime more accurately.210 This last opinion should be viewed with caution. As explained by Van Sliedregt, the term complicity is based on Anglo-American law. It should not be generally interpreted as meaning secondary participation, in the sense of less important participation. The accomplice is actually a perpetrator who did not physically commit the crime, but still co-perpetrated in another fashion. In fact, in some cases an accomplice may bear primary responsibility, for example when he instigated or ordered the crime. The fact that a reduced mental element may be required for complicity should be regarded as a technical issue that can be remedied by imposing an appropriate sentence.211 In accordance with this view, the national leadership would generally be qualified as accomplices, without implying that their participation was of secondary importance. Article 30 of the ICC Statute requires knowledge of the genocidal context, apparently in addition to the individual specific intent, mainly to exclude the mad individuals who intend to commit genocide on their own.212 However, as the Elements of Crimes reveal, knowledge will normally be subsumed in the genocidal intent. Nevertheless, the elements leave the door open for the ICC to decide on the mental element on a case-by-case basis. Requiring knowledge of the plan excludes the ‘grassroots killers’,213 but may include local leaders such as Akayesu. In addition to this knowledge requirement regarding the context, Schabas favoured a stringent construction of the individual specific intent, in order to maintain the unique character of genocide as the crime of crimes.214 In contrast,

207 208 209 210 211 212 213

Verdirame (2000: 588). Triffterer (2001: 404-406). Maison (1999: 137-140). Maison (1999: 143-145). Van Sliedregt (2003: 61-114). Also see Van den Herik and Van Sliedregt (2004: 550). Schabas (2001a: 133-138). Schabas (2001a: 136). After the Jelisic´ Judgement, the drafters of the ICC Elements of Crimes made serious efforts to preclude isolated crimes from falling under the definition, Oosterveld (2001a: 44 and 2001b: 45-49). 214 Schabas (2001a: 137).

ICTR case law on genocide

123

Greenawalt proposed a general knowledge-based interpretation, in the sense that the individual must be aware of the pre-selection of his victims, but does not need to select them as such himself.215 Apparently, the discrepancy between the ICTR’s theoretical high standard and its more lenient evidentiary requirements regarding the actual application has left the door open to either interpretation for the time being. This author argues that a genocidal context and a knowledge of this context is a precondition. The specific intent of an individual perpetrator may be inferred from this context, as long as the behaviour of the accused is also seriously taken into account. Finally, both the context and the actual conduct of the accused are equally relevant. The extent to which each of these two factors is used to construe the specific intent must be determined on a case-by-case basis, but this author agrees with Schabas’ contention that the specific intent must be strictly construed. Therefore, the present author rejects the ICTY’s broadening of the concept of the specific intent to destroy, as was done in a Dissenting Opinion to the Krstic´ Appeal Judgement and the Blagojevic´ and Jokic´ Judgement. In his Partial Dissenting Opinion, Judge Shahabuddeen maintained that the intent to destroy also covered ‘non-physical and non-biological’ destruction. Judge Shahabuddeen based his vision on an a contrario argumentation, viz. that the act of ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’ does require an intent to cause physical or biological destruction, whereas the act of ‘killing members of the group’ does not require that the group is physically or biologically destroyed in whole or in part’. Hence, according to Judge Shahabuddeen, the killing can also be committed with the intent to destroy the group socially, as a unit.216 In this author’s view, this line of reasoning is not convincing. If it is followed to its logical conclusion, the characterisation of genocide would also be applicable to cases that involve no killing at all. The present author argues, first of all, that the ordinary meaning of the word ‘destroy’ is to ‘annihilate’, ‘wipe out’, ‘eradicate’, and thus inherently involves physical or biological destruction. Moreover, the act of ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’ has been formulated in this way, merely to emphasise the fact that only those conditions that aim at the physical destruction of the group are envisaged. With regard to killing this may have been considered superfluous. Section III.6 explores in more detail the question to what extent the specific intent can be inferred from acts other than killing.

215 Greenawalt (1999: 2288). 216 The Prosecutor v. Krstic´, Appeal Judgement, Partial Dissenting Opinion of Judge Shahabuddeen, 19 April 2004, paras. 45-54, as endorsed in The Prosecutor v. Blagojevic´ and Jokic´, Judgement, 17 January 2005, paras. 655-666.

124

III.5

Chapter III

THE PROTECTED GROUP

As outlined above, the concept of genocide was established in international law in the aftermath of the Second World War with the aim of affording better protection for groups such as the Jews. The current definition of genocide refers to ‘a national, ethnic, racial or religious group’. Subsection III.5.1 examines how this definition was established, as well as the comments of early writers. Subsection III.5.2 records how the ICTR applied this clause in practice. Issues that arose included the question whether the enumeration was intended to provide an exhaustive list of four different groups, excluding other groups, or that the four terms referred instead to one group, the terms being elements to identify that group. A related question facing the ICTR judges was how to define the group and how to determine whether certain individuals belonged to the protected group; should this be done on the basis of objective or rather on the basis of subjective criteria? The ICTR’s answers are evaluated in subsection III.5.3.

III.5.1 Travaux préparatoires of the 1948 Genocide Convention and early writings In his plea for a better protection of minority groups, Lemkin used different terms. He seemed to refer interchangeably to ethnic, religious or social collectivities,217 national groups,218 and a national, religious, or racial group.219 The Resolution of the General Assembly included any group in the definition of genocide. However, when a binding convention was drafted, the question of which groups should be covered by the definition as protected groups was one of the issues that gave rise to most discussion. During the debates in the ad hoc Committee, theoretical as well as practical arguments were put forward against including political groups in the definition of genocide. The representative of the USSR objected on scientific and etymological grounds.220 Poland opposed to political groups for similar reasons.221 China initially also expressed its doubts about

217 In his definition of vandalism and barbarism in Lemkin (1933), see above, subsection III.1.1 218 In his definition of genocide in Lemkin (1944), see above, subsection III.1.1. 219 In his recommendation to amend the Hague Regulations to include the prohibition of genocide, Lemkin (1944: 93). 220 The USSR submitted that the word ‘genocide’ referred to the persecution of a racial, national or religious group, and also asserted that the crime was a reaction to Fascism and Nazism and other race theories. UN Doc. E/AC.25/SR.13, 20 April 1948, p. 3. On an earlier occasion the USSR had objected specifically to France’s proposal to include groups formed on the basis of their opinion, arguing that this notion was too imprecise to be applied by courts and scientifically unfounded, UN Doc. E/AC.25/SR.3, 6 April 1948, pp. 11 and 12. 221 It argued that political groups had no stable form, in contrast to the other groups, which were historically established, and pointed to the Second World War to which the Genocide Convention ought to be a response. Furthermore, Poland wanted to avoid an endless list of groups. UN Doc. E/AC.25/SR.4, 7 April 1948, pp. 10 and 11.

ICTR case law on genocide

125

including political groups in the definition; this group is not as stable or homogeneous as, for example, an ethnic group, and it might therefore lead to confusion between genocide and political crimes.222 Later on in the discussion, China agreed to the inclusion of political groups, but cautioned against too broad a definition, while at the same time wondering what principle justified including political groups, while excluding other groups, such as social or economic groups.223 In contrast, France wanted to broaden the definition and also include groups formed on the basis of their opinion.224 Venezuela put forward some practical objections. It agreed that political groups could certainly be the subject of government persecution, torture and execution with a view to annihilating the political group as such. Nevertheless, it preferred not to include political groups, since inclusion might prevent States struggling with subversive movements from adhering to the Convention,225 and at a later stage it opposed their inclusion outright.226 The US and Lebanon supported including political groups, although Lebanon did stress the different characteristics of political groups compared to a national, racial or religious group.227 Finally, political groups were included in the ad hoc Committee’s draft by a vote of four to three.228 A similar debate took place in the Sixth Committee. Various States, including Brazil, Egypt, Yugoslavia, the USSR, Poland, Venezuela and Iran opposed the inclusion of political groups, restating the theoretical point of view that political groups were not stable groups and that membership of such groups was optional.229 A few States also stated that if political groups were included in the definition, they did not see any reason why other groups such as economic groups could not be included as well.230 Other States pointed to the practical risk that including political groups might prevent States from ratifying the definition.231 Uruguay stressed that this risk was even greater in the light of the proposal to establish an international court. Including political groups would give such a court broad powers to interfere in the domestic sphere of States, and this consequence might prevent States from ratifying the Convention as a whole.

222 223 224 225 226 227 228 229 230

UN Doc. E/AC.25/SR.3, 6 April 1948, p. 5. UN Doc. E/AC.25/SR.4, 7 April 1948, pp. 11 and 12. UN Doc. E/AC.25/SR.3, 6 April 1948, pp. 11 and 12. UN Doc. E/AC.25/SR.3, 6 April 1948, p, 12. UN Doc. E/AC.25/SR.4, 7 April 1948, p. 12. See e.g., UN Doc. E/AC.25/SR.13, 20 April 1948, pp. 2 and 3. UN Doc. E/AC.25/SR.13, 20 April 1948, p.4. UN Doc. A/C.6/SR.63, 30 September 1948. E.g., Sweden and Norway, see UN Doc.A/C.6/SR.69, 7 October 1948. The US had in fact proposed to also include economic groups in the definition, UN Doc. A/C.6/214, 4 October 1948. 231 E.g., Iran and Venezuela UN Doc. A/C.6/SR.69, 7 October 1948, and UN Doc. A/C.6/SR.74, 14 October 1948.

126

Chapter III

Despite the resistance, political groups were initially included in the definition by a vote of 29 to 13 with 9 abstentions.232 However, in one of the last meetings, Iran, Egypt and Uruguay asked for a revote, and the political groups were removed from the definition by a vote of 26 to 4 with 9 abstentions.233 Removing political groups from the definition appeared to be a political compromise to ensure the inclusion of a provision on the establishment of an international criminal court. Therefore, the exclusion of political groups from the definition does not appear to be based on a particular view of the drafters on the concept of genocide,234 but originated from the wish to ensure the inclusion of other aspects, which were considered more relevant. Consequently, the travaux préparatoires cannot be consulted for a clear interpretation of this part of the definition, as it does not reveal the clear intention of the drafters about which groups to include. The travaux préparatoires do not give any definition of the four classes of groups that are enshrined in the Statute either. As one scholar pointed out, no exact definitions of each of the groups can be given, as the notions of race, ethnicity and nation are a priori imprecise.235 Over the years, there have been many debates on the group element of the definition of genocide. Some scholars argued that the list should be expanded to include political and cultural groups, and also even economic, social and linguistic groups. Drost goes furthest in this respect, favouring the protection of any human group by the 1948 Genocide Convention, and arguing that excluding some groups, while including others, constitutes an unjustifiable discrimination which leaves a “wide and dangerous loophole” for governments to use the pretext that certain measures have a political, economic or cultural character, and that these measures are therefore targeting political, economic or cultural groups and not directly the groups mentioned in the definition of the Convention.236 This argument seems to blur the distinction between the groups and the physical acts as elements of genocide. Moreover, it seems unlikely that such a defence could succeed in practice, given the requirement of specific intent. Other scholars, especially social scientists, prefer to broaden the scope of this element. In their view, genocide is mainly characterised as mass killing.237 Therefore, they place a greater emphasis on the physical element of genocide than on the mental element. In contrast to these more normative or reality-based positions, Van Schaak put forward the

232 UN Doc. A/C.6/SR.75, 15 October 1948. 233 UN Doc. A/C.6/SR.128, 29 November 1948. 234 In contrast, the ILC held the view that political groups were excluded because they were not sufficiently stable, UN Doc. A/51/10, 6 May to 26 July 1996, p. 89. 235 Verhoeven (1991: 21). 236 Drost (1959: 123). 237 E.g., Chalk and Jonassohn (1990: 23, 25, 26) include all human groups as defined by the perpetrators, while Charney (1997: 75) departs entirely from the group element and refers to “substantial numbers of human beings”, taking the individual as a criterion.

ICTR case law on genocide

127

legal argument that political groups were included in the customary international law definition of genocide.238 In 1978, Rapporteur Ruhashyankiko recommended not including political groups, if the definition of genocide was to be adapted by new instruments, mainly because of the practical fear that many States would not accept such an expansion.239 However, in 1985, Rapporteur Whitaker did propose an additional optional protocol to the 1948 Genocide Convention to include political and other groups.240 This proposal has not been implemented. Leaving aside the customary international law definition of genocide, the ICTR Statute incorporated the definition as laid down in the 1948 Genocide Convention.241 The ICTY example of crimes against humanity above illustrated that in principle the ad hoc Tribunals cannot circumvent their Statutes on the basis of customary international law. They may interpret the definition in accordance with customary international law as long as they respect the limits of the statutory definition. The definition of the 1948 Genocide Convention exclusively enumerates the four classes of groups mentioned above. Therefore the questions of interpretation left to the ICTR did not include whether genocide can be committed against other groups, but rather how the enumeration of the four classes of groups should be understood, and how to establish whether a certain individual belonged to one of these defined groups.

III.5.2 The Tutsi as a protected group The problem of defining the groups emerged to its full extent when judges had to apply the definition in practice to the situation of Rwanda. However, the first persons faced with this problem were the members of the Prosecution when they drafted the indictments. In the formulation of the charges, the Prosecution had to indicate what kind of a group it considered the Tutsi to be. A study of the indictments on this point reveals that the Prosecution did not hold clear views on that matter. Some of the first indictments do not seem to be coherent, as they stated generally that the acts charged as genocide were committed with the intent to destroy, in whole or in part, a national, ethnic or racial group, whereas the victims were said to have been members of a national, ethnic, racial or religious group.242 Another indictment, of later date, referred to the intent to destroy a national, ethnic, racial or religious group.243 Most indictments point out that Rwandan

238 239 240 241 242

Van Schaak (1997). UN Doc. E/CN.4/Sub.2/416, 4 July 1978, para. 87. UN Doc. E/CN.4/Sub.2/1985/6, 2 July 1985, para. 37. Verdirame (2000: 581). The Prosecutor v. Akayesu, Indictment, 6 June 1997, paras. 6 and 7; The Prosecutor v. Rutaganda, Indictment, 12 February 1996, paras. 5 and 6. 243 The Prosecutor v. Ndindabahizi, Indictment, 1 June 2001, count 1 and 2.

128

Chapter III

citizens were identified according to racial or ethnic criteria,244 and in one particular instance an indictment referred to Tutsi solely as an ethnic group.245 By way of comparison, it may be noted that in the context of a charge on crimes against humanity, the Belgians were defined as a national group.246 In contrast with the ICTR, the ICTY indictments mainly qualified the Bosnian Muslims and Croats as national, ethnic or religious groups, omitting any reference to the term ‘racial’.247 This practice of referring to all or most adjectives that characterise the group (national, ethnic, racial and religious) could be understood as reaffirming the suggestion that the four classes of groups should be considered to represent one singular entity, and that therefore it is not necessary to choose one applicable adjective. It may also be that the Prosecution enumerated several groups for strategic reasons, so that the indictment would not be rejected because it opted for the ‘wrong’ group. Starting in a rather experimental way, the ICTR examined different approaches to the group element, using objective and subjective criteria respectively as identification tools.248 In the ICTR’s first Judgement in the Akayesu case, the Trial Chamber defined each group in objective terms in a general chapter on the applicable law.249 A national group was defined as “a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties”,250 an ethnic group was said to be “a group whose members share a common language or culture”,251 a racial group was based on “hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors”,252 and members of a religious group “share[d] the same religion, denomination or mode of worship”.253 Apart from a reference to the Nottebohm decision of the ICJ254 relating to the definition

244 E.g., The Prosecutor v. Bikindi, Indictment, 27 June 2001; The Prosecutor v. Bagambiki, Imanishimwe, and Munyakazi, Indictment, 2 December 1999; The Prosecutor v. E. and G. Ntakirutimana and Sikubwabo, Indictment, 20 October 2000. 245 The Prosecutor v. Gatete, Indictment, 14 December 2000 (in general description of jurisdiction, not in count). 246 The Prosecutor v. Ruggiu, Indictment, 30 September 1997. 247 E.g., The Prosecutor v. Sikirica, Indictment, 30 August 1999. Except for the indictment in the case of Meakic´, which does refer to all the groups, including the racial group, as noted by Thwaites (1997: 593). Thwaites argued that race has become an obsolete term these days. 248 The ICTR’s second judgement followed a guilty plea, which relieved the ICTR of its task to adjudicate the facts or to set criteria to define the group. In this judgement, the Trial Chamber first qualified the mental element as the intent to destroy, in whole or in part, an ethnic or racial group, and later referred only to an ethnic group. The Prosecutor v. Kambanda, Judgement, 4 September 1998, para. 40, resp. (1) and (2), and (3). 249 The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 510-516. 250 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 512. 251 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 513. 252 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 514. 253 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 515. 254 Nottebohm case, Liechtenstein v. Guatemala, Second Phase, Judgement, 6 April 1955, ICJ Reports 1955, p. 4.

ICTR case law on genocide

129

of a national group, the Trial Chamber did not indicate on which legal arguments it based its definitions, if any. According to the definitions given, the Tutsi could not be identified as an ethnic group. They would probably have fitted the description of a racial group better. However, the Trial Chamber implicitly viewed this result as absurd and turned to the travaux préparatoires.255 These interpretations led the Trial Chamber to assert that in fact the 1948 Genocide Convention intended to protect any stable and permanent group.256 Subsequently, the Trial Chamber established that the Tutsi constituted a protected group on the basis of objective as well as subjective criteria, indicating that the Tutsi were viewed as an ethnic group. These criteria contrasted with the Trial Chamber’s own definition of an ethnic group, and therefore the Tutsi were eventually defined as a stable and permanent group.257 The objective criteria were the identity cards and reference to ethnicity under Rwandan law.258 The subjective criteria related in the first place to the self-identification of the witnesses who had appeared before the ICTR.259 In other parts of the judgement, the Trial Chamber had also referred to the perpetrator’s identification of the Tutsi as an ethnic group.260 Nevertheless, the Trial Chamber demonstrated a clear preference for objective criteria, and in that vein it maintained that acts committed by Akayesu against a Hutu could not constitute genocide, as the Hutu did not fall in the protected group of victims.261 More generally, the Trial Chamber stated that not only individuals but also the targeted group as such were the victim of genocide.262 The final definition of the Tutsi as a ‘stable and permanent group’ for the purpose of the definition of genocide seems inconsistent with the Trial Chamber’s earlier characterisation of the Tutsi as an ethnic group in its general finding that genocide had occurred in Rwanda. A comparison with the legal findings of the same judgement on crimes against humanity render the identification of the Tutsi even more puzzling, since in these findings the Trial Chamber concluded that there was “…a widespread or systematic attack on the civilian population on ethnic grounds…”.263 In the Kayishema and Ruzindana case, the Trial Chamber refused to reiterate the objective definition of the national group as given by the Trial Chamber in the Akayesu

255 The travaux préparatoires may only be consulted when a literal textual interpretation leads to an unreasonable or absurd result. Articles 31 and 32 1969 Vienna Convention on the Law of Treaties. Schabas (2000a: 120) submitted that the Trial Chamber did not want to classify the Tutsi as a racial group for reasons of political correctness. 256 The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 516 jo. 701. 257 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 702. 258 The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 702 jo. 170. 259 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 702. 260 The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 171, 284, 285. 261 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 712. 262 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 521. 263 The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 650, 653, 658, 661, 668, 671.

130

Chapter III

case. With regard to the definition of an ethnic group, the Trial Chamber explicitly based the subjective element of group identification either on the identification of the victims themselves or on that of the perpetrators.264 In the actual application of the group requirement to the Tutsi, this subjective element had already played an implicit role in the Akayesu case, as explained above. In the legal findings in the case of Kayishema and Ruzindana, the Trial Chamber noted the same objective and subjective factors as referred to in the Akayesu case, but came to the different conclusion that the Tutsi were an ethnic group.265 It remained unclear whether Hutu perceived by the perpetrator to be Tutsi could also be victims of genocide.266 The tendency to emphasise the subjective element persisted. The Trial Chamber in the Rutaganda case, which was the same Chamber that had rendered judgement in the Akayesu case, noted that although the four classes of groups had been thoroughly researched, there was no internationally recognised objective definition.267 Therefore, each group had to be considered on a case-by-case basis in the light of relevant contextual political, social and cultural elements. The Trial Chamber noted, “for the purposes of applying the 1948 Genocide Convention, membership of a group is, in essence, a subjective rather than an objective concept”.268 The Trial Chamber took the identification by the perpetrator as first indicator. However, the Trial Chamber indicated that a subjective definition alone was not sufficient, since the 1948 Genocide Convention was not intended to protect all groups, but only to protect the specific groups that were mentioned.269 The subjective approach therefore had to be complemented with the objective approach. In the Jelisic´ case, an ICTY Trial Chamber demonstrated that the groups mentioned in the Convention were originally supposed to be objectively defined. However, the Trial Chamber submitted that such an objective classification might not correspond

264 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 98 (“An ethnic group is one whose members share a common language and culture, or, a group which distinguishes itself, as such (self identification); or, a group identified as such by others, including the perpetrators of the crimes (identification by others)”. 265 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 523-526. 266 Verdirame (2001: 593) noted that the Trial Chamber established that not all victims were Tutsi. He submitted that the acquittal of Kayishema and Ruzindana of crimes against humanity could either lead to the conclusion that the Hutu were viewed as victims of genocide, or that the crimes against the Hutu were left unpunished. Also see The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 437 (holding that those killed at the complex were predominantly Tutsi). 267 The Prosecutor v. Rutaganda, Judgement, 6 December 1999, para. 56. Also see The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, para. 630. 268 The Prosecutor v. Rutaganda, Judgement, 6 December 1999, para. 56. The ICTY followed this approach in the Jelisic´ case, The Prosecutor v. Jelisic´, Judgement, 14 December 1999, para. 70. The negative approach that was also developed in this Judgement, viz. that all victims not belonging to the group of the perpetrator would constitute a distinct group, was later rejected by the ICTY, and never taken up by the ICTR. See The Prosecutor v. Stakic´, Judgement, 31 July 2003, para. 512; The Prosecutor v. Brdjanin, Judgement, 1 September 2004, para. 685. 269 The Prosecutor v. Rutaganda, Judgement, 6 December 1999, para. 57.

ICTR case law on genocide

131

to the perceived reality for the persons concerned. For that reason, the Trial Chamber opted for the subjective approach.270 In the application of the identified applicable law in the Rutaganda case, the Trial Chamber still adhered to some extent to the criterion of ‘stable and permanent group’ which it had created, but did eventually conclude that the Tutsi constituted an ethnic group in Rwanda in 1994.271 The Trial Chamber also noted that all the witnesses had identified themselves in terms of ethnicity and had referred to the Tutsi as a distinct group, thus apparently taking the victim as the indicator rather than the perpetrator. Following these objective and subjective criteria, the Trial Chamber concluded that the Tutsi were a protected group under the 1948 Genocide Convention, thus still leaving some confusion about the exact definition of the Tutsi. This reasoning was more or less repeated in the case of Musema.272 In the case of Bagilishema, the Trial Chamber emphasised the perception of the perpetrator with regard to the identification of the victim, and stated that a victim should be considered as belonging to a protected group if he was perceived by the perpetrator as such, even in cases were this would not fully correspond to the perception of the group itself or of other elements of society.273 This reveals a strong preference for the subjective approach. In this case, the choice for the subjective approach was supported by a reference to the Commission of Experts, which had stated in its Final Report that “to recognise that there exists discrimination on racial or ethnic grounds, it is not necessary to presume or posit the existence of race or ethnicity itself as a scientific objective fact.”274 In an attempt to render the case law as a whole more coherent, the Trial Chamber in the Bagilishema case noted that the objective criteria given in the Akayesu case were merely indicative.275 Later judgements also concluded that “objective particulars of a given social or historical context”, as well the “subjective perceptions of the perpetrators” were relevant for determining whether a certain group fell under Article 2 of the Statute.276 Despite this attempt, a later case clearly showed that the subjective approach prevailed. In the Ndindabahizi Judgement, one of the victims, called Nors, had a German father and a Rwandan mother. On the basis of objective criteria relevant to the case of Rwanda, this victim could not be qualified as belonging to any Rwandan ethnic group, since the ethnic identity of a Rwandan was determined by the ethnic identity of his father, who

270 The Prosecutor v. Jelisic´, Judgement, 14 December 1999, paras. 69-70. 271 The Prosecutor v. Rutaganda, Judgement, 6 December 1999, paras. 373-377. 272 The Prosecutor v. Musema, Judgement, 27 January 2000, paras. 160-163, 356-358, 930, 934, 935. Musema admitted that during the attacks Tutsi were identified as a racial or ethnic group, and that they were victims of genocidal acts. 273 The Prosecutor v. Bagilishema, Judgement, 7 June 2001, paras. 61, 65. 274 UN Doc. S/1994/1405, 9 December 1994, para. 159. 275 The Prosecutor v. Bagilishema, Judgement, 7 June 2001, para. 65, fn. 62. 276 The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 317.

132

Chapter III

was a German. Yet, the killing of Nors was qualified as an act of genocide, as Nors was considered a Tutsi by the perpetrators.277 Given this strong emphasis on the subjective approach, an attack on a Hutu who was perceived to be a Tutsi by the perpetrator could also be qualified as genocide, in contrast to the finding of the Trial Chamber in the Akayesu case referred to above. In the case of Kajelijeli, the Trial Chamber expressly stated that the victims either had to belong to the group or the perpetrator had to believe that the victims belonged to the group that he targeted.278 This still leaves open the question of whether moderate Hutu who were not perceived as Tutsi, but who were attacked because of their help to Tutsi, can also be qualified as victims of genocide. The Trial Chamber in the Media case generally observed that attacks “against Hutu opponents were committed on account of their support of the Tutsi ethnic group and in furtherance of the intent to destroy the Tutsi ethnic group”.279 However, the Trial Chamber did not specify whether such attacks could be qualified as genocide.

III.5.3 Evaluation The creation of the criterion ‘permanent and stable group’ was criticised by various scholars as overstepping the definition of genocide in the convention.280 Without making any explicit concession, the ICTR silently adjusted its course in subsequent judgements.281 In all the subsequent judgements, and on some occasions even in the Akayesu Judgement, the Trial Chambers identified the Tutsi as an ethnic group. The ICTR therefore generally remained within the boundaries of the definition of genocide in the Convention. It neither defined the Tutsi as a social or economic group protected against genocide under customary international law, nor were acts against Hutu opposition members defined as genocidal acts against a political group. By specifically defining the Tutsi as an ethnic group, instead of determining more generally that it was a protected group, the Trial Chambers accorded each adjective – racial, ethnic, national or religious – its own significance. This is in line with Glaser’s ideas that each adjective of the definition has a distinct meaning, and thus covers a different group.282 In his report, Rapporteur Ruhashyankiko also described the scope of the groups separately, although he considered racial and ethnic

277 278 279 280 281 282

The Prosecutor v. Ndindabahizi, Judgement, 15 July 2004, paras. 466-469. The Prosecutor v. Kajelijeli, Judgement, 1 December 2003, para. 813. The Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Judgement, 3 December 2003, para. 948. E.g., Schabas (2000b: 378-384), Jørgensen (2001a: 288), and Verdirame (2001: 592). Verdirame (2001: 592) spoke of a “‘quiet’ shift towards the subjective approach”. Glaser (1970: 111-112).

ICTR case law on genocide

133

groups as one group. Amann labels this “the seriatim construction”.283 In contrast, one of Schabas’ main theses in his comprehensive book on genocide is that Lemkin intended to protect one particular kind of group, viz. the national minority groups which had been the subject of the minority treaties between the wars. In Schabas’s words, the four adjectives are four corners of one domain.284 This more ‘holistic approach’ is referred to by Amann as “the ensemble construction”.285 In short, pursuant to the seriatim construction four separate classes of groups are protected by the prohibition of genocide as laid down in the 1948 Genocide Convention, whereas according to the ensemble construction, favoured by Schabas, only one kind of group is protected and this group is characterised by one or more of the four adjectives listed in the genocide definition of the Convention. The ICTY Trial Chamber adopted Schabas’ theory in the case of Krstic´ and maintained that the list of groups in the 1948 Genocide Convention: “was designed more to describe a single phenomenon, roughly corresponding to what was recognised, before the Second Word War, as ‘national minorities’, rather than to refer to several distinct prototypes of human groups”.286

Schabas’ assertion that the prohibition of genocide essentially protects national minorities is very well founded, to the extent that he relied on Lemkin’s work. However, his reference to the travaux préparatoires is rather unconvincing, as it merely refers to Sweden’s proposal to include the adjective ‘ethnic’ in order to clarify the term national and to the deletion of the term ‘linguistic’.287 Furthermore, in his criticism of the idea of including all ‘stable and permanent groups’ under the definition of genocide, Schabas pointed out that political groups were actually included in the definition, and were only removed at the last moment for political reasons, as illustrated above.288 This view, that the element of groups was determined by political rather than ideological motives, contrasts with Schabas’ claim that the drafters expressly intended to protect one kind of group described by the four adjectives. In any case, pursuant to the interpretation rules of the 1969 Vienna Convention on the Law of Treaties, the doctrine, in this case Lemkin’s work, is not directly relevant

283 284 285 286 287

Amann (2002: 109). Schabas (2000a: 112). Amann (2002: 112). The Prosecutor v. Krstic´, Judgement, 2 August 2001, paras. 554-560. Also see Amann (2002: 138-139), emphasising this point, also citing the Akayesu Appeal Judgement “[A] provision or part thereof should not be interpreted in a manner to render it redundant or bereft of any object, unless such a conclusion is inevitable. One must proceed from the assumption that the lawmakers intended to give some effect to each of the words used.” The Prosecutor v. Akayesu, Appeal Judgement, 1 June 2001, para. 442. 288 Schabas (2000a: 132-133). Also see subsection III.5.1.

134

Chapter III

to the interpretation of the 1948 Genocide Convention. After all, doctrine is not mentioned as a primary means of interpretation in Article 31 of the 1969 Vienna Convention on the Law of Treaties. Doctrine may be taken into account as a supplementary means of interpretation, but is not explicitly mentioned as such in Article 32 of the 1969 Vienna Convention on the Law of Treaties.289 Moreover, the travaux préparatoires may only be consulted if the interpretation of the ordinary meaning of the terms in their context and in the light of the object and purpose of the treaty is ambiguous or obscure, or leads to a manifestly absurd or unreasonable result.290 It is not immediately clear why interpreting the four classes of groups as separate entities would have this result, although this may also depend to a great extent on whether the four classes of groups are identified on the basis of objective or of subjective criteria. After an initial failed attempt to define the four classes of groups objectively, the Trial Chambers eventually found different ways of identifying the protected groups. Taking into account objective elements and the subjective self-identification of the group, the ICTR mainly adhered to the subjective approach based on the perception of the perpetrator. Verdirame explained that the advantage of the objective approach is that it takes account of errors of fact for the qualification of the crime.291 If a perpetrator kills many people believing that they are a protected group, while in fact they are not, this does not constitute genocide under the objective approach, whereas it does according to the purely subjective approach based on the perception of the perpetrator. The latter point of view was advocated by the ICTY in the case of Jelisic´.292 The disadvantage of the subjective approach is that the perpetrator himself defines the crime. Despite this disadvantage, the Commission of Inquiry in the case of Darfur based its finding that the victims of the killings in Darfur constituted a protected group, solely on a subjective approach. The Commission acknowledged that objectively the victims and the attackers did not appear to constitute distinct ethnic groups, but nevertheless they were considered to be a protected group, given that the victims of the attack were perceived to be part of the ‘African’ group, while the attackers, the so-called Janjaweed, were perceived by the victims as belonging to the ‘Arab’ group. The Commission did not indicate what class of group the victim group was considered to be.293 The ICTR’s approach was to give each class of group in the definition an individual status, and to identify the groups on a subjective basis from the perpetrator’s as well

289 In contrast, doctrine is mentioned as a subsidiary means for the determination of international law in Article 38(1)(d) of the ICJ Statute. 290 Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties. 291 Verdirame (2001: 589). Schabas (2000b: 384) also noted the importance of maintaining some objective criteria. 292 The Prosecutor v. Jelisic´, Judgement, 14 December 1999, para. 70. 293 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Geneva, 25 January 2005, paras. 508-512.

ICTR case law on genocide

135

as the victim’s perspective, complemented by objective criteria. This has provided a satisfactory outcome in the Rwandan situation, and is preferable given the disadvantages of using a purely subjective approach. In fact, the group requirement is relevant in two respects, viz. in the first place, to determine whether the victim group constituted a protected group under the definition of genocide, and secondly, to determine whether a specific individual belonged to the protected group. With regard to the first question, objective elements should play a complementary role, but with regard to the second question, a purely subjective approach can be adopted, as the ICTR also did in the case of Ndindabahizi. Furthermore, the ‘seriatim construction’ used by the ICTR is preferable to the ‘ensemble construction’ used by the ICTY, in particular because it presents the facts more precisely.

III.6

THE PHYSICAL ELEMENT

Genocide is generally perceived as mass killing. Such a one-sided interpretation is misleading, but it is hard to persuade the general public otherwise. Even scholars disagree on the precise definition. This section clearly describes these differences and provides insights into the complexities of identifying the physical element of genocide. The following approach is adopted. Subsection III.6.1 describes several types of genocide, as introduced by Lemkin. Subsection III.6.2 examines the travaux préparatoires of the 1948 Genocide Convention on this point. Subsequently, the ICTR case law on the distinct physical elements, as enshrined in the 1948 Genocide Convention, is examined in subsections III.6.3 to III.6.7

III.6.1 Different types of genocide Apart from killing, other acts may also be qualified as genocidal acts. In his account of the Nazi occupation and in particular of the aggression against the Jewish people, Lemkin meticulously described the different actions undertaken by the Germans to achieve their goals in the different countries they occupied.294 In doing so, he identified a number of “techniques of genocide in various fields”.295 Corresponding to these, different types of genocide can be distinguished, viz. political genocide, social genocide, cultural genocide, economic genocide, biological genocide, physical genocide, religious genocide, and moral genocide. The adjectives do not distinguish between the groups of victims, but refer to the nature of the genocidal acts. In this way, political genocide relates

294 Lemkin (1944). 295 Lemkin (1944: 82-90).

136

Chapter III

to actions which disrupt the local self-government of a group and which dismantle its political system, while opposing the oppressor’s own system; social genocide targets the social structure of a group, for example by ‘attacking’ its intelligentsia; cultural genocide pertains to the denial of the right of a group to use its own language, and to obstruct other cultural activities; economic genocide destroys the economic foundation of a group, for example, by liquidating all the group’s property and by excluding the members of the group from economic life; biological genocide concerns measures to lower the birth rate of a group, for example, by separating males and females or by prohibiting marriages between members of the group; physical genocide concerns the physical destruction of all members of the group, i.e., mass killing; religious genocide aims to destroy the religious leadership, and moral genocide includes actions which intend to weaken the group on the spiritual plane, for example, by encouraging the use of alcohol or by imposing pornographic movies. Thus these different types of genocide are distinguished by the type of actions. Lemkin’s list of different types of genocide is very broad so that it can cover all the Nazi actions. However, not all of these actions are equally serious when they are carried out individually. The eventual list of acts in the definition of the 1948 Genocide Convention enumerates: “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 of life calculated to bring 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 this definition, the acts sub (a), (b) and (c) constitute physical genocide, the act sub (d) concerns biological genocide, and the act sub (e) is generally regarded as a specific form of cultural genocide. In the Kamuhanda Judgement, the Trial Chamber emphasised that the word ‘destroy’ had to be understood as the “material destruction of a group either by physical and biological means and not the destruction of the national, linguistic, religious, cultural or other identity of a particular group.”296 The Trial Chamber supported the view that in general cultural genocide was not a form of genocide under the law. In sharp contrast, the ICTY stated that “[t]he intent certainly has to be to destroy, but, except for the listed act, there is no reason why the destruction must always be physical or biological.”297

296 The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, para. 627. Also see The Prosecutor v. Semanza Judgement, 15 May 2003, para. 315. 297 The Prosecutor v. Krstic´, Appeal Judgement, Partial Dissenting Opinion of Judge Shahabuddeen, 19 April 2004, para. 51, as quoted in The Prosecutor v. Blagojevic´ and Jokic´, Judgement, 17 January 2005, para. 659.

ICTR case law on genocide

137

In the adjudication of alleged genocidal acts, the ICTR Trial Chambers first had to determine the scope of each of these acts on the list. Since genocide is popularly conceived as a form of mass killing, the second question mainly concerned the four ‘other acts’ – (b) to (e) – viz. whether there should be a causal connection between the genocidal acts, which each has a mental element of its own, and the specific intent required for genocide as a whole. In other words, is it possible to infer the specific intent to destroy from a pattern of forcible transfers of children from one group to another, or can the specific intent only be inferred from an environment of mass killing, as was the case in Rwanda, in which other genocidal acts may then also be committed, such as the forcible transfer of children. In short, are the genocidal acts as described sub (b) to (e) independent genocidal acts, or are they inherently linked to the act sub (a)?

III.6.2 Travaux préparatoires of the 1948 Genocide Convention In the drafting process, the first point of debate was whether the list of acts should be enumerative or whether a more general definition should be used. Secondly, there was a fierce debate on whether cultural genocide should be included in the definition at all. As Lebanon pointed out in the ad hoc Committee, the underlying question was whether the core element of genocide was the extermination of individuals or rather the extermination of groups.298 These two coincide only in the case of physical genocide. Throughout the discussion, the States adhered to the concept of genocide as a crime aimed at the destruction of a group, rather than of each individual.299 They did not reach agreement on the exact formulation of the prohibited acts. While some favoured an enumerative list of actions,300 others preferred a general definition, like “all forms of action designed towards the physical extermination of the group.”301 A sort of compromise was reached in the subsequent discussions, in the sense that the enumerated acts agreed upon were defined in rather general terms.302 Despite a proposal by France for a general definition, the Sixth Committee followed the ad hoc Committee’s decision to enumerate the acts which could constitute genocide.303 Moreover, a proposal to include the words “the following” to make the list indicative rather than exhaustive was defeated.304 The Chinese representative had proposed an indicative list in order to include unforeseen future

298 299 300 301 302 303 304

UN Doc. E/AC.25/SR.4, 7 April 1948, p. 3. UN Doc. E/AC.25/SR.4, 7 April 1948, pp. 13-16. UN Doc. E/AC.25/SR.4, 7 April 1948, p. 13. As formulated by the representative of Poland, UN Doc. E/AC.25/SR.4, 7 April 1948, p. 15. UN Doc. E/AC.25/SR.13, 20 April 1948, pp. 8-14. UN Doc. A/C.6/SR.72, 12 October 1948. UN Doc. A/C.6/SR.78, 19 October 1948.

138

Chapter III

acts,305 but others had emphasised the need to clearly prescribe which acts constituted genocide.306 Therefore the list of genocidal acts in the definition is exhaustive. Logically, the next question was: which acts should be included in the enumeration, and which should not? This question corresponded directly to the choice of types of genocide that were to be covered by the Convention. The main controversy in this respect concerned cultural genocide. The ad hoc Committee agreed to include cultural genocide,307 and included acts prohibiting the language and other cultural aspects of a group in a separate provision.308 In the Sixth Committee, cultural genocide was excluded,309 but on the proposal of Greece an exception was made for the forced transfer of children.310 Drost criticised the exhaustive enumeration of the genocidal acts as being incomplete in that it did not cover all the acts that could lead to the destruction of a group. For example, Drost referred to mass deportation and internment combined with forced labour.311 Special Rapporteur Whitaker advised that further consideration be given to the question whether cultural ethnocide and ecocide312 should be included in an optional protocol to the 1948 Genocide Convention.313

III.6.3 Killing members of the group As indicated above, scholars from other fields generally define genocide as a qualified form of mass killing. Given the popular view of genocide as mass killing, it is not surprising that this act was least discussed in the travaux préparatoires.314 Some representatives expressed their doubts about the words ‘killing’ and ‘meurtre’ not being synonymous, since killing did not require premeditation, whereas ‘meurtre’ did. However, Maktos, the Representative of the US who had been the President of the ad hoc Committee, explained that this Committee had chosen the word killing, as the intent of genocide had already been included elsewhere, and it was therefore clear that unpremeditated killing

305 UN Doc. A/C.6/232/-Rev.1, 18 October 1948. Mainly also to ensure the inclusion of genocide committed through the use of narcotics, referring to Japanese acts against the Chinese population. 306 UN Doc. A/C.6/SR.81, 22 October 1948. 307 UN Doc. E/AC.25/SR.5, 8 April 1948, p. 8. 308 UN Doc. E/AC.25/SR.14, 21 April 1948, pp. 4, 12-14. 309 UN Doc. A/C.6/SR.83, 25 October 1948. 310 UN Doc. A/C.6/SR.82, 23 October 1948. 311 Drost (1959: 124). 312 Ecocide meaning the destruction of a group as a result of serious damage to the living environment of that group. 313 UN Doc. E/CN.4/Sub.2/1985/6, 2 July 1985, para. 33. 314 Apart from some discussion on the exact formulation, UN Doc. E/AC.6/SR.13, 20 April 1948, pp. 4-8, and UN Doc. A/C.6/SR.81, 22 October 1948.

ICTR case law on genocide

139

could not constitute genocide in any event. Violent acts unintentionally resulting in death do not fall under this heading, as noted by the representative of France in the ad hoc Committee.315 These acts may be covered by the act sub (b). In its analysis of the applicable law, the Trial Chamber in the Akayesu case noted the difference between killing and ‘meurtre’. It argued that ‘meurtre’ must be proved since this was more favourable to the accused in the sense that it was harder to prove. In line with the Rwandan penal code, the Trial Chamber defined ‘meurtre’ as “homicide committed with intent to cause death”. The Trial Chamber referred to the travaux préparatoires to demonstrate that premeditation was not necessarily required.316 The Chamber could also have pointed out that the French concept of ‘meurtre’ requires intent, but no premeditation. As was explained by the Trial Chamber in the Kayishema and Ruzindana Judgement in the context of crimes against humanity, it is the French concept of ‘assassinat’ that requires premeditation,317 and not the concept of ‘meurtre’. Quoting the ILC, the Trial Chamber in the Kayishema and Ruzindana case explained that all genocidal acts had to be committed with the all-encompassing specific intent, and that the mental element of each individual act was linked to this specific intent. Consequently, the Chamber submitted that there was “virtually no difference between the term ‘killing’ in the English version and ‘meurtre’ in the French version of Article 2(2)a of the Statute”.318 On appeal, Kayishema contested this reasoning. However, the Appeals Chamber endorsed the Trial Chamber’s view and stated that both terms had to be understood in such a way as to mean “intentional but not necessarily premeditated murder”.319 The ICC Elements of Crimes have put an end to this type of discussion. The physical element in genocide by killing, in murder as a crime against humanity, and in wilful killing as a war crime is the same, viz. killing. Furthermore, a footnote on the relevant element of these crimes specifies that the term ‘killing’ is interchangeable with the term ‘causing death’.320

315 UN Doc. E/AC.25/SR.13, 20 April 1948, p. 10. 316 The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 500-501. 317 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 137-139. See subsection IV.6.1. 318 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 101-104. 319 The Prosecutor v. Kayishema and Ruzindana, Appeal Judgement, 1 June 2001, paras. 150-151. 320 A similar discussion on the mental element of killing / murder arose in the context of crimes against humanity, see subsection IV.6.1.

140

Chapter III

III.6.4 Causing serious bodily or mental harm to members of the group The draft of the ad hoc Committee formulated this act as ‘impairing the physical integrity of members of the group’. The Sixth Committee added the word ‘serious’ and included mental harm in the definition.321 In its analysis of the applicable law, the Trial Chamber in the Kayishema and Ruzindana case stated that what constituted serious bodily or mental harm should be assessed on a case-by-case basis.322 But the Chamber also considered that the term ‘serious bodily harm’ was largely self-explanatory.323 Drawing on the Judgement of the Israeli District Court in the Eichmann case, the Trial Chamber in the Akayesu Judgement gave some examples of the harm that was meant: bodily or mental torture, inhumane or degrading treatment, persecution, rape and other forms of sexual violence.324 However, rape was not mentioned as an example of bodily or mental harm in the Eichmann case. Nevertheless, the examples were repeated in subsequent judgements,325 and eventually included in a footnote to the ICC Elements of Crimes.326 The Trial Chamber in the Akayesu case also stipulated that the harm did not have to be permanent or irremediable.327 The legal basis for this view was not provided, but the view was endorsed in subsequent judgements,328 and the examples of serious harm given in the Akayesu Judgement have been incorporated in the ICC Elements of Crimes, with the exclusion of the example of ‘persecution’. In the Bagilishema Judgement, it was stipulated that the standard of serious harm required more than a “minor impairment of mental or physical faculties”.329 The Trial Chamber did not support this view with any legal references, but apparently it borrowed the phrasing from the ICC preparatory committee’s definition of crimes.330 The fact that there is a certain threshold was also illustrated in the Cyangugu Judgement. In that case, a witness testified that he had been beaten up, after which he had escaped, using force. Because he was able to escape, the Trial Chamber determined that this was not

321 322 323 324 325

326 327 328

329 330

UN Doc. A/C.6/SR.81, 22 October 1948. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 108, 110. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 109. The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 503, 731-734. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 108; The Prosecutor v. Rutaganda, Judgement, 6 December 1999, para. 51; The Prosecutor v. Musema, Judgement, 27 January 2000, para. 156; The Prosecutor v. Bagilishema, Judgement, 7 June 2001, para. 59. Garraway (2001: 50-51). The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 502. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 108; The Prosecutor v. Rutaganda, Judgement, 6 December 1999, para. 51; The Prosecutor v. Musema, Judgement, 27 January 2000, para. 156; The Prosecutor v. Bagilishema, Judgement, 7 June 2001, para. 59. The Prosecutor v. Bagilishema, Judgement, 7 June 2001, para. 59. This phrasing was also used by the Prosecution in the Kayishema and Ruzindana case, see The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 110.

ICTR case law on genocide

141

a case of serious bodily harm.331 However, as noted by the Trial Chamber in the Semanza Judgement, the ILC appeared to use an even higher threshold in its 1996 Draft Code, viz. that the harm inflicted on individual members of the group “must be of such a serious nature as to threaten its destruction in whole or in part”.332 In the Kajelijeli case, the Trial Chamber maintained that bodily harm had to entail some physical injury, while mental harm had to involve “some type of impairment of mental faculties”.333 This view was also based on the 1996 Draft Code.334 As stated by the Trial Chamber in the Kayishema and Ruzindana case, inflicting serious bodily and mental harm is an inherent aspect of mass killing.335 Therefore, this sub-paragraph was applied to instances in which the victim did not die as a result of the attack. The application of this sub-paragraph is most striking with regard to acts of rape. In its legal findings, the Trial Chamber in the Akayesu case qualified its factual findings of rape and sexual violence under this heading as an act of genocide.336 Conviction for rape as a genocidal act was unprecedented. As indicated above, the view that rape could constitute genocide was supported with a single, and in fact imprecise, reference to the Eichmann case. However welcome the development may be, a serious question arises with regard to whether this sole reference is sufficient to validate this extensive interpretation. This also applies to the ICTY’s finding that deportation is an act that can constitute serious bodily or mental harm.337 Rape and sexual violence were defined in another part of the Judgement concerning crimes against humanity.338 In the context of the genocide charge, the Trial Chamber also explained that the rapes constituted a part of the larger genocidal policy that was aimed at the destruction of the Tutsi, as the rapes targeted the Tutsi women with the aim of destroying these women physically and psychologically. According to the Trial

331 The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004, paras. 346, 692. 332 The Prosecutor v. Semanza, Judgement, 15 May 2003, fn. 541. Also see The Prosecutor v. Kajelijeli, Judgement, 1 December 2003, para. 814; The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, para. 633. 333 The Prosecutor v. Kajelijeli, Judgement, 1 December 2003, para. 814. Also see The Prosecutor v. Gacumbitsi, Judgement, 17 June 2004, para. 291; The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, para. 633. 334 UN Doc. A/51/10, 6 May to 26 July 1996, p. 91. 335 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 547. 336 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 731. Also see The Prosecutor v. Gacumbitsi, Judgement, 17 June 2004, paras. 291-292. In the latter case, the Trial Chamber concluded that rape constituted serious bodily harm. This had not been specified in the Akayesu Judgement. 337 The Prosecutor v. Krstic´, Judgement, 2 August 2001, paras. 507-514; The Prosecutor v. Blagojevic´ and Jokic´, Judgement, 17 January 2005, paras. 644-654. 338 See subsection IV.6.5.

142

Chapter III

Chamber, the sexual violence was intended to destroy the will to live, and thus life itself.339 In most cases of rape, there was an intention to kill the women afterwards.340 Given these motives for the rape, classification under this heading is appropriate. Had the Tutsi women been raped with the intention of impregnating them with Hutu babies, that would have constituted biological genocide under sub-paragraph (d).

III.6.5 Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part Recalling the Jewish ghettos, the drafters of the ad hoc Committee readily accepted that genocide could also be committed more indirectly by imposing living conditions that were aimed at the destruction of the group.341 Despite some discussion about whether the word ‘deliberately’ was redundant, the Sixth Committee accepted this sub-paragraph without much debate.342 According to the Trial Chambers, these acts concern measures aimed at a slow death. Examples given included starvation, systematic expulsion and the lack of proper housing, clothing, and hygiene, excessive work, and reducing essential medical services, provided that these acts could lead to the physical destruction of the group.343 The Trial Chamber in the Kayishema and Ruzindana case indicated that these examples had been copied from the Secretariat’s draft convention. This Chamber argued that measures which did not immediately lead to death, such as rape, were also covered.344 This fairly liberal interpretation may not be entirely consistent with the explicit rejection by the drafters in 1948 of Syria’s proposal to include ‘measures directed towards forcing members of a group to leave their homes’, as a separate act of genocide.345 Rape may be more appropriately characterised as serious bodily or mental harm, or as a measure intended to prevent births within the group, depending on the circumstances as indicated above. It should also be noted that in the ICC Elements of Crimes, rape is not mentioned as an example of the conditions of life that may bring about the physical destruction of

339 The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 731, 732. On rape in the Akayesu Judgement, see Amann (1999), and more generally on sexual violence and the ad hoc Tribunals, Askin (1999). 340 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 733. 341 UN Docs. E/AC.25/SR.13, 20 April 1948, pp. 9-13, and E/AC.25/SR.4, 7 April 1948, p. 14. 342 UN Doc. A/C.6/SR.82, 23 October 1948. 343 The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 505-506; The Prosecutor v. Rutaganda, Judgement, 6 December 1999, para. 52; The Prosecutor v. Musema, Judgement, 27 January 2000, para. 157. 344 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 116. 345 Syria’s proposal related to the Palestinian refugee problem, UN Doc. A/C.6/SR.82, 23 October 1948.

ICTR case law on genocide

143

a group. The other examples given in the ICC Elements of Crimes in a footnote were based on the Akayesu Judgement.346 The case of Kayishema and Ruzindana mentioned that one of the main methods of genocide to be used involved Tutsi refugees gathering together in traditional places of shelter such as churches and stadiums. Tutsi went to these sites on their own initiative or because they were officially directed there. Subsequently, the groups of refugees were cut off from food, water and medical aid. They were prevented from leaving, and after a few days the sites were attacked and the refugees were massacred.347 The Prosecution argued that the living conditions in the places of shelter could be characterised as being calculated to bring about the physical destruction of the Tutsi. However, the Trial Chamber determined that the deprivation in the periods before the actual massacres could not be qualified as the deliberate imposition of living conditions intended to bring about the destruction of the Tutsi, since they were the result of persecution of Tutsi. The deprivations was imposed with the intention of exterminating the group by killing the Tutsi a little later. The Tutsi did not die as a result of being deprived of food and water, and was not, in fact, the intention. Therefore, the deprivation could not be qualified as living conditions intended to bring about the destruction of the Tutsi. Moreover, the periods of time during which the Tutsi were deprived of food and water were considered too short.348

III.6.6 Imposing measures intended to prevent births within the group In the ad hoc Committee as well as in the Sixth Committee this sub-paragraph on measures to prevent births was adopted in addition to sub-paragraph (c) without any substantial debate.349 The Trial Chambers explained that these acts related to sexual mutilation, enforced sterilisation, enforced birth control, the enforced separation of the sexes and the prohibition of marriages.350 Although the Chambers did not provide any legal references, it is clear that this finding is also based on the Secretariat’s draft convention. Only sexual mutilation is not mentioned there. This act was probably included in the list, because

346 347 348 349 350

Garraway (2001: 52). The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 314-404. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 548-549. UN Docs. E/AC.25/SR.13, 20 April 1948, p. 14, and A/C.6/SR.82, 23 October 1948. The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 507-508; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 117; The Prosecutor v. Rutaganda, Judgement, 6 December 1999, para. 53; The Prosecutor v. Musema, Judgement, 27 January 2000, para. 158. Of course, these acts, like all the other acts, do not constitute genocide on their own, but only if accompanied with the required mental element.

144

Chapter III

it was appropriate in the Rwandan context. However, that is of course not an appropriate legal basis for any interpretation. In the Akayesu case, the Trial Chamber explained that, in the specific case of Rwanda, a patriarchal society in which the ethnic identity of a child depended on the ethnicity of his father, rape by a man of another ethnic group could be a measure intended to prevent birth within the group at a physical level, or at a mental level, in the sense that the woman might no longer want to procreate after the rape. Similarly threats regarding procreation may be covered.351 In its actual findings, the Trial Chambers did not rely on this genocidal act, and rape was characterised as bodily harm, as indicated above. From the Prosecution’s point of view, the latter characterisation is preferable, as it does not require proving why the rape was committed, only that it was committed.

III.6.7 Forcibly transferring children of the group to another group The act of forcibly transferring children from one group to another was not included in the ad hoc Committee’s definition of cultural genocide. The Sixth Committee included this act of genocide and described it as the forcible transfer of children. Greece deemed it necessary to propose this additional act, as the list of acts was exhaustive and not indicative, as set out in subsection III.6.2 above. The words “of the group to another group” were added so as to exclude geographical transfers from one country to another.352 The Trial Chambers only stated that threats or trauma leading to the forcible transfer of children from one group to another are also covered by this act.353 Again, no references were given, and this extensive interpretation is not justified by the Secretariat’s draft convention either. The Trial Chambers did not apply this sub-paragraph in practice, since no accused were charged with it. In the context of a charge of rape as a crime against humanity, the Trial Chamber determined in the Akayesu case that “coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion”.354 This finding was taken as a basis for a footnote in the ICC Elements of Crimes explaining the term ‘forcibly’ in the context of the genocidal act of forcibly transferring children of the group to another group.355

351 The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 507-508. 352 Syria’s proposal was rejected in a similar vein, see fn. 345. 353 The Prosecutor v. Akayesu, Judgement of 2 September 1998, para. 509; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 118; The Prosecutor v. Rutaganda, Judgement, 6 December 1999, para. 54; The Prosecutor v. Musema, Judgement, 27 January 2000, para. 159. 354 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 688. 355 Garraway (2001: 55).

ICTR case law on genocide

145

III.6.8 Evaluation Even though killing is the act that comes to mind when thinking of genocide, other acts may also constitute a physical element of genocide. These acts are listed sub (a) to (e) of Article 2(2) of the ICTR Statute. Most ICTR indictments did not specifically indicate which sub-paragraph formed the basis of the charges. However, this was specified in the judgements. In fact, the accused have only been convicted of killing and causing serious bodily and mental harm. In the case of Kayishema and Ruzindana, the charge based on the act sub (c) was considered unproven. Therefore, in subsequent cases, Trial Chambers did not bother to repeat the definitions of all the acts as first provided in the Akayesu Judgement, but only explained the acts sub (a) and (b). Sub (c) might also still be relevant to specific circumstances.356 It is therefore mainly with regard to these three acts that the ICTR could make an effective contribution. The observations concerning the other acts may be regarded as obiter dicta, and are considerably less authoritative. The definitions for the three forms of physical destruction, as laid down sub (a), (b), and (c), have been cited with general approval by ICTY Trial Chambers.357 Although the definitions may be appropriate, the sources on which these definitions were based were very rarely mentioned. The first judgements, and above all the Akayesu Judgement, were deficient in this respect. Akayesu could only guess at the sources for the legal findings against him, or just accept the findings as they were. The innovative ruling that rape could be a genocidal act in particular was extremely poorly argued, viz. on the basis of one national case. Furthermore, the first Judgements implicitly or explicitly used the Secretariat’s draft convention as a basis for their interpretation. Yet, as subsection III.1.3 pointed out, this draft was the least authoritative of the three drafts that constituted the travaux préparatoires. The defects in the first judgements were slightly remedied in later judgements, such as the Semanza Judgement and the Kajelijeli Judgement. In these Judgements, the 1996 Draft Code was quoted on various points. These better reasoned judgements are to be welcomed from the legal point of view, but came too late for all those who were convicted on the basis of the poorly-reasoned judgements that came before. As regards rape, it should also be observed that rape was characterised as an act of genocide, even though the Trial Chamber admitted that the rapes were mostly followed by the murder of the raped women, an act which could be qualified directly sub (a). The added value of characterising rape as an act of genocide in these cases is the acknowledgement of the specific suffering of women, something that was so brutally ignored,

356 This charge was brought against Ntagerura, but the charge was dismissed because of late notice, The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004, para. 665. For further details on the adequate notice of the charges, see Van den Herik and Van Sliedregt (2004: 538-544). 357 The Prosecutor v. Stakic´, Judgement, 31 July 2003, paras. 513-518.

146

Chapter III

for example, by the Tokyo Tribunal. Despite the importance of this explicit acknowledgement, the act of rape was not included as a new separate act of genocide in the ICC Statute. Instead, the ICC Statute lists the same genocidal acts as the 1948 Genocide Convention and the ICTR Statute. Only a footnote in the ICC Elements of Crimes mentioned that rape might be an act that constitutes bodily or mental harm. The ICTR did not require a direct link between the genocidal act and the destruction of the group.358 Nevertheless, such a link may exist through the mental element. This element may also establish a certain relationship between killing and the other genocidal acts, as explained below. It is not likely that genocidal acts other than killing – sub (b) to (e) – will be perceived as genocide when they are committed outside a context of mass killing. Therefore, the question is what the relationship is between these ‘other genocidal acts’, and the ‘core genocidal act’ of killing. With regard to this question, one scholar submitted that according to its popular meaning, genocide means a qualified form of mass murder.359 Hence, he submitted that a hierarchical distinction must be made between killing as a genocidal act and ‘group harm related to genocide’. Accordingly, the acts sub (b) to (e) should actually be included in the definition as sub-gradations of the actual form of killing, and not as separate acts that may constitute genocide on their own. Similarly, another scholar proposed that the Secretary-General draft a handbook to the 1948 Genocide Convention that would describe the circumstances in which these ‘other acts’ could constitute genocide.360 In its case law, the ICTR did not explicitly establish such a hierarchical link between the genocidal acts. The Prosecution does not have to demonstrate a causal relationship between an ‘other genocidal act’ and the destruction of the group. Moreover, no proof is required to show that the genocidal act actually contributed to the goal of destroying the group. However, the other elements of crime must be present and proved to establish genocide, viz. the mental element and the victim group. As demonstrated above, the ICTR has tended to infer the necessary mental element from the context of mass killing. Therefore, one might conclude that ultimately, the ‘other genocidal acts’ can only be proven as genocidal acts if they were committed in the context of mass killing. However, the ICTY opened the door with regard to inferring intent from the other genocidal acts alone, in particular from the act of causing serious bodily or mental harm. It even permitted inferring intent from the destruction of property. If this line of reasoning is followed to its logical conclusion, the variety of different types of genocide becomes much greater. This would be more in line with the initial ideas of Lemkin, as described in subsection III.6.1, but may conflict with popular ideas on what constitutes genocide.

358 Schabas (2000a: 164-165). 359 Simon (1996: 251-253). 360 Lippman (1994: 75).

ICTR case law on genocide

III.7

147

CONCLUSION

The prohibition of genocide emerged as a legally binding norm in international law only after the Second World War, despite Lemkin’s earlier efforts. Even though the 1948 Genocide Convention had a twofold objective, viz. prevention and punishment, it was only after another genocide that the prohibition of genocide was effectively interpreted and applied in practice by “the international community”. The scope of genocide therefore evolved in a reactive rather than a proactive manner. Both the creation and the application of the prohibition of genocide led to a breakthrough in international law. The 1948 Genocide Convention for the first time created an international crime that could be committed in peace time, and in doing so it infringed on the ‘domestic jurisdiction’ of States to a certain extent. However, as regards the application of the prohibition, the sovereignty of States was largely respected, and it was left up to States to prosecute the crime of genocide in their respective jurisdictions on the basis of the principle of territoriality. The jurisdiction of an international tribunal to prosecute genocide was subjected to the express consent of States. The Convention did not contemplate the establishment of a Tribunal by the Security Council, and as also outlined in Chapter 2, the institution of the ad hoc Tribunals can be considered another step forward in international law since a Tribunal can be considered to be a more effective and credible enforcement mechanism. Consequently, the ICTR applied the 1948 Genocide Convention to the specific situation of Rwanda, which resulted in significant developments with regard to the elements of the crime of genocide, as well as for other aspects of the definition of genocide. Before it is possible to draw any conclusions regarding the contents of the ICTR case law on the crime of genocide, it is important to study which sources the ICTR employed to come to its findings, and what authority was given to these sources. Such a survey on the use of sources by the ICTR provides an insight into the value of the ICTR case law. The ICTR sporadically used the work of the ILC. The 1996 Draft Code was generally referred to in footnotes, but there was no explanation of what level of authority should be attributed to it. From these references alone, one might presume that the ICTR considered the ILC reports as binding law, rather than as useful secondary sources that may or may not properly describe the state of the law on a certain issue. Other relevant sources, such as the studies of the Special Rapporteurs and the Final Report of the Commission of Experts were employed in a random fashion. References to national case law were especially scarce, and consequently, the role of customary international law was of minor importance. Furthermore, the ICC Statute was not consulted as being indicative of the status of customary international law. All in all, the ICTR case law was not particularly well reasoned, in stark contrast with the ICTY case law, which, as was observed above, has generally been better reasoned.

148

Chapter III

The fact that the ICTR case law on genocide was not so well founded does not necessarily mean that the case law lacks any significance. On the contrary, this chapter demonstrates that much of the case law is consistent with the legal sources that were not mentioned. Moreover, on several occasions, the ICTY adopted the ICTR case law. The best example of a poorly reasoned decision which may nevertheless be important for the development of the law is the following: the fact that rape may constitute a genocidal act was supported by a reference to a single judgement, which was pronounced almost fifty years previously. Nevertheless, this development was subsequently endorsed in the ICC Elements of Crime. As regards the contents of the ICTR case law on genocide, the following observations may be made. The ICTR case law on genocide illustrates that the elements of the crime of genocide are interrelated. For instance, the group requirement is reflected in the wording of the mental element (specific intent to destroy a group), as well as in that of the physical element (e.g., killings of members of a group). Furthermore, the process of inferring intent from mass killings, i.e., the physical element of genocide, illustrates the close relationship between the elements. As widespread massacres and inhuman acts were committed throughout Rwanda, the ICTR did not have the opportunity to clarify whether intent can also be inferred from the other genocidal acts. With respect to the physical elements individually, it may be noted that the ICTR did not establish a hierarchical order between the genocidal acts. The ICTR case law also shows that specific intent is the element that is hardest to prove, as it is not necessarily accompanied by a material corollary. The solution to the evidentiary problem can either be to lower the threshold to some sort of general intent, or to require a more substantial knowledge of the ‘genocidal plan’. The ICTR did not explicitly choose either option. In this author’s view, the latter option may be more appropriate in that it offers more possibilities of distinguishing between degrees of responsibility. In this version, only those who masterminded the genocide or helped to execute it at the national level had the specific intent to destroy the group as a whole. Those who participated in the execution of the genocide at a local level either had the specific intent to destroy part of a group, or they could have been accomplices in the national genocide, if it can be proved that they had knowledge of the ‘genocidal plan’ to destroy the whole group. In cases in which the mental element cannot be inferred from the physical element, i.e., in practice, if there is no sufficient connection between the specific intent and the actual killings, different aspects of genocide may apply, such as conspiracy to commit genocide and incitement to commit genocide. These two aspects of genocide will be subsumed, however, by the commission of genocide per se. Furthermore, the ICTR case law has provided ample indicators that may be used to infer intent in specific situations. The confusion with regard to the difference between motive and intent reveals that the reason why genocide is committed is inherently complex. Several factors may play

ICTR case law on genocide

149

a role. Individuals may act on the basis of feelings of hatred and fear of another population group. However, these kinds of feelings are often deliberately aroused by an elite group for their own political purposes. In the case of Rwanda, many scholars agree that the Hutu elite manipulated popular feeling in an attempt to consolidate their power. These ulterior motives, although very relevant to begin to understand the genocide, are not taken into account in assigning individual criminal responsibility. This is appropriate, as a motive can serve as an explanation, but may certainly not serve as a justification or as a mitigating factor. The crime of genocide as defined in the 1948 Genocide Convention targets individuals beyond the State level. The often-quoted citation justifying Nuremberg that crimes are committed by men and not by States sounds logical and convincing. However, the ICTR case law on genocide shows that in practice it is not so easy to trace such large-scale crimes back to single individuals. In fact, the ICTR established in a general sense that genocide had been committed in Rwanda, without attributing the element of specific intent to any person or institution in particular. Consequently, the ICTR relied on this general context to a certain extent to infer the specific intent of individual accused. To conclude this chapter, the following remark should be made. On 7 April 2004, the international day of reflection on 1994 Rwanda, UN Secretary-General Kofi Annan launched his plan of action to prevent genocide. In a speech to the Human Rights Commission, Annan repeated his plan to create the new post of Special Advisor on the Prevention of Genocide. This Advisor would report to the Security Council and the General Assembly through the Secretary-General, and to the Human Rights Commission.361 Despite any drawbacks that have been identified in this chapter, there is no doubt that the ICTR case law on genocide, as set out in this chapter, will provide ample guidance to this Special Advisor on the Prevention of Genocide. More generally, this chapter has shown that genocide, being a rather new crime in international law, has now been firmly grounded in international law, both in terms of treaty law and international case law. Whereas the charge of genocide did not feature either in cases before the Nuremberg or the Tokyo Tribunal, it has been most prominent in the cases before the ICTR. Therefore, it can be concluded that the case law of the ICTR has assisted in consolidating this new international crime.

361 UN press release, SG/SM/9245, AFR/893, HR/CN/1077, 7 April 2004.

Chapter IV

ICTR CASE LAW ON CRIMES AGAINST HUMANITY

Article 3 of the ICTR Statute provides a definition of crimes against humanity for the purposes of the ICTR. This definition differs from the Nuremberg and Tokyo definitions, from the definitions of the ILC, and, more surprisingly, from the ICTY definition, even though the Statutes of both ad hoc Tribunals were developed in the same era and under similar circumstances. One might argue that all these definitions were aimed at different situations, but different factual circumstances are not sufficient to justify including different elements of crime in the definition of an international crime that carries the same name, and thus supposedly pertains to the same concept.1 With this observation as a starting point, section IV.1 of this chapter describes the developments in the notion of crimes against humanity, and investigates the central value that this crime aims to protect, regardless of incoherent definitions. The case law of the ICTY is also considered, since this ad hoc Tribunal was quite influential in developing and consolidating an overall customary international law definition of crimes against humanity, despite the rather inadequate definition in its own Statute. The rest of this chapter focuses on the contribution of the ICTR in defining the forms of crimes against humanity as an international crime. In this respect, the background of the ICTR definition, as well as the definition itself, are presented in section IV.2 to reveal the specific rationale of crimes against humanity in the ICTR context. Subsequently, the separate elements of crimes against humanity are dealt with in sections IV.3 to IV.6 in order to record the ICTR’s contribution to clarifying the concept and the contents of crimes against humanity. This survey sets out the unique legal questions encountered by the ICTR. The ICTR was able to assume precedence over the ICTY on some issues, because it had to deal with different facts and apply a definition that was unique. For example, given the ICTR’s initial determination that the genocide and the armed conflict were two co-existing but separate events, the ICTR was the first to actually define as crimes against humanity, acts that had ‘no direct link’ with an armed

1

In this vein, Dinstein (2000: 386) observed “The reason for the marked dissimilarity in approach between two texts emanating from the same source within a short interval (1993 and 1994, respectively) cannot be easily grasped, even when the different factual dimensions of the Yugoslav and Rwandan situations – to which the formulations are tailored – are factored in.” In a footnote to his remark, Dinstein referred to Bassiouni (1999: 193-198).

152

Chapter IV

conflict. As a result, the ICTR was faced with the question of how to define a ‘civilian population’ in this context, since the term ‘civilian’ had up to then been defined according to war terminology, viz. as a non-combatant. The meaning of the whole phrase ‘part of a widespread or systematic attack against any civilian population’ is explored in section IV.3. It is an interesting question to determine when a certain act forms part of an attack. The requirement of a link is closely related to the mental element of crimes against humanity. More specifically, it concerns the question of what knowledge the perpetrator must have had of the contextual elements, viz. the existence and nature of the attack, for a particular criminal act to be qualified as a crime against humanity. Section IV.4 analyses the threshold set by the ICTR as regards the mental element. A remarkable feature of the ICTR definition is that it appears to require a discriminatory intent for all the acts, and not only for persecution. The ICTR had to determine whether this additional element was a jurisdictional2 or rather a substantive element. More precisely, the question was whether this element only related to the nature of the attack (jurisdictional element), or whether it also concerned the intentions and/or knowledge of the perpetrator (substantive element). Related questions concerned the difference in proof between regarding the discriminatory element as a jurisdictional element or rather as a substantive element; and how the discriminatory element related to the physical act of persecution. The ICTR case law on the discriminatory element, its requirements and its function, is analysed in section IV.5. In its case law, the ICTR had to deal with seven acts of crimes against humanity in particular, viz. murder, extermination, imprisonment, torture, rape, persecution, and other inhumane acts. With regard to these acts, the ICTR set out in some detail the specific elements of the acts, and how they should be applied. It therefore answered questions, such as: how should rape be defined, and what is the difference between murder and extermination as a crime against humanity (section IV.6)? The answers of the ICTR to these and other legal questions are described and analysed.

IV.1

NOTION AND DEVELOPMENT OF THE TERM CRIMES AGAINST HUMANITY

In the absence of a special treaty like the 1948 Genocide Convention, ‘crimes against humanity’ is a concept that has been developed on the basis of case law and in the doctrine rather than by international law-making.3 This section highlights the main

2 3

A jurisdictional element is an element of crime must come within the realm of the jurisdiction of the ICTR. Of course, the Statute of the Nuremberg Tribunal is a treaty in which crimes against humanity were defined for the purpose of that Tribunal. However, there is no general treaty on crimes against humanity that includes provisions on a definition of crimes against humanity as well as on enforcement mechanisms. For excellent

ICTR case law on crimes against humanity

153

developments, in order to lay down a framework in which the contribution of the ICTR can be assessed. The concept of ‘humanity’ The concept of humanity precedes the concept of crimes against humanity in international law. An early notion of humanity in treaty law can be found in the Martens clause.4 This clause appeared in the Preambles of the 1899 Hague Convention and the Fourth 1907 Hague Convention and was meant to offer residual protection on the battlefield. It states: “Until a more complete code of the laws of wars has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized people, from the laws of humanity and the dictates of public conscience. They declare that it is in this sense especially that Articles 1 and 2 of the Regulations must be understood.”5

The rather vague references to the usages of civilized people, the laws of humanity and the dictates of public conscience were included following a proposal of the Russian delegate, Martens, with a view to avoiding a deadlock on issues relating to the rights of an occupying power, and to the rights of an occupied population to defend itself.6 Therefore, the reference to the laws of humanity were intended to complement the existing laws of war and to regulate a quite specific issue. The concept of ‘crimes against humanity’ Subsequently, the concept of crimes against humanity came up after the First World War. The term crimes against humanity as such appeared for the first time in 1915 in the joint Declaration of the Allies to the Ottoman Empire, condemning Turkish atrocities against its own Armenian citizens.7 However, the Allies could not agree on a comparable declaration for German crimes. In 1919, the Paris Peace Conference established a Commission on Responsibilities and Sanctions. This Commission investigated, inter alia, the possibil-

4 5

6 7

and in-depth scholarly publications on the concept and development of crimes against humanity, see e.g., Bassiouni (1999), Van Schaak (1999), Lippmann (1997), Sadat-Wexler (1994), Bettati (2000), Dinstein (2000), Boot (2002: 455-535), and Ambos and Wirth (2002). E.g., McAuliffe deGuzman (2000: 343-344), Van Schaak (1999: 795-796). Even earlier, the laws of humanity had been invoked in the 1868 St. Petersburg Declaration, as noted by Dixon (1999). The preamble of the 1899 Hague Convention used some different words, see Meron (2000a: 79). Also see Cassese (2000: 188, fn. 1) who explained that the last sentence is often not quoted, which may have led to some confusion on the actual rationale of the clause. Cassese (2000) and Meron (2000a). Dadrian (1995: 216-217).

154

Chapter IV

ities of prosecuting leaders of the Central Powers. Eventually, the Treaty of Versailles and the Treaty of Sèvres both contained provisions for the prosecution of violations of the laws and customs of war.8 On the insistence of the USA, the term humanity had been excluded from these provisions.9 It was considered too vague to have a legal meaning, and in violation of requirements of legality. The Treaty of Sèvres was never ratified and was later replaced by the Treaty of Lausanne, which granted an amnesty for the alleged war crimes. The Treaty of Versailles entered into force, but actual trials pursuant to Articles 227 and 228 never took place because there was a lack of political will to secure the implementation of the provisions, and also because of the absence of Kaiser Wilhelm, who had found refuge in The Netherlands. Thus only lip service was paid to the new concept of crimes against humanity. The Nuremberg Tribunal In contrast to these unsuccessful ventures, criminal prosecutions were effectively pursued after the Second World War. During the War, declarations had been issued condemning German atrocities. These declarations were reinforced after the War with the Nuremberg Charter. The concept of crimes against humanity was developed and incorporated into the Charter to cover the crimes committed against German Jews and other German citizens in Germany.10 This new crime was an infringement of the doctrine of State sovereignty, in the sense that it limited the State’s prerogative to decide how to treat its citizens. A link to war was included in the definition of crimes against humanity, apparently with a view to limiting this infringement. Initially, there was some confusion whether the link was required for the act of persecution only or for all the acts that could constitute a crime against humanity. Schwelb and Clark both convincingly argued that the link was required for all the acts, given that a separate Protocol was drawn up to replace a semicolon in the English text – after the phrase ‘before or during the war’ – with a comma, expressly aimed at altering the legal implications of the definition to include an overall link to war as a requirement.11 The definition of crimes against humanity then read: “(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any

8

9 10 11

Article 228 of the 1919 Treaty of Versailles, and Articles 226-230 of the Treaty of Sèvres. The 1919 Treaty of Versailles also contained a special provision for a trial of Kaiser Wilhelm von Hohenzollern. Pursuant to Article 227, the Kaiser had to be indicted for the “supreme offence against international morality and the sanctity of treaties”. See Willis (1982). McCormack (1997: 48) and Willis (1982: 75). For an extensive analysis, see Bassiouni (1999: Chapter 1 and 2). Schwelb (1946) and Clark (1990).

ICTR case law on crimes against humanity

155

crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic laws of the country where perpetrated.”12

Even without a semi-colon, the phrases ‘before or during the war’ and ‘in connection with…’ seem to be at odds with each other. The question is how an act that is committed before the war can still have been committed in connection with a war crime or with aggression. Moreover, the phrase ‘before or during the war’ appears to relate only to the acts enumerated before, and not to persecution. It is unclear whether this should have any consequences. However, in its case law, the Tribunal only dealt with acts committed during the war because of the requirement of a connection with one of the other crimes in the Statute. The statutory words ‘before … the war’ became redundant following the Tribunal’s interpretation. In its Judgement, the Nuremberg Tribunal interpreted the required link to war as a jurisdictional element and applied a temporal criterion; only inhumane acts committed after the commencement of the war in 1939 came within the jurisdiction of the Tribunal.13 Hence, the Tribunal did not require material proof of a connection between the inhumane act and the war. Therefore, it is possible to conclude that the Tribunal did not consider this requirement to be a substantive element of crimes against humanity.14 It should also be noted that in addition to the element of a link to war, the Nuremberg definition included the element of discriminatory grounds, but only for the crime of persecution. After the Nuremberg Tribunal, prosecutions continued to be mounted. The definitions of crimes against humanity used in these exercises were based on the Nuremberg Charter, but they also differed in a number of respects. In the context of the 1945 Control Council Law No. 10, the definition in Article II(1)(c) did not include either the time restriction ‘before or during the war’ or the connection with another crime. Moreover, the list of punishable acts was longer and exemplary rather than exhaustive.15 As regards prosecutions in different national settings, it is worth noting the French prosecutions of Barbie and Touvier,16 the well-known case of Eichmann in Israel,17 the trial of Menten in

12 13 14 15 16

Article 6 of the Charter of the International Military Tribunal, Am. J. of Int. L. 39, supplement: 259-260. International Military Tribunal (Nuremberg), Judgement and sentence, 1 October 1946, Am. J. of Int. L. 41: 249. For further details on this matter, see Van Schaak (1999). Dinstein (2000: 375). Barbie, Court of Cassation (criminal chamber), 6 October 1983 and 26 January 1984; Fédération Nationales des Déportés et Internés Résistants et Patriotes and others v. Barbie, Court of Cassation (criminal chamber), 20 December 1985; Barbie, Court of Cassation (criminal chamber), 3 June 1988, resp. Int. L. Rep. 78: 124148 and Int. L. Rep. 100: 330-337; Touvier, Court of Appeal of Paris (first chamber of accusation), 13 April 1992; Court of Cassation (criminal chamber), 27 November 1992, Int. L. Rep.: 100: 337-364. For a legal analysis of the two cases, see Sadat-Wexler (1994).

156

Chapter IV

the Netherlands,18 and the case of Finta in Canada.19 These cases each emphasised, or introduced, different elements of crimes. For example, in the French cases, the additional elements were that the crimes had to be committed pursuant to a common plan, in the name of a State practising a political ideology as a hegemony.20 The Supreme Court of The Netherlands required a link to a system of terror, or a policy against a particular group.21 In conclusion, with regard to the Nuremberg Charter, as well as in later cases, it was understood that crimes against humanity needed an element that would give the crime its specific character, and that would lift the crime to the international level. Initially, this element was the connection with war. Later on, other elements were proposed. The character of crimes against humanity in ILC Codes After Nuremberg, the ILC formulated the so-called Nürnberg Principles. These adopted the definition of the Nuremberg Charter, and only the time restriction ‘before or during the war’ was excluded. The ILC was also given the task of drafting an International Code of Crimes. The ILC initially abandoned the term crimes against humanity in its 1954 and 1991 Draft Codes.22 The 1954 definition drew on the Nuremberg definition but required the involvement of State authorities, whereas the 1991 definition referred to systematic and mass violations of human rights. This express link to human rights was unprecedented, and “artificial” according to Dinstein.23 In this respect, Dinstein submitted that crimes against humanity and human rights had developed along different paths from 1945 onwards, as illustrated in more detail by Zoller.24 In contrast, Ambos and Wirth argued that the 1954 approach already hinted at a more human rights-oriented perspective, in view of its focus on the relationship between the State and the individual that is

17

18

19 20 21

22 23 24

Attorney-General of the Government of Israel v. Adolf Eichmann, District Court of Jerusalem, 21 December 1961; Israeli Supreme Court (sitting as a court of appeal), 29 May 1962, resp. Int. L. R 36: 5-276 and Int. L. Rep. 36: 277-344. For some legal insights into this case, see Fawcett (1962). For a more philosophical view on this case, see Arendt (1963). Public Prosecutor v. Menten, The Netherlands District Court of Amsterdam (extraordinary penal chamber), 14 December 1977; Supreme Court, 29 May 1978; District Court of The Hague (extraordinary penal chamber), 4 December 1978; Supreme Court, 22 May 1979; District Court of Rotterdam (extraordinary penal chamber), 9 July 1980; Supreme Court, 13 January 1981, Int. L. Rep. 75: 331-368. Regina v. Finta, Ontaria Court of Appeal, 29 April 1992, Int. L. Rep. 98: 520-663. For a legal analysis of the case, see Hippler-Bello and Cotler (1996). Sadat-Wexler (1994: 350) and Cassese (2002b: 359). “… ligt in het begrip ‘misdrijven tegen de menselijkheid’ besloten, dat de betrokken misdrijven deel uitmaken van een systeem van terreurhandelingen of een schakel vormen in een doelbewust gevolgde politiek, gericht tegen bepaalde bevolkingsgroepen.”, Public Prosecutor v. Menten, Supreme Court, 13 January 1981, para. 8.1, Int. L. Rep. 75: 362-363. Also see Cassese (2002b: 357). UN Doc. A/2693, 3 June to 29 July 1954, and UN Doc. A/46/10, 29 April to 19 July 1991. Dinstein (2000: 377). Zoller (1993).

ICTR case law on crimes against humanity

157

familiar to human rights law.25 The ILC definition in the 1996 Draft Code of Crimes Against the Peace and Security of Mankind26 (1996 Draft Code) returned to the term ‘crimes against humanity’, which had also been used at that time in the Statutes of the ICTR and the ICTY. The ICTY Given the variety of definitions and concepts, and the lack of a general treaty-based definition, the ICTY seemed compelled to adhere strictly to the definition in its Statute. But it did not do so. In its case law, the ICTY contributed considerably to clarifying the outlines of the customary international law definition of crimes against humanity. For example, the ICTY Appeals Chamber pointed out that crimes against humanity did not require a link to an armed conflict under customary international law.27 Furthermore, the Chamber elucidated that it was irrelevant whether a crime against humanity had been committed for purely personal motives,28 and it stressed that discriminatory intent was not a general requirement for crimes against humanity under customary international law, but that such intent was only required for persecution as a crime against humanity.29 Evaluation The summary given above illustrates that the term ‘humanity’ originated in the context of the law of armed conflict. Crimes against humanity as such were used after the Second World War to cover the genocidal Nazi crimes committed against German citizens, crimes that were not covered by the laws of war, as war crimes can traditionally only be committed against the enemy nationals. Thus the background of crimes against humanity is war-related. However, developments after the Second World War to some extent shifted the perspective to a human rights context. Both the ICTY and the ICTR were established to address a threat to peace, and they are therefore still operating in the context of peace and security. The ICC Statute requires that a crime against humanity must be committed in the context of a widespread or systematic attack. Some may perceive the requirement of an attack as pursuing the development of crimes against humanity within the framework of the laws of war, rather than as seeing crimes against humanity as the crime at the apex of human rights law.30 However, the ICTY Appeals Chamber clearly rejected this idea in the Tadic´ case:

25 26 27 28 29 30

Ambos and Wirth (2002: 7). UN Doc. A/51/10, 6 May 1996 to 26 July 1996. The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, para. 141. The Prosecutor v. Tadic´, Appeal Judgement, 15 July 1997, paras. 238-272. The Prosecutor v. Tadic´, Appeal Judgement, 15 July 1997, paras. 273-305. In this respect, Clark (2001: 139-156) noted “crimes against humanity, like genocide, do not require an armed conflict threshold, although we do have something of the functional equivalent in the case of crimes against humanity with the attack requirement.”

158

Chapter IV

“Thus the ‘attack on the civilian population’ is here equated to ‘the armed conflict’. The two concepts cannot, however, be identical because then crimes against humanity would, by definition, always take place in armed conflict, whereas under international customary law these crimes may also be committed in times of peace. So the two – the ‘attack on the civilian population’ and ‘the armed conflict’ – must be separate notions, although of course under Article 5 of the Statute the attack on ‘any civilian population’ may be part of an ‘armed conflict’. A nexus with the accused’s acts is required, however, only for the attack on ‘any civilian population’.”31 (footnote omitted)

The ICTR definition of crimes against humanity is studied below, as well as each element of crime. The views contained in the ICTR context on the nature and the contents of crimes against humanity are analysed for this purpose.

IV.2

THE ICTR DEFINITION AND RATIONALE OF CRIMES AGAINST HUMANITY

As indicated, before the entry into force of the ICC Statute, the concept of crimes against humanity had not been codified in a special treaty.32 Although scholars agree that a crime against humanity constitutes an international crime under customary international law, the above section illustrates that there has been a great deal of confusion regarding a precise definition for a long time.33 This section investigates the creation of the ICTR definition and more specifically the core value it aims to protect. Subsection IV.2.1 explores which considerations played a role in drafting the ICTR definition of crimes against humanity. The work of the Commission is studied in this context. Subsection IV.2.2 examines how the ICTR developed the general concept of crimes against humanity in its case law.

IV.2.1 The Commission of Experts The ICTR definition on crimes against humanity was mainly influenced by the definition given by the Commission of Experts in its report. This Commission in turn followed the Commission of Experts for the former Yugoslavia. The Commission of Experts for Rwanda defined crimes against humanity as: “gross violations of fundamental rules of humanitarian and human rights law committed by persons demonstrably linked to a party to the armed conflict, as part of an official policy based

31 32 33

The Prosecutor v. Tadic´, Appeal Judgement, 15 July 1999, para. 251. Bassiouni (1994). On the customary status of crimes against humanity, also see Tomuschat (2000: 31-33).

ICTR case law on crimes against humanity

159

on discrimination against an identifiable group of persons, irrespective of war and the nationality of the victim, and includes acts such as the following: murder, extermination, enslavement, deportation and population transfer, imprisonment, torture, rape, persecution on political, racial and religious grounds, other inhumane acts, apartheid.”34

According to this view, crimes against humanity relate to humanitarian law as well as human rights law. In its report, the Commission observed “the normative content of ‘crimes against humanity’ has undergone substantial evolution since the end of the [second world] war”.35 Moreover, the Commission traced the origins of crimes against humanity back to 1800, when the term ‘humanity’ was invoked to denounce the human rights violations of another State. Thus the Commission identified at least a partial human rights connection in the background of crimes against humanity. Yet, as illustrated in the previous section, the definition of crimes against humanity in positive international law came about in order to complement the existing laws of war. Like the definition of crimes against humanity in the 1945 Control Council Law No. 10, crimes against humanity were defined in the ICTR Statute without any link to an armed conflict.36 This is in accordance with the explanatory note of the Commission of Experts that crimes against humanity have a human rights origin.

IV.2.2 ICTR case law In their first judgements, the ICTR Trial Chambers identified the applicable law. As regards crimes against humanity, it provided a summary of the historical development. In this respect, the Trial Chamber in the Akayesu Judgement noted that crimes against humanity were first recognised by the Nuremberg Tribunal, but had in fact existed long before the establishment of that Tribunal. This view is in line with several cases related to the Second World War. However, in legal doctrine, the position that is adopted is that in fact, the Nuremberg definition on crimes against humanity constituted new law.37 The Chamber stated that after the Second World War, the concept of crimes against humanity had gradually been developed further in national cases, such as the cases of Eichmann, Barbie, Touvier, and Papon. The Chamber specifically recalled that in the Eichmann case, the Israeli court had viewed crimes against humanity as different from genocide, in that they did not require a specific intent. The Chamber also noted that the French courts had defined crimes against humanity as:

34 35 36 37

UN Doc. S/1994/1405, para. 135. Interestingly, the interim report spoke of a conflict rather than an armed conflict, UN Doc. S/1994/1125, para. 118. UN Doc. S/1994/1405, para. 131. Boot (2002: 460). Cassese (2002b: 354) and Dinstein (2000: 375).

160

Chapter IV

“inhumane acts and persecution committed in a systematic manner in the name of a State practising a policy of ideological supremacy, not only against persons by reason of their membership of a racial or religious community, but also against the opponents of that policy, whatever the form of their opposition.”38

The Trial Chambers did not hold such explicit views on crimes against humanity as a concept, apart from the observation that “crimes against humanity are aimed at any civilian population and prohibited regardless of whether they are committed in an armed conflict, international or internal in character.”39 An ICTY Trial Chamber was slightly more specific and stated that “rules prohibiting crimes against humanity […] are intended to safeguard basic human values by banning atrocities directed against human dignity.”40 Other ideas of the ICTR on crimes against humanity could be deduced from the ICTR case law regarding the separate elements of crimes outlined below.

IV.3

PART OF A WIDESPREAD OR SYSTEMATIC ATTACK AGAINST ANY CIVILIAN POPULATION

Leaving aside the theoretical basis of crimes against humanity, whether based in humanitarian law or on a human rights background, the definition definitely requires a contextual element, or an international element. This element of crime elevates a particular criminal act to the international level. In the commentary of the Secretary-General on the ICTY Statute the phrase ‘part of a widespread or systematic attack’ was used literally to describe, but not to define, crimes against humanity.41 The ICTR Statute deviates from its predecessor by including the description ‘part of a widespread or systematic attack’ in the definition. Although relatively new, this ICTR contextual element was also included in the ICC Statute. As a result, the interpretation and application by the ICTR of this specific element has gained special relevance. In contrast with the ICTY definition, the ICTR definition does not include a connection with war. Instead, the ICTR definition contains the contextual requirement that a certain act must be ‘part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.’ The last part of this contextual element, the so-called discriminatory element, is studied in section IV.5 below. This section examines the element, ‘part of a widespread or systematic attack against

38 39 40 41

The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 576. The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 563-577. The Prosecutor v. Z. Kupreškic´, M. Kupreškic´, V. Kupreškic´, Josipovic´, Papic´, and Šantic´, Judgement, 14 January 2000, para. 547, as also cited by Ambos and Wirth (2002: 15, fn. 66). As noted by Dinstein (2000: 379).

ICTR case law on crimes against humanity

161

any civilian population’. This is done in three subsections: subsection IV.3.1 on the phrase ‘widespread or systematic attack’, subsection IV.3.2 looks at the phrase ‘against any civilian population’, and subsection IV.3.3 looks at the phrase ‘part of’.

IV.3.1

‘A widespread or systematic attack’

This section analyses what the exact meaning is of the phrase ‘a widespread or systematic attack’, as given in ICTR case law. Therefore, subsection IV.3.1.1 examines the word ‘attack’, while subsection IV.3.1.2 studies the phrase ‘widespread or systematic’. IV.3.1.1

The word ‘attack’

In the Akayesu Judgement, the Trial Chamber defined attack as “an unlawful act of the kind enumerated in Article 3(a) to (i) of the Statute, like murder, extermination, enslavement, etc.”42 The Chamber did not indicate what the basis for this interpretation was. The Trial Chamber in the cases of Rutaganda and Musema continued to use this definition.43 In contrast, in the Kayishema and Ruzindana Judgement, the Trial Chamber stated, again without further reference, that an attack may consist of “a combination of the enumerated acts, for example murder, rape and deportation.”44 In the Judgements of Bagilishema, Elizaphan and Gérard Ntakirutimana, and Niyitegeka, the Trial Chamber did not define the word ‘attack’ in itself. It apparently considered that the adjectives ‘widespread’, ‘systematic’, and ‘directed against any civilian population’ qualified this concept sufficiently, so that the word ‘attack’ did not need a definition of its own.45 In the Semanza Judgement, the Trial Chamber combined the earlier case law and maintained that an attack could be defined as “an unlawful act, event, or series of events of the kind listed in Article 3(a) through (i) of the Statute.”46 From this last perspective, the attack can consist of either one or more acts. Drawing on this case law, Ambos and Wirth pointed out that acts not listed in Article 3 of the ICTR Statute, such as denial of fair trial or infringement on property

42 43 44 45

46

The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 581. The Prosecutor v. Rutaganda, Judgement, 6 December 1999, para. 70; The Prosecutor v. Musema, Judgement, 27 January 2000, para. 205. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 122. The Prosecutor v. Bagilishema, Judgement, 7 June 2001, paras. 76-81; The Prosecutor v. E. and G. Ntakirutimana, Judgement, 21 February 2003, paras. 803-804; The Prosecutor v. Niyitegeka, Judgement, 16 May 2003, paras. 438-440. The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 327.

162

Chapter IV

rights, could not in themselves constitute an attack.47 Furthermore, Chesterman noted that the interpretation given by the ICTR Trial Chambers of the attack requirement is “essentially circular”,48 agreeing with the Bagilishema Judgement that the word ‘attack’ does not have a meaning in itself. A single act of extermination may constitute an attack in itself, and thus fulfil both the actus reus requirement of Article 3 (b) as well as the ‘attack requirement’.49 All the Trial Chambers unequivocally agreed that an attack did “not necessarily require armed force”, and that “it could also involve other forms of inhuman mistreatment of the civilian population”.50 It is worth noting that the word ‘attack’ as used in the definition of crimes against humanity has a meaning different from the word ‘attack’ as used in Article 51 of the UN Charter, the article that regulates self-defence within the scope of the UN Charter. The word ‘attack’ in the UN Charter is directly linked to the adjective ‘armed’, and should therefore be understood as referring to a context in which armed force is used.51 In their interpretation of the word ‘attack’, the ICTR Trial Chambers clearly focussed on the human rights connotation, and abandoned the link to an armed conflict. As indicated, the ICC Statute also includes the requirement that crimes against humanity are committed as part of a widespread or systematic attack against any civilian population. In defining this element in more detail, the ICC Elements of Crimes stipulate that an attack is a course of conduct involving the multiple commission of the physical acts of crimes against humanity. This seems narrower than the Semanza Judgement, which considered that a single act could also constitute an attack. However, generally the definition is in line with ICTR case law. And, as in the ICTR case law, the ICC Elements of Crimes also stress that the attack need not have a military character.

47

48 49 50

51

Ambos and Wirth (2002: 17). Ambos and Wirth referred to The Prosecutor v. Z. Kupreškic´, M. Kupreškic´, V. Kupreškic´, Josipovic´, Papic´, and Šantic´, Judgement, 14 January 2000, para. 631, in which the ICTY Trial Chamber noted that attacks on property could constitute persecution. Hence, attacks on property can constitute an attack, but only when qualified as persecution. Chesterman (2000: 316). Chesterman (2000: 316). The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 581; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 122; The Prosecutor v. Rutaganda, Judgement, 6 December 1999, para. 70; The Prosecutor v. Musema, Judgement, 27 January 2000, para. 205; The Prosecutor v. Bagilishema, Judgement, 7 June 2001, paras. 76-81; The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 327. It is also instructive to look at the French words for ‘attack’, viz. ‘attaque’ in Article 3 of the ICTR Statute (crimes against humanity), and ‘agression’ in Article 51 of the UN Charter (self-defence). This use of different words underlines that different concepts are at stake here.

ICTR case law on crimes against humanity

IV.3.1.2

163

The phrase ‘widespread or systematic’

The French and English texts on this part of the definition differ. The English text joins the two adjectives in a disjunctive fashion (widespread or systematic), whereas the French text uses a conjunction (géneralisé et systematic). Article 33 of the 1969 Vienna Convention of the Law of Treaties deals with the situation in which two authentic texts in different languages differ. Article 33(4) gives as a rule that “the meaning, which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.”52 This rule, however, does not appear to solve the problem at hand, given that the English and French texts are diametrically opposed to one another and they can therefore not be reconciled. Either the English or the French text must prevail. The ICTR Trial Chambers stated that the English version must prevail, since it corresponded with customary international law.53 The issue was mainly dealt with in footnotes. In the Akayesu Judgement, the Trial Chamber considered the French version a wrong translation. In the Bagilishema Judgement, the Trial Chamber noted that there was a considerable overlap between the two criteria.54 In these cases of overlap, the use of either the English or the French version would produce the same result. In the cases of Ntakirutimana and Niyitegeka, the Trial Chambers no longer specifically addressed the matter of the differing versions, apparently considering it to be settled in earlier cases. However, in these prior cases, the Trial Chambers had not explained how they had come to the conclusion that customary international law required either a widespread or a systematic attack. This only occurred in the ninth Judgement in first instance, in the Semanza case. In this Judgement, the Trial Chamber noted the omission in the ICTR jurisprudence. The Chamber referred to the Tadic´ Judgement of the ICTY, which had correctly determined the substance of customary international law on this point. The Trial Chamber subsequently concurred with this practice, and also with the ICTR case law that had come to the same conclusion without looking into the status of customary international law.55 The Semanza Judgement is important as it forms a strong basis for the decision to choose the English version in existing customary international law, even if it relies on ICTY jurisprudence. The earlier judgements that merely referred to an international customary rule without demonstrating the existence of such a rule were

52 53

54

55

On the applicability of the 1969 Vienna Convention on the Law of Treaties to the ICTR Statute, see chapter II, subsection II.3.3, especially fn. 97. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 579, fn. 144; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 123, fn. 63; The Prosecutor v. Rutaganda, Judgement, 6 December 1997, paras. 67-68; The Prosecutor v. Musema, Judgement, 27 January 2000, paras. 202-203. The Prosecutor v. Bagilishema, Judgement, 7 June 2001, para. 77. The Chamber quoted the Blaškic´ Judgement, 3 March 2000, para. 207: “The fact still remains however that, in practice, these two criteria will often be difficult to separate since a widespread attack targeting a large number of victims generally relies on some form of planning or organisation.” The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 328.

164

Chapter IV

highly unsatisfactory. All the more so, because when the English and French versions differed on another occasion, a Trial Chamber had chosen for the more restrictive version of the two; because that version was most favourable to the accused.56 These different ways of dealing with disparities between the English and the French text may in themselves be perceived as being inconsistent. The judgement becomes even more flawed if a particular deviating decision is badly reasoned, as was the case in the first judgements on this issue. The observation made above is material in so far as it concerns the need for sound reasoning in each judicial decision. However, as noted by Chesterman, the whole business was not really necessary, as the 1994 attacks in Rwanda were in fact widespread and systematic.57 Similarly, Clark observed in a more abstract manner in the context of the ICC, that the word ‘attack’ as defined in the ICC Statute itself required the multiple commission of acts (widespread) to further some kind of policy (systematic); therefore an attack included both a widespread and a systematic element.58 It might be rather an academic exercise to imagine an attack that is only widespread and not systematic or vice versa.59 Instead, it might be more worthwhile to determine the exact meaning of each of the adjectives, as is done below. .

‘Widespread’ In the Akayesu Judgement, the Trial Chamber defined widespread as “massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims.”60 This definition was endorsed by Trial Chambers in subsequent judgements.61 Since no legal references were provided, this interpretation may be regarded as a straightforward interpretation of the text. In the Kayishema and Ruzindana Judgement, the Trial Chamber relied on the Commentary to the 1996 Draft Code, and only repeated the last part of the interpretation, viz. that the attack be “directed against a multiplicity of victims”.62 In the Bagilishema Judgement, the Trial Chamber summarised its earlier extensive definition as “an attack on a large scale directed against

56

57 58 59 60 61 62

This concerns the terms ‘killing’, which includes both intentional and unintentional killing and ‘meurtre’, which covers only intentional killing, Article 2(2)(a) of the ICTR Statute (acts of genocide). In the The Prosecutor v. Musema, Judgement, 27 January 2000, the Trial Chamber opted for meurtre or murder; The Prosecutor v. Musema, Judgement, 27 January 2000, para. 155. For the problem of linguistic divergences in the context of the ICC Statute, see Fronza, Malarino and Sotia (2004). Chesterman (2000: 312-313). Clark (2001: 155). See fn. 54. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 580. The Prosecutor v. Rutaganda, Judgement, 6 December 1997, para. 69; The Prosecutor v. Musema, Judgement, 27 January 2000, para. 204. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 123.

ICTR case law on crimes against humanity

165

a multiplicity of victims.”63 In the Semanza Judgement, the Trial Chamber did not mention a multiplicity of victims, but only stated that the word ‘widespread’ referred to the large scale of the attack.64 Although the Semanza Judgement was generally well reasoned, in this instance there was only a reference to earlier ICTR case law. In the case of Kajelijeli, the Trial Chamber noted that in some instances ‘widespread’ was interpreted as referring to the large scale of an attack, and in others as referring to the large number of victims. Consequently, the Trial Chamber decided to merge these in the phrase of “large scale, involving many victims”.65 This interpretation may be welcome for reasons of unity of law. However, the question is what added value the words large scale have. Does it follow from these words that an attack, which involves many victims, cannot in itself be qualified as widespread, since it must in addition have a large scale? Given that the words ‘large scale’ are as imprecise as the word ‘widespread’, the Kajelijeli jurisprudence is not really helpful, though it was nevertheless endorsed in later judgements.66 ‘Systematic’ In the Akayesu Judgement, the Trial Chamber defined ‘systematic’ as “thoroughly organised and following a regular pattern on the basis of a common policy involving substantial public or private resources.”67 The Trial Chamber also explained that the existence of a State policy was not required.68 These interpretations were, once again, without legal reference. However, this time, the Chamber did consult the 1996 Draft Code, viz. for its statement that there had to be “some kind of preconceived plan or policy”.69 The Trial Chamber in the Kayishema and Ruzindana Judgement was less eloquent. It described a systematic attack as “an attack carried out pursuant to a preconceived policy or plan.”70 The Chamber therefore stayed close to the interpretation given in the 1996 Draft Code. The Trial Chamber in the Bagilishema Judgement concurred with this more concise description.71 In the later Judgements in the Ntakirutimana case

63

64 65 66 67

68 69 70 71

The Prosecutor v. Bagilishema, Judgement, 7 June 2001, para. 77. And also in the The Prosecutor v. E. and G. Ntakirutimana, Judgement, 21 February 2003, para. 804; The Prosecutor v. Niyitegeka, Judgement, 16 May 2003, para. 439. The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 329. The Prosecutor v. Kajelijeli, Judgement, 1 December 2003, para. 871. The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, para. 664; The Prosecutor v. Gacumbitsi, Judgement, 17 June 2004, para. 299; The Prosecutor v. Ndindabahizi, Judgement, 15 July 2004, para. 477. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 580. As repeated in The Prosecutor v. Rutaganda, Judgement, 6 December 1997, para. 69; The Prosecutor v. Musema, Judgement, 27 January 2000, para. 204. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 580. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 580. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 123. The Prosecutor v. Bagilishema, Judgement, 7 June 2001, para. 77.

166

Chapter IV

and the Niyitegeka case, the Trial Chamber used different words to describe a systematic attack, viz. “an organized pattern of conduct”.72 In the Semanza Judgement, the Trial Chamber emphasised that the adjective ‘systematic’ referred to the “organised nature of the attack”.73 Ambos and Wirth indicated that the more elaborate interpretation of the two adjectives given by the Trial Chamber in the Akayesu Judgement is illustrative rather than prescriptive.74 Hence, the amount of resources involved is not necessarily relevant. Nevertheless, all the first judgements maintain that some sort of policy is needed to demonstrate that the attack was systematic. According to the Trial Chamber in the Bagilishema Judgement, the policy requirement was an inherent requirement, that not only followed from the fact that an attack had to be systematic, but also from the fact that the attack had to directed against a civilian population and that it had to be committed on discriminatory grounds.75 Following the ICTY Appeals Chamber in the Focˇa Judgement,76 the ICTR Trial Chamber in the Semanza Judgement rephrased the interpretation of the ‘systematic’ requirement and stressed that organisation was the key element of the concept ‘systematic attack’, rather than policy.77 This view, which lowered the threshold, was endorsed in subsequent ICTR Judgements.78 Curiously, despite the united position of the two ad hoc Tribunals on this point, the ICC Elements of Crimes stipulate that an attack must be committed “pursuant to or in furtherance of a State or organisational policy”, and thus reintroduce the policy requirement. They even specify that in principle the State or organisation must “actively promote or encourage” the policy. Only in exceptional circumstances can “a deliberate failure to take action” constitute a policy. However, if there is no State or organisation, there can be no policy. Cassese pointed out that this is an area where Article 7 of the ICC Statute is narrower than customary international law, as identified by the ad hoc Tribunals.79

72 73 74 75 76

77 78

79

The Prosecutor v. E. and G. Ntakirutimana, Judgement, 21 February 2003, para. 804; The Prosecutor v. Niyitegeka, Judgement, 16 May 2003, para. 439. The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 329. Ambos and Wirth (2002: 18, 21). The Prosecutor v. Bagilishema, Judgement, 7 June 2001, para 78. The Prosecutor v. Kunarac, Kovacˇ, and Vukovic´, Appeal Judgement, 12 June 2002, para. 98. The ICTY Appeals Chamber provided ample references to practice that supported its interpretation that policy is not a legal element of crimes against humanity. The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 329. The Prosecutor v. Kajelijeli, Judgement, 1 December 2003, para. 872; The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, para. 665; The Prosecutor v. Gacumbitsi, Judgement, 17 June 2004, para. 299; The Prosecutor v. Ndindabahizi, Judgement, 15 July 2004, para. 477. Cassese (2002b: 375).

ICTR case law on crimes against humanity

167

IV.3.2 ‘Any civilian population’ The requirement that the attack must be directed against ‘any civilian population’ is considered by some as the decisive element; the element that characterises crimes against humanity.80 The Trial Chamber in the Akayesu case emphasised this element,81 while it also focused attention on the French case law which had explained that crimes against members of the resistance could, in certain circumstances, also be qualified as crimes against humanity, even though these victims could be considered combatants.82 The first relevant issue to be addressed by the ICTR Trial Chambers was to define ‘a civilian population’ in substance. Secondly, the Trial Chambers had to determine the scope of this element, and more specifically it had to deal with the question whether it also covered UN peacekeepers. Definition of ‘a civilian population’ In the Akayesu case, the Trial Chamber interpreted the phrase ‘a civilian population’ with reference to the laws of war, as including: “people who are not taking active part in the hostilities, including members of the armed forces who laid down their arms and those persons placed hors de combat by sickness, wounds, detention or any other cause.”83

With this interpretation, the ICTR Trial Chamber followed an earlier decision of an ICTY Trial Chamber.84 Based on an analogous interpretation of Article 50 of Additional Protocol I, the ICTR Trial Chamber also indicated that the presence of certain non-civilian individuals in the group did not necessarily mean that the group as a whole fell outside the scope of the definition.85 Subsequently, the Trial Chamber in the Kayishema and Ruzindana case gave a definition of civilians outside the scope of an armed conflict, given that it found that no armed conflict had taken place in Kibuye, the Prefecture where the alleged crimes had been committed in that case. The Trial Chamber considered as civilians “all persons except those who have the duty to maintain public order and have the legitimate means to exercise force.” This is a negatively phrased definition. As examples of non-civilians, the Chamber named members of the FAR, the RPF, and the police.86 The Chamber

80 81 82 83 84 85 86

Dinstein (2000: 393) and Kolb (2000: 295). See section IV.2.2 above. The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 569, 571, 575, 576. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 582. Viz. The Prosecutor v. Mrkšic´, Radic´, Šljivancˇanin, and Dokmanovic´, Decision, 3 April 1996. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 582. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 127.

168

Chapter IV

did not explain which legal sources it had consulted to arrive at its interpretation. Like the Trial Chamber in the Akayesu case, this Chamber emphasised that the population must be predominantly – but not necessarily – entirely civilian in nature.87 As in the case of other legal questions considered above, the Trial Chambers in the cases of Rutaganda and Musema strictly followed the findings of the Akayesu Judgement.88 In the case of Bagilishema, the Trial Chamber, citing the Blaškic´ Judgement, specified that the situation of a victim rather than his status determined his qualification as a civilian.89 The Trial Chamber also emphasised the word ‘population’ and indicated that this word denoted a certain collectivity, but did not necessarily require that all crimes were directed against the whole population of a certain State or area.90 Once again, the Judgements in the cases of Niyitegeka and Ntakirutimana failed to shed any more light on the definition of ‘a civilian population’. The Semanza Judgement elaborated on the Bagilishema Judgement and also explained, on the basis of the ICTY Focˇa Appeal Judgment, that people who did not belong to the civilian population which was the primary target of the attack could nevertheless be victims of the attack.91 Thus, in their first judgements, the ICTR Trial Chambers discussed different parts of this element, focussing either on the word ‘civilian’ or on the word ‘population’. As regards the word ‘civilian’ there were initially two interpretations: the Akayesu interpretation which adhered to the existing humanitarian doctrine, and the Kayishema and Ruzindana interpretation which produced a new definition for civilians, bearing in mind the development that crimes against humanity may be committed in peacetime as well. Although acknowledging that the latter interpretation certainly has its advantages, it also leaves some questions open, such as the question whether a group of unarmed policemen could be qualified as civilians, or even, and perhaps more relevant in the ICTR context, whether UN peacekeepers could be qualified as civilians. In subsequent judgements, the line of the Akayesu, Bagilishema and Semanza Judgements was followed,92 and the Kayishema and Ruzindana interpretation remained an isolated case.

87

88 89

90 91 92

The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 128. The Chamber did not refer to the Akayesu Judgement, but rather to an ICTY Judgement, viz. The Prosecutor v. Tadic´, Judgement, 7 May 1997, para. 638. The Prosecutor v. Rutaganda, Judgement, 6 December 1997, para. 72; The Prosecutor v. Musema, Judgement, 27 January 2000, para. 207. The Prosecutor v. Bagilishema, Judgement, 7 June 2001, para. 79, citing The Prosecutor v. Blaškic´, Judgement, 3 March 2000, para. 214. The ICTY Trial Chamber stated in this judgement that resistance fighters who had laid down their arms, as well as wounded soldiers, are two categories of people protected from crimes against humanity. The Prosecutor v. Bagilishema, Judgement, 7 June 2001, para. 80. The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 330. The Prosecutor v. Kunarac, Kovacˇ, and Vukovic´, Appeal Judgement, 12 June 2002, para. 90. The Prosecutor v. Kajelijeli, Judgement, 1 December 2003, paras. 873-876; The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, paras. 667-670.

ICTR case law on crimes against humanity

169

As observed by Ambos and Wirth, the term ‘civilian’ derives from international humanitarian law,93 a link that has become obsolete with the development that crimes against humanity can be committed in peacetime. These scholars argued that the term ‘civilian’ should now be broadly interpreted, and they qualified the Kayishema and Ruzindana interpretation as “erroneous”.94 Furthermore, they maintained that the term ‘civilian’ should cover everyone except members of the armed forces and those who are hostile to the perpetrators. As regards the word ‘population’, these scholars endorsed the approach adopted in the Bagilishema Judgement that this word reflects the requirement that the crime must target a multiplicity of victims, and that it therefore in fact duplicates the contextual requirement of ‘widespread or systematic attack’.95 Another scholar, McAuliffe deGuzman, illustrated in some detail that the initial ICTY case law on the ‘population’ requirement was inconclusive in that the ICTY interpreted the element on the one hand as requiring a large number of victims, but on the other hand as requiring that the crime be committed on discriminatory grounds.96 The latter interpretation is rather odd, since, as McAuliffe deGuzman also indicated, discriminatory grounds are not required as such in the ICTY definition or, for that matter, under international customary law. In the Focˇa Judgement, the ICTY Appeals Chamber interpreted the word ‘population’ in such a way so as to exclude attacks against “a limited and randomly selected number of individuals.” The Appeals Chamber endorsed the view given by Trial Chambers of both the ICTY and the ICTR that the word ‘population’ did not require that a whole population had to be attacked.97 In short, the ICTR case law on the phrase ‘against any civilian population’ required that the crime had a collective nature and that the targeted victim group had a predominantly civilian character. The interpretation of the word ‘civilian’ was especially relevant when it came to the qualification of UN Peacekeepers. This issue arose in later cases. UN peacekeepers The ICTR Trial Chambers had to deal with the question of how to qualify crimes against UN peacekeepers in relation to the murder of the ten Belgian peacekeepers.98 Various accused have been charged with this crime as a crime against humanity, but no final judgement has been pronounced in a case with this charge. In the case against Bago-

93 94 95 96 97 98

Ambos and Wirth (2002: 22). Ambos and Wirth (2002: 22-26). Ambos and Wirth (2002: 21). McAuliffe deGuzman (2000: 362-364). The Prosecutor v. Kunarac, Kovacˇ, and Vukovic´, Appeal Judgement, 12 June 2002, para. 90. See chapter I for a factual description of this event. The issue is also relevant with regard to the interpretation of discriminatory grounds, see section IV.5.

170

Chapter IV

sora99 – part of the Military I case – the State of Belgium filed an application to be admitted as amicus curiae, amongst other things, on the point of crimes against humanity and Bagosora’s responsibility for the killings of the ten Belgium UNAMIR paracommandos, and the killings of three members of the Belgian technical assistance mission by members of the Interahamwe. The Trial Chamber admitted Belgium’s application insofar as it concerned the ten peacekeepers. As regards the three members of the technical mission, the Chamber noted that the accused was not charged with this crime and denied the request.100 In the Ntuyahaga case, Judge Ostrovsky confirmed the charge of crimes against humanity regarding the killing of the Belgium peacekeepers when reviewing the Indictment of Ntuyahaga.101 However, this sort of review of an indictment mainly concerns the existence of proof for a prima facie case.102 In any event, Judge Ostrovsky did not dismiss the charge as being clearly outside the scope of the jurisdiction of the ICTR. Nevertheless, Judge Ostrovsky dismissed most of the other counts against Ntuyahaga, and the Prosecution subsequently withdrew the Indictment.103 It is not easy to provide a general answer to the question of whether UN peacekeepers are covered by the term ‘civilian’ in the concept of crimes against humanity. This is because the concept of UN peacekeeping has evolved significantly over the last years. As reaffirmed in the so-called Brahimi Report, the key principles of peacekeeping are: (i) consent of the parties; (ii) impartiality; and (iii) use of force only in self-defence.104 Over the years, the power to use force in self-defence, as regulated in more detail in the rules of engagement of the troops, has been extensively interpreted to include the use of force to protect civilians and to ensure the proper execution of a mandate. As a result of this expanded interpretation, the distinction between peacekeeping and peace enforcement has become blurred,105 and peacekeepers may in practice act more often as soldiers. In that case they cannot easily be qualified as civilians. In the case of UNAMIR, there was disagreement regarding the rules of engagement, and whether these included a broad mandate to use force. But even if the mandate to use force had been broadly interpreted, pursuant to the Bagilishema reasoning, the situation of the victim at the moment of the crime would be the relevant factor rather than his status. Therefore, regardless of whether the soldiers had a broad mandate to

99 100 101 102

The Prosecutor v. Bagosora, Indictment, 12 August 1999. The Prosecutor v. Bagosora, Decision, 6 June 1998. The Prosecutor v. Ntuyahaga, Decision, 29 September 1998. Following Article 18 of the ICTR Statute, a reviewing judge determines whether a prima facie case exists in order to confirm the indictment. 103 The Prosecutor v. Ntuyahaga, Decision, 18 March 1999. Also see Sluiter (2001). 104 The official name of the report is Report of the panel on United Nations peace operations, UN Docs. A/55/305 and S/2000/809, 21 August 2000, para. 48. 105 For more information on peacekeeping, see Bothe (2002: 648-700) and Shaw (2003: 1107-1117). For the evolution of peacekeeping, see the developments described by Kirgis (2004).

ICTR case law on crimes against humanity

171

use force, the key question is whether they were using force at the moment of the crime. This is also Bothe’s point of view. Referring to the 1994 Convention on the Safety of the UN and Associated Personnel, and to the Bulletin of the UN Secretary-General regarding the applicability of international humanitarian law to UN peace operations,106 he observed that UN military personnel engaged in fighting enjoy the status of combatant, while those who are not engaged in fighting “enjoy the status of civilians”.107 In the specific circumstances of the murder of the Belgian UNAMIR soldiers, the soldiers had surrendered before they were killed; therefore they were hors de combat, and at the moment they were killed they could be qualified as ‘civilians’. It could be argued that the fact that there were ten UNAMIR soldiers does not fulfil the ‘population’ requirement. However, this argument probably does not apply as the Trial Chambers are reluctant to impose high numerical thresholds with regard to mass elements, as illustrated by the case law on extermination.108

IV.3.3 ‘Part of’ Naturally, the mere finding that a widespread or systematic attack against any civilian population has taken place is not in itself sufficient to qualify any criminal act that was committed as a crime against humanity. The criminal act must be committed as a part of that attack, and therefore there must be a link between the individual act and the general attack. Surprisingly, in the Akayesu Judgement, the Trial Chamber only determined that the murder of a number of persons was committed as part of a widespread or systematic attack, without any explanation of how they came to that conclusion.109 In the Semanza Judgement, the Trial Chamber described the relationship between a criminal act and the attack as follows: “[a]lthough the act need not be committed at the same time and place as the attack or share all of the features of the attack, it must, by its characteristics, aims, nature, or consequence objectively form part of the discriminatory attack.”110

106 UN Doc. ST/SGB/1999/13, 6 August 1999. 107 Bothe (2002: 695). 108 In the Akayesu Judgement, the Trial Chamber determined that an attack on sixteen individuals constituted extermination, The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 744. And in the case of Kayishema and Ruzindana, the Trial Chamber indicated that there was no clear minimum number that served as a threshold requirement to denote the mass element, The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 145. Also see subsection IV.6.2. 109 The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 652-653. 110 The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 326.

172

Chapter IV

The Trial Chambers in the Kajelijeli case and in the Kamuhanda case endorsed this description.111 The ICC Elements of Crimes do not explain the phrase ‘part of’ in any further detail. In most cases, however, the act and the attack were linked through the establishment of knowledge of the broader attack by the perpetrator of the criminal act, i.e., the mental element. This element is examined in the following section.

IV.4

THE MENTAL ELEMENT

The general mental element, the knowledge of the attack, constitutes the connection requirement, the link between the act and the attack.112 In contrast with the definition of genocide, the definition of crimes against humanity does not express the level of knowledge required. This section examines the mental element as the connection requirement and studies the ICTR case law to determine what level of knowledge is required. In the Akayesu Judgement, the Trial Chamber found that Akayesu had “the requisite intent to kill … as part of a widespread or systematic attack against the civilian population of Rwanda on ethnic grounds”.113 However, the Chamber did not clarify anywhere in the Judgement what the requisite intent was. In the Kayishema and Ruzindana Judgement, the Trial Chamber rectified this omission. Referring to the Tadic´ Judgement114 and to Article 7 of the ICC Statute, the Trial Chamber determined that the perpetrator “must understand the overall context of his act.”115 The Trial Chamber specified that it required: “actual or constructive knowledge of the broader context of the attack, meaning that the accused must know that his act(s) is part of a widespread or systematic attack on a civilian population and pursuant to some kind of policy or plan.”116

The term ‘constructive knowledge’ is not explained in any further detail. It is possible that the Trial Chamber used this term to underline that when a perpetrator denies that he had actual knowledge of the general attack, knowledge can still be inferred, depending on the specific circumstances of the case. It is striking that the Trial Chamber did not

111 The Prosecutor v. Kajelijeli, Judgement, 1 December 2003, para. 866; The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, para. 659. 112 Each of the separate criminal acts enumerated sub (a) to (i) has a mental element of its own. These are considered in section IV.6 together with an analysis of the physical acts. 113 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 650. 114 The Prosecutor v. Tadic´, Judgement, 7 May 1997, para. 656. 115 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 133. 116 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 134.

ICTR case law on crimes against humanity

173

require knowledge of the discriminatory nature of the attack.117 In the Judgements of Rutaganda, Musema and Bagilishema, the Trial Chamber quoted the Kayishema and Ruzindana interpretation with approval.118 In the Bagilishema Judgement, the Trial Chamber noted that the ICTY Trial Chambers had also endorsed the Kayishema and Ruzindana interpretation.119 This endorsement was possible, given the absence of any reference to the discriminatory nature of the attack, an element that is unique to the ICTR definition of crimes against humanity. In the Ntakirutimana Judgement, the Trial Chamber required proof that: “the accused knew that their act or acts of murder were part of the widespread or systematic attack against civilians on discriminatory grounds, although the accused need not have any discriminatory intent.”120

Thus the Chamber apparently added knowledge of the discriminatory nature of the attack to the definition of the mental element, while emphasising that this did not entail any discriminatory intent on the part of the perpetrator himself. In the Niyitegeka Judgement, the Trial Chamber again considered that the accused “need not act with discriminatory intent”.121 The Chamber stated that the accused “must know that his act is part of this widespread or systematic attack”.122 The Chamber referred in a footnote to the Akayesu Appeal Judgement, in which the Appeals Chamber considered that the perpetrator did not need to have discriminatory intent.123 In the Semanza Judgement, the Trial Chamber referred to earlier ICTR case law and stated that an accused: “must have acted with knowledge of the broader context of the attack and knowledge that his act formed part of the attack on the civilian population. However, the accused need not necessarily share the purpose or goals behind the broader attack. There is no requirement that the enumerated acts other than persecution be committed with discriminatory intent.”124

117 The subsequent section deals more specifically with this point. 118 The Prosecutor v. Rutaganda, Judgement, 6 December 1997, para. 71; The Prosecutor v. Musema, Judment, para. 206; The Prosecutor v. Bagilishema, Judgement, 7 June 2001, para. 94. 119 The Prosecutor v. Z. Kupreškic´, M. Kupreškic´, V. Kupreškic´, Josipovic´, Papic´, and Šantic´, Judgement, 14 January 2000, para. 557; The Prosecutor v. Blaškic´, Judgement, 3 March 2000, para. 249. In the latter Judgement, the ICTY Trial Chamber explained that the Kayishema and Ruzindana interpretation distinguished two parts of the mental element, viz. (i) “knowledge of the attack and its widespread and systematic character”, and (ii) “awareness of the fact that the criminal activity constitutes part of the attack.” 120 The Prosecutor v. E. and G. Ntakirutimana, Judgement, 21 February 2003, para. 803. 121 The Prosecutor v. Niyitegeka, Judgement, 16 May 2003, para. 442. 122 The word ‘this’ refers to the preceding paragraph 441, in which the attack is described more accurately. 123 Section IV.5 deals more specifically with the Akayesu Appeal Judgement. 124 The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 332.

174

Chapter IV

Trial Chambers endorsed this interpretation in subsequent judgements.125 Despite the latter clarifications that the perpetrator did not have to have discriminatory intent himself, it remained unclear whether or not the accused had to have been aware of the discriminatory nature of the attack. Pursuant to the ICTR Appeals Chamber’s finding that the discriminatory element is a jurisdictional element, as explained in the next section, the Trial Chambers should have clarified that an accused need not necessarily have known that the attack was discriminatory. The ICC Elements of Crimes also require that the perpetrator at least knew that his act was part of a widespread or systematic attack against a civilian population. However, the Elements subsequently specify that the perpetrator did not necessarily have to know all the characteristics of the attack, nor did he have to have knowledge of the precise details of the underlying plan or policy. The ICC Elements of Crimes therefore indicate more precisely what level of knowledge is required, an issue that the ICTR left rather unclear in its case law.

IV.5

THE DISCRIMINATORY ELEMENT

In addition to the mental element analysed above, the ICTR definition of crimes against humanity includes discriminatory grounds as an additional constituent element. In earlier definitions, this element was included only in relation to the act of persecution. Both the Commission of Experts for the Former Yugoslavia and the Commission of Experts for Rwanda included the element of an official discriminatory policy in their description of crimes against humanity.126 However, whereas the ICTY Statute does not include this part of the description in the eventual statutory definition, the ICTR Statute does include a discriminatory element. The Secretary-General’s report does not give any explanation of why the ICTR definition of crimes against humanity deviates from the ICTY definition in this respect. Presumably, the discriminatory element was included to ‘replace’ the ICTY-element ‘committed in armed conflict, whether international or internal in character’, and to include some kind of threshold element in the absence of a reference to an armed conflict. Two important questions are: (i) what is the nature of the additional ICTR element? And (ii) what is the consequence of this additional element for the relevance of the ICTR jurisprudence on crimes against humanity in general

125 The Prosecutor v. Kajelijeli, Judgement, 1 December 2003, paras. 880-881; The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, para. 675; The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004, para. 698; The Prosecutor v. Gacumbitsi, Judgement, 17 June 2004, para. 302. 126 UN Doc. S/1994/1405, paras. 134-135.

ICTR case law on crimes against humanity

175

(subsection IV.5.1)? This section also examines each of the discriminatory grounds (subsection IV.5.2).

IV.5.1 Nature of the element: jurisdictional or substantive? In the Tadic´ Appeal Judgement, the ICTY Appeals Chamber had determined, by way of obiter dictum, that motive was irrelevant to proving a crime against humanity.127 The Chamber had also clarified that under customary international law only persecution as a crime against humanity required a discriminatory intent, and all the other acts did not.128 The Trial Chambers in the Rutaganda and Musema Judgements took note of this decision, but indicated that the ICTY definition differed from the ICTR definition.129 Since the ICTR definition explicitly included a discriminatory element, the Trial Chambers could not directly apply the ICTY Appeal Judgement to the ICTR cases. Instead, the ICTR Appeals Chamber gave its guidelines in the Akayesu Appeal Judgement. In the Akayesu case, the Prosecution submitted on appeal that the requirement of discriminatory grounds was a jurisdictional requirement, limiting the jurisdiction of the ICTR, and did not reflect a substantive element of crimes against humanity under customary international law. According to the Prosecution, the requirement of discriminatory grounds had to be understood as an objective criterion qualifying the attack.130 Requiring discriminatory intent would render the element of discriminatory grounds a substantive element of crime. The Prosecution demonstrated on appeal that the Trial Chamber had applied the element of discriminatory grounds inconsistently in the Akayesu Judgement. In relation to murder and rape as a crime against humanity, the Trial Chamber had required a discriminatory intent on the part of the perpetrator, whereas for the counts of extermination and torture as crimes against humanity, the Trial Chamber had required only that the general attack be committed on discriminatory grounds. The Appeals Chamber acknowledged that there appeared to be “a contradiction”.131 Subsequently, the Appeals Chamber enquired into the nature of the discriminatory grounds element. In this, the Appeals Chamber relied on the Tadic´ Appeals Judgement for the view that the discriminatory intent was not a substantive element of all crimes against humanity. The Appeals Chamber therefore concluded that the requirement of discriminatory grounds in the ICTR definition served a jurisdictional purpose. The rationale for the requirement was to restrict the jurisdiction of the ICTR to a certain

127 The Prosecutor v. Tadic´, Appeal Judgement, 15 July 1999, paras. 238-272. 128 The Prosecutor v. Tadic´, Appeal Judgement, 15 July 1999, para. 305. 129 The Prosecutor v. Rutaganda, Judgement, 6 December 1997, paras. 75-76; The Prosecutor v. Musema, Judgement, 27 January 2000, paras. 210-211. 130 The Prosecutor v. Akayesu, Appeal Judgement, 1 June 2001, paras. 449-451. 131 The Prosecutor v. Akayesu, Appeal Judgement, 1 June 2001, paras. 453-458.

176

Chapter IV

category of crimes against humanity, viz. those committed in the context of a discriminatory attack. According to the Appeals Chamber, the Security Council had intended to exclude the prosecution of possible crimes against humanity that had been committed outside this context.132 The Appeals Chamber deemed it necessary to identify the Security Council’s intention. However, the intention as such cannot easily be identified in statements made by representatives in the Security Council,133 or, for that matter, in other preparatory documents.134 Moreover, if the Security Council had the explicit intention to limit prosecution to international crimes committed with a discriminatory intent, it is unclear why it did not include a similar jurisdictional element with regard to war crimes as well. Therefore, the Appeals Chamber’s interpretation of the Security Council’s intention seems unnecessary and unfounded. The Chamber should have justified its decision to qualify the discriminatory element as a jurisdictional element rather than a substantive element with reference to customary international law.135 In addition to the intention of the Security Council, the Appeals Chamber put forward a second argument for its view that the discriminatory grounds element was a jurisdictional element. It argued that considering the element as a substantive element pertaining to the mental state of the perpetrator would render the additional specific intent for persecution superfluous. This would conflict with a basic rule of interpretation, viz. that each word in a definition should have meaning.136 In the Bagilishema Judgement, the Trial Chamber adhered to the Appeals Chamber’s reasoning that the discriminatory grounds element should be perceived as characterising the attack, and not as relating to the intent of the perpetrator.137 In a footnote, the Chamber also stated that if the discriminatory grounds were to be read in conjunction with the mental element, the drafters of the Statute would have placed it immediately after the word ‘committed’, or they would have used punctuation to clarify that the words were not meant to qualify the attack. The textual interpretations alongside a reference to prevailing customary international law are the soundest methods for the interpretation of the discriminatory element in the case at hand. In the Ntakirutimana Judgement, the Trial Chamber summarised these findings to state that the discriminatory grounds element required that there was a widespread or systematic attack against a civilian population on political, ethnic or racial grounds, and

132 The Prosecutor v. Akayesu, Appeal Judgement, 1 June 2001, paras. 463-469. 133 UN Doc. S/PV.3453, 8 November 1994. 134 See, for example, the Final Report of the Commission of Experts, UN Doc. S/1994/1405, 9 December 1994, and the Report of the Secretary-General, UN Doc. S/1994/134, 13 February 1995. 135 As was done by the ICTY Appeals Chamber in relation to the question of a link to an armed conflict as an element of crimes against humanity, The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, para. 141. 136 The Prosecutor v. Akayesu, Appeal Judgement, 1 June 2001, para. 468. 137 The Prosecutor v. Bagilishema, Judgement, 7 June 2001, para. 81.

ICTR case law on crimes against humanity

177

that the accused knew that his act was part of such an attack, but that the accused need not have had a specific intent.138 Jurisdictional versus substantive element The Trial Chamber in the Semanza Judgement emphasised that the mental element for crimes against humanity was not one of a specific intent, except in the case of persecution. Moreover, the Trial Chamber explained that crimes committed against persons who did not belong to the discriminated ethnic, racial or political group, could nevertheless be qualified as crimes against humanity in the ICTR context, if these crimes furthered the attack against the discriminated group.139 The view of the Trial Chamber in the Semanza Judgement concurred with earlier views of Trial Chambers in the Akayesu and the Kayishema and Ruzindana Judgements.140 This view differentiates between perceiving the discriminatory element as a jurisdictional element (knowledge of an attack that can objectively be qualified as discriminatory) and as a substantive element (specific intent to commit or further a discriminatory attack). The Trial Chamber in the Kayishema and Ruzindana case specified that the attack on an individual who is not discriminated himself, but who protects a group member, is ultimately based on discrimination against the group and can therefore be qualified as a crime against humanity. Furthermore, that Trial Chamber indicated that an attack on persons believed to be part of the group, but who are actually not part of the group, can be qualified as a crime against humanity if the Prosecution can demonstrate that the belief was “objectively reasonable”.141 In contrast, the Trial Chamber in the Akayesu Judgement determined that the killing of a Hutu in the context of genocide against Tutsi could not be qualified as a genocidal act, as the Hutu did not fall in the protected group of victims.142 This difference in application results from the fact that the specific intent of genocide is a substantive element, whereas the discriminatory element of crimes against humanity is a jurisdictional element. In other words, the specific intent as a substantive element relates directly to the perpetrator, whereas the discriminatory element as a jurisdictional element qualifies the attack. In short, a perpetrator of genocide must believe that his victim belongs to the protected group, whereas a perpetrator of crimes against humanity, as defined in the ICTR Statute, must know that the crime against his victim is part of an attack, which can objectively be qualified as discriminatory. Taken together with the preceding section, it may be concluded that the general mental element of crimes against humanity is a knowledge requirement. The perpetrator must

138 The Prosecutor v. E. and G. Ntakirutimana, Judgement, 21 February 2003, para. 803. 139 The Prosecutor v. Semanza, Judgement, 15 May 2003, paras. 331-332. 140 The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 383-384; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 131. 141 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 131-132. 142 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 712.

178

Chapter IV

have knowledge of the attack, and need not have a discriminatory intent. The discriminatory element merely serves to qualify the attack. The ICC Statute does not include a discriminatory element since this element is not required under customary international law. Therefore, the value of the ICTR jurisprudence on the discriminatory element is arguably inconsequential.

IV.5.2 Enumeration of the grounds The definition of crimes against humanity enumerates five grounds on which the discrimination can be based. These are national, political, ethnic, racial, and religious grounds. In comparison with the definition of genocide, it is remarkable that political grounds are included. In the Akayesu case, each ground was first defined separately. For a definition of each ground, the Trial Chamber referred to the objective definitions of national, ethnic, racial, or religious groups, which it had provided in the course of its survey on the elements of genocide. The Trial Chamber largely adhered to these interpretations given in the context of the definition of genocide. As regards the political grounds, which have no parallel in the definition of genocide, the Chamber explained that this additional ground concerned a person’s political ideology.143 As regards the application of one of these grounds to a specific case, the Prosecution in the Kayishema and Ruzindana case argued that the relevant discriminatory grounds were ethnic and political, given that Tutsi were discriminated for being Tutsi (ethnic) and for being accomplices of the RPF (political).144 However, in its legal findings, the Trial Chamber qualified the attacks against Tutsi as being based only on ethnic discrimination.145 In later judgements, the latter qualification was endorsed.146 The other grounds enumerated, such as national and political grounds, may still be relevant as well. For example, this could be the case in the context of crimes against Hutu, as well as crimes against the Belgian peacekeepers. So far, there has not been a specific conviction for a crime against humanity committed against a Hutu on political grounds. In contrast, the murder of the ten Belgian peacekeepers was charged as a crime against humanity in the cases of Ntuyahaga and of Bagosora, as outlined above. In these cases, the Prosecution qualified the attack as based on national or political grounds.

143 144 145 146

The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 583. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 130. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 576, 582. E.g., The Prosecutor v. Gacumbitsi, Judgement, 17 June 2004, para. 306; The Prosecutor v. Ndindabahizi, Judgement, 15 July 2004, para. 484.

ICTR case law on crimes against humanity

179

The Ntuyahaga case came to a premature ending because the main part of the Indictment was not confirmed. When Judge Ostrovsky only confirmed the counts relating to the murder of prime minister Agathe Uwilingiyimana and of the ten Belgian peacekeepers, the Prosecution withdrew the Indictment. Thus, it remained inconclusive how the attack on the Belgian peacekeepers should be qualified in terms of international criminal law. In the Bagosora Indictment, the crime against the ten Belgian peacekeepers was charged as part of an attack on political, ethnic or racial grounds.147 If the attack is qualified as having been committed on political grounds, it means that the attack against the peacekeepers is considered as a political action directed against the UN. If the attack is qualified as having been committed on ethnic grounds, it means that the murder of the Belgians is perceived as an act that furthered the attack on Tutsi. If the attack is qualified as having been committed on racial grounds, it means that the Belgians were singled out for attack because they were white. In this author’s view, there is an additional possibility, viz. that the Belgians were attacked on the basis on their nationality due to the fact that Belgium was the former coloniser of Rwanda. The last two possibilities consider the attack on the Belgians itself as a crime against humanity. This seems appropriate given the serious consequences of the attack for the continuation of the concept of peacekeeping in general. However, instead of qualifying the attack as political or racial, it would have been more logical to qualify the attack against the Belgians as being based on national grounds. The Belgian UNAMIR peacekeepers did not support or represent a specific political group or view and, apparently, they were singled out for the attack based on their Belgian nationality. However, the national grounds did not figure in the charges. Apart from this matter of choosing one of the enumerated grounds, the Bagosora case also enables the Trial Chamber to render the difference between motive and discrimination more transparent. The underlying motive of the crimes against the Belgians may have been to effectuate their withdrawal. However, this motive is irrelevant for the qualification of the nature of the attack.

IV.6

THE PHYSICAL ELEMENT

In contrast to the contextual elements considered above, the physical act basically concerns the factual deeds. In contrast to the jurisprudence on genocide, which provided a short summary of all genocidal acts, the Trial Chambers only interpreted the acts of crimes against humanity that were charged. Thus this section outlines and discusses the interpretation and application of the following seven sub-paragraphs consecutively: murder (sub-

147 Prosecutor v. Bagosora, Indictment, 12 August 1999.

180

Chapter IV

section IV.6.1), extermination (subsection IV.6.2), imprisonment (subsection IV.6.3), torture (subsection IV.6.4), rape (subsection IV.6.5), persecution (subsection IV.6.6) and other inhumane acts (subsection IV.6.7).

IV.6.1 Murder Murder as a crime against humanity was charged in virtually all the indictments. Like all the other acts, the act of murder has its own mental element, in addition to the general mental element of crimes against humanity that was considered in section IV.4. In applying the act of murder as a crime against humanity, the Trial Chambers had to determine what the mental element of murder was. As this subsection describes, two views were expressed on this matter in the ICTR case law. Some Trial Chambers considered that premeditation was required, while other Trial Chambers employed a lower standard, viz. general intent. In its 1996 Draft Code, the ILC did not provide a definition of murder, because it argued that murder was a concept that was well defined in all national systems.148 That this was a misconception was very clearly illustrated by the two versions, English and French, of the ICTR Statute. Where the English Statute speaks of ‘murder’, the French version uses the word ‘assassinat’. ‘Assassinat’ sets a higher threshold, as it requires premeditation. In the Akayesu Judgement, the Trial Chamber defined murder as “the unlawful, intentional killing of a human being” and identified three elements of crime, viz. (i) that the victim was dead, (ii) that the death resulted from an unlawful act or omission, and (iii) that the accused had the intention to kill, or that he had the intention to inflict serious bodily harm which was likely to result in death and that he was reckless as to such effect.149 The Trial Chamber in the Akayesu case considered that the French Statute clearly suffered from a translation error, and found that the English term ‘murder’ was the correct term to be used in this context. The Trial Chamber relied on customary international law for this view, but did not provide an insight into the way it established the contents of customary international law on this point.150 Not surprisingly therefore, the defence in the case of Kayishema and Ruzindana argued that this reasoning was “too simple and not convincing”. The Trial Chamber in this case agreed and emphasised that both the French and the English version of the Statute were authentic versions, and observed that the ICTY Statute also used the French

148 UN Doc. A/51/10, 6 May 1996 to 26 July 1996, p. 96, as cited by Hall (1999: 129). The Trial Chamber also noted this observation of the ILC in The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 587. 149 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 589. 150 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 588.

ICTR case law on crimes against humanity

181

word ‘assassinat’. The Chamber stipulated that even if customary international law required only murder, the ICTR remained bound by its Statute, and it should therefore not deviate too readily from the wording of the Statute. Furthermore, the Trial Chamber indicated that in case of doubt, the interpretation most favourable to the accused should prevail. Hence, the mental element for the act of murder as a crime against humanity in the ICTR context should be understood as “intentional and premeditated killing”.151 Consequently, the Trial Chamber enumerated the criteria in a slightly different way to the Chamber in the Akayesu Judgement, viz. as an act which (i) causes the death of another; (ii) by a premeditated act or omission, (iii) intending to kill any person or intending to cause grievous bodily harm to any person.152 In the Rutaganda and Musema Judgements, the Trial Chambers did not pay much attention to deliberations in the Kayishema and Ruzindana Judgement, and referred only to the Akayesu Judgement.153 Conversely, in the Bagilishema Judgement, the Trial Chamber quoted the Kayishema and Ruzindana Judgement and concurred with it.154 In the Ntakirutimana Judgement, the Trial Chamber did not enumerate the requirements of murder as a crime against humanity. It convicted Gérard Ntakirutimana simply on the finding that he had personally killed an identified person,155 and that in killing him he had the requisite intent, without indicating what the requisite intent was.156 In the Niyitegeka Judgement, the Trial Chamber made a similar finding.157 Apparently, this Trial Chamber based its finding on the assumption that the requirements of murder were sufficiently spelled out in previous judgements. However, as demonstrated above, in previous case law different standards had been applied as regards the mental element of murder. In the Semanza Judgement, the Trial Chamber noted the inconsistency and reviewed the matter in some more depth. The Trial Chamber recalled Article 33(4) of the 1969 Vienna Convention on the Law of Treaties, which stipulates that in the event that authentic texts of a treaty differ, the interpretation that best reconciles the texts, having regard to the object and purpose, should prevail. The Trial Chamber determined that in the current case, this reconciliation would be achieved by requiring premeditation, which was in line with its explanation that killing could encompass premeditated homicide.

151 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 137-139. 152 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 140. 153 The Prosecutor v. Rutaganda, Judgement, 6 December 1997, paras. 79-81; The Prosecutor v. Musema, Judgement, 27 January 2000, paras. 214-216. 154 The Prosecutor v. Bagilishema, Judgement, 7 June 2001, paras. 84-85. 155 On appeal, the Prosecution held that the Trial Chamber had erred in requiring that the perpetrator personally killed the victim. The Appeals Chamber clarified that it is indeed not necessary that an accused personally commits the killing for an act to be defined as murder, The Prosecutor v. E. and G. Ntakirutimana, Appeal Judgement, 13 December 2004, paras. 543-546. 156 The Prosecutor v. E. and G. Ntakirutimana, Judgement, 21 February 2003, paras. 806-808. 157 The Prosecutor v. Niyitegeka, Judgement, 16 May 2003, paras. 441-447.

182

Chapter IV

The Trial Chamber also submitted that the general principle of a narrow interpretation in favour of the accused demanded the same outcome, as did a contextual analysis of the Statute as a whole. As regards this last argument, the Chamber compared Article 2(2)(a) on genocide with Article 3(a) regarding crimes against humanity. For genocide, the Statute speaks of ‘killing’ and ‘meurtre’, whereas for crimes against humanity, it emphasises the terms ‘murder’ and ‘assassinat’. Hence, both the English and the French version require a higher mental element for the act of crimes against humanity. Since Article 2(2)(a) was interpreted as intentional killing not requiring premeditation, Article 3(a) should be interpreted as including premeditation. All in all, the Trial Chamber clearly set the mental element for murder as a crime against humanity requiring premeditation. The Trial Chamber explained that the perpetrator had to have had a deliberate plan to commit the killing prior to the actual commission of his act; in other words there must have been “a cool moment of reflection”.158 However, the Trial Chamber specified that it was not necessary that the perpetrator had targeted a particular individual with premeditation, but rather that he had had the premeditated intention to murder civilians in general.159 The reasoning in the Semanza case contrasts with the finding of the Trial Chambers in the Ntakirutimana and Niyitegeka Judgements, where the intention was inferred directly from the commission of the act. Nevertheless, the Semanza finding was well reasoned and explicit. It set a clear standard for future ICTR case law. For the development of international criminal law in general, the Semanza finding may have less value, given that the ICC Statute requires ‘meurtre’ in its French version for both genocide and crimes against humanity. Moreover, the elements of crimes do not require any premeditation for murder as a crime against humanity. It may have been as a result of this lower ICC threshold that the Trial Chamber in the case of Ndindabahizi adhered to the lower Akayesu standard, despite the fact that the Semanza reasoning might have been more convincing in the ICTR context.160 The Trial Chamber in the Ndindabahizi case noted the inconsistency between the Akayesu Judgement and the Semanza Judgement in a footnote, but considered it unnecessary to deal with the higher Semanza threshold, since the intent of Ndindabahizi was “not presently in issue”.161 Conversely, another Trial Chamber did adhere to the Semanza standard, viz. in the Cyangugu case.162

158 The Trial Chamber in the Kayishema and Ruzindana Judgement had also used this phrase, which it had borrowed from French jurisprudence and from case law of the US Supreme Court; no specific instances of national cases were provided. 159 The Prosecutor v. Semanza, Judgement, 15 May 2003, paras. 334-339. 160 Chesterman (2000: 334) argued that, for the purposes of the ICTR Statute, murder required premeditation. 161 The Prosecutor v. Ndindabahizi, Judgement, 15 July 2004, para. 487, fn. 618. 162 The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004, para. 700.

ICTR case law on crimes against humanity

183

The ICTY Trial Chamber in the Kupreškic´ et al. case adhered to the lower Akayesu standard, but it also cited the Kayishema and Ruzindana Judgement.163 The ICTY Trial Chambers in the Blaškic´ case and in the Jelisic´ case only cited the Akayesu Judgement with approval.164 In some later cases, ICTY Trial Chambers, while reaffirming the lower standard, denied that the two ICTR Judgements – Akayesu versus Kayishema and Ruzindana – were inconsistent.165 In contrast, the ICTY Trial Chamber in the Bràdjanin Judgement did acknowledge that there were two views within the ICTR regarding the mental element of murder. It rejected the line set out in the Judgements of Kayishema and Ruzindana, Bagilishema, and Semanza, and expressly reaffirmed the lower standard that the ICTY had applied throughout.166 The Akayesu line of reasoning, as endorsed in several other ICTR judgements, as well as in all the ICTY judgements, has the advantage that it erases the textual differences that exist in the definitions of homicide as acts of genocide, crimes against humanity and war crimes.167 Moreover, this line of reasoning is likely to be adopted by the ICC.168 Conversely, the Kayishema and Ruzindana Judgement as endorsed in the Semanza Judgement may be commended for taking the two versions of the Statute, the English as well as the French version, equally seriously.

IV.6.2 Extermination With regard to extermination as a crime against humanity, the Trial Chambers had to deal with the two following questions: (i) can the killing of one person be qualified as extermination? And (ii) what is the mental element of extermination? The mass element According to the Trial Chamber in the Akayesu Judgement, extermination is inherently a mass crime, committed against a group of individuals. The Trial Chamber listed the

163 The Prosecutor v. Z. Kupreškic´, M. Kupreškic´, V. Kupreškic´, Josipovic´, Papic´, and Šantic´, Judgement, 14 January 2000. 164 The Prosecutor v. Blaškic´, Judgement, 3 March 2000, paras. 216-217; The Prosecutor v. Jelisic´, Judgement, 14 December 1999, para. 51. 165 E.g., The Prosecutor v. Kvocˇka, Kos, Radic´, Žigic´, and Prac´, Judgement, 2 November 2001, para. 132; The Prosecutor v. Krnojelac, Judgement, 15 March 2002, para. 324, fn. 854. 166 The Prosecutor v. Brdjanin, Judgement, 1 September 2004, para. 386. 167 An ICTY Trial Chamber expressly indicated that there was no difference between wilful killing and murder, The Prosecutor v. Delalic´, Mucic´, Delic´, and Landžo, Judgement, 16 November 1998, paras. 422, 433, 439, as cited by Cumes (2003: 48, fn. 43). 168 But note Hall (1999: 130-131) who observed that the mental element of murder as a crime against humanity must be interpreted in the light of Article 30 of the ICC Statute. Article 30 of the ICC Statute provides a general mental element for all crimes within the jurisdiction of the Court.

184

Chapter IV

following elements of crime for extermination: (i) the accused or his subordinate participated in the killing of certain named or described persons, and (ii) the act or omission was unlawful and intentional.169 In the case of Akayesu, the Chamber found that the killing of eight refugees and eight identified persons constituted extermination.170 The Chamber also determined that Akayesu had the requisite intent to cause mass destruction, but did not explain how it came to this conclusion.171 The Trial Chamber in the Kayishema and Ruzindana Judgement agreed that extermination differed from murder because it included a mass element. The Chamber held that this mass element could not be defined by reference to a minimum number, and that it should be applied with common sense on a case-by-case basis. The Chamber defined the elements of extermination as follows: “The actor participates in the mass killing of others or in the creation of conditions of life that lead to the mass killing of others, through his act(s) or omission(s); having intended the killing, or being reckless, or grossly negligent as to whether the killing would result and; being aware that his act(s) and omission(s) forms part of a mass killing event…”172

The Trial Chamber specified that the planning of conditions of life that lead to mass killing may also constitute extermination. The Chamber gave two examples of such conditions: (i) “imprisoning a large number of people and withholding the necessities of life”, and (ii) “introducing a deadly virus into a population and preventing medical care.”173 Furthermore, the Trial Chamber maintained that a single killing could amount to extermination if this killing formed part of a mass killing event. A mass killing event concerns killings that are closely related in time and place,174 or in the words of the Trial Chamber in the Bagilishema Judgement “a single or sustained attack”. The Trial Chamber in the Bagilishema Judgement adhered to the Kayishema and Ruzindana findings, and endorsed the view that a single killing could constitute extermination.175

169 The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 591-592. 170 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 744. Cited in The Prosecutor v. Rutaganda, Judgement, 6 December 1997, paras. 82-84; The Prosecutor v. Musema, Judgement, 27 January 2000, paras. 217-219. 171 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 741. 172 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 144. 173 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 146. The examples were cited by an ICTY Trial Chamber in a footnote, The Prosecutor v. Brdjanin, Judgement, 1 September 2004, fn. 921. 174 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 141-147. 175 The Prosecutor v. Bagilishema, Judgement, 7 June 2001, paras. 86-90. It should be noted that no conviction was entered on extermination as a crime against humanity either in the Kayishema and Ruzindana Judgement or in the Bagilishema Judgement, in the first case because of cumulative charging and in the second case because of an acquittal.

ICTR case law on crimes against humanity

185

The ICTY Trial Chamber in the Krstic´ Judgement observed that, based on the ICC definition, extermination could in some circumstances also apply to crimes with only a small number of victims. However, the Chamber refused to interpret the ICTY definition in this way, because the ICC definition had not been generally accepted at the time that the crimes charged were committed. Given the lack of clarity of the definition, the interpretation that was most favourable to the accused had to be applied. Therefore, the Trial Chamber considered that extermination in the ICTY context required that a significant number of individuals had been killed.176 In the Vasiljevic´ Judgement, another ICTY Chamber confirmed that a single killing committed in the context of mass killing was insufficient to constitute extermination. It considered that extermination required that the perpetrator was directly or indirectly responsible for a large number of deaths.177 In a footnote to this finding, the Chamber observed that the ICTR Trial Chamber had formulated a lower standard in the Kayishema and Ruzindana Judgement, viz. that one killing which formed part of a mass killing event could also be qualified as extermination. The ICTY Chamber also noted that this view had been adopted in the Elements of Crimes of the ICC. Nevertheless, the ICTY Chamber concluded that it could not adopt the Kayishema and Ruzindana reasoning itself, as the ICTR Chamber had not provided any State practice in support, and was thus not legally convincing.178 Subsequently, the ICTR Trial Chamber in the Ntakirutimana Judgement followed the finding in the Vasiljevic´ case. It considered that extermination implied mass killing as a result of the actions of the accused.179 The Trial Chambers in the Semanza and the Cyangugu case also endorsed this view.180 Referring to the Ntakirutimana Judgement and the ICTY Vasiljevic´ Judgement, they considered that extermination required killing on a substantial scale and that responsibility for a single killing in the context of mass killing was insufficient.181 In the Niyitegeka Judgement, the Trial Chamber quoted the Vasiljevic´ Judgement and considered that extermination concerned an act that contributed

176 The Prosecutor v. Krstic´, Judgement, 2 August 2001, paras. 501-503. 177 The Prosecutor v. Vasiljevic´, Judgement, 29 November 2002, para. 227. Similar to the ICTR Trial Chamber in the Kayishema and Ruzindana Judgement, the ICTY Trial Chamber stated that there was no minimum number of victims before an act could be qualified as extermination. However, the Trial Chamber also noted that 733 victims was the lowest number in the Second World war cases on extermination, thus giving some kind of indication as to the scale. The Prosecutor v. Vasiljevic´, Judgement, 29 November 2002, fn. 587. In The Prosecutor v. Krstic´, Judgement, 2 August 2001, para. 501, the Trial Chamber considered that the degree of preparation and organisation were also factors to take into account to assess the mass element. 178 The Prosecutor v. Vasiljevic´, Judgement, 29 November 2002, para. 227, fn. 586. 179 The Prosecutor v. E. and G. Ntakirutimana, Judgement, 21 February 2003, paras. 811-814. On appeal in this case, it was clarified that the victims need not be named or described, The Prosecutor v. E. and G. Ntakirutimana, Appeal Judgement, 13 December 2004, paras. 512-523. 180 The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 340; The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004, para. 701. 181 The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 340.

186

Chapter IV

to mass killing. This appears more lenient than the Ntakirutimana and Semanza Judgements even though they are all based on the same ICTY Judgement. However, the Vasiljevic´ Judgement encompassed both findings, as it included direct or indirect responsibility for mass killing.182 In the Kajelijeli and Kamuhanda Judgements, the Trial Chambers noted the inconsistency between the Kayishema and Ruzindana and Bagilishema approach on the one hand, and the Ntakirutimana and Semanza approach on the other. Both Trial Chambers opted for the latter approach that the accused must be responsible for a large number of killings, as this was more in line with the concept of extermination as a mass crime. In an attempt to reconcile the two approaches, the Chamber pointed out that the killing of one person could be taken into account as evidence.183 The Trial Chamber in the case of Ndindabahizi explored the indirect form of extermination in greater detail. The Chamber stipulated that indirect measures aimed at bringing about the death of a large number of people could also be qualified as extermination. Hence, the action need not necessarily be killing. However, it had to be established that the actions of an accused contributed to the mass killing and how, and the victims had to be named or described. Whether an accused had actually contributed to the mass killing depended on the facts of each case.184 The ICC documents include this indirect form of extermination. In a commentary, Politi pointed out that on the basis of Article 7(2)(b), it was maintained that the act of imposing certain conditions of life that were calculated to lead to the death of a large number of people constituted extermination, regardless of the actual result of these conditions of life, i.e., regardless of whether the victims had in fact died. However, at the same time, the ICC Elements of Crimes require that the perpetrator killed one or more persons, and that his actions took place as part of a mass killing event. Therefore it appears that the ICC Elements of Crimes are inconsistent with the Statute on this point.185 But Robinson pointed out that the drafters of the ICC Elements of Crimes had only wanted to clarify that extermination can be committed by indirect means. According to the majority of the delegations, the death of a large number of victims still had to be proved.186

182 The Prosecutor v. Vasiljevic´, Judgement, 29 November 2002, paras. 216-229. 183 The Prosecutor v. Kajelijeli, Judgement, 1 December 2003, paras. 891-893; The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, paras. 692-694. The Semanza approach was further endorsed in The Prosecutor v. Gacumbitsi, Judgement, 17 June 2004, para. 309. 184 The Prosecutor v. Ndindabahizi, Judgement, 15 July 2004, para. 479. 185 Politi (2002: 468-469). 186 Robinson (2001b: 82-83).

ICTR case law on crimes against humanity

187

As remarked by the ICTY Trial Chamber in the Vasiljevic´ Judgement, the ICC Elements of Crimes were inspired by the Kayishema and Ruzindana Judgement.187 Thus this Judgement took the law on extermination one step further, even though it was not convincingly based in law, and even though it was followed neither in further ICTR jurisprudence nor in the ICTY jurisprudence for that reason. The mental element The jurisprudence on the mental element of extermination is, to say the least, diverse. As described above, the Trial Chamber in the Akayesu Judgement considered that the mental element of extermination was equal to the mental element of murder.188 In contrast, the Trial Chamber in Kayishema and Ruzindana interpreted the mental element in an expanded fashion to include reckless and gross negligence.189 This interpretation was endorsed in the Bagilishema Judgement.190 In the cases of Krstic´ and of Stakic´ the ICTY Trial Chamber adhered to the Akayesu standard,191 whereas the ICTY Trial Chamber in Vasiljevic´ required an additional element, viz. knowledge of “a vast murderous enterprise”.192 The Trial Chamber in the Semanza Judgement observed that some ICTR Trial Chambers applied a more lenient standard than the ICTY Trial Chambers. The Chamber submitted that given the existing lack of consensus on the appropriate standard, intent should be required, and not recklessness or gross negligence. It thus expressly deviated from the Kayishema and Ruzindana findings on this point.193 The Trial Chamber in the Cyangugu case endorsed the Semanza findings.194 In contrast, the Trial Chambers in the Kajelijeli and Kamuhanda Judgements again noted the inconsistency in ICTR case law and tried to reconcile the two viewpoints. The Chambers interpreted the Kayishema and Ruzindana and Bagilishema Judgements in such a way that “reckless or grossly negligent conduct [we]re indicative of the offender’s mens rea”, but that the actual mental element was only intent.195 However, a subsequent Judgment suggests that the matter

187 In this respect, the Chamber cited Robinson (2001b: 83). Robinson also explained that extermination differed from murder as a crime against humanity, in that extermination required a context of mass killing, whereas murder required as a contextual element an attack on civilians, which did not include necessarily other killings. 188 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 591. 189 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 144. 190 The Prosecutor v. Bagilishema, Judgement, 7 June 2001, para. 89. 191 The Prosecutor v. Krstic´, Judgement, 2 August 2001, para. 495; The Prosecutor v. Stakic´, Judgement, 31 July 2003, para. 642. 192 The Prosecutor v. Vasiljevic´, Judgement, 29 November 2002, para. 229. 193 The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 341. 194 The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004, para. 701. 195 The Prosecutor v. Kajelijeli, Judgement, 1 December 2003, paras. 894-895; The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, paras. 695-696.

188

Chapter IV

is still open for discussion in the ICTR context. In the case of Ndindabahizi, the Trial Chamber noted that following the Kayishema and Ruzindana jurisprudence, recklessness satisfied the mental element requirement of extermination, but the Chamber did not need to elaborate on whether recklessness was indeed sufficient, given the facts of the case in which it had to decide.196 The ICTY Trial Chamber in the case of Brdjanin did make a clear choice, viz. for the intent requirement. It actually followed the ICTY Trial Chamber in the Stakic´ Judgement, which had argued: “it would be incompatible with the character of the crime of extermination and with the system and construction of Article 5 if recklessness or gross negligence sufficed to hold an accused criminally responsible for such a crime.”197

Thus the Kayishema and Ruzindana standard was dismissed. The Trial Chamber also rejected the effort made by the ICTR Trial Chambers in the cases of Kajelijeli and Kamuhanda to reconcile the Kayishema and Ruzindana Judgement with the Semanza Judgement.198 Based on the position of the ICTY Appeals Chamber in the Krstic´ Appeal Judgement that a plan or policy is not an element of crimes against humanity, the Trial Chamber in the Brdjanin case also rejected the Vasiljevic´ standard that knowledge of a vast murderous enterprise was needed.199 In conclusion, the ICTR jurisprudence on the mental element of extermination is inconclusive. In contrast, the ICTY Trial Chambers appear to have made a clear choice, which was well reasoned, viz. for the intent requirement. This interpretation of the mental element of extermination was first pronounced in the Akayesu Judgement. Thus, even though this pioneering judgement did not give adequate references to support its interpretation, it did provide a correct starting point on the matter.

IV.6.3 Imprisonment The act of imprisonment figured only sporadically in ICTR indictments. This is not surprising, given that the factual situation of Rwanda was characterised by acts of murder and (sexual) violence, and not by concentration camps as was the case in the former Yugoslavia. Therefore, ICTR case law on this act is scarce, and largely draws on ICTY case law.

196 The Prosecutor v. Ndindabahizi, Judgement, 15 July 2004, para. 480. 197 The Prosdecutor v. Stakic´, Judgement, 31 July 2003, para. 642; The Prosecutor v. Brdjanin, Judgement, 1 September 2004, para. 395. 198 The Prosecutor v. Brdjanin, Judgement, 1 September 2004, fn. 932. 199 The Prosecutor v. Brdjanin, Judgement, 1 September 2004, para. 394.

ICTR case law on crimes against humanity

189

Imprisonment as a crime against humanity was only discussed in the Cyangugu case. Following ICTY Trial Chambers in the cases of Kordic´ and Cˇerkez200 and of Krnojelac,201 the ICTR Trial Chamber stated: “Imprisonment as a crime against humanity refers to arbitrary or otherwise unlawful detention or deprivation of liberty. It is not every minor infringement of liberty that forms the material element of imprisonment as a crime against humanity; the deprivation of liberty must be of similar gravity and seriousness as the other crimes enumerated as crimes against humanity in Article 3 (a) to (i). In assessing whether the imprisonment constitutes a crime against humanity, the Chamber may take into account whether the initial arrest was lawful, by considering, for example, whether it was based on a valid warrant of arrest, whether the detainees were informed of the reasons for their detention, whether the detainees were ever formally charged, and whether they were informed of any procedural rights. The Chamber may also consider whether the continued detention was lawful. When a national law is relied upon to justify a deprivation of liberty, this national law must not violate international law.”202 (footnotes omitted)

Imanishimwe was convicted for imprisonment as a crime against humanity in relation to the incarceration of a number of people because of their suspected ties with the RPF.203

IV.6.4 Torture In contrast with the other physical acts of crimes against humanity, torture has an internationally accepted definition as enshrined in the 1984 Convention Against Torture. In the Akayesu Judgement, the Trial Chamber recalled the definition laid down in Article 1 of the Convention as: “… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”204

200 201 202 203 204

The Prosecutor v. Kordic´ and Cˇerkez, Judgement, 26 February 2001, paras. 302-303. The Prosecutor v. Krnojelac, Judgement, 15 March 2002, paras. 114, 119-122. The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004, para. 702. The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004, paras. 754-756. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 593.

190

Chapter IV

The Trial Chamber convicted Akayesu for torture as a crime against humanity for acts committed by Akayesu himself or by others in his presence and/or on his orders. The acts included beatings, and forcing victims to beat another victim, and interrogations in which the victim’s life was threatened.205 In the Cˇelebic´i case and the Furundžija case, the ICTY Trial Chambers applied the concept of torture as a war crime, adhering to the definition in the Convention, which they considered to reflect customary international law.206 The Appeals Chamber in the Furundžija case endorsed this position.207 As regards the prohibited aims, the Chamber in the Furundžija case included humiliation of the victim as a prohibited aim.208 The Chamber in the Cˇelebic´i case indicated that the list of prohibited aims was not exhaustive, and that the perpetrator did not need to have acted purely on the basis of these aims. He might have had other, private, aims as well.209 Subsequent ICTY Chambers considered the concept of torture as a crime against humanity. The Trial Chamber in the Focˇa Judgement made a distinction between torture as a prohibition under human rights law and torture as an offence under international humanitarian law. The Chamber pointed out that the elements of torture under these two distinct bodies of law might differ given the different structures of these bodies of law. In particular, the role of the State is fundamentally different in the two regimes. In human rights law, the State is the central actor, which needs to protect the rights of the individual. Conversely, in international humanitarian law, and specifically in international criminal law, the role of the State is minimal. As examples of the reduced role of the State, the Chamber pointed to some provisions of the 1949 Geneva Convention and the 1977 Additional Protocols, which were directly addressed to individuals irrespective of their capacity. Consequently, the Chamber concluded that torture under international humanitarian law did not require that the perpetrator must act in an official capacity.210 Another ICTY Trial Chamber agreed with this position in the Kvocˇvka Judgement,211 and the Appeals Chamber reaffirmed it in the Focˇa Appeal Judgement.212 Given the reasoning of the Chambers, this finding also applied to torture as a war crime. The ICTR Trial Chamber in the Semanza case also employed the expanded definition of torture. Thus it followed the ICTY Trial Chamber in the Cˇelebic´i case in that it considered that the prohibited aims listed in the definition in the convention were not

205 The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 676-684. 206 The Prosecutor v. Delalic´, Mucic´, Delic´, and Landžo, Judgement, 16 November 1998, paras. 452-472; The Prosecutor v. Furundžija, Judgement, 10 December 1998, paras. 158-164. 207 The Prosecutor v. Furundžija, Appeal Judgement, 21 July 2000, para. 111. 208 The Prosecutor v. Furundžija, Judgement, 10 December 1998, para. 162. 209 The Prosecutor v. Delalic´, Mucic´, Delic´, and Landžo, Judgement, 16 November 1998, paras. 470-472. 210 The Prosecutor v. Kunarac, Kovacˇ, and Vukovic´, Judgement, 22 February 2001, paras. 465-497. 211 The Prosecutor v. Kvocˇka, Kos, Radic´, Žigic´, and Prac´, Judgement, 2 November 2001, paras. 137-141. 212 The Prosecutor v. Kunarac, Kovacˇ, and Vukovic´, Appeal Judgement, 12 June 2002, para. 148

ICTR case law on crimes against humanity

191

exhaustive under customary international law. And it rejected the requirement that the perpetrator must have acted in an official capacity, thereby adhering to the Focˇa Judgement.213 The Trial Chamber held Semanza responsible for torture with regard to two acts. First, the Chamber determined that the rape of a Tutsi woman, committed at the instigation of Semanza, had caused extreme fear for the victim. The Chamber therefore found that this act had inflicted severe mental suffering for discriminatory purposes, and this amounted to torture. Second, the Chamber convicted Semanza for torture with regard to the mutilation of a man after questioning him.214 The definition of torture as used in the Semanza Jugdement, was confirmed in the Cyangugu Judgement.215 The ICTR Trial Chambers thus consolidated some216 of the developments initiated by the ICTY Appeals Chamber and the ICTY Trial Chambers, but did not directly contribute themselves to developing the law on this point. The ICC documents adopted and further developed the ICTY points of view. The statutory definition does not require either that the perpetrator acted in an official capacity,217 or that the torture is committed for a specific purpose. In a footnote the ICC Elements of Crimes emphasise that torture need not be committed for any specific purpose.218

IV.6.5 Rape In its final report, the Commission of Experts had already drawn attention to documentation reporting that large-scale rape had been committed in Rwanda. The Commission recalled international instruments prohibiting rape and pressed the Prosecution to focus its investigations on these rape allegations. The fact that rape was included in the list of acts that could constitute a crime against humanity in both the Statute of the ICTY and the Statute of the ICTR can in itself be regarded as an important development, since

213 214 215 216

The Prosecutor v. Semanza, Judgement, 15 May 2003, paras. 342-343. The Prosecutor v. Semanza, Judgement, 15 May 2003, paras. 481-488. The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004, para. 703. The ICTR Trial Chamber in the Semanza Judgement was silent on the legal findings of the ICTY Chambers regarding the level of pain and suffering required. 217 However, as noted by Cassese (2002b: 374), some sort of official capacity is required for torture as a crime against humanity, as one of the general elements of crimes against humanity is that the crime is committed pursuant to a State or organisational policy. 218 Torture as a war crime does include the requirement of specific aims, see ICC Elements of Crimes of, for example, Article 8(2)(a)(II)-I.

192

Chapter IV

rape was marginalized in international humanitarian law for a long time.219 Nevertheless, neither Statute gave a coherent definition of rape, leaving this up to the judges. In constructive interaction, the two ad hoc Tribunals have sought to develop an internationally accepted definition of rape. An ICTR Trial Chamber first explored the matter in the Akayesu Judgement. The Chamber chose to employ a conceptual rather than a technical definition. It circumscribed rape as “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”.220 The Chamber also stated that in its view, rape included “acts which involve the insertion of objects and / or the use of bodily orifices not considered to be intrinsically sexual”.221 The Chamber distinguished rape from sexual violence, the latter being a broader concept, including any act of a sexual nature committed under coercive circumstances.222 In the Musema Judgement, the Trial Chamber endorsed this case law.223 The Chamber pointed out that its definition was accepted by an ICTY Trial Chamber in the Cˇelebic´i Judgement.224 The Chamber also noted that another ICTY Trial Chamber had opted for a different approach in the Furundžija case, viz. to describe the act of rape in more detail.225 Taking this approach into account, the ICTR Trial Chamber nevertheless adhered to the conceptual definition, arguing that this would accommodate the “ongoing evolution” more satisfactorily.226 The Trial Chamber in the Niyitegeka case still endorsed this view.227 The Trial Chamber in the Semanza case, which rendered judgement virtually at the same time as the Niyitegeka Judgement was issued, gave a more appropriate finding, taking account of the ICTY Appeals Judgement in the Focˇa case. In this case, the ICTY Appeals Chamber explicitly supported the ‘mechanical’ definition of rape, as formulated by the Trial Chamber in the Furundžija case and as refined by the Trial Chamber in the Focˇa case.228 The Trial Chamber in the Semanza case quoted this definition as follows:

219 Rape was prohibited under the 1949 Geneva Conventions and the 1977 Additional Protocols, but not listed as a grave breach, Meron (1993). According to Schabas (2001c: 756), the invisibility of rape as an international crime it due to the failure of prosecutors to charge this crime rather than a lack of penalisation. 220 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 598. 221 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 596. 222 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 598. 223 The Prosecutor v. Musema, Judgement, 27 January 2000, paras. 220-229. 224 The Prosecutor v. Delalic´, Mucic´, Delic´, and Landžo, Judgement, 16 November 1998, paras. 478-479. 225 The Prosecutor v. Furundžija, Judgement, 10 December 1998, paras. 174-186. The Trial Chamber in this case argued that given the lack of an international definition, it had to have recourse to national definitions. 226 The Prosecutor v. Musema, Judgement, 27 January 2000, para. 228. 227 But Niyitegeka was not convicted of rape for lack of evidence to support that charge, The Prosecutor v. Niyitegeka, Judgement, 16 May 2003, paras. 292-302, 457. 228 The Prosecutor v. Kunarac, Kovacˇ, and Vukovic´, Appeal Judgement, 12 June 2002, paras. 127-133.

ICTR case law on crimes against humanity

193

“non-consensual penetration, however slight, of the vagina or anus of the victim by the penis of the perpetrator or by any other object used by the perpetrator, or of the mouth of the victim by the penis of the perpetrator.”

Furthermore, the Chamber indicated that the consent of the victim must be given “voluntarily and freely”, and the question whether consent has been given will be answered in relation to the context of the sexual act.229 All acts that do not meet the definition may be prosecuted as different crimes against humanity, such as torture, persecution, or other inhumane acts. The mental element of rape is the intention to carry out the act knowing that the victim does not consent. The Trial Chamber acknowledged that in other ICTR cases, Trial Chambers had consistently rejected this more detailed approach. Nevertheless, the Trial Chamber found the reasoning of the ICTY Appeals Chamber more convincing, and thus changed tack.230 The Trial Chambers in the cases of Kajelijeli and Kamuhanda followed the Semanza Judgement.231 Curiously, the Trial Chamber in the Gacumbitsi case returned to the Akayesu definition, and made a rather desperate attempt to reconcile it with the Focˇa Appeal Judgement by stating that the Akayesu definition did not include all the elements of rape.232 In addressing the matter for the first time and opting for a certain definition, the ICTR Trial Chamber in the Akayesu case constructively initiated the juridical debate on how to define rape under international law, and as such it constituted an important source for the drafters of the ICC Elements of Crimes.233 After the Akayesu case, the ICTY took the lead in the debate, and the ICTR Trial Chamber in the Semanza case subsequently adopted the outcome. Remarkably, another ICTR Trial Chamber did not follow the ICTY Appeals Chamber in the Niyitegeka Judgement. Different kinds of definitions were used, both in the ICTY and in the ICTR. However, compared to the ICTY’s work on this subject, the ICTR’s contribution to the definition of rape is rather marginal. Ultimately, the drafters of the ICC Elements of Crimes adopted the Furundžija approach that rape must be defined in detail.234

229 This refinement was made in The Prosecutor v. Kunarac, Kovacˇ, and Vukovic´, Judgement, 22 February 2001, para. 460. 230 The Prosecutor v. Semanza, Judgement, 15 May 2003, paras. 344-346. 231 The Prosecutor v. Kajelijeli, Judgement, 1 December 2003, paras. 910-916; The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, paras. 705-710. 232 The Prosecutor v. Gacumbitsi, Judgement, 17 June 2004, para. 321. 233 La Haye (2001a: 187). 234 La Haye (2001a: 190) indicated that the definition of rape as laid down in the ICC Elements of Crimes was probably the most elaborate definition of rape that can be found in international documents or case law.

194

Chapter IV

IV.6.6 Persecution on political, racial and religious grounds Whereas persecution as a crime against humanity is the central count before the ICTY,235 it has considerably less relevance to the ICTR proceedings. In the ICTY context, it was clarified that the discriminatory grounds should have been more appropriately listed in an alternative rather than in a cumulative fashion. The Trial Chamber in the Tadic´ case considered that only one of the discriminatory grounds needed to be present, i.e., political, racial or religious grounds.236 The first ICTR conviction for persecution as a crime against humanity occurred after a guilty plea in the case of Ruggiu. In that Judgement, the Trial Chamber relied on the ICTY Kupreškic´ Judgement defining persecution as “a gross or blatant denial of a fundamental right reaching the same level of gravity as the other acts prohibited…” committed on discriminatory grounds.237 Remarkably, the Trial Chamber accepted the guilty plea on persecution against the Tutsi ethnic group, even though ethnicity is not mentioned as a discriminatory ground for the purpose of persecution. The Trial Chamber in the Semanza case quoted the same reasoning of the Kupreškic´ Judgement, including the phrase that stipulated that the fundamental right had to be recognized in international law either by customary international law or by treaty law. For a more detailed interpretation of persecution, this Trial Chamber summarised ICTY case law. In its findings, the Chamber acknowledged that persecution could only be committed on political, racial or religious grounds. The charge of persecution was therefore dismissed. The Trial Chamber emphasised that ethnicity was not one of the discriminatory grounds listed, and found that there was insufficient evidence to uphold the Prosecution’s claim that the Hutu sympathetic to the Tutsi could be considered a political group.238 In contrast, the Trial Chamber in the Media case did enter a conviction for persecution on political grounds. In this case, the Chamber held that the attacks against the Tutsi and Hutu political opponents could be characterised as being ethnic, but also as being political in nature. The Chamber also argued that the media “essentially merged political and ethnic identity, defining [its] political target on the basis of ethnicity and political positions relating to ethnicity.” Therefore, the Chamber decided that there was persecution of an ethnic character on political grounds.239 With this reasoning, the Chamber nicely circumvented the absence of ethnic grounds in the statutory definition of the discriminatory intent of persecution. The fact that the ICTR statutory definition was quite narrow is illustrated by the ICC definition of crimes against humanity, which broadens the discrim-

235 Swaak-Goldman (1998) and Fenrick (2001). 236 The Prosecutor v. Tadic´, Judgement, 7 May 1997, paras. 712-713. Also see Swaak-Goldman (1998: 153) and Fenrick (2001: 89-90). 237 The Prosecutor v. Ruggiu, Judgement, 1 June 2000, para. 21 238 The Prosecutor v. Semanza, Judgement, 15 May 2003, paras. 466-472. 239 The Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Judgement, 3 December 2003, para. 1071.

ICTR case law on crimes against humanity

195

inatory intent of persecution. It includes ethnic grounds, but also all “other grounds that are universally recognised as impermissible under international law”. However, the ICTR Trial Chambers cannot directly invoke the ICC Statute to circumvent the ICTR Statute. Following the Ruggiu Judgement, the ICTR Trial Chamber in the Media case also considered that hate speech constituted persecution because it deprived its victims of “the fundamental rights to life, liberty and basic humanity enjoyed by members of the wider society.”240 In the first place, it should be noted that the right to basic humanity is not recognised as a right in international law. Respect for human dignity is perceived more as a general principle forming the basis of international humanitarian law and human rights law.241 Secondly, it is not clear how hate speech violates the right to life and liberty. Infringement of these rights may be the consequence of hate speech, but as the Chamber pointed out: “the crime of persecution is defined also in terms of impact. It is not a provocation to cause harm. It is itself a harm.”242 Therefore the act of persecution itself must violate an internationally protected right.243 Accordingly, the Chamber’s findings with regard to persecution may not be very sound. The hate speech was more properly qualified as incitement to commit genocide.244 For in-depth case law on persecution, ICTY case law should be consulted rather than ICTR case law.

IV.6.7 Other inhumane acts The other provision on inhumane acts serves as a sort of safety net to cover criminal acts that reach the same level of gravity and would otherwise fall outside the definition. In the Judgement of Kayishema and Ruzindana, the Trial Chamber defined this provision as “acts or omissions that deliberately cause serious mental or physical suffering or injury or constitute a serious attack on human dignity.” The Chamber indicated that there had to be a link between the act and the suffering. According to the Trial Chamber, the word ‘deliberately’ ensured that mental harm inflicted on third persons as a result of watching

240 The Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Judgement, 3 December 2003, para. 1072; The Prosecutor v. Ruggiu, Judgement, 1 June 2000, para. 22. 241 The Prosecutor v. Furundžija, Judgement, 10 December 1998, para. 183. 242 The Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Judgement, 3 December 2003, para. 1073. 243 An ICTY Trial Chamber listed the following examples: imprisonment, unlawful detention of civilians or infringement on individual freedom, murder, deportation or forcible transfer, ‘seizure, collection, segregation and forced transfer of civilians to camps’, comprehensive destruction of homes and property, the destruction of towns, villages and other public or private property and the plunder of property, attacks upon cities, towns and villages, trench-digging and the use of hostages and human shields, the destruction and damage of religious and educational institutions, and sexual violence, The Prosecutor v. Kvocˇka, Kos, Radic´, Žigic´, Prac´, Judgement, 2 November 2001, para. 186. 244 As it also was, The Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Judgement, 3 December 2003, paras. 978-1039.

196

Chapter IV

the suffering of the direct victims would only qualify as an inhumane act if the perpetrator had intentionally committed the act in front of the third person.245 In contrast, the Trial Chamber in the Kamuhanda Judgement considered that an accused may still be held accountable for mental suffering if third persons unintentionally watch crimes committed against others.246 The Chamber in the Kayishema and Ruzindana case also observed that an inhumane act had to be identified on a case-by-case basis.247 In the Musema Judgement, the Trial Chamber concurred with this view. The only element mentioned of other inhumane acts is that the acts should be comparable in gravity with the other acts that can constitute a crime against humanity.248 The first to be convicted for other inhumane acts as a crime against humanity was Niyitegeka. In his Judgement, the decapitation, castration and other kinds of mutilation of a corpse and the insertion of a piece of wood in the vagina of a dead person were qualified as inhumane acts.249

IV.7

CONCLUSION

First of all, it should be noted that with regard to the use of sources, the conclusions of the preceding chapter on genocide can be more or less repeated. Furthermore, the confusion with regard to definitions surrounding crimes against humanity revealed that – unlike genocide and war crimes – these crimes still lacked a characteristic feature. Even though their origins lie in the sphere of humanitarian law, recent developments tend to move away from the war connection. The case law of the ICTR endorsed this tendency. Yet at the outset of the evaluation, it must be acknowledged that the ICTR itself is an instrument created in the area of peace and security. Nevertheless, the ICTR definition does not include the connection with war in its definition of crimes against humanity. Moreover, the ICTR indicated that the word ‘attack’ in the definition does not necessarily imply armed force. In the ICTR’s view, the word has a meaning of its own. It serves to indicate a certain gravity of the crime, rather than to make a connection with the context of war. Hence, the case law on this point breaks away from crimes against humanity as a humanitarian concept. Nevertheless, this does not automatically lead to the conclusion that crimes against humanity can be perceived as a human rights concept. The case law of both Tribunals on torture emphasised the

245 246 247 248

The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 148-154. The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, para. 717. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 148-154. The Prosecutor v. Musema, Judgement, 27 January 2000, paras. 230-233. Also see The Prosecutor v. Bagilishema, Judgement, 7 June 2001, paras. 91-92. 249 The Prosecutor v. Niyitegeka, Judgement, 16 May 2003, paras. 459-467.

ICTR case law on crimes against humanity

197

differences between the two bodies of law, human rights law and international humanitarian law, and torture as a crime against humanity was interpreted differently from torture as a concept in human rights law. International criminal law must therefore be viewed as an autonomous field of international law, and it is in this domain that crimes against humanity must be placed. The phrase that was meant to set an alternative threshold, the element of discriminatory grounds was interpreted in such a way as to render it virtually irrelevant in the ICTR context. The Chambers determined in general that this element qualified the attack. However, genocidal crimes are by their very nature committed on discriminatory grounds, and no perpetrator can reasonably claim that he did not know of the discriminatory nature of the attack, although he was aware of the widespread and systematic character. Even for crimes committed that do not qualify as genocide, this requirement will not pose a problem. The grounds enumerated in the ICC Statute are comprehensive, and even include political grounds. Any attack might be characterised as having been committed on one of the grounds listed. Even the 11 September attack, which may be qualified as nihilistic, was in the end committed on political grounds. The Chambers failed to specify in what way this element qualifies as an attack; does it relate to the group of victims or does it actually concern the general motive for the attack? In this respect, the value of the ICTR case law is confined to the ICTR context. Before the ICTR, crimes against humanity were generally charged in addition to charges of genocide. No accused has been charged with crimes against humanity alone.250 As illustrated in this chapter, the added value of a conviction for crimes against humanity may become clear in later cases, which consider the murder of the UN peacekeepers or the murder of moderate Hutu. In addition, RPF crimes may be prosecuted under this heading. The main problem or perceived risk with crimes against humanity is the threshold requirement. Only very serious crimes are of concern to the international community and may therefore be removed from sovereign control. In their case law, the Tribunals have conceded that there is no other threshold than the nature of the crime itself. Three interrelated features represent the nature of the crime, viz. (i) collectivity, (ii) gravity, and (iii) a violation of the human right to physical and emotional well-being. Since the ICTR’s findings without any doubt concerned a situation that met these general requirements, it did not have the chance to give further examples and accentuate the features, or to set a minimum standard.

250 Following the guilty plea of Vincent Rutaganira, a former Councillor, to extermination as a crime against humanity, the Prosecutor did request the acquittal of all other charges contained in the indictment, ICTR press release, 8 December 2004. Rutaganira was convicted for extermination as a crime against humanity only, The Prosecutor v. Rutaganira, Judgement, 14 March 2005.

198

Chapter IV

The findings of the ICTR and the ICTY jointly, that the elements of an armed conflict and of the discriminatory intent, should actually not have been included as elements of crimes against humanity were re-examined at the Rome Conference, and also later in the drafting process of the ICC Elements of Crimes.251 This was related to the fact that many States were hesitant to accept an international crime that did not have a distinguishing feature that clearly lifted the crime to the international level. Apparently, the threshold produced by the Tribunals, viz. the scale and seriousness of the crime, was not sufficient for these States. In conclusion, some other observations may be made as regards the ICTR case law with respect to the acts that can constitute a crime against humanity. The ICTR case law on the acts was inconsistent on quite a few matters, such as the mental element of murder, the physical as well as the mental element of extermination and the definition of rape. On these matters, a similar inconsistency was noted in the ICTY case law. It was mainly the ICTY which showed the way in these cases, while the ICTR did or did not follow. Other notable developments of the ICTY case law are the definition of torture as a crime against humanity, which breaks away from the definition of torture under human rights law. Finally, the ICTR case law on the physical element of crimes against humanity is worth noting, but is generally overshadowed by the ICTY case law on that crime.

251 Robinson (2001a: 57, 62-65).

Chapter V

ICTR CASE LAW ON WAR CRIMES

1

Article 4 of the ICTR Statute concerns violations of Article 3 common to the 1949 Geneva Conventions and the 1977 Additional Protocol II. In other words, this Article penalises war crimes committed in an internal armed conflict.2 The inclusion of war crimes as a crime in the ICTR Statute was one of the reasons why Rwanda voted against the Resolution on the establishment of the ICTR. Since the Statute did not give an explicit order of priority in considering the three types of crimes, the Rwandan Government expressed its fear that the ICTR might devote its precious time and means to prosecuting war crimes, such as looting, corporal punishment, and the intention to commit such crimes, instead of trying genocide, the crime of crimes.3 Disregarding political considerations, the Rwandan objections implied a rank order in which war crimes were considered less severe crimina iuris gentium than crimes against humanity and genocide. In a sense, the American scholar and current Appeals Chamber President Meron seemed to support the official Rwandan point of view when he stated that the provision on war crimes might serve as a safety net, in case the requirements of the other two crimes were not met.4 This chapter investigates whether the war crimes provision does indeed function as a safety net, or whether it has a distinct legal status. Despite a perceived lower legal status, Article 4 of the ICTR Statute on war crimes in internal armed conflicts has been qualified as the Statute’s greatest innovation.5 From a legal point of view, the interesting question which arises here is whether violations of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II were international crimes under conventional or customary international law prior to the drafting of the ICTR Statute.

1 2

3 4 5

Parts of this chapter are based on earlier publications: Van den Herik (2003b), Van den Herik and Van Sliedregt (2004: 551-557). As noted by Turns (1995: 804), the application of the term ‘war crimes’ to violations of international humanitarian law committed in an internal conflict, such as the conflict of Rwanda, is formally not appropriate, as a non-international armed conflict does not fall under the traditional definition of war. And as noted by Georges and Rosemary Abi-Saab (2000: 265), the notion of war crimes initially concerned the regulation of prosecution and punishment of violations of humanitarian law rather than the definition of these crimes. Statement of the representative of Rwanda in the Security Council, UN Doc. S/PV.3453, 8 November 1994. Meron (1995: 558). Meron (1995: 558) and Turns (1995: 822).

200

Chapter V

Section V.1 describes the prevailing distinction between international and non-international armed conflicts in international humanitarian law and introduces the relevant provisions regulating non-international armed conflicts. Subsequently, it examines the drafting (section V.2) and the legality (section V.3) of Article 4 of the ICTR Statute. The consecutive sections (V.4 up to V.7) consider the application of Article 4 of the ICTR Statute to the Rwandan situation. In this examination, the elements required for the application of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II are each analysed in separate sections. These sections first describe the situation of international humanitarian law on the relevant element, to provide a framework in which to assess the contribution of the ICTR. References to the ICC Statute are also included with a view to determining whether these contributions of the ICTR were sustained in a more general setting. Section V.4 examines the qualification of the armed conflict in Rwanda as an internal armed conflict. Section V.5 enquires whether Article 4 includes any territorial requirements, and section V.6 deals with an element that initially posed an insuperable burden on the Prosecution, viz. the requirement of a direct link between the alleged crime and the armed conflict. This last section is sub-divided into three subsections, relating to different factors that may be relevant to determine whether a link exists, such as the class of perpetrators and the class of victims. Moreover, section V.7 discusses the last element of war crimes, viz. the physical element. There is a summary of the specific violations listed IN sub (a) to (h) of Article 4 of the ICTR Statute, and relevant ICTR cases are analysed. Finally, section V.8 provides some concluding observations on the function of war crimes in the ICTR context, and more specifically on the effective contributions of the ICTR to developing the crime of war crimes in an internal armed conflict.

V.1

THE REGULATION OF NON-INTERNATIONAL ARMED CONFLICTS

Rules regulating warfare date back a long time.6 Contemporary international humanitarian law has its roots in the mid-nineteenth century. The main purposes of international humanitarian law are to protect non-combatants and combatants hors de combat from unnecessary suffering and to limit certain means and methods of warfare. Initially, two separate components of conventional humanitarian law sought to achieve these purposes. Those two branches were known as Geneva law7 and Hague law,8 named after the

6 7

McCormack (1997: 32-37) and Green (2000: 20-25). The first Geneva Convention for the Amelioration of the Wounded in Armies in the Field was concluded on 22 August 1864. This Convention was replaced by the two Geneva Conventions of 1929, which were subsequently replaced by the four Geneva Conventions of 1949, see Kalshoven and Zegveld (2001: 26-29).

ICTR case law on war crimes

201

respective places where the relevant conventions were concluded. As part of the contemporary international law system, which is based on national sovereignty,9 international humanitarian law used to regulate only international armed conflicts. No explicit rules on internal armed conflicts were drafted, as such conflicts were considered to come within the realm of the domestic jurisdiction of States. The first cautious but successful attempt to provide some regulations for non-international armed conflicts constituted Article 3 common to the 1949 Geneva Conventions, which was labelled by some as a “convention in miniature”.10 This provision afforded some core rules that applied to ‘conflicts not of an international nature’. The Article reads as follows: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

8

9 10

The first Hague Peace Conference was held in 1899. On 29 July 1899 several documents were adopted regulating warfare, such as Convention (II) with respect to the laws and customs of war on land, and the declaration (IV, 2) concerning asphyxiating gases, and the declaration (IV, 3) concerning expanding bullets, Schindler and Toman (1988: 105 and 109). A subsequent conference was held in 1907, resulting in Convention (IV) respecting the Laws and Customs of War, signed in The Hague, 18 October 1907. Schrijver (1998) and (2000b). See ICRC Commentary to common Article 3, at www.icrc.org (visited on 12 March 2004).

202

Chapter V

The Article does not define a non-international armed conflict.11 This provision is also extremely succinct in other ways. Greenwood noted that the single line of paragraph 2 aims to regulate for internal armed conflicts, what the entire 1949 Geneva Conventions I and II regulate for international armed conflicts.12 As observed in a commentary, paragraph 1(d) has a very general nature and needs specification.13 Moreover, common Article 3 leaves important issues unregulated, such as relief operations and the protection of the civilian population as a whole.14 Some of these gaps were addressed by the 1977 Additional Protocol II. Two Additional Protocols to the 1949 Geneva Conventions were adopted in 1977. Additional Protocol I extended the coverage to internal struggles for self-determination, thereby blurring the distinction between international and non-international armed conflicts.15 Additional Protocol II exclusively regulates non-international armed conflicts and is by no means as comprehensive as Additional Protocol I.16 Article 1(1) of the 1977 Additional Protocol II states that it “develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application…”. This phrase is followed by an enumeration of criteria of a non-international armed conflict that, in fact, set a higher threshold than that set by common Article 3.17 After some general provisions on the scope of the Protocol, Additional Protocol II contains articles that guarantee humane treatment,18 regulate the care of the wounded, sick and shipwrecked in more detail,19 and protect the civilian population.20 The provision that is directly based on common Article 3 is Article 4(1) and (2) of the 1977 Additional Protocol II which reads: “(1) All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors. (2) Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever:

11 12 13 14 15 16 17 18 19 20

It is said that this was done on purpose, to avoid an unnecessary restriction of the scope of common Article 3, see Moir (2002: 33). Greenwood (2003: 815). Sandoz, Swinarski and Zimmerman (1987: 1325). Sandoz, Swinarski and Zimmerman (1987: 1326). Green (2000: 61). See Sandoz, Swinarski and Zimmerman (1987: 1326-1336) and Greenwood (1999: 7). For the scope of application of Additional Protocol II, see Kalshoven and Zegveld (2001: 132-134). Also see Greenwood (2000: 228-233). Articles 4-6. Articles 7-12. Articles 13-18.

ICTR case law on war crimes

203

(a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; (b) collective punishments; (c) taking of hostages; (d) acts of terrorism; (e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; (f) slavery and the slave trade in all their forms; (g) pillage; (h) threats to commit any or the foregoing acts.”

Even though the 1977 Additional Protocol II as a whole may be regarded as a significant step forward in the regulation of internal armed conflicts, important issues remain unaddressed or have not been covered as extensively as they have been in the context of international armed conflicts. In this respect, Greenwood remarked that Articles 7 to 12 of the 1977 Additional Protocol II are only a meagre equivalent of the whole 1949 Geneva Conventions I and II. He also pointed out that there are only a few provisions regulating warfare as such, and that although the civilian population is protected, the Protocol does not provide a definition of the civilian population in the context of an internal armed conflict. Furthermore, Greenwood observed that the 1977 Additional Protocol II fails to identify legitimate military objectives, and that it does not include the principle of proportionality either.21 The overall value of the 1977 Additional Protocol II is that it ensures the protection of certain human rights in an internal armed conflict. In doing so, it extends the scope of these rights, as international humanitarian law is non-derogable22 and is binding upon insurgents as well as upon the government.23 Moreover, the provisions that reflect customary international law are helpful in clarifying the law that applies to all States, regardless of whether they have ratified the Protocol or not. It has also been observed that the Protocol could be the starting point for the creation of new customary international law.24 However, at the beginning of the 1990s, scholars were hesitant to declare that the 1977 Additional Protocol II as a whole was part of customary international law.25

21 22 23 24 25

Greenwood (2000: 233-238). Moir (2002: 195-197). For further details, see Moir (2002: 193-231). Gasser (1991: 85-87). Meron (1989: 71-74), Greenwood (1991: 112-113), and Momtaz (1999: 178).

204

Chapter V

In contrast, common Article 3 is generally regarded as reflecting customary international law.26 This also follows from the almost universal number of ratifications of the 1949 Geneva Conventions.27 The 1977 Additional Protocols have not been as universally ratified as the 1949 Geneva Conventions, although they still have a substantial number of ratifications.28 The customary status of the 1977 Additional Protocol II is best evaluated on an article-by-article basis. In any event, the practice of States as well as their opinio iuris may evolve over the years and should be re-assessed regularly. Both ad hoc Tribunals could play a role in determining the customary status of Additional Protocol II, in particular of Article 4(1) and (2). Neither common Article 3 nor any provision of the 1977 Additional Protocol II fall under the grave breaches regime of the 1949 Geneva Conventions with its criminalising nature.29 Hence, a violation of common Article 3 can entail State responsibility, though no explicit individual criminal responsibility had been provided for under the international system.

V.2

THE DRAFTING OF ARTICLE 4 OF THE ICTR STATUTE

Article 4 of the ICTR Statute constitutes the first binding international provision that expressly criminalises violations of international humanitarian law committed in an internal armed conflict. Unlike the provisions on genocide and crimes against humanity, this Article does not have a direct counterpart in the ICTY Statute. The difference can be explained by the different nature of the conflicts that led to the establishment of the respective Tribunals. Yet the difference has been minimised by ICTY case law. The most important case in this respect is the Tadic´ Appeal Decision, which is considered in more detail in the next section. The nature of the conflict in Rwanda and the grave violations of international humanitarian law committed on the territory of Rwanda were analysed by the Committee of Experts in its final report.30 Article 4 of the ICTR Statute reflects the findings of the

26

27 28

29 30

In the Nicaragua case, the ICJ considered that the rules enshrined in common Article 3 were applicable as ‘elementary considerations of humanity’, and not only as treaty rules, Military and Paramilitary Activities in and Against Nicaragua, Nicaragua v. United States of America, Merits, Judgement, 27 June 1986, par. 218, ICJ Reports 1986, pp. 113-114. On 2 June 2004, there were 192 States Parties to the 1949 Geneva Conventions. Only one UN Member States was not a party, viz. Nauru, see www.icrc.org (visited on 29 September 2004). On 2 June 2004, there were 162 States Parties to the 1977 Additional Protocol I, whereas there were 157 States Parties to the 1977 Additional Protocol II, see www.icrc.org (visited on 29 September 2004). As noted by Greenwood (1999: 4), important States have refrained from becoming party to the Protocols, such as the United States of America, India, Pakistan, Israel, Indonesia, Iran and Iraq. For a brief explanation of the grave breaches regime, see Kalshoven and Zegveld (2001: 35, 80-81). UN Doc. S/1994/1405, 9 December 1994.

ICTR case law on war crimes

205

Committee of Experts that serious breaches of international humanitarian law had been perpetrated in Rwanda, by both parties. The Commission regarded the conflict in Rwanda as a non-international armed conflict. This determination is studied more closely below, in section V.4. Based on its view regarding the nature of the conflict, the Commission specified which applicable provisions had been violated between 6 April and 15 July 1994. These provisions included Article 3 common to the 1949 Geneva Conventions, as supplemented by Article 4(2) of the 1977 Additional Protocol II. The Commission also pointed to Article 4(3)c of the 1977 Additional Protocol II which prohibits the recruitment of children under fifteen. Furthermore, Articles 5(1), 7, 8, 9, and 11 of the 1977 Additional Protocol II were listed. These Articles concern the protection of detained and wounded persons, the obligation to search for and bury the dead, and the protection of medical and religious staff and units. Subsequently, the Commission cited some provisions from the chapter regulating the protection of the civilian population, viz. Article 13 on the general protection of the civilian population against military operations; Article 14 prohibiting the starvation of the population by attacking indispensable objects, such as foodstuffs, livestock, and drinking water installations and supplies; Article 16 concerning the protection of cultural places and places of worship; and Article 17 regarding the forced displacement of the civilian population.31 The ICTR Statute does not mention specific provisions of the 1977 Additional Protocol II, but refers more generally to violations of Article 3 common to the 1949 Geneva Conventions and of the 1977 Additional Protocol II. In his report on the implementation of the Resolution that established the ICTR, the Secretary-General apparently limited the subject-matter jurisdiction in this regard to common Article 3 “as more fully elaborated in Article 4 of the 1977 Additional Protocol II”.32 Thus there is no mention of other provisions of the 1977 Additional Protocol II, and Article 4 may only come into play to the extent that it directly supplements common Article 3.33 This restriction may be due to the fact that criminalising common Article 3 was itself already a progressive step. The Secretary-General admitted that: “the Security Council has elected to take a more expansive approach to the choice of the applicable law than the one underlying the statute of the Yugoslav Tribunal, and included within the subject-matter jurisdiction of the Rwanda Tribunal international instruments regardless of

31 32 33

UN Doc. S/1994/1405, 9 December 1994, paras. 112-124. UN Doc. S/1995/134, 13 February 1995, para. 11. The paragraphs that directly supplement this are paragraphs 1 and 2. Paragraph 3 on the protection of children was initially meant to be regulated by a separate provision and was only later included in Article 4 of the 1977 Additional Protocol II. This paragraph does not directly supplement Article 3 common to the 1949 Geneva Conventions, see Sandoz, Swinarski and Zimmerman (1987: 1335).

206

Chapter V

whether they were considered part of customary international law or whether they have customarily entailed the individual criminal responsibility of the perpetrator of the crime.”34

The Secretary-General continued: “Article 4 of the statute, accordingly includes violations of Additional Protocol II, which, as a whole, has not yet been universally recognized as customary law, and for the first time criminalizes common Article 3.”35

This last quotation suggests that the scope of Article 4 of the ICTR Statute is not restricted only to common Article 3 as elaborated by Article 4 of the 1977 Additional Protocol II. Instead, any violations of the 1977 Additional Protocol II may come within the scope of Article 4 of the ICTR Statute on condition that there is individual responsibility for such a violation under international law. This is the right interpretation, as a plain reading of the text of Article 4 of the ICTR Statute clearly shows. The Article draws upon common Article 3, and Article 4 of the 1977 Additional Protocol II and enumerates acts that certainly fall within its scope, but it expressly states that this list is non-exhaustive. Therefore other violations of the 1977 Additional Protocol II may also come within the realm of Article 4 of the ICTR Statute. The only qualification that is given in the chapeau, is that it must concern a ‘serious violation’. Given the explicit reference to common Article 3 and the 1977 Additional Protocol in the provisions’ chapeau, it is unlikely that Article 4 of the ICTR Statute could cover violations of international humanitarian law applicable in internal armed conflicts other than Geneva law, such as, to name two examples, the 1992 Chemical Weapons Convention or customary international law. As regards the individual responsibility for violations of common Article 3, the explicatory note to the Statement of the Secretary-General states that: “although the question of whether common Article 3 entails the individual responsibility of the perpetrator of the crime is still debatable, some of the crimes included therein, when committed against the civilian population, also constitute crimes against humanity and as such are customarily recognized as entailing the criminal responsibility of the individual.”36

Obviously, criminalising common Article 3 could not have had the object of repeating the provision on crimes against humanity. Even though an overlap may and will occur, Article 4 of the ICTR Statute on war crimes primarily aims to cover acts that do not fall within the definition of crimes against humanity or genocide. Therefore the important

34 35 36

UN Doc. S/1995/134, 13 February 1995, para. 12. UN Doc. S/1995/134, 13 February 1995, para. 12. UN Doc. S/1995/134, 13 February 1995, fn. 8.

ICTR case law on war crimes

207

question whether individual responsibility for violations of common Article 3 and the relevant provisions of Additional Protocol II applied under international law was left open, as well as the question what should be the consequence of a finding that violations of common Article 3 or of the 1977 Additional Protocol do not entail individual responsibility. These questions go right to the heart of the issue of the legality of Article 4 of the ICTR Statute.

V.3

THE LEGALITY OF ARTICLE 4 OF THE ICTR STATUTE

There is no doubt that common Article 3 and the provisions of the 1977 Additional Protocol II constitute rules of international law that should not be violated. However, not every violation of an international rule amounts to an international crime. That can only be the case if there is individual responsibility under international law. Does common Article 3 entail individual responsibility? If this question is answered in the affirmative, how would such individual responsibility then be construed and on which international rules could such a finding be based? Or, if there was found to be no pre-existing individual responsibility for violations of common Article 3, would that render Article 4 of the ICTR Statute illegal? This section analyses and discusses the answers of the ICTR, and where relevant the ICTY, to these questions.

V.3.1 Relevant ICTY findings Although the ICTR Statute was the first binding international document expressly criminalising common Article 3, the ICTY was the first international Tribunal to address the matter of war crimes committed in an internal armed conflict, one year after the establishment of the ICTR. In its first case, the Appeals Chamber of the ICTY concluded that the conflicts in the former Yugoslavia had both internal and international aspects.37 Consequently, the Chamber had to consider two interrelated questions, viz. (i) which violations of international humanitarian law were concerned? And (ii) did these violations entail individual criminal responsibility under customary international law? It was in the pioneering case of Tadic´ that the Appeals Chamber determined that the grave breaches of the 1949 Geneva Conventions as included in Article 2 of the ICTY

37

The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, para. 77. For more details on the classification of the conflict by the ICTY, see Fenrick (1999a). Aldrich (1996: 65-66) and Meron (1996: 239) argued that the Appeals Chamber could also have concluded that the conflict was solely international.

208

Chapter V

Statute applied to international armed conflicts only.38 However, Article 3 was interpreted in a far more progressive way. According to the Appeals Chamber, Article 3 was not confined to covering violations of Hague law, but was intended to refer to all violations of international humanitarian law other than the grave breaches, crimes against humanity and genocide.39 The Appeals Chamber explained that this interpretation was in line with the Security Council’s purpose not to leave unpunished any person guilty of a serious violation of international humanitarian law, whatever the context within which it may have been committed.40 Subsequently, it specified the following conditions that had to be fulfilled for an offence to be subject to prosecution under Article 3 of the ICTY Statute: “(i) the violation must constitute an infringement of a rule of international humanitarian law, (ii) the rule must be customary in nature or, if it belongs to a treaty, the required conditions must be met (...), (iii) the violation must be ‘serious’, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim (...), and (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.”41

With regard to the first three conditions, the Appeals Chamber determined that there were international customary rules governing internal strife.42 Meron criticised this broad finding of the Chamber, submitting that it should have pointed more specifically to some rules of Hague law.43 With this view, Meron did agree with the Chamber’s opinion that the customary international law regulating internal armed conflicts is broader than the rules arising from common Article 3 and the 1977 Additional Protocol II. The Appeals Chamber then proceeded to analyse whether the relevant prohibitions entailed individual criminal responsibility. Obviously, it was noted that common Article 3 was silent in this respect. The Appeals Chamber nevertheless answered the question

38

39 40 41 42

43

The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, para. 71 and paras. 79-84. In a Separate Opinion, Judge Abi-Saab pointed out that in customary international law the grave breaches system also applies to internal armed conflicts. This position was endorsed in The Prosecutor v. Delalic´, Mucic´, Delic´, and Landžo, Judgement, 16 November 1998, para. 202; The Prosecutor v. Aleksovski, Dissenting Opinion of Judge Rodrigues, Presiding Judge of the Trial Chamber, 25 June 1999, para. 44. The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, paras. 87-88. The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, para. 92. The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, para. 94. The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, paras. 100-127. The Chamber referred to rules covering such areas as the protection of civilians from hostilities, in particular from indiscriminate attacks, protection of civilian objects, in particular cultural property, protection of all those who do not (or no longer) take active part in hostilities, as well as prohibition of means of warfare proscribed in international armed conflicts and the ban of certain methods of conducting hostilities. As observed by Meron (1996: 239-241), the Chamber based its finding mainly on the existence of an opinio iuris, and it did not undertake an extensive research into the State practice on the battlefield. Also see Sassòli (1996: 127). Meron (1996: 243). Also see Edwards and Rowe (1996: 699-700).

ICTR case law on war crimes

209

in the affirmative, relying on the case law of the International Military Tribunal at Nuremberg.44 The Nuremberg Tribunal had concluded that the absence of treaty provisions on punishment could not stop the finding of individual criminal responsibility. It stipulated three criteria for individual responsibility to apply. First, the prohibition concerned should be clear and unequivocally recognised. Secondly, State practice should indicate an intention to criminalise the prohibition by statements of government officials and international organisations. Thirdly, actual punishment of violations by national courts and military tribunals should implement those intentions.45 With regard to these criteria, the Appeals Chamber stated that “principles and rules of humanitarian law reflect ‘elementary considerations of humanity’ widely recognised as the mandatory minimum for conduct in armed conflicts of any kind”. In addition, a brief analysis of various national military manuals and other national legislation criminalising humanitarian law supported the conclusion that common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, entailed individual responsibility.46 Finally, in the ICTY Appeals Chamber’s view, various resolutions of the Security Council also provoided evidence for the conclusion that opinio iuris had been established on this issue. Those resolutions, most notably concerning Somalia,47 state that the authors of the condemned breaches of humanitarian law will be held individually responsible.48 Similar words were used in resolutions concerning Rwanda, such as Resolution 912 (1994). As additional supporting arguments in favour of international individual responsibility, the Appeals Chamber also referred to the national laws applicable in the territories of the former Yugoslavia that criminalised the violations concerned, and to agreements concluded during the conflict in which the parties promised to punish those responsible for the violations.49 The Decision of the ICTY Appeals Chamber paved the way for the ICTY Trial Chambers.50 In subsequent cases the Trial Chambers, as well as the Appeals Chamber itself, endorsed the above line of reasoning and supplemented it with additional arguments.51 In the Cˇelebic´i case, the defence noted the Secretary-General’s admission cited

44 45

46 47 48 49 50 51

The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, para. 128-136. It is in this respect, that the Nuremberg Tribunal expressed the now famous words: “crimes against international law are committed by men, not by abstract entities.” The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, para. 128. Sassòli (1996: 129) questioned whether these instances were sufficient to establish a consistent State practice in the light of the tendency towards impunity in the field of international humanitarian law. UN Doc. S/RES/794, 3 December 1992, para. 5 and UN Doc. S/RES/814, 26 March 1993, para. 13. Also see Momtaz (1999: 182). The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, paras. 128-137. A decision of the Appeals Chamber is in principle binding upon the Trial Chambers, The Prosecutor v. Alekovski, Appeal Judgement, 24 March 2000, paras. 112-113. E.g., The Prosecutor v. Delalic´, Mucic´, Delic´, and Landžo, Judgement, 16 November 1998, para. 307; The Prosecutor v. Kordic´ and Cˇerkez, Decision, 2 March 1999, para. 12; The Prosecutor v. Delalic´, Mucic´, Delic´, and Landžo, Appeal Judgement, 20 February 2001, paras. 153-156, 162-174.

210

Chapter V

above, that Article 4 of the ICTR Statute criminalised common Article 3 for the first time. The defence submitted that this statement illustrated the absence of individual criminal responsibility in customary international law. However, the ICTY Trial Chamber responded that “the United Nations cannot ‘criminalise’ any of the provisions of international humanitarian law by the simple act of granting subject-matter jurisdiction to an international tribunal.”52 In addition to the report of the Secretary-General, the defence invoked the nullum crimen sine lege principle. In dismissing this argument, the Trial Chamber, as well as again referring to the Tadic´ reasoning, emphasised that the prohibitions enshrined in common Article 3 were criminal according to the national laws of the accused.53 The Trial Chamber concluded: “the purpose of this principle is to prevent the prosecution and punishment of an individual for acts which he reasonably believed to be lawful at the time of their commission. It strains credibility to contend that the accused would not recognise the criminal nature of the acts alleged in the Indictment. The fact that they could not foresee the creation of an International Tribunal which would be the forum for prosecution is of no consequence.”54

In a Decision in the case of Kordic´ and Cˇerkez, a Trial Chamber considered that the norms enshrined in Articles 51(2) and 52(1) of the 1977 Additional Protocol I and Article 13(2) of the 1977 Additional Protocol II also entailed individual responsibility. To support this finding, the Trial Chamber stated that these provisions were based on Hague law and that the Nuremberg Tribunal had also accepted that Hague rules could entail individual criminal responsibility.55 This reasoning is rather thin when compared with the Tadic´ Decision. In addition to these arguments, the Trial Chamber in the Furundžija case observed that the prohibition of torture, as laid down in common Article 3 of the 1949 Geneva Conventions and Article 4 of the 1977 Additional Protocol II, was primarily addressed to individuals, and that therefore these individuals could be held responsible if they violated these rules.56 The Trial Chamber in the Focˇa case elaborated in greater detail the distinction between provisions addressed to States, which exclusively entail State responsibility, and provisions addressed to individuals, which may entail individual criminal responsibility.57 In conclusion, the ICTY interpreted its Statute in such a way that it included war crimes in an internal armed conflict. Consequently, the Appeals Chamber construed the

52 53 54 55 56 57

The The The The The The

Prosecutor Prosecutor Prosecutor Prosecutor Prosecutor Prosecutor

v. v. v. v. v. v.

Delalic´, Mucic´, Delic´, and Landžo, Judgement, 16 November 1998, para. 310. Delalic´, Mucic´, Delic´, and Landžo, Judgement, 16 November 1998, para. 312. Delalic´, Mucic´, Delic´, and Landžo, Judgement, 16 November 1998, para. 313. Kordic´ and Cˇerkez, Decision, 2 March 1999, para. 33. Furundžija, Judgement, 10 December 1998, para. 140. Kunarac, Kovac´, and Vukovic´, Judgement, 22 February 2001, para. 489.

ICTR case law on war crimes

211

international criminal responsibility for those crimes under customary international law. The Trial Chamber in the Cˇelebic´i case placed special emphasis on the criminalisation of the violations concerned under the national law of the accused to reject the complaint that a conviction based on common Article 3 would violate the nullum crimen sine lege principle.

V.3.2 ICTR case law The ICTR gave its first judgement in the Akayesu case. Since Akayesu was also charged with war crimes, the Trial Chamber had to consider the legality of including war crimes in its Statute.58 In the Trial Chamber’s view the issue of legality concerned the question whether all the norms included in Article 4 had a customary nature at the time the alleged crimes were committed. The customary nature of the substantive norm in common Article 3 did not pose any problems to the Trial Chamber. The Chamber also held that, although the 1977 Additional Protocol II did not constitute customary international law as a whole, the relevant article in the context of the ICTR, Article 4(2) on fundamental guarantees, elaborated on common Article 3 and could as such be considered as customary international law.59 In contrast with the findings of the ICTY above, the ICTR therefore confined its mandate to specific violations of international humanitarian law. The difference is explained by the differing provisions dealing with war crimes in the Statutes of the two Tribunals. It is worth noting that the Trial Chamber did not extend the coverage of Article 4 of the ICTR Statute to the 1977 Additional Protocol II as a whole, a possibility that was left open, as indicated above in section V.2. Instead, the Trial Chamber narrowed the scope of Article 4 of the ICTR Statute to include only violations of common Article 3 and Article 4(2) of Additional Protocol II. The next issue concerned the question of individual criminal responsibility. Did those customary norms incur individual criminal responsibility as a matter of custom? To answer this question, the Trial Chamber adopted the Tadic´ reasoning, as set out above. It also noted that Article 4 of the Statute empowered the ICTR to prosecute serious violations of common Article 3. The Chamber submitted that the perpetrators of such egregious violations must incur individual criminal responsibility for their deeds. With regard to the nullum crimen sine lege principle the Chamber also emphasised that the 1949 Geneva Conventions and the 1977 Additional Protocol II had been ratified by Rwanda, and that all the offences enumerated in Article 4 constituted crimes under Rwandan law.60

58 59 60

The Prosecutor v. Akayesu, Judgement, 2 September 1998. The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 605-610. The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 611-617.

212

Chapter V

Subsequently, another Trial Chamber of the ICTR considered the issue of international criminal responsibility for war crimes committed in an internal armed conflict. It did so in the case of Kayishema and Ruzindana. The Trial Chamber qualified the discussion on the customary status of war crimes as being superfluous. According to the Chamber, the only relevant issues were that Rwanda was a party to the 1949 Geneva Conventions and to the 1977 Additional Protocol II, and that the offences enumerated in Article 4 of the Statute constituted crimes under the laws of Rwanda.61 It therefore considered the legal question of whether criminal responsibility existed under international law to be void. In the case of Rutaganda, a former leader of the Interahamwe, the Trial Chamber upheld the views of both the Akayesu Judgement and of the Kayishema and Ruzindana Judgement, and concluded that violations of the norms included in Article 4 of the ICTR Statute, “as a matter of custom and convention, incurred individual responsibility”.62 This reasoning was endorsed by the Trial Chamber in the Musema Judgement.63 In the Bagilishema Judgement, the Trial Chamber, presumably trying to summarise the previous case law, stated “[j]urisprudence of this Tribunal has established that Common Article 3 and Additional Protocol II were applicable as a matter of custom and convention in Rwanda in 1994. Consequently, at the time the events in the Indictment are said to have taken place, persons who violated these instruments would incur individual criminal responsibility and could be prosecuted therefore.”64 This is unsound reasoning. The fact that a certain international rule is applicable does not by itself entail individual criminal responsibility under international law. In the words of an ICTY Trial Chamber: “For criminal liability to attach, it is not sufficient, however, merely to establish that the act in question was illegal under international law, in the sense of being liable to engage the responsibility of a state which breaches that prohibition, nor is it enough to establish that the act in question was a crime under the domestic law of the person who committed the act.”65

In the Semanza Judgement, the Trial Chamber considered that common Article 3 and Additional Protocol II were applicable on the basis of convention and custom. Subsequently, the Chamber noted that the norms of these provisions had also been criminalised under Rwandan law, and that therefore the principle of nullum crimen sine lege had not been violated. Thus this Trial Chamber, like the Trial Chamber in the Kayishema and Ruzindana Judgement, did not establish individual responsibility on the

61 62 63 64 65

The The The The The

Prosecutor Prosecutor Prosecutor Prosecutor Prosecutor

v. v. v. v. v.

Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 156-158. Rutaganda, Judgement, 6 December 1999, paras. 86-90. Musema, Judgement, 27 January 2000, paras. 236-243. Bagilishema, Judgement, 7 June 2001, para. 98 (footnote in citation omitted). Vasiljevic´, Judgement, 29 November 2002, para. 199.

ICTR case law on war crimes

213

basis of customary international law, but only referred to the Rwandan situation in order to meet the requirements of the principle of legality.

V.3.3 Evaluation of the case law of the two ad hoc Tribunals The case law of the Tribunals in this respect must be assessed against the principle of legality, or the nullum crimen sine lege principle. As demonstrated by Boot, this principle includes two main aspects at the national level. First, it safeguards the “primacy of the legislature over the judiciary”, and is therefore intended to prevent an arbitrary enforcement of the law. Secondly, it requires fair warning, so that an individual can foresee the consequences of his conduct.66 Admittedly the principle of nullum crimen sine lege has different connotations at the international level than it has at the national level, as thoroughly demonstrated by Boot. For example, while the principle at the national level aims to protect the individual against an arbitrary State, the principle as included in the ICC Statute primarily safeguards the sovereignty of the State Parties and limits the Court’s possibilities of assuming jurisdiction over crimes that are not enshrined in the Statute.67 Nevertheless, the ICTY considered that, when scrutinising the scope of its jurisdiction in light of the nullum crimen sine lege principle, two questions had to be addressed that reflect the two aspects of the national principle. Firstly, had the international ‘legislature’ attributed individual responsibility under international law for violations of common Article 3 of the 1949 Geneva Conventions and of Article 4 of the 1977 Additional Protocol II, thus rendering such violations international crimes? Secondly, was the law defining the offence sufficiently foreseeable and accessible?68 The first aspect may result in some confusion at the international level, as the idea of trias politica is not a basic principle for the international community. In the UN system, the Security Council has not been vested with an express power to create general legislation.69 If there is any international legislature at all, this would be the community of States. Following this terminology, international legislation can be found in treaties, customary international law and general principles of law.70 To address the first question, a Trial Chamber must therefore enquire whether individual criminal responsibility existed for the violation of a particular law in one of these sources. However, some ICTR Trial

66 67 68 69 70

Boot (2002: 125). Boot (2002: 611-616). The Prosecutor v. Vasiljevic´, Judgement, 29 November 2002, paras. 196-202; The Prosecutor v. Milutinovic´, Šainovic´, and Ojdanic´, Appeal Decision, 21 May 2003, para. 21. Szasz (2002). On the question of whether general principles of law constitute law in the sense of the word ‘lege’, see Raimondo (2004).

214

Chapter V

Chambers considered the fact that the substantive norm was already criminalised under Rwandan law sufficient to counter all the arguments against the legality of Article 4 of the ICTR Statute. In so doing, these Trial Chambers failed to take proper account of the first question relating to the balance between the creation and the application of law. By failing to take this aspect of the legality principle into account, the Trial Chambers missed the opportunity to provide a proper legal basis for Article 4 of the ICTR Statute. Therefore, the case law in this respect does not seem to have any additional value to the development of international criminal law apart from its justification for application in the Rwandan context. The second question concerning the requirements of foreseeability and accessibility relates to the definition of a crime. This part of the nullum crimes sine lege principle applies in particular when the definition of an international crime must be found in customary international law.71 The ICTY, as well as the ICTR, based their judgement that the principle had not been violated on the national legislation of Yugoslavia and Rwanda. In this case, a simple reference to the national legislation of the accused can suffice. As observed by the Trial Chamber in the Cˇelebic´i case, the nullum crimes sine lege principle should not be so broad as to include a case in which the perpetrator did know the criminal nature of his act, but simply did not count on being prosecuted at the international level. The question whether the criminal acts enshrined in common Article 3 of the 1949 Geneva Conventions and in Article 4 of the 1977 Additional Protocol II are defined with sufficient clarity is explored in greater detail in section V.7. Having found that Article 4 of the ICTR Statute was legal, the Trial Chambers continued to analyse the different requirements for the applicability of common Article 3, viz. the nature of the armed conflict, the territorial applicability of Article 4 of the ICTR Statute and the requirement of a link to the armed conflict.

V.4

THE ARMED CONFLICT IN RWANDA: WAS IT REALLY NON-INTERNATIONAL?

This section attempts to analyse the nature of the conflict in Rwanda. First, it examines the qualification of the armed conflict (subsection V.4.1). Was the conflict really noninternational? To analyse this topic, the qualifications of the Commission of Experts, the Security Council, and the ICTR are considered consecutively. Subsequently, some specific external features are analysed that may be relevant for the characterisation of the conflict in Rwanda. These are the consecutive UN operations (section V.4.2) and the involvement of third States (section V.4.3), in particular Uganda and France in the years before the genocide. The ICTR’s legal qualification of the conflict is evaluated in section V.4.4.

71

See more elaborately, Manzini (2004).

ICTR case law on war crimes

215

V.4.1 A non-internal armed conflict As indicated above, common Article 3 of the 1949 Geneva Conventions does not give a definition of what constitutes an internal armed conflict. This is currently regarded as positive, since it allows for a broad interpretation.72 This section sets out the definitions used by various relevant bodies. The Commission of Experts As described in chapter II, the virtual absence of the international community during the genocide resulted in a reaction to take strong action in the aftermath of the catastrophe. In this vein and following the example that had been set by the ICTY, the Commission of Experts started its task of investigating whether grave violations of international humanitarian law had been committed in the territory of Rwanda. Obviously, the Commission had to qualify the conflict in order to determine which kind of humanitarian rules might have been violated. In its Preliminary Report, the Commission first pointed out that the conflict in Rwanda could undoubtedly be characterised as an armed conflict, because of the means and methods employed and because of the scale of the atrocities.73 The Commission declared that the conflict had to be qualified as a non-international armed conflict, because “the use of armed force had been carried out within the territorial borders of Rwanda and did not involve active participation of any other State.”74 Despite this classification, the Commission stressed that the conflict had a serious impact on the neighbouring States and on the international society as a whole and that it constituted a threat to international peace and security. However, in the Commission’s view, these facts did not change the character of the conflict. According to the Commission, the armed conflict in Rwanda between 6 April and 15 July 1994 had a predominantly internal character.75 The Security Council Chapter VII of the UN Charter grants the Security Council powers to deal with situations that constitute a threat to the peace and security. In several Resolutions regarding Rwanda, the Security Council determined that there was a threat to the peace and security.76 The Security Council mentioned various elements as a basis for its decision. It should be noted that in its determination of Resolution 929 (1994) no specific reference was made

72 73 74 75 76

Abi-Saab (1991: 216). UN Doc. S/1994/1125, para. 89. UN Doc. S/1994/1125, para. 91. UN Doc. S/1994/1125, para. 92. UN Doc. S/RES/918, 17 May 1994, UN Doc. S/RES/929, 22 June 1994, and UN Doc. S/RES/955, 8 November 1994.

216

Chapter V

to the repercussions of flows of refugees on neighbouring countries.77 Instead, the Council deemed the genocide as such to be a ‘threat to the peace and security.’ Thus it qualified the internal humanitarian situation itself to be as a matter of international concern. It has already been indicated that, according to the Commission of Experts, the fact that the Security Council considered the matter is of no relevance to the classification of the conflict. This was underlined by the ICTR in the Kanyabashi case. In its decision in this case, the Trial Chamber recalled that the Security Council had determined in various cases, such as Congo, Somalia and Liberia, that non-international armed conflicts as such could constitute a threat to international peace because of their impact on neighbouring countries.78 The sole fact that a conflict comes within the realm of Article 39 of the UN Charter does not render it an international armed conflict. Non-international armed conflicts can also be matters of international concern.79 This may be different if measures involving force are taken pursuant to Article 42 of the UN Charter. Subsection V.4.2 below deals with this latter question in more detail. The ICTR In the Akayesu case, the Trial Chamber initially made a distinction between two situations in Rwanda: the armed conflict of the Rwandan government against the Tutsi rebels, on the one hand, and the genocide on the other hand.80 It therefore deviated from the Commission’s proposition that an armed conflict existed due to two factors: (1) the means employed, and (2) the scale of the human rights violations. Indeed, these two factors mentioned by the Commission may not be relevant for the existence of an armed conflict. In fact, they refer to the genocide that existed next to the armed conflict. According to the definitions in the ICTR Statute, genocide and crimes against humanity can be committed in peacetime as well as in the context of an armed conflict. Thus it follows from these definitions that genocide and crimes against humanity do not necessarily constitute an armed conflict on their own.

77

78 79

80

In this Resolution, the Council determined that the magnitude of the humanitarian crisis constituted a threat to peace and security in the region. According to Österdahl (1998: 59-65), the genocidal killings were in itself considered as a threat to international peace, regardless of international links. The Prosecutor v. Kanyabashi, Decision, 18 June 1997. For more details on this decision, see chapter II, subsection II.2.2. In some instances, the Security Council has even placed on its agenda situations other than armed conflicts, such as HIV/AIDS. It may be questioned whether this subject falls within the Security Council’s competences, see Manusama (2000). “… the genocide did indeed take place against the Tutsi population group, alongside the conflict” (Italics LJvdH) and “… although the genocide against the Tutsi occurred concomitantly with the above-mentioned conflict it was evidently, fundamentally different from the conflict”, The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 127-128.

ICTR case law on war crimes

217

As will be described in more detail in section V.6 below, the case law of the ICTR on the relationship between the genocide and the armed conflict evolved in a way that blurred the distinction drawn by the Trial Chamber in the Akayesu Judgement between the armed conflict and the genocide. Despite the pre-determination by the Security Council that the Rwandan conflict was non-international, the ICTR Trial Chambers deemed it necessary to make their own finding regarding the character of the conflict, and the applicability of both common Article 3 and Article 4 of Additional Protocol II.81 In so doing, the Chamber relied on the ICTY Appeals Chamber’s definition of an internal armed conflict, viz. that an internal armed conflict existed in the case of “protracted armed violence between the governmental authorities and organized armed groups or between such groups within a State.”82 In order to distinguish between an internal armed conflict and internal disturbances, the Trial Chamber in the Akayesu case recalled the criteria given in the ICRC Commentary to common Article 3: “1) That the Party in revolt against the de jure Government possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring the respect for the Convention. 2) That the legal Government is obliged to have recourse to the regular military forces against insurgents organized as military in possession of a part of the national territory. (a) That the de jure Government has recognized the insurgents as belligerents; or (b) that it has claimed for itself the rights of a belligerent; or (c) that it has accorded the insurgents recognition as belligerents for the purposes only of the present Convention; or (d) that the dispute has been admitted to the agenda of the Security Council or the General Assembly of the United Nations as being a threat to international peace, a breach of peace, or an act of aggression.”83

In short, the Trial Chamber concluded that an internal armed conflict can be distinguished from an internal riot by its intensity and its degree of organisation.84 Or, as stated in the Rutaganda Judgement, “mere acts of banditry, internal disturbances and tensions, and unorganized and short-lived insurrections are to be ruled out.”85 In the Musema Judgement, the Trial Chamber specified that the use of force by governmental authorities, such as the police or even the army, for the purpose of restoring law and order did not

81 82 83 84 85

The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 606-607. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 619, citing The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, para. 70. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 619. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 625. The Prosecutor v. Rutaganda, Judgement, 6 December 1999, para. 92.

218

Chapter V

in itself amount to an armed conflict.86 In the Rutaganda Judgement, the Trial Chamber also considered that all the definitions and criteria set out above were still relatively abstract, and that the existence of an internal armed conflict had to be determined on a case-by-case basis.87 It was not clear whether the Chamber meant that each conflict should be assessed on its own merits, or whether the determination that the conflict in Rwanda was an internal armed conflict should be made anew in each separate case that came before the ICTR, depending on the facts and evidence presented in that case. The first option is more reasonable, and in fact, in later cases, Trial Chambers have tended to take judicial notice of the character of the conflict in Rwanda.88 As many counts of war crimes were based on the 1977 Additional Protocol II, the Trial Chamber also investigated whether the conflict in Rwanda met the requirements stipulated in this Protocol, i.e.: “1) an armed conflict took place in the territory of a High Contracting Party, viz. Rwanda, between its armed forces and dissident armed forces or other organized armed groups; 2) the dissident armed forces or other organized armed groups were under responsible command; 3) the dissident armed forces or other organized armed groups were able to exercise such control over a part of their territory as to enable them to carry out sustained and concerted military operations; and 4) the dissident armed forces or other organized armed groups were able to implement Additional Protocol II.”

The Chamber defined the term “armed forces” broadly, including “all armed forces described within national legislations”.89 As regards criterion (2), the Chamber explained that “responsible command” required that the armed group was organised to such extent that it could undertake “concerted military operations” and that there was an authority within the group that could impose discipline.90 As regards criterion (3), the Trial Chamber indicated that the armed group “must be able to dominate a sufficient part of the territory so as to maintain sustained and concerted military operations and to apply

86 87 88 89 90

The Prosecutor v. Musema, Judgement, 27 January 2000, para. 248. The Prosecutor v. Rutaganda, Judgement, 6 December 1999, para. 93. Also see The Prosecutor v. Musema, Judgement, 27 January 2000, para. 249. E.g., The Prosecutor v. Semanza, Decision, 3 November 2000, para. 48; The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Oral Decision, 4 July 2002. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 625. Also see The Prosecutor v. Musema, Judgement, 27 January 2000, para. 256. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 626. Also see The Prosecutor v. Musema, Judgement, 27 January 2000, para. 257.

ICTR case law on war crimes

219

Additional Protocol II.”91 This is not precise, since the armed group must not only have the ability to control a part of the territory, but it must in fact have some territory under its control. In the actual application of all the criteria, the Chamber relied on evidence of Major-General Dallaire, the commander of UNAMIR during the genocide, and on a number of UN reports.92 In the case of Kayishema and Ruzindana, the Trial Chamber endorsed the findings that the Rwandan conflict had a non-international character. According to this Trial Chamber, an international armed conflict is conducted between two or more States, whereas an internal armed conflict is a conflict between a State and an armed force that does not represent a State.93 This definition is not entirely adequate since it does not take into account third State support to guerrilla fighters, which may turn an internal armed conflict into an international armed conflict; nor does it include internal conflicts between organised groups within a State.94 Some other observations are also relevant as regards the case law set out in this subsection. The first concerns the choice of legal criteria, and the second concerns the application of the criteria that were developed. As regards the choice of legal criteria, it should be noted that the ICRC criteria cited by the Trial Chamber set a much higher threshold than the definition given by the ICTY Appeals Chamber. The ICTR Trial Chamber appeared to favour the ICRC criteria which require a certain intensity and organisation of the parties for the applicability of common Article 3.95 In the case of Rwanda, this higher threshold does not pose a problem, since the conflict even met the even higher threshold of the 1977 Additional Protocol II. Nevertheless, the ICTR’s narrower interpretation of common Article 3 is a setback compared to the broad definition of the ICTY Appeals Chamber. Another point of criticism concerns the application of the criteria. Despite the predetermination of the Security Council that the conflict was an internal one, the Trial Chamber wanted to make its own finding on the character of the conflict. However, in the end the Chamber relied to a very great extent on pre-existing UN documents that also served as the basis for the Security Council’s determination that the conflict was an internal one. The additional value of the ICTR’s case law in this regard is therefore limited.

91 92

93 94 95

The Prosecutor v. Akayesu, Judgement., 2 September 1998, para. 626. Also see The Prosecutor v. Musema, Judgement, 27 January 2000, para. 258. Namely UN Doc. E/CN.4/1994/7/Add.1, 11 August 1993, UN Doc. S/1994/470, 20 April 1994, UN Doc. E/CN.4/S-3/3, 19 May 1994, UN Doc. S/1994/1405, 9 December 1994. The Prosecutor v. Akayesu, Judgement., 2 September 1998, paras. 164, 165, 626. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 170-172. Similarly, see The Prosecutor v. Musema, Judgement, 27 January 2000, para. 247. Internal armed conflicts between armed groups in the territory of one State fall within the scope of common Article 3, but not within the scope of Additional Protocol II, see Greenwood (2000: 230). The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 620-621.

220

Chapter V

In conclusion, the ICTR followed the findings of the Commission of Experts that there was an ongoing internal armed conflict in Rwanda. The following subsections look at some external aspects of the conflict which the ICTR did not take into account. They investigate the possible impact of these external factors on the characterisation of the conflict in Rwanda.

V.4.2 The impact of UN peace operations As outlined in chapter II, the UN acted in several instances and in several ways in Rwanda. In addition to the ONUMUR observer’s mission, there was the UNAMIR peacekeeping operation, and the multilateral action authorised by the Security Council. The French, who led the operation, called it Opération Turquoise. Although UNAMIR did have the power to use force in self-defence, according to its Rules of Engagement, UN headquarters obliged UNAMIR to interpret that power as narrowly as possible, and no force was in fact used by the UNAMIR soldiers. Moreover, pursuant to its mandate, UNAMIR had to operate as a neutral force, and it was – in any event, initially – operating at the request and with the consent of both parties to the armed conflict. Hence, as a peacekeeping operation, UNAMIR did not have a decisive impact on the character of the conflict. The question of the impact of the French-led operation is more interesting. The following features of this military operation should be explicitly mentioned. First, the operation was allowed to use all necessary means (i.e., force) in order to achieve its humanitarian purposes. Secondly, the operation was authorised by the Security Council, but it was conducted by national troops under national command and control. Thus it was not purely a UN operation under UN command and control. As regards the first feature, it should be noted that the mandate for the use of force was given for a specific purpose, and not in general to reinstate peace and security. Kirgis distinguished between several Security Council Resolutions authorising the use of force, on the one hand Resolutions 678 and 1528,96 which focus on armed force, and on the other hand, Resolution 1529 which focuses on the facilitation of humanitarian assistance.97 The military operation authorised for Rwanda is an example of the second type, which may also be called a ‘robust peacekeeping operation’.98 Bearing in mind these features of Opération Turquoise, the question is whether this military operation comprising troops of various nationalities rendered the conflict in

96 97 98

UN Doc. S/RES/678, 29 November 1990 and UN Doc. S/RES/1528, 27 February 2004. UN Doc. S/RES/1529, 29 February 2004. See Kirgis (2004). The latter term is employed in the Brahimi report, UN Docs. A/55/305 and S/2000/809, 21 August 2000, para. 48.

ICTR case law on war crimes

221

Rwanda international. More specifically, the question is whether France and the other contributing States could be considered as parties to the armed conflict in Rwanda. This can only have been the case if these States took an active part in the fighting, if they were actually engaged in combat. This was not the case in Rwanda. The above line of reasoning is reinforced by Article 2(2) of the 1994 Convention on the Safety of the United Nations and Associated Personnel. This provision states: “This Convention shall not apply to a United Nations operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies.” Given the explicit qualifications in this provision, it may be deduced that the law of international armed conflict does not apply to all military operations authorised by the Security Council. Moreover, in a debate on the draft Convention, the US representative submitted that the authorised operation in Rwanda would fall under the Convention, and would therefore not fall under the exception of Article 2(2).99 Thus, it may be argued that the intervention of France and allied States was not of a nature such as to alter the character of the conflict. It is unfortunate that the ICTR did not take the opportunity to explore this matter in some more detail. Had the ICTR distinguished between the two types of UN peaceoperations as outlined above, this might have led to a different formulation of Article 8(2)(b)(iii) and Article 8(2)(e)(iii) of the ICC Statute. As indicated by Cottier, it is currently unclear whether Article 8(2)(b) and (e)(iii) of the ICC Statute cover the ‘wider peacekeeping missions’, i.e., the missions that use force for self-defence in order to ensure the achievement of their mandate.100 It is most likely that they do, in any event as long as these forces do not engage in fighting. This was the drafters’ intention.101 However, ICTR case law on this topic would have been welcome.

V.4.3 The involvement of third States The involvement of third States may internationalise an internal armed conflict, if the third State interference reaches a certain level. This section describes the applicable standards to determine whether a particular conflict has been internationalised. Subsequently, the interference of two States, Uganda and France, is analysed with a view to determining whether there are external elements that might point to an international character of the conflict.

99 UN Doc. A/49/PV.48, p. 15, as cited by Greenwood (1998: 25, fn. 71). 100 Cottier (1999: 192). 101 Frank (2001: 145-147).

222

Chapter V

Interference by third States was an issue before the ICJ in the case of Nicaragua versus the United States of America. In this case, the ICJ had to decide, amongst other things, whether the US incurred State responsibility, as a result of its support for the Nicaraguan contras, with regard to violations of international humanitarian law committed by the latter.102 In the context of this case, the Court established the so-called ‘effective control test’,103 according to which the planning of the whole operation, including selecting targets and supplying and equipping the rebel forces, was insufficient to attribute responsibility to the US as a State, for the violations of international humanitarian law by the rebel forces. What was required was that the State had ‘effective control’ over the specific military operation in the course of which the alleged violations were committed. As regards the question whether the US had violated the prohibition on the use of force with its assistance to the rebels, the ICJ stated: “As to the claim that United States activities in relation to the contras constitute a breach of the customary international law principle of the non-use of force, the Court finds that, subject to the question whether the action of the United States might be justified as an exercise of the right of self-defence, the United States has committed a prima facie violation of that principle by its assistance to the contras in Nicaragua, by ‘organizing or encouraging the organization of irregular forces or armed bands ... for incursion into the territory of another State’, and ‘participating in acts of civil strife ... in another State’, in terms of General Assembly resolution 2625(XXV). According to that resolution, participation of this kind is contrary to the principle of the prohibition of the use of force when the acts of civil strife referred to ‘involve a threat or use of force’. In the view of the Court, while the arming and training of the contras can certainly be said to involve the threat or use of force against Nicaragua, this is not necessarily so in respect of all the assistance given by the United States Government.”104

The ICJ concluded that the US had used force against Nicaragua through the rebels. The ICJ did not specify whether the conflict in Nicaragua should be characterised as internal or international, because it held that the minimum rules of international humanitarian law as laid down in common Article 3 applied to both kinds of conflict.105 In the Tadic´ case, the Appeals Chamber of the ICTY also dealt with third State interference. In this case, the question concerned was whether the link between the

102 Case concerning military and paramilitary activities in and against Nicaragua, Nicaragua v. United States of America, Merits, Judgement, 27 June 1986, para. 15, submissions a and f, ICJ Reports 1986, pp. 18-19. 103 Case concerning military and paramilitary activities in and against Nicaragua, Nicaragua v. United States of America, Merits, Judgement, 27 June 1986, para. 115, ICJ Reports 1986, p. 64. 104 Case concerning military and paramilitary activities in and against Nicaragua, Nicaragua v. United States of America, Merits, Judgement, 27 June 1986, para. 228, ICJ Reports 1986, pp. 118-119, as cited by Judge Shahabuddeen, The Prosecutor v. Tadic´, Appeal Judgement, Separate Opinion of Judge Shahabuddeen, 15 July 1999, para. 9. 105 Case concerning military and paramilitary activities in and against Nicaragua, Nicaragua v. United States of America, Merits, Judgement, 27 June 1986, para. 219, ICJ Reports 1986, p. 114

ICTR case law on war crimes

223

Bosnian Serb Army and the Yugoslav Armed Forces was such that there was third State interference that rendered the conflict in Bosnia-Herzegovina international.106 In its Judgement, the Appeals Chamber provided an in-depth summary of the case law and State practice on the legal criteria for establishing when armed forces may be regarded as acting on behalf of a foreign power. Consequently, the Appeals Chamber formulated the ‘overall control test’: a third State can be held responsible when it is generally involved in planning and supervising the military actions, apart from possible financing and equipping.107 In this formulation, the Appeals Chamber explicitly rejected the ICJ standard.108 In a Separate Opinion, Judge Shahabuddeen, notably a former ICJ judge, though not in the Nicaragua case, emphasised that a distinction had to be made between State responsibility for the use of force through a rebel force and State responsibility for violations of international humanitarian law by a rebel force. Even though the ‘effective control test’ may apply in both cases, the actual application of such a test will vary.109 In the Tadic´ case, the question was not whether the Federal Republic of Yugoslavia (FRY) could be held responsible for violations of international humanitarian law, but rather whether the FRY used force against Bosnia-Herzegovina through the Bosnian Serb Army, thereby rendering the conflict international.110 In conclusion, Judge Shahabuddeen argued that a new test need not have been developed.111 Some scholars have also criticised the Appeals Chamber for its unnecessary contradiction of the ICJ. In a commentary to the Tadic´ Appeal Judgement, Gill endorsed Shahabuddeen’s view and pointed to the differing factual situations in the two cases.112 In his commentary to the Draft Articles on State Responsibility, Crawford stressed that the ICTY dealt with international criminal responsibility in contrast to State responsibility, and that the issue in the Tadic´ case was the application of international humanitarian law rather than an issue of responsibility.113 As indicated above, the question of third State interference has not been addressed by the ICTR. Nevertheless, third States played a certain role in the armed conflict in Rwanda. The question concerned here is not whether other States can be held responsible

106 The Prosecutor v. Tadic´, Appeal Judgement, 15 July 1999. An excellent commentary on the Appeal Decision in Tadic´ case is given by Gill (2001). 107 The Prosecutor v. Tadic´, Appeal Judgement, 15 July 1999, par. 88-145. 108 The Prosecutor v. Tadic´, Appeal Judgement, 15 July 1999, par. 115-137. 109 The Prosecutor v. Tadic´, Appeal Judgement, Separate Opinion of Judge Shahabuddeen, 15 July 1999, paras. 14, 16, 19 110 The Prosecutor v. Tadic´, Appeal Judgement, Separate Opinion of Judge Shahabuddeen, 15 July 1999, para. 17. 111 The Prosecutor v. Tadic´, Appeal Judgement, Separate Opinion of Judge Shahabuddeen, 15 July 1999, para. 21. 112 Gill (2001: 872-874). 113 Crawford (2002a: 111-112).

224

Chapter V

for any of the crimes committed in Rwanda, but rather whether the actions of these third States may have rendered the conflict in Rwanda international, and if so what the consequences of such findings should have been. In the subsequent subsections, the roles of Uganda and France respectively are studied with a view to determining their relevance for the characterisation of the Rwandan conflict.

V.4.4 The role of Uganda The participation of Uganda in the Rwandan conflict is closely linked to the former position of the Tutsi refugees of 1959 in Ugandan society. Marginalised by Obote, the Tutsi had joined Museveni’s National Resistance Army (NRA) en masse. When Museveni conquered Kampala in 1986, 20 to 30% of his army was Banyarwanda.114 Under Museveni’s regime, the Banyarwanda were given important roles in Ugandan politics and in the Ugandan national army. Four years later, their influence decreased as a result of internal politics. Subsequently the Banyarwanda again became increasingly marginalised in Ugandan society. Their deteriorating position led to the establishment of the RPF. Its main goal was to conquer Rwanda. On 1 October 1990, the RPF actually invaded Rwanda. By then, the Front consisted of a few thousand deserters from the Ugandan national army, who took along the military equipment needed.115 The question with regard to the participation of Uganda relates to interference of third States in a prima facie internal conflict, the effect of which could be to render the conflict international. The standards for such interference were set by the ICJ and ICTY as described above. The most relevant precedent is the ICJ’s reasoning as regards the use of force by the US against Nicaragua, through the rebels. The question is whether Ugandan support for the RPF invasion meets this test. It is clear that the Tutsi rebels crossed a border when they invaded Rwanda. However, soon afterwards they held territory in the North of Rwanda. The use of force was executed on Rwandan territory. Moreover, even if it was only a formal arrangement, the border between Uganda and Rwanda was monitored by a UN Observer Mission.116 The key question is therefore whether Uganda as a State armed and trained the RPF with a view to invading Rwanda. In other words, did the President of Uganda, Museveni, exercise general control over the RPF attack?

114 The term Banyarwanda refers to Hutu, Tutsi, and Twa alike. 115 Prunier (1994) and Prunier (1997: 93). 116 UN Doc. S/RES/846, 22 June 1993. Based on his own experience, Prunier (1997: 194, in particular fn. 3) stated that the Mission did not effectively pursue its task, but actually played a symbolic role instead.

ICTR case law on war crimes

225

Although it is up to the ICTR to establish the facts of this matter, it has already been submitted that it is highly unlikely that Uganda as a State organised the attack.117

V.4.5 The involvement of France With regard to France, two separate actions are considered, viz. the aid provided by France at the request of the Rwandan government in 1990, and the intervention authorised by the Security Council in 1994. The latter action was dealt with above. As regards French support to halt the invasion in 1990, the question is what the impact of this action was. If the conclusion is that French support rendered the conflict in 1990 international, a subsequent question will be whether this characterisation still applied in 1994. In 1990, France sent troops immediately after the RPF invasion, as did Belgium and Zaire. Only the Zairian troops actually officially participated in the fighting. However, Rwanda soon asked Zaire to withdraw its soldiers, because of their scandalous behaviour. The Belgians left Rwanda on their own account after one month. During the remainder of the war, the French did not actively assist in the fighting. However, behind the scenes they offered crucial organisational assistance. In addition to increasing its efficiency, this support also raised the morale of the army.118 Although the French support may have been indispensable, especially when the alleged unofficial arms deliveries are taken into account,119 that does not necessarily render the conflict international. In this case, France did not support the rebels against the government, but actually supported the government. Hence, France acted with the consent of the government. The question here is therefore fundamentally different from the question dealt with in relation to Uganda. In this case, the question is whether the support of a third State to suppress a rebel group, at the express invitation of the State involved, renders a conflict international. It is generally accepted that, under certain circumstances, third States may assist governments of a State to fight the opposition. In such instances, the relevant question is whether the invitation is valid or whether it was issued by a puppet government, as was the case with the Russian intervention in Afghanistan in 1979.120 Given that the use of force by a third State in a State at the invitation of that State does not violate the prohibition of the use of force, it would be logical that in these cases

117 Prunier (1997: 97-98). This does not preclude any finding that Uganda offered valuable support in many respects, the point made here is merely that Uganda did not organise and supervise the attack. Also see Calas (1995) and Human Rights Watch (1994). 118 Prunier (1997: 100-114). 119 OAU report, Rwanda: The Preventable Genocide, Report of the Panel of Eminent Personalities to Investigate the Genocide in Rwanda and the Surrounding Events, CM 12048 (LXVII) 29 May 2000, paras. 12.28, 15.58, 15.64, 15.77-15.79. 120 Gray (2003: 598-599) and Cassese (2001: 316-319).

226

Chapter V

the action of the third State does not alter the character of the conflict. Any other conclusion would lead to paradoxical results and would undermine the coherence of the international legal system as a whole. In conclusion, neither France’s support of the government in 1990, nor its contribution to the UN authorised operation in 1994 rendered the armed conflict in Rwanda international. Nevertheless, both actions constituted relevant features of the conflict.

V.4.6 Evaluation of the ICTR’s characterisation of the conflict in Rwanda In view of the above, it may be concluded that the Rwandan conflict can indeed be classified as non-international. At face value, the actions of France and Uganda do not alter the character of the conflict. Nevertheless, their involvement remains an important international element. Since the ICTR deemed it necessary to undertake its own study into the character of the conflict, it should have taken account of these factors, and it should have qualified them in legal terms. This exercise would have provided the ICTR with an opportunity to address the sensitive issue of third State interference and to develop its own legal views on this matter, in this way furthering the ongoing development of international law on the matter. Moreover, the ICTR could have explicitly noted that common Article 3 applies to internal armed conflicts as well as to international armed conflicts, as confirmed by the ICJ in the Nicaragua Judgement, in order to silence any argument that Article 4 of the ICTR Statute would not be applicable, given the actual character of the conflict.121

V.5

TEMPORAL AND TERRITORIAL APPLICABILITY OF COMMON ARTICLE 3 AND ADDITIONAL PROTOCOL II

As set out above, the Trial Chamber in the Akayesu case concluded that the conflict between the Rwandan government and the RPF was an internal armed conflict to which common Article 3 applied.122 Factors that were noted in this respect concerned the intensity of the conflict as well as the organisation of both parties.123 The Trial Chamber recalled that the application of the 1977 Additional Protocol II set an additional threshold, viz. that the dissident armed forces were under responsible command, exercised control

121 This argument was presented by the defence in a case before the Special Court for Sierra Leone, The Prosecutor v. Fofana, Appeal Decision, 25 May 2004. The Appeals Chamber dismissed this argument, referring to ICTR and ICTY case law. 122 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 621. 123 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 620.

ICTR case law on war crimes

227

over part of the territory of Rwanda, and were capable of carrying out sustained and military operations as well as being able to implement common Article 3 and the 1977 Additional Protocol II. The Trial Chamber found that the RPF met this standard.124 The Trial Chamber did not specifically indicate the duration of the armed conflict, as it confirmed only that an armed conflict existed at the time of the alleged crimes. However, from the Trial Chamber’s summary of the history leading up to the genocide, it can be inferred that there was certainly an armed conflict between 7 April 1994 and 18 July 1994.125 Therefore during the entire period of the genocide, common Article 3 and the 1977 Additional Protocol II were applicable. However, it will be harder to classify any RPF crimes that may have been committed after 18 July 1994 as war crimes. In that case, a Trial Chamber would have to decide again whether there was an armed conflict between the new Rwandan government and the ousted rebels. In addressing the territorial requirements, the Trial Chamber noted that once common Article 3 and the 1977 Additional Protocol II are applicable, these provisions apply to the entire territory of a State, irrespective of the exact location of the war front.126 In the case of Kayishema and Ruzindana, the Trial Chamber largely agreed with these findings.127 Thus, the Trial Chambers established that an internal armed conflict had existed during the entire period of the genocide and that the provisions regulating this conflict, viz. common Article 3 and the 1977 Additional Protocol II, had been applicable to the entire territory of the State of Rwanda. This does not mean of course that any crime committed during that period in Rwanda can be classified as a war crime. This can only be the case if there is a link between the alleged crime and the armed conflict. The next section examines when such a link exists.

124 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 627. 125 The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 109-111. A Trial Chamber in another case was more explicit, viz. in The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, para. 738. Also see The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004, para. 767. 126 The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 635-636. The Trial Chamber therefore followed the ICTY Appeals Chamber which had pointed out that the rules contained in common Article 3 also apply outside the narrow geographical context of the actual theatre of combat operations, The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, para. 69. 127 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 170-172, 182-183 and 597. For further confirmation, also see The Prosecutor v. Rutaganda, Judgement, 6 December 1999, paras. 91-95, 102-103, 436; The Prosecutor v. Musema, Judgement, 27 January 2000, paras. 244-258, 282, 284, 970-971. In The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 514, the Trial Chamber found that there had been a non-international armed conflict in Rwanda based on an earlier finding of judicial notice, Semanza v. The Prosecutor, Decision, 3 November 2000, para. 48, Annex A, para. 3.

228

V.6

Chapter V

A DIRECT LINK BETWEEN THE ALLEGED CRIME AND THE ARMED CONFLICT

After the Trial Chambers had confirmed the general applicability of common Article 3 and the 1977 Additional Protocol II to the conflict of Rwanda in their first cases, they proceeded with the question whether the accused had violated these provisions. The main element in this respect was the existence of a link between the alleged crime and the armed conflict.128 This requirement of a link is a substantive element of war crimes. In contrast, the ICTY definition of crimes against humanity includes the requirement that the act was committed during an armed conflict as a jurisdictional element. As indicated in subsection V.6.4, proving that an armed conflict existed at the same time and in the same territory, satisfies this requirement. In contrast, more is needed to satisfy the requirement of a link for war crimes, as set out in this section. The case law of the ICTR on this requirement has not been entirely consistent. This section analyses the development of the ICTR case law from the Akayesu Judgement in first instance to the Appeal Judgement in the Rutaganda case and subsequent case law. More generally, the legal characterisation of the relationship between the civil war and the genocide has seen a remarkable development in ICTR case law. The relevant questions in this respect are: to what extent, if at all, did the genocide originate in the civil war, and was the genocide, once it had commenced, part of the civil war, or was it actually a separate event? During the genocide, the Interim government tried to persuade the international community that the massacres resulted from popular uprisings and that the ‘interethnic strife’ was a spontaneous and unorchestrated event.129 In the Akayesu case, the Trial Chamber gave a general view on the relationship between the armed conflict and the genocide. It pointed out that the genocide took place alongside the armed conflict, and was not an inherent part of the conflict.130 The Chamber stated that “although the genocide against the Tutsi occurred concomitantly with the (…) conflict, it was, evidently, fundamentally different from the conflict.”131 The Trial

128 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 643; The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 185-189; The Prosecutor v. Rutaganda, Judgement, 6 December 1999, paras. 104-105; The Prosecutor v. Musema, Judgement, 27 January 2000, paras. 259-262. 129 This was the defence case in The Prosecutor v. Kajelijeli, Judgment, 1 December 2003, paras. 158-159. In a letter to the Security Council, the Rwandan Minister of Foreign Affairs, Jérome Bicamumpaka, stated: “The death of the Rwandese head of State surprised and stunned the Rwandese people, and also caused indignation among certain military personnel, who reacted spontaneously in attacking certain persons under the suspicion or presumption of responsibility for or complicity in the assassination of the head of State. It was against that background that massacres took place, particularly in Kigali, where the prime minister, ms. Agathe Uwilingiyimana, died.” UN Doc. S/1994/428, 13 April 1994. The Minister was also given the opportunity to express his view of the situation in Rwanda in person before the Security Council and did so at length, see UN Doc. S/PV.3377, 16 May 1994. The former Minister is currently indicted and awaits trial before the ICTR. 130 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 127. 131 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 128.

ICTR case law on war crimes

229

Chamber in the Media case emphasised the terminology of war used in connection with the preparation of the genocide,132 rendering the relationship between the civil war in Rwanda and the genocide more complex. As regards the specific link between the alleged crime and the armed conflict, the Trial Chambers have consistently considered that this had to be demonstrated on an evidentiary basis, and that an abstract definition could not be formulated in this respect. In first instance, the specific focus of the Trial Chambers was directed at the perpetrator. The Chambers claimed that war crimes could only be committed by a specific class of perpetrators (see subsection V.6.1). In addition, the Trial Chambers focussed on the class of victims (see subsection V.6.2.). They therefore confined the applicability ratione personae to the perpetrators as well as the victims. Subsection V.6.3, looks at the details of the requirement of a link, and some ICTY cases on this matter are discussed in subsection V.6.4. The shift in the ICTR case law on the requirement of a link is analysed in subsection V.6.5, and subsection V.6.6 provides an overall evaluation of the ICTR case law on the requirement of connection.

V.6.1 The class of perpetrators In the Akayesu case, the Trial Chamber stated that the class of perpetrators in the first instance comprised all individuals who were members of the armed forces and who were under military control. As a Mayor, Akayesu obviously did not belong to the armed forces. Secondly, using a teleological interpretation, the Trial Chamber also included all other persons with some kind of public authority who are either ordered or expected to support or fulfil the conduct of hostilities in the class of perpetrators.133 The criterion used was therefore that the perpetrator should hold a public position either de iure or de facto, and that he should contribute to the warfare through that position. As an example of a non-military perpetrator, the Trial Chamber referred, amongst other cases, to the case of Hirota, the Japanese Minister of Foreign Affairs who had been convicted for war crimes committed in ‘the rape of Nanking’.134 Hirota had been found guilty of criminal neglect because he had not insisted before the Cabinet that immediate action be taken to end the atrocities committed by the army in Nanking. In his Dissenting Opinion, Judge Röling had pointed out that “a Tribunal should be very careful in holding civil government officials responsible for behaviour of the Army in the field”.135 How-

132 133 134 135

The Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Judgement, 1 December 2003, paras. 110-119. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 631. Röling (1977: 446-448). Röling (1977: 1127).

230

Chapter V

ever, in contrast to Hirota, whose conviction was based on command responsibility, Akayesu was also accused of direct responsibility for war crimes as a civilian. If the Prosecution wanted to hold Akayesu responsible for war crimes as a perpetrator of the second category, i.e., a non-military public official supporting the war, it therefore had to prove that Akayesu had acted for the government and that he had been directly involved in the war efforts.136 In its efforts to prove this, the Prosecution put forward the arguments that Akayesu had worn a military jacket and carried a rifle. Furthermore, the Prosecution asserted that he had assisted the military in its communication, and with support, for example, by mapping the commune and offering the use of his office. Lastly, the Prosecution contended that Akayesu’s reference to Tutsi as RPF accomplices was indicative of his connections with the war.137 The Trial Chamber rejected all these arguments and considered that no conjunction with the armed conflict had been proven.138 The Trial Chamber consequently acquitted Akayesu on all counts of war crimes. In the case of Kayishema and Ruzindana the Trial Chamber used a similar line of argument. Kayishema had been a Prefect during the months of April to July of 1994. Ruzindana had been a businessman. The Trial Chamber pointed out that in particular with regard to Ruzindana, who did not officially hold a public position, the Prosecution had failed to prove a link with the armed forces.139 In a subsequent case involving another businessmen, Musema, the Trial Chamber needed only a few words to dismiss the count on war crimes.140 In the case of Rutaganda, the Trial Chamber considered war crimes in more detail as Rutaganda had been a leader of the Interahamwe, a militia supporting the Rwandan government. During the period of April to July 1994, the Interahamwe had performed a dual role. On the one hand, it had supported the government in its war efforts against the RPF, on the other hand, it had massacred Tutsi civilians and Hutu opponents.141 Rutaganda had been the second Vice-President of the Interahamwe. The Trial Chamber considered that Rutaganda fell within the scope of persons who could be held responsible for war crimes, on the basis of his position of authority in the Interahamwe. However, the mere membership of this militia was not sufficient to establish criminal responsibility for all acts committed by the militia. The Trial Chamber required the Prosecution to prove the individual responsibility of Rutaganda for war crimes.142 The mere fact that Rutaganda was a high-ranking member of the Interahamwe, and that this organisation had participated in the war was not sufficient to establish Rutaganda’s criminal responsibility

136 137 138 139 140 141 142

The The The The The The The

Prosecutor Prosecutor Prosecutor Prosecutor Prosecutor Prosecutor Prosecutor

v. v. v. v. v. v. v.

Akayesu Judgement, 2 September 1998, para. 640. Akayesu Judgement, 2 September 1998, para. 641. Akayesu Judgement, 2 September 1998, paras. 642-644. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 618. Musema, Judgement, 27 January 2000, paras. 973-975. Rutaganda, Judgement, 6 December 1999, para. 439. Rutaganda, Judgement, 6 December 1999, para. 441.

ICTR case law on war crimes

231

for war crimes committed by the organisation. The Trial Chamber did decide that Rutaganda had aided and abetted the genocidal acts of the Interahamwe. As regards the relationship between these findings, the Trial Chamber indicated that although the genocide and the armed conflict were undeniably linked, an act of genocide does not automatically constitute a war crime. The Chamber repeated that the latter crime requires that a direct link to the war is established, and concluded that the Prosecution had not fulfilled its task in this respect.143 The introduction of a class of perpetrators has been criticised and was later removed by the Appeals Chamber as described below. In any event, it should be noted that while the Trial Chamber did not have the opportunity to address the topic, there is no doubt that RPF members would have been included in the class of perpetrators, even though they were not public officials. In contrast with human rights law, international humanitarian law applies equally to non-State actors. Moreover, as observed by the Trial Chamber in the Kayishema and Ruzindana Judgement, the RPF had notified the International Committee of the Red Cross (ICRC) that it considered itself bound by international humanitarian law.144

V.6.2 The class of victims In the case of Akayesu, the Trial Chamber defined the class of victims of war crimes very broadly, as being all persons not taking active part in the hostilities.145 It affirmed this view in the case of Rutaganda.146 In the latter case, the Chamber also pointed out that persons who had previously carried arms in a desperate attempt to survive were not persons taking active part in the hostilities.147 Prior to the case of Rutaganda, the Trial Chamber had narrowed down the definition of victims in the case of Kayishema and Ruzindana. In this case, the Trial Chamber indicated that, a link with the war also had to be established when defining the class of victims. The victims had to be victims of the armed conflict. With regard to the crimes committed by Kayishema and Ruzindana, the Trial Chamber pointed out that although the Tutsi were targeted as supporters of the RPF, these allegations merely aimed to justify a genocidal policy that was executed against an ethnic group of the civilian population of Rwanda. The fact that there was an ongoing armed conflict was used in some instances to serve as a pretext for committing genocide. The Tutsi who were killed were victims of genocide and not victims of the

143 144 145 146 147

The The The The The

Prosecutor Prosecutor Prosecutor Prosecutor Prosecutor

v. v. v. v. v.

Rutaganda, Judgement, 6 December 1999, paras. 442-445. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 157. Akayesu, Judgement, 2 September 1998, para. 629 jo. 175. Rutaganda, Judgement, 6 December 1999, para. 438. Rutaganda, Judgement, 6 December 1999, para. 437.

232

Chapter V

armed conflict, and therefore they did not fall within the scope of persons who are protected by common Article 3 and the 1977 Additional Protocol II.148 The Appeals Chamber in the Akayesu Judgement amended the notion of a specific class of victims. The next subsection comments on this in greater detail.

V.6.3 Further details on the requirement of a link The Prosecution appealed against the Akayesu Judgement. In the first place, it submitted that the Trial Chamber had been wrong to confine the second class of perpetrators to public officials. Secondly, it argued that if the criterion of public official was to be applied, the Trial Chamber had been wrong not to include Akayesu in that category.149 In addition to these two grounds for appeal, the Prosecution presented two other grounds. It admitted that none of the principal grounds which claimed that the Trial Chamber had erred in law would invalidate the result of the Judgement, if sustained. Consequently, the grounds for appeal did not fall within the ambit of Article 24(1)(a) of the Statute.150 Nonetheless, based on the Tadic´ Appeal Judgement, the Appeals Chamber considered itself competent to deliver pronouncements on the points raised by the Prosecution, since these were of general interest and their solution could contribute substantially to the development of the jurisprudence of the ICTR.151 The Appeals Chamber observed that neither the Statute, nor common Article 3 of the 1949 Geneva Conventions, which is the basis for war crimes in internal conflicts, nor the case law of the ICTY indicated that the class of perpetrators should be limited. The Appeals Chamber reinforced the teleological approach used by the Trial Chambers but concluded in contrast that the goal of common Article 3, the protection of the victims listed in that Article, was best served when the class of perpetrators was not limited. The Appeals Chamber endorsed the criterion that there must be a close connection between the violation concerned and the armed conflict. It recognised that this criterion made it likely that a perpetrator of war crimes belonged to one of the classes identified by the Trial Chamber. Despite this probability, the Appeals Chamber pointed out that

148 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 621-622. 149 The Prosecutor v. Akayesu, Appeal Judgement, 1 June 2001, para. 425. 150 Art. 24(1) of the ICTR Statute reads “The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds: (a) an error on a question of law invalidating the decision; or (b) an error of fact which has occasioned a miscarriage of justice.” 151 The Prosecutor v. Akayesu, Appeal Judgement, 1 June 2001, paras. 12-28. Judge Nieto-Navia argued in a Dissenting Opinion that the Appeals Chamber should not have considered the appeal filed by the Prosecutor, because neither Article 24 of the Statute nor any other provision equips the Appeals Chamber with such a power to give advisory opinions. By rendering pronouncements on issues that would not affect the result of the Judgement of the Trial Chamber, the Appeals Chamber arbitrarily broadened the scope of (Article 24 of) the Statute.

ICTR case law on war crimes

233

the Trial Chamber had erred when it confined the perpetrators exclusively to these classes.152 By analogy, it can be asserted that no limitations apply to the class of victims other than that they did not take active part in the hostilities.153 Thus, according to the Appeals Chamber, any person can commit a war crime, as long as a link between the crime and the armed conflict is established. By pronouncing that the class of perpetrators is not confined to the military, the Appeals Chamber interpreted the requirement of a connection in a negative fashion. It referred in a footnote to the ICTY Appeal Chamber’s interpretation of a connection, viz. that “it is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict”.154 The ICTR Appeals Chamber also noted that the exact interpretation of what constitutes a close link to an armed conflict was not germane to the case at hand.155 It is unfortunate that the Appeals Chamber did not itself provide criteria to determine when a close link with the armed conflict exists in the ICTR context, particularly as it pronounced its views for the development of the law.

V.6.4 Some ICTY cases In the Tadic´ case, the ICTY Appeals Chamber decided that the alleged crimes were closely related to the armed conflict since they were crimes committed in a prison camp, and more generally, crimes committed as part of the larger Bosnian-Serb campaign to obtain control over Bosnian territory.156 In the Focˇa case, the Trial Chamber deemed the requirement of a connection satisfied, because the crimes had been committed in the aftermath of the hostilities and because the perpetrators had fought on the side of one of the parties during the armed conflict.157 The case of Kvocˇka is also relevant. In this case, the Trial Chamber took judicial notice of the fact that there was a connection between the armed conflict and the widespread and systematic attack on the civilian population, and the existence of the concentration camps and the mistreatment of the

152 The Prosecutor v. Akayesu, Appeal Judgement, 1 June 2001, paras. 433-446. This finding was followed in The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, paras. 725-729. 153 This is in line with the ICTY Appeals Chamber in The Prosecutor v. Delalic´, Mucic´, Delic´, and Landžo, Appeal Judgement, 20 February 2001, para. 420. Also see The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, paras. 730-731. 154 The Prosecutor v. Akayesu, Appeal Judgement, 1 June 2001, footnote 807. 155 The Prosecutor v. Akayesu, Appeal Judgement, 1 June 2001, footnote 807. 156 The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, para. 70. 157 The Prosecutor v. Kunarac, Kovacˇ, and Vukovic´, Judgement, 22 February 2001, para. 407.

234

Chapter V

prisoners in these camps. It took notice of that fact pursuant to an agreement of the parties, and based on the Tadic´ Appeal Judgement.158 In the Focˇa Judgement, the ICTY Appeals Chamber gave a general definition of a link for war crimes that appeared more lenient than the ICTR applications: “if it can be established, as in the present case, that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict.”159

It should of course be pointed out that the determination of a connection for war crimes is a factual affair, and that the factual context in which the ICTY operates has a fundamentally different nature from that of the ICTR setting. The ICTY Statute also requires a connection to an armed conflict for crimes against humanity, although previous legal documents omitted that element for this type of crime.160 In an interlocutory decision, the ICTY Appeals Chamber considered the requirement to be superfluous and in conflict with customary international law.161 However, the Statute could not be circumvented and the requirement thus has to be met in cases before the ICTY. Consequently, the ICTY Trial Chamber specified that the act had to be linked to the armed conflict geographically as well as temporally, and that it must not be committed for purely personal motives.162 The Chamber did not require a more substantive connection between the act and the armed conflict.163 The Appeals Chamber was even firmer in concluding that no connection between the act and the armed conflict was required whatsoever: “So the two – the ‘attack on the civilian population’ and ‘the armed conflict’ – must be separate notions, although of course under Article 5 of the Statute the attack on ‘any civilian population’ may be part of an ‘armed conflict’. A nexus with the accused’s acts is required, however, only for the attack on ‘any civilian population’. A nexus between the accused’s acts and the armed conflict is not required, as is instead suggested by the Judgement. The armed conflict requirement is satisfied by proof that there was an armed conflict; that is all that the Statute requires, and in so doing, it requires more than does customary international law.”164

158 The Prosecutor v. Kvocˇka, Kos, Radic´, Žigic´, and Prac´, Judgement, 2 November 2001, para. 122. Also see The Prosecutor v. Kvocˇka, Kos, Radic´, Žigic´, and Prac´, Decision, 8 June 2000. 159 The Prosecutor v. Kunarac, Kovacˇ, and Vukovic´, Appeal Judgement, 12 June 2002, para. 58. 160 Article 5 of the ICTY Statute. For an in-depth review of the elements of crimes against humanity, see Dinstein (2000). 161 The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, paras. 140-141. 162 The Prosecutor v. Tadic´, Judgement, 7 May 1997, paras. 627-634. 163 The Chamber relied on Morris and Scharf (1998: 83). 164 The Prosecutor v. Tadic´, Appeal Judgement, 15 July 1999, paras. 251, 272.

ICTR case law on war crimes

235

The element of an armed conflict therefore functions differently in the two definitions of war crimes and crimes against humanity in the ICTY context. For war crimes, the link to an armed conflict may be perceived as the characterising element, whereas for crimes against humanity the ICTY interpretation was minimal; the mere proof of existence of an armed conflict was deemed sufficient to meet this requirement.

V.6.5 A shift in the ICTR application of the requirement of a connection In contrast with the ICTR, the ICTY appeared to use a more lenient criterion for the link to an armed conflict for war crimes. The high threshold set by the ICTR Chambers has been criticised in the literature.165 Moreover, a Swiss Military Tribunal expressly deviated from the criterion in the case of Niyonteze, a Rwandan Mayor, and qualified the ICTR’s approach as being “too restrictive”.166 In an amicus curiae brief submitted in the Semanza case, Belgium endorsed this qualification and submitted that the RPF intervention in 1990 was one of the direct causes of the Rwandan genocide.167 The Rutaganda Appeal Judgement pronounced on 26 May 2003 constituted the very first conviction for war crimes by the ICTR. Apart from the Rutaganda Judgement, a Trial Chamber came close to a conviction for war crimes in the Semanza Judgement, which was pronounced just a few days before the Rutaganda Appeal Judgement, on 15 May 2003. In the case of Semanza, the Trial Chamber enumerated the requirements for a conviction for war crimes, viz. (i) that there was a non-international armed conflict in Rwanda, (ii) that the victims were protected persons, and (iii) that there was a connection between the alleged act and the armed conflict. The application of the first two requirements did not pose any problem. However, the interpretation of the third requirement caused disagreement between the Judges. Judge Dolenc and Judge Williams found that there was a connection, whereas Judge Ostrovsky had a different view and submitted a Separate Opinion on this matter. The majority referred to the Focˇa Appeal Judgement and found that “the ongoing armed conflict between the Rwandan government forces and the RPF, which was identi-

165 Boed (2002: 320), Obote-Odora (2001), and Eboe-Osuji (2003). 166 Public Prosecutor v. Niyonteze, Tribunal Militaire d’Appel 1A, 26 May 2000, Part III, Chapitre 3, Section 2. However, in cassation the Military Tribunal of Cassation noted that the Court of Appeal had not deviated from the ICTR case law, 27 April 2001, para. 9 However, in a case note, Reydams (2002: 235) noted that despite the similarity between this case and the case of Akayesu (twin trials), and the application of the same legal standard, the two courts (ICTR and the Swiss Military Tribunal of Cassation) came to different conclusions. 167 Petition by the Kingdom of Belgium to Appear as Amicus Curiae, The Prosecutor v. Semanza, 8 December 2000, paras. 17-18, 25.

236

Chapter V

fied with the Tutsi ethnic minority in Rwanda, both created the situation and provided a pretext for the extensive killings and other abuses of Tutsi civilians. The Chamber recall[ed] that in this case the killings began in Gikoro and Bicumbi communes, shortly after the death of President Habyarimana, when the active hostilities resumed between the RPF and government forces.”168 The Chamber also considered that “certain civilian and military authorities, as well as other important personalities, exploited the armed conflict to kill and mistreat Tutsis in Bicumbi and Gikoro”, and that “[t]he armed conflict also substantially motivated the attacks perpetrated against Tutsi civilians in Bicumbi and Gikoro.”169 Therefore, the Chamber had no doubt that the requirement of a connection was fulfilled. In contrast, Judge Ostrovsky argued against relying too heavily on the Focˇa Appeal Judgement of the ICTY, as this Judgement concerned a different armed conflict. Judge Ostrovsky considered that “[t]he character of the armed conflict in Rwanda was different. Having started the war in 1990, the RPF did not target any ethnicity. It was a war for power in the country. There is no evidence that there was a genocide in 1990, 1991, 1992, and 1993. The policy of genocide was unleashed only after 6 April 1994, and not by the RPF, and not against the RPF and its members. The evidence shows that this policy of genocide was unleashed by the Rwandan authorities against their own civilian population of a particular ethnicity. This crime was parallel to the armed conflict, but never intersected with it.”170 Even though two Judges considered that the requirement of a connection had been fulfilled, while one thought differently, Semanza was not convicted of war crimes. This was the result of the Separate and Dissenting Opinion of Judge Dolenc, who did not want to enter a conviction on the count of war crimes because these crimes apparently ideally concurred with convictions for genocide and crimes against humanity. The majority finding in the Semanza case sharply contrasts with the earlier Akayesu finding in first instance, even though the accused were Mayors in both cases. In the Akayesu case, the Trial Chamber submitted that the existence of a link had to be determined on a case-by-case basis, depending on the evidence of the case. In the Semanza case however, the Trial Chamber found that the requirement of a connection was fulfilled on the basis of a more general perception of the relationship between the armed conflict and the genocide. In the case of Rutaganda on appeal, the Prosecution did not dispute the existence of the requirement of a connection. Instead, the Prosecution argued that the Trial Chamber had committed an error of fact in its finding that a link had not been established.171

168 169 170 171

The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 518. The Prosecutor v. Semanza, Judgement, 15 May 2003, paras. 519, 521. The Prosecutor v. Semanza, Judgement, Separate Opinion of Judge Ostrovsky, 15 May 2003, paras. 31-32. The Prosecutor v. Rutaganda, Appeal Judgement, 26 May 2003, para. 560.

ICTR case law on war crimes

237

The standard to be applied in this appeal is that on the basis of the evidence, no tribunal could have come to the conclusion that there was no link to the armed conflict.172 In this respect, the Prosecution pointed to the testimonies of expert witnesses, Xavier Nsanzuwera and Filip Reyntjens, who had demonstrated, according to the Prosecution, that there were relations between the Interahamwe, on the one hand, and the Rwandese Army (FAR) and the National Gendarmery, on the other. Moreover, the Prosecution asserted that the perpetrators of the massacres concerned, had committed their acts with the view that the Tutsi were accomplices of the RPF, the enemy.173 Given that it had been proved that there was a link between Rutaganda, as second Vice-President of the Interahamwe, and one of the parties to the armed conflict, and that there was a general link between the massacres committed by the Interahamwe and the armed conflict, the Trial Chamber should have concluded that the requirement of a connection had been fulfilled. The Appeals Chamber agreed with the Prosecution’s view. It noted in particular the authoritative role that the FAR had played vis-à-vis the Interahamwe during their massacres as a strong indication that there was a link with the armed conflict.174 The Appeals Chamber acknowledged its earlier omission to define the requirement of a connection in a positive manner. In this respect, it quoted the Focˇa-criterion: “What ultimately distinguishes a war crime from a purely domestic offence is that a war crime is shaped by or dependent upon the environment – the armed conflict – in which it is committed. It need not have been planned or supported by some form of policy. The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed. Hence, if it can be established, as in the present case, that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict. The Trial Chamber’s finding on that point is unimpeachable. In determining whether or not the act in question is sufficiently related to the armed conflict, the Trial Chamber may take into account, inter alia, the following factors: the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties.”175

172 173 174 175

The The The The

Prosecutor Prosecutor Prosecutor Prosecutor

v. v. v. v.

Rutaganda, Appeal Judgement, 26 May 2003, para. 574. Rutaganda, Appeal Judgement, 26 May 2003, paras. 562-563. Rutaganda, Appeal Judgement, 26 May 2003, paras. 575-580, especially 579. Kunarac, Kovacˇ, and Vukovic´, Appeal Judgement, 12 June 2002, paras. 58-59.

238

Chapter V

The ICTR Appeals Chamber endorsed this criterion with two clarifications.176 Firstly, the Chamber observed that the words ‘under the guise of the armed conflict’ should not be understood to mean ‘at the same time of the conflict’, or ‘in all circumstances created by the armed conflict’. Secondly, the Chamber remarked that the determination that a link exists could not be based on the existence of one of the elements mentioned by the ICTY Appeals Chamber in the Focˇa Appeal Judgement. Instead several of the elements should be considered, and the determination should be made even more cautiously if the perpetrator is a non-combatant. In the view of the Appeals Chamber, the above did not constitute a new interpretation of the requirement of a connection, but was actually a clarification of the requirement already used by the Trial Chamber in the Rutaganda Judgement.177 The difference between the two Chambers regarded the application of the standards to the facts proved. The Appeals Chamber therefore convicted Rutaganda for war crimes on appeal,178 and specified that this conviction did not entail an irregular accumulation of convictions in the light of the Musema Appeal standard on this matter.179 Subsequently, the former Minister of Higher Education and Scientific Research in the Interim Government, Kamuhanda, was acquitted of war crimes. In this case, the Trial Chamber took note of the Rutaganda Appeal Judgement, but distinguished the case on the facts. The Chamber held that “the Prosecution ha[d] not shown sufficiently how and in what capacity the Accused supported the Government effort against the RPF. No convincing evidence ha[d] been presented to demonstrate that the Accused, either in a private capacity or in his role as a civil servant, worked with the military, actively supported the war effort or that the Accused’s actions were closely related to the hostilities or committed in conjunction with the armed conflict.”180 These findings correspond with the initial case law, but it is unclear how they relate to the Semanza Judgement. In fact, the general question is how to assess the allegations that the RPF was supported by a fifth column, i.e., a Tutsi force within Rwanda that was aiding and abetting the RPF war efforts. As indicated above, in its first case, the Trial Chamber considered that the ‘Tutsi-danger’ was merely used as a pretext for the genocide. In contrast, in the case versus Imanishimwe, the first soldier to be convicted by the Tribunal, the Trial Chamber found Imanishimwe guilty of war crimes, since he had specifically selected some Tutsi for their suspected ties with the RPF. The Chamber held that “the soldiers’

176 The Prosecutor v. Rutaganda, Appeal Judgement, 26 May 2003, para. 570. 177 The Prosecutor v. Rutaganda, Appeal Judgement, 26 May 2003, paras. 571-572. 178 The Dissenting Opinion of Judge Pocar and the Separate Opinions of President Meron and Judge Jorda, and of Judge Shahabuddeen attached to the Judgement reflect the discussion between the Judges about whether this reversal of an acquittal by the Appeals Chamber without any additional possibility for appeal was allowed. 179 The Prosecutor v. Rutaganda, Appeal Judgement, 26 May 2003, paras. 581-584. 180 The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, para. 741.

ICTR case law on war crimes

239

actions were motivated by their search for enemy combatants and those associated with them or, at least, that their actions were carried out under the pretext of such a search.” Therefore, the Chamber found that the soldiers who were under Imanishimwe’s command had acted under the guise of the armed conflict, and that their crimes could consequently be qualified as war crimes for which Iamnishimwe could be held responsible.181 The fact that there was no armed conflict taking place in Cyangugu, as indicated by a coaccused of Imanishimwe, Bagambiki, was apparently irrelevant.182 Interestingly, this time Judge Ostrovsky did not disagree with the conviction of war crimes. In the same Judgement, the Trial Chamber did make a distinction between two types of attacks, viz. “the attack against the civilian Tutsi population of Cyangugu”, on the one hand, and “a related systematic attack on political grounds against civilians with suspected ties to the RPF”, on the other hand.183 The acts that were qualified as war crimes were not also qualified as genocide. Thus in this case, a distinction between the genocide and the war seemed to have been upheld.

V.6.6 Evaluation On the one hand, the more lenient link applied in the latter cases can be interpreted to indicate that the mere use of the armed conflict as a pretext is sufficient. This interpretation may correspond with the fact that once common Article 3 is applicable, it applies to the whole territory, and is not confined to the theatre of combat. However, on the other hand, this interpretation may appear to reflect the government propaganda during the genocide that all Tutsi were enemies. From that perspective, the interpretation is less welcome.184 More generally, this section has illustrated that a proper interpretation of the elements of this crime goes to the very core of qualifying the situation in Rwanda as a whole. This is also underlined by the Separate Opinion of Judge Ostrovsky. However, Judge Ostrovsky’s position that the armed conflict and the genocide were two separate events does not address the question whether and to what extent the Tutsi communities within Rwanda clandestinely aided the RPF. This is something that has not been explored by the ICTR. In fact, the Appeals Chamber even seemed reluctant to make a general observation on the character of the Rwandan situation. Instead, it relied on a legal standard

181 The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004, para. 793. 182 Bagambiki, the former Prefect of Cyangugu, stated that “no weapons were distributed in Cyangugu because it was not close to the active front…”, The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004, para. 207. In the Prefecture of Kibuye, there was no armed conflict either, according to The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 127. 183 The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004, paras. 707-708. 184 Also see Mégret (2002: 194-195, especially also footnote 688).

240

Chapter V

developed in the ICTY practice and has so far condoned the legal practice of assessing a link on a case-by-case basis. The Appeals Chamber merely applied the legal standard to the case of Rutaganda in a different way from the way in which the Trial Chamber had applied it. However, the Appeals Chamber confirmed the trend started with the Akayesu Appeal Judgement to apply the requirement of a connection more leniently. Despite its acquittal of war crimes, the majority opinion of the Semanza Judgement concerning this requirement closely corresponds to this development, and in a way it even anticipated the Rutaganda Appeal Judgement. While the line of reasoning in the Rutaganda Appeal Judgement was endorsed in the case of Imanishimwe, the Kamuhanda Judgement seemed to contrast with the Semanza Judgement. Both of the latter cases concerned civilians who were accused of war crimes. The link to the armed conflict was assessed on the basis of the evidence of the case, and not on the basis of a legal interpretation. Nevertheless, the exact substantial difference between the two cases remained unclear. Although the Trial Chamber in the case of Kamuhanda clearly distinguished the case from the Rutaganda Appeal Judgement, another Chamber failed to do so in respect of the Semanza Judgement. The Elements of Crimes annexed to the Statute of the ICC define the link required for war crimes as follows: “the conduct must have taken place in the context of and in association with an armed conflict”.185 This is not really helpful, and the ICC will have to decide on a case-by-case basis whether a link exists, as the ICTR did. The criticism that may be made of the ICTR is that its case law was quite inconsistent, and that this did not help to provide a better insight into the legal qualification and the interrelationship of the events that took place in Rwanda in 1994.

V.7

THE CRIMINAL ACTS

The last element of war crimes that should be considered is the criminal act. As indicated above in section V.2 on the drafting, Article 4 of the ICTR Statute covers serious violations of common Article 3 and Article 4 of the 1977 Additional Protocol II. Key questions that are answered in this section are: Which of the norms laid down in these provisions have been especially relevant in the Rwandan context, and has the ICTR considered any legal provisions other than common Article 3 and Article 4 of the 1977 Additional Protocol II? The final question is whether the ICTR drew on its interpretations of similar acts of crimes against humanity and genocide.

185 See the second to last element of each war crime in the ICC Elements of Crimes.

ICTR case law on war crimes

241

Article 4 of the ICTR Statute gives a non-exhaustive list of criminal acts. Article 4 of the ICTR Statute states that only serious violations of common Article 3 and Article 4 of the 1977 Additional Protocol II come within the realm of Article 4 of the ICTR Statute. The Trial Chamber in the Kayishema and Ruzindana case remarked that all acts that were expressly listed met this additional requirement. Following this requirement, other violations of Article 4 of the 1977 Additional Protocol II that are not expressly mentioned only fall within the scope of Article 4 of the ICTR Statute if they entail grave consequences, and if the norm that is breached protects fundamental values.186 The most relevant acts listed in the context of the ICTR are paragraph (a) which criminalises violence to life, health and physical well-being of persons, in particular murder, as well as cruel treatment such as torture, mutilation or any form of corporal punishment, and paragraph (e) which deals with outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault. As regards the specific elements of the criminal acts of murder and rape, the Trial Chambers referred to the interpretation of these acts as a crime against humanity.187 In the Musema Judgement, the Trial Chamber defined the other named violations as follows: “Required elements of Article 4 (a) of the Statute of the Tribunal a) Murder: [a reference to murder as a crime against humanity]. b) Torture: Intentionally inflicting severe pain or suffering, whether physical or mental, on a person for such purposes as obtaining from him or a third person information or a confession, or punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering only arising from, inherent in or incidental to, lawful sanctions. c) Mutilation: causing severe physical injury or damage to victims. Required elements of Article 4 (e) of the Statute of the Tribunal a) Humiliating and degrading treatment: Subjecting victims to treatment designed to subvert their self-regard. Like outrages upon personal dignity, these offences may be regarded as lesser forms of torture; moreover ones in which the motives required for torture would not be required, nor would it be required that the acts be committed under state authority.

186 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 184; The Prosecutor v. Rutaganda, Judgement, 6 December 1999, para. 106; The Prosecutor v. Musema, Judgement, 27 January 2000, paras. 286-288. These Judgements draw on The Prosecutor v. Tadic´, Appeal Decision, 2 October 1995, para. 69. 187 The Prosecutor v. Rutaganda, Judgement, 6 December 1999, para. 107; The Prosecutor v. Musema, Judgement, 27 January 2000, para. 285. See chapter IV, subsections IV.6.1 and IV.6.5.

242

Chapter V

b) Rape: [a reference to rape as a crime against humanity]. c) Indecent assault: The accused caused the infliction of pain or injury by an act which was of a sexual nature and inflicted by means of coercion, force, threat or intimidation and was non-consensual.”188

Although basically the same, the Chamber did not refer to the definition of torture as a crime against humanity as given in the Akayesu case.189 This might have been desirable for reasons of consistency. Even more serious is the Chamber’s lack of reference to the underlying source of this definition, viz. the 1984 Convention Against Torture. The other definitions noted above are also given without any reference to their basis in international law. Even worse, in the case of Kamuhanda, the accused was convicted of humiliating and degrading treatment, rape and indecent assault as war crimes, and for killing and causing violence to health and to the physical or mental well-being of civilians as war crimes, without any specification of what the elements of these crimes were.190 This lack of clear definitions and serious references to established sources of law, which also occurred in ICTY practice, was criticised by an ICTY Trial Chamber in the case of Vasiljevic´. This Chamber considered that the principle of nullum crimen sine lege required that a criminal offence was adequately described. The Chamber also remarked that, in the absence of any treaty specifications, a Chamber had to determine whether an offence was ‘defined with sufficient clarity under customary international law’, and that the work of the ILC could only serve as a subsidiary source of international law. Therefore, this ICTY Trial Chamber maintained that the crime of violence to life and person had not been sufficiently defined under international law.191 In the Ntakirutimana Judgement, the ICTR Trial Chamber noted this view of the ICTY Trial Chamber.192

188 The Prosecutor v. Musema, Judgement, 27 January 2000, para. 285. 189 In a later judgement, a Trial Chamber did make such a reference, see The Prosecutor v. Musema, Judgement, 27 January 2000, paras. 372-374. Also see The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004, para. 765. 190 The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, paras. 745-748. 191 The Prosecutor v. Vasiljevic´, Judgement, 29 November 2002, paras. 193-204. However, previously an ICTY Trial Chamber had entered a conviction for this crime, in The Prosecutor v. Blaškic´, Judgement, 3 March 2000, specifically para. 182. 192 The Prosecutor v. E. and G. Ntakirutimana, Judgement, 21 February 2003, para. 860. In contrast, in a decision on a preliminary motion, another Trial Chamber dismissed the allegation that, due to its vagueness, the ICTR would not have jurisdiction over the offence ‘violence to life’. The Chamber did indicate that the question of how to define this offence would be considered at a later stage of the trial, The Prosecutor v. Karemera, Ngirumpatse, Nzirorera, and Rwamakuba, Decision, 11 May 2004, paras. 49-52.

ICTR case law on war crimes

243

In the case of Ntagerura, Bagambiki, and Imanishimwe, the Trial Chamber looked at ICTY case law193 to define ‘cruel treatment’, the act mentioned in Article 4(a) of the ICTR Statute. The adopted definition states that cruel treatment is “an intentional act or omission causing serious mental or physical suffering or injury or constituting a serious attack on human dignity”. Relying on part of the same ICTY jurisprudence, the Chamber added that cruel treatment could include treatment that did not meet all the requirements of torture.194 It is unclear why the Chamber did not rely on ICTR jurisprudence regarding the ‘other inhuman acts’ as crimes against humanity. In fact, the Trial Chamber gave a similar definition to the one given above.195 This crossreference might have been useful for the purpose of ensuring coherent case law. Another point that should have been addressed is how cruel treatment under Article 4(a) of the ICTR Statute relates to inhuman and degrading treatment under Article 4(e) of the ICTR Statute. In conclusion, we find that only a limited number of paragraphs have been used in the ICTR context so far.196 Other paragraphs listed in Article 4 of the ICTR Statute, such as the taking of hostages and terrorism were not applied or interpreted by the ICTR. Despite the non-exhaustive nature of Article 4 of the ICTR Statute, the ICTR has not used its discretion to broaden the scope of war crimes in internal armed conflict. In most instances, the individual acts were defined with reference to comparable acts as crimes against humanity. However, this was not done consistently, which undermined the coherence of the jurisprudence as a whole. Yet, consistency is not the only value that must be taken into account. In the context of the ICC, the physical acts of crimes against humanity and war crimes are not always defined in the same way. In particular, the definition of torture as a crime against humanity and as a war crime differs in that torture as a war crime does require that the torture is committed for a specific purpose, whereas this element is absent in the definition of torture as a crime against humanity.197

193 The Prosecutor v. Delalic´, Mucic´, Delic´, and Landžo, Appeal Judgement, 20 February 2001, para. 424; The Prosecutor v. Naletilic´ and Martinovic´, Judgement, 31 March 2003, para. 246; The Prosecutor v. Blaškic´, Judgement, 3 March 2000, para. 186; The Prosecutor v. Jelisic´, Judgement, 14 December 1999, para. 41; The Prosecutor v. Tadic´, Judgement, 7 May 1997, paras. 723-726; The Prosecutor v. Delalic´, Mucic´, Delic´, and Landžo, Judgement, 16 November 1998, para. 551. 194 The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004, para. 765. 195 Viz. “acts or omissions that deliberately cause serious mental or physical suffering or injury or constitute a serious attack on human dignity”, The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, para. 151. 196 This might change once and if RPF members are prosecuted, especially if crimes committed after 18 July 1994 are also investigated. In such situations, Article 4(g) of the ICTR Statute may become relevant. This provision includes ‘the passing of sentences and the carrying out of executions without previous judgements pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples’. 197 Robinson (2001c: 91), Dörmann (2001: 128), and La Haye (2001b: 210).

244

V.8

Chapter V

CONCLUSION

The main conclusion of this chapter is that war crimes have a distinct legal status. Its characterising element constitutes the link to an armed conflict. Since the other two crimes of the ICTR Statute do not necessarily include this link, war crimes cannot function as a safety net. Due to the nature of public international law based on State sovereignty, the concept of war crimes in internal armed conflicts had not fully matured when the ICTR started functioning. Therefore, the ICTR had the unique opportunity of basing this crime in the international legal order, an opportunity that it did not take. Although the ICTY paved the way with some groundbreaking case law in this respect, the ICTR did not follow. It chose its own route, which did not take appropriate account of the intricacies of public international law and the process of law-making in this legal system. Refraining from undertaking a legal discussion outside the scope of its own functioning, the ICTR reduced its contribution to a simple application of law in its own context. Apart from the legality of Article 4, the second legal hurdle concerned the link to an armed conflict, the element that gives war crimes their distinct status. War crimes differ from genocide, in that the characterising elements are not related to the mental element. The characterising element of genocide is the specific intent; for crimes against humanity the mental element is also decisive. However, as regards war crimes, the identifying element is actually the objective element, viz. the requirement of connection. Despite its objective character, the Chambers had difficulty in giving an appropriate definition of this element. The ICTR’s initial reticence in establishing a link to the armed conflict can be explained by the impact of this element on the general characterisation of the situation in Rwanda. The discussion about whether and to what extent the genocide resulted from the war with the RPF goes to the heart of the conflict in Rwanda, and resulted in a debate that has still not been settled conclusively today. In conclusion, it is possible to conclude that the Statute of the ICTR constitutes the greater contribution to the development of international criminal law, and that the practice of the ICTR is rather disappointing in comparison. By adopting the Statute, the Security Council not only confirmed its power to deal with internal conflicts, but it also included Article 4, which expressly criminalised violations of common Article 3. In the subsequent practice, the ICTR consolidated this step forward, but it was the ICTY that took the lead, with the ICTR following hesitantly.

Chapter VI

THE INTERRELATIONSHIP BETWEEN THE THREE CRIMES

In the preceding chapters, some references were made to the interrelationship between the three crimes of genocide, crimes against humanity, and war crimes. These references are aimed at providing a better understanding of the outlines of each crime. The exercise of defining each crime is undertaken in a more comprehensive fashion in this chapter. Some insights are given into the interrelationship between the three crimes on the basis of three distinct approaches. First, the case law of the ICTR is examined with a view to determining whether there is a hierarchy between the three crimes (section VI.1). Relevant ICTY case law and literature are also taken into account. Secondly, the ICTR case law on the ‘doctrine of concurrence’ is analysed as a tool to describe the interconnections between the three crimes (section VI.2). Thirdly, the correspondence between the specific crime definitions is examined (section VI.3).

VI.1

THE HIERARCHY OF THE THREE CRIMES

In popular opinion, genocide stands at the apex of international criminal law. Consequently, most massacres of the 20th century have been qualified as genocide by someone to substantiate the view that they were horrific events. However, the Statute of the ICTR neither lists the three crimes in an expressly hierarchical order, nor qualifies genocide as the most serious crime, although the drafters did place genocide in Article 2, in contrast with the ICTY Statute where genocide is included in Article 4, after the provisions on war crimes and before those on crimes against humanity. In the case of the ICTR, placing genocide before crimes against humanity and war crimes seemed intended to persuade the Prosecution that it should focus on the crime of genocide. A similar purpose is served by the full name of the ICTR, which is: “The International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring states, between 1 January 1994 and 31 December 1994.”

246

Chapter VI

Incidentally, it should be noted that from a defence perspective, this title could be considered rather inappropriate, and “The International Criminal Tribunal for the Trial of Persons Suspected of Genocide…” would have been preferable. In its case law, the ICTR gave some contradicting indications regarding the classification of the three crimes. The hierarchy of the crimes was discussed mainly with regard to the matter of sentencing, as the gravity of the crime may be a relevant factor for determining the sentence. In the Kambanda Judgement, the Trial Chamber observed: “whereas in most national systems the scale of penalties is determined in accordance with the gravity of the offence, (…), the Statute does not rank the various crimes falling under the jurisdiction of the Tribunal, (…).”1

Despite this absence of a hierarchical list, the Trial Chamber regarded war crimes as lesser crimes.2 It made no further distinction as regards gravity for crimes against humanity and genocide. Other Trial Chambers were not so explicit about the lesser status of war crimes, but did submit that no distinction as regards gravity could be made between genocide and crimes against humanity. They argued that both crimes shocked the conscience of mankind.3 At the same time, those Chambers referred to genocide as “the crime of crimes”,4 thus implying a sort of higher ranking. In contrast to all these findings, in the Akayesu Judgement, the Trial Chamber held that none of the three crimes was a lesser form of the others. The Chamber acknowledged in this Judgement that genocide was the gravest crime, but also emphasised that situations could be envisaged where crimes against humanity or war crimes were not used as alternative charges to genocide, but rather as independent charges relating to a different set of facts, or protecting different values.5 Thus the different Trial Chambers do not seem to provide a totally coherent picture as regards the hierarchy of crimes or the absence of such a hierarchy.6 Moreover, ICTY case law deviates from the view that war crimes have a lesser status. In the Tadic´ case, the ICTY Appeals Chamber did not accept that crimes against humanity were generally

1 2 3

4

5 6

The Prosecutor v. Kambanda, Judgement, 4 September 1998, para. 12. The Prosecutor v. Kambanda, Judgement, 4 September 1998, para. 14. The Prosecutor v. Akayesu, Sentencing Judgement, 2 October 1998, para. 7; The Prosecutor v. Musema, Judgement, 27 January 2000, para. 980; The Prosecutor v. Rutaganda, Judgement, 6 December 1999, para. 450. The Prosecutor v. Akayesu, Sentencing Judgement, 2 October 1998, para. 8; The Prosecutor v. Musema, Judgement, 27 January 2000, para. 981; The Prosecutor v. Rutaganda, Judgement, 6 December 1999, para. 451. The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 470. An ICTY Trial Chamber held a different view in its Judgement in the Blaškic´ case, where it stated that ICTR case law established a hierarchy of crimes, The Prosecutor v. Blaškic´, Judgement, 3 March 2000, para. 800.

The interrelationship between the three crimes

247

characterised as being more serious than war crimes.7 This view contrasted with the Appeals Chamber’s finding in the Erdemovic´ case.8 In the case of Furundžija, the Appeals Chamber noted the apparent discrepancy, and explicitly chose the Tadic´ view as the view that should prevail.9 In a Separate Opinion to the Tadic´ Judgement, and in a Declaration to the Furundžija Judgement, the Judges Cassese and Vohrah respectively, agreed in principle with the majority judgements in their cases, but made one exception to this rule, that would bring the Erdemovic´ Appeal Judgement and the Tadic´ Appeal Judgement more in line with each other. The two Judges submitted that if the same conduct could be qualified as a crime against humanity and as a war crime, the qualification as a crime against humanity should attract a higher sentence, given the higher mens rea requirement.10 In contrast, in a Separate and Dissenting Opinion to the Erdemovic´ Appeal Judgement and in a Separate Opinion to the Tadic´ Appeal Judgement, Judges Li and Shahabuddeen argued respectively against this idea that, all other things being equal, crimes against humanity were more serious than war crimes. In their view, the submission that crimes against humanity are intrinsically more serious than war crimes was unfounded in law, therefore supporting the now prevailing Tadic´ Appeal Judgement.11 It is worth noting that most scholars disagreed with the prevailing view that there was no hierarchy between the three crimes.12 They preferred Cassese’s view that, all other things being equal, the same act is more serious when characterised as a crime against humanity than when it is characterised as a war crime. They pointed to the fact that the mental and contextual elements of crimes against humanity impose a higher threshold. These elements require that the act is committed as part of a widespread or systematic attack, and that the perpetrator had knowledge of the attack. When characterised as a war crime, the act need ‘only’ be committed in an armed conflict. Although most scholars consider that, all other things being equal, crimes against human-

7 8 9

10

11

12

The Prosecutor v. Tadic´, Appeal Judgement, 26 January 2000, para. 69. The Prosecutor v. Erdemovic´, Appeal Judgement, 7 October 1997, para. 20 and see in particular the Joint Separate Opinion of Judges MacDonald and Vohrah, 7 October 1997, paras. 20-27. The Prosecutor v. Furundžija, Appeal Judgement, 21 July 2000, paras. 240-243, 247. Subsequently, this decision was followed by ICTY Trial Chambers, for instance in The Prosecutor v. Kunarac, Kovacˇ, and Vukovic´, Judgement, 22 February 2001, para. 860. The Prosecutor v. Tadic´, Separate Opinion of Judge Cassese to the Appeal Judgement, 26 January 2000, and The Prosecutor v. Furundžija, Declaration of Judge Vohrah to the Appeal Judgement, 21 July 2000. Of course, Judge Cassese noted that given the doctrine of cumulative convictions, as explained below, the problem would normally not arise. Nevertheless he gave some examples in which his view would still be relevant, see paras. 18-19. The Prosecutor v. Erdemovic´, Appeal Judgement, Separate and Dissenting Opinion of Judge Li, 7 October 1997, paras. 13-27, and The Prosecutor v. Tadic´, Appeal Judgement, Separate Opinion of Judge Shahabuddeen, 26 January 2000. Also see The Prosecutor v. Tadic´, Judgement, Separate Opinion of Judge Robinson, 11 November 1999. Bohlander (2000), Frulli (2001), Danner (2001), Ambos and Nemitz (2002).

248

Chapter VI

ity are more serious than war crimes, this does not amount to an abstract ranking system, entailing that any crime against humanity is necessarily always more serious than any war crime. It is only if an act can be characterised as a crime against humanity and as a war crime, that there may be a hierarchy. In other cases, it depends on the circumstances of the case whether the crime against humanity concerned is more serious than the war crime. Despite some indications in the ICC Statute that war crimes generally have a lesser status than crimes against humanity and genocide,13 the ICC is silent on this issue, as are the Statutes of the ICTY and the ICTR. Each crime protects different values, which cannot be easily ranked in abstracto. In line with the ICTY jurisprudence, the Trial Chamber in the Semanza case pointed out that: “[a]ll of the crimes in the Statute are crimes of an extremely serious nature, rising to the level of international prohibition. Thus, in assessing the gravity of the offence, the Chamber ought to go beyond the abstract gravity of the crime to take into account the particular circumstances of the case, as well as the form and degree of the participation of the Accused in the crime.”14

This corresponds with earlier ICTR Appeal Judgements, which also emphasised that sentencing should be based on the gravity of the conduct in a specific case.15 Hence, in the end the Tribunals did not adopt an abstract ranking system, despite some indications in the first Judgements. Therefore, the Akayesu reasoning that none of the crimes can generally be classified as having a lower status prevails. As outlined more specifically below in subsection VI.3.2 on the legal relationship between genocide and war crimes, war crimes have features which differ from genocide and crimes against humanity. In some instances they may certainly reach a very high level of gravity. In the words of Judge Cassese in his Separate Opinion: “one cannot say that a certain class of international crimes encompasses facts that are more serious than those prohibited under a different criminal provision. In abstracto all international

13

14 15

These indications are: Article 31(c) of the ICC Statute which allows for the defence of property only in the case of war crimes, Article 33 of the ICC Statute which stipulates that an order to commit genocide or a crime against humanity is manifestly illegal, and the opt out clause of Article 124 of the ICC Statute, which allows States to exclude jurisdiction of the Court in respect of war crimes for a period of seven years. Furthermore, during the Rome Conference, it was debated whether the ICC should have jurisdiction in respect of every single war crime. The final compromise was to insert a so-called ‘non-threshold-threshold’ in Article 8(1) which states “The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a policy or as part of a large-scale commission of such acts.” Also see Boot (2002: 548). The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 555. The Prosecutor v. Kambanda, Appeal Judgement, 19 October 2000, para. 125; The Prosecutor v. Akayesu, Appeal Judgement, 1 June 2001, para. 413; The Prosecutor v. Musema, Appeal Judgement, 16 November 2001, para. 382.

The interrelationship between the three crimes

249

crimes are serious offences and no hierarchy of gravity may a priori be established between them (…).”16

VI.2

CONCURRENCE AND CUMULATIVE CONVICTIONS

Having established that the three crimes are not hierarchically interrelated, this section continues to explore the interrelationship in more detail. This interrelationship depends, inter alia, on the ‘identity’ and limits of each crime. In this section, the tool used to define each crime in a more comprehensive fashion is the ‘doctrine of concurrence’. The doctrine of concurrence concerns the application of different crime definitions to the same act; in some instances it may be possible to qualify one act as genocide but also as a crime against humanity. In these instances, guidelines are necessary to determine whether and under which circumstances such ‘double-qualification’ is permitted and how it relates to the principle of ne bis in idem. ‘Ideal concurrence’ is the application of different crime definitions to the same set of facts, resulting in cumulative convictions.17 This section briefly sets out the ICTR case law on concurrence, as well as its consequences and problems. References to ICTY case law are included where necessary. These references are used as guidelines and for the purposes of comparison. In order to identify the characteristics of each crime, the focus of this section is on the ICTR case law regarding the definition of the three crimes, and to what extent the three crimes overlap. The initial case law of ICTR Trial Chambers on concurrence is diverse. In the Akayesu Judgement, the Trial Chamber enumerated three alternative situations in which cumulative convictions were permissible, viz. (i) if the crimes had different elements; (ii) if the crimes protected different values; and (iii) if cumulative convictions were necessary to describe the criminal behaviour of the accused in full. In general the Trial Chamber concluded that cumulative convictions for genocide, crimes against humanity, and war crimes were possible, since these crimes had different elements and since they protected different values. According to the Trial Chamber, these three crimes were “never co-extensive”. The Chamber spelled out that defining the crime of genocide purported to protect specific groups from extermination, that crimes against humanity protected civilian populations from persecution and that war crimes as laid down in the ICTR Statute protected noncombatants from war crimes in civil war.18 Clearly, this reasoning is far from an in-depth study into the underlying values of the three crimes, and the Trial Chamber was wrong

16 17

18

The Prosecutor v. Tadic´, Appeal Judgement, Separate Opinion of Judge Cassese, 26 January 2000, para. 7. This should be distinguished from real concurrence, which concerns criminal acts committed consecutively and tried together, Ambos and Wirth (2001: 702-703). For the purpose of this study, only ideal concurrence is dealt with, and more specifically inter-article cumulations as opposed to intra-article cumulations are considered. The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 461-470.

250

Chapter VI

to consider crimes against humanity only as a crime of persecution. Generally, it is said that there are two types of crimes against humanity, the ‘persecution type’ and the ‘killing type’. In the Akayesu Judgement, the charges were for the killing type of crimes against humanity. The approximate characterisation of the Trial Chamber does not address the overlap that may exist between extermination as a crime against humanity and genocide either. In the Kayishema and Ruzindana Judgement, the Trial Chamber adopted a more casespecific approach. It endorsed the first two situations given by the Trial Chamber in the Akayesu case in which cumulative convictions were acceptable, viz. where the offences have different elements, or where the laws protect different values. In a footnote, the Chamber noted that national jurisdictions had adopted similar views, and pointed to the case of Blockburger to the United States.19 Subsequently, the Chamber held that the question of overlap between two crimes had to be determined in specific situations, and could not be established in general.20 In the case at hand, the Chamber believed that the charge of genocide encompassed the charges of crimes against humanity, because the Prosecution relied on the same elements and the same evidence to prove the crime, and because in that specific case the laws protected the same interests.21 The Chamber therefore acquitted Kayishema and Ruzindana from the less specific charges. In a Dissenting Opinion, Judge Khan argued that genocide and crimes against humanity did not protect the same interest at all, and disagreed with the acquittal on these counts on the basis of the concurrence.22 In the Rutaganda case and in the Musema case, the Trial Chambers endorsed Judge Khan’s Opinion, and stressed that all three crimes of the ICTR Statute protected different interests.23 When faced with the issue of cumulative convictions in the Kupreškic´ et al. case, an ICTY Trial Chamber considered that this issue “has not been dealt with in-depth by an international criminal court.”24 The Chamber noted the existing ICTR Judgements, but considered their discussions to be brief, and apparently not convincing for that reason. Consequently, the Chamber discussed different national principles that dealt with the issue of concurrence. First of all, the Chamber pointed to the Blockburger test, as derived from US case law. This test stipulates that multiple convictions on the basis of different crime definitions for the same set of facts are permitted if each crime definition has a

19 20 21 22 23 24

Blockburger v. United States, Supreme Court of the United States, 4 January 1932, 284 US 299, 52 Supreme Court Reporter 180. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 627-636. The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 637-650. The Prosecutor v. Kayishema and Ruzindana, Judgement, Dissenting Opinion of Judge Khan, 21 May 1999. The Prosecutor v. Rutaganda, Judgement, 6 December 1999, paras. 108-119; The Prosecutor v. Musema, Judgement, 27 January 2000. The Prosecutor v. Z. Kupreškic´, M. Kupreškic´, V. Kupreškic´, Josipovic´, Papic´, and Santic´, Judgement, 14 January 2000, para. 668.

The interrelationship between the three crimes

251

materially distinct element. An element is materially distinct if it requires proof of a fact that is not required by another element. The Chamber noted that in civil jurisdictions this test is known as the ‘reciprocal speciality’ test. Multiple convictions are not allowed in a case in which the speciality principle or the consumption principle applies. The principle of speciality requires that the specific provision should prevail over the more general one. The principle of consumption was illustrated with an example from the practice of the Inter-American Court of Human Rights: “In criminal law if a person is killed by a dagger it is obvious that he was also the victim of wounding. However, the crime that was committed is murder, and no judge will interpret the norms in such a way that the dead person was the victim of ‘murder and wounding’”.25

In addition to the Blockburger test, the Chamber in the case of Kupreškic´ et al. developed another test, based on the case law of the European Court of Human Rights. Under this additional test, “if an act or transaction is simultaneously in breach of two criminal provisions protecting different values, it may be held that that act or transaction infringes both criminal provisions.”26 This test overrules the principle of consumption to a certain extent. The ICTY Trial Chamber finally came to more or less the same conclusion as the ICTR Trial Chamber in the Kayishema and Ruzindana case, although it reached this conclusion after a rather more detailed summary of national and international practice. Eventually both Chambers largely adhered to the common law Blockburger test. As Walther noted, the third criterion listed in the Akayesu Judgement, which was absent in both the Kayishema and Ruzindana Judgement and the Kupreškic´ Judgement, viz. that multiple convictions are permitted if they are necessary for a proper description of the accused’s actions, reflects a civil law approach.27 On the basis of prior case law and national principles, the ICTY Appeals Chamber in the Cˇelebic´i case considered that: “multiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other. An element is materially distinct from another if it requires proof of a fact not required by the other.”28

25

26 27

28

Inter-American Court of Human Rights, Caballero Delgado and Santana case, Dissenting Opinion of President Nieto-Navia, Judgement, 8 December 1995, as cited by The Prosecutor v. Z. Kupreškic´, M. Kupreškic´, V. Kupreškic´, Josipovic´, Papic´, and Santic´, Judgement, 14 January 2000, para. 686. The Prosecutor v. Z. Kupreškic´, M. Kupreškic´, V. Kupreškic´, Josipovic´, Papic´, and Santic´, Judgement, 14 January 2000, para. 694. Walther (2002: 492: “this third element of the Akayesu test reflects a penchant for the civil law concept of Idealkonkurrenz with its built-in emphasis on the specific, expressive functions of the verdict itself, as differentiated from those of the sentence.”). The Prosecutor v. Delalic´, Mucic´, Delic´, and Landžo, Appeal Judgement, 20 February 2001, para. 412.

252

Chapter VI

The Cˇelebic´i Appeal Judgement was not pronounced unanimously. Two out of five Judges dissented. Judges Hunt and Bennouna dissented for a number of reasons.29 In general, the Judges observed that the interest that a crime protects is reflected in its elements of crimes. The Judges therefore considered that the ‘different interests test’ as laid down in the Akayesu Judgement, could not be used as an example in which cumulative conviction is permitted. As regards the ‘different elements test’, the Judges submitted that the contextual elements should not be taken into account. The Judges stressed that the underlying principle was that an accused should not be convicted for the same criminal conduct, and that contextual elements did not have a direct bearing on that conduct. The Judges favoured a specific assessment taking account of the circumstances of the case rather than an abstract finding of how the crimes in the Statute related to one another. Despite this valuable opinion of the two Judges, the Cˇelebic´i Appeal Judgement was endorsed in the Jelišic´ Appeal Judgement,30 and ICTY Trial Chambers subsequently applied the test as set forth by the ICTY Appeals Chamber.31 In the Musema Appeal Judgement, the ICTR Appeals Chamber also adhered to the Cˇelebic´i Appeal Judgement,32 and so did other ICTR Trial Chambers.33 However, in the Semanza Judgement, Judge Dolenc wrote a Dissenting Opinion, in which he disagreed with the ‘reciprocal speciality test’, as he called it. Judge Dolenc noted that the ICTY Appeals Chamber had already expressed its reservations in the Focˇa Appeal Judgement. In this Judgement, the ICTY Appeals Chamber indicated that the test was “deceptively simple”.34 The Appeals Chamber referred to the Dissenting Opinion of Judges Hunt and Bennouna, and submitted that the test might cause prejudice to the accused. The Appeals Chamber repeated: “Such persons suffer the stigma inherent in being convicted of an additional crime for the same conduct. In a more tangible sense, there may be such consequences as losing eligibility for early release under the law of the state enforcing the sentence.”

Yet the Appeals Chamber also conceded that in some instances multiple convictions might be necessary to describe the criminal conduct of the accused in full.35 Subsequent to

29 30 31

32 33

34 35

The Prosecutor v. Delalic´, Mucic´, Delic´, and Landžo, Appeal Judgement, Separate and Dissenting Opinion of Judges Hunt and Bennouna, 20 February 2001. The Prosecutor v. Jelišic´, Appeal Judgement, 5 July 2001, paras. 78-83. See in particular the Partial Dissenting Opinion of Judge Shahabuddeen, paras. 30-46. The Prosecutor v. Kunarac, Kovacˇ, and Vukovic´, Judgement, 22 February 2001, paras. 549-551; The Prosecutor v. Kordic´ and Cˇerkez, Judgement, 26 February 2001, paras. 814-815; The Prosecutor v. Krstic´, Judgement, 2 August 2001, paras. 664-667. The Prosecutor v. Musema, Appeal Judgement, 16 November 2001, paras. 358-369. The Prosecutor v. Semanza, Judgement, 15 May 2003, para. 409; The Prosecutor v. Kajelijeli, Judgement, 1 December 2003, paras. 745-753; The Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Judgement, 3 December 2003, para. 1090; The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, paras. 577-584. The Prosecutor v. Kunarac, Kovacˇ, and Vukovic´, Appeal Judgement, 12 June 2002, para. 172. The Prosecutor v. Kunarac, Kovacˇ, and Vukovic´, Appeal Judgement, 12 June 2002, para. 169.

The interrelationship between the three crimes

253

these findings, the Appeals Chamber stressed that apart from scrutinising the legal descriptions of the crimes, it would also “take into account the entire situation so as to avoid a mechanical or blind application of its guiding principles.”36 In his Dissenting Opinion, Judge Dolenc introduced three principles as tools for applying the test less mechanically, viz. the principle of consumption, the principle of subsidiarity and the principle of inclusion. The principle of consumption “refers to relationship of offences of the same kind, but differing significantly in gravity, that are designed to protect the same or closely related social interests, but which differ in relation to particular elements.” Pursuant to the principle of subsidiarity “a less authoritative or ‘inferior’ criminalisation only applies when the competing ‘superior’ criminalisation is not applicable.” Finally, the principle of inclusion regulates the situation in which “an accused’s conduct violates two or more substantially different criminalisations, but where it would be unreasonable to pronounce cumulative convictions because of the insignificance of the lesser crime.” On the basis of these principles, Judge Dolenc argued that there was a certain hierarchy between the three crimes, and that genocide was more specific than crimes against humanity and war crimes, and that crimes against humanity were more specific than war crimes.37 Despite these dissenting voices, prevailing case law is that the three crimes ‘co-exist’. The following sections closely examine the results of the case law on cumulative convictions for the relationship between the crimes. Some broader observations on the ‘identity’ of each crime are also provided.

VI.3

CORRESPONDENCE BETWEEN THE SPECIFIC CRIME DEFINITIONS

Most of the decisions on cumulative convictions in the ICTR context concerned an accumulation of genocide and crimes against humanity, in contrast to the ICTY which generally concerned the accumulation of the two types of war crimes (Articles 2 and 3 of the ICTY Statute) and of war crimes and crimes against humanity. The test formulated in the Cˇelebic´i Appeal Judgement and endorsed by the ICTR Appeals Chamber in the Musema Appeal Judgement stipulates that all the legal elements of the crimes are relevant. This means that the contextual elements of crimes should also be taken into account. In the case of Musema, the ICTR Appeals Chamber applied the test to a charge of genocide and a charge of extermination as a crime against humanity. This is quite interesting, since extermination is the act that most resembles genocide.

36 37

The Prosecutor v. Kunarac, Kovacˇ, and Vukovic´, Appeal Judgement, 12 June 2002, para. 174. The Prosecutor v. Semanza, Judgement, Separate and Dissenting Opinion of Judge Dolenc, 15 May 2003, paras. 23-28. Also see The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Separate and Dissenting Opinion of Judge Dolenc, 25 February 2004, paras. 70-71.

254

Chapter VI

If these crimes do not overlap, it can be assumed that the same applies to the other acts of crimes against humanity. The Appeals Chamber in the Musema case looked at the statutory definitions of both crimes and concluded that each crime had a materially distinct element that was not included in the definition of the other. The Chamber noted that the statutory definition of genocide “require[d] proof of an intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, whereas the statutory definition of crimes against humanity “require[d] proof that the crime was committed as a part of a widespread or systematic attack against a civilian population”.38 In each case proof of these elements was not required for the other crime, and therefore the Chamber concluded that multiple convictions for genocide and extermination as a crime against humanity were permissible.39 Given that the materially distinct elements were in both cases part of the general definition of the crime and not of the specific act, it may be concluded that multiple convictions for genocide and crimes against humanity are always permissible, as was also pointed out in the previous section.40 However, in the Musema Appeal Judgement, the ICTR Appeals Chamber refused to draw this conclusion and submitted that its rulings were limited to the issues raised on appeal in that case.41

VI.3.1 Genocide and crimes against humanity The ICTR practice so far shows that all the accused were charged with crimes against humanity as well as genocide.42 Therefore, the question is what the additional value is of crimes against humanity in the prosecution and trial of the accused by the ICTR.43 An examination of the legal description of crimes against humanity in the ICTR Statute

38 39

40

41 42

43

The Prosecutor v. Musema, Appeal Judgement, 16 November 2001, paras. 365-366. This was endorsed by the ICTY Appeal Chamber in The Prosecutor v. Krstic´, Appeal Judgement, 19 April 2004, para. 223, and by an ICTR Trial Chamber in The Prosecutor v. Ndindabahizi, Judgement, 15 July 2004, paras. 491-493. This was also explicitly noted by Judge Dolenc, The Prosecutor v. Semanza, Judgement, Separate and Dissenting Opinion, 15 May 2003, para. 15 (“Absurdly, the test created to limit multiple convictions at the ICTY results in blanket permission for inter-article cumulation of convictions at the ICTR”). The Prosecutor v. Musema, Appeal Judgement, 16 November 2001, para. 368. Also see The Prosecutor v. Kamuhanda, Judgement, 22 January 2004, paras. 583-584. Following his guilty plea to extermination as a crime against humanity, Vincent Rutaganira, a former Councillor, was convicted only for this crime although he had also been charged with genocide. The Prosecutor v. Rutaganira, Judgement, 14 March 2005. In individual cases, a cumulative conviction for genocide and crimes against humanity may lead to a higher sentence, although the Chambers mainly imposed distinct terms of imprisonment that ran concurrently, also see The Prosecutor v. Delalic´, Mucic´, Delic´, and Landžo, Appeal Judgement, 20 February 2001, paras. 428431.

The interrelationship between the three crimes

255

reveals that this crime has been formulated to serve as a kind of safety net in case genocide could not be proved. For example, the discriminatory element in the definition of crimes against humanity may reflect the intention that the crime be charged with regard to genocidal massacres. In situations other than Rwanda, crimes against humanity could certainly serve as an alternative basis for conviction in case genocide could not be proved.44 In the ICTR context, crimes against humanity have not been used this way, since no accused has been charged for crimes against humanity and not for genocide. In fact, the convictions of genocide and crimes against humanity were generally complementary. Crimes against humanity could play an important role in vindicating crimes committed against Hutu individuals. As noted in the chapter on genocide, one Trial Chamber excluded the possibility that Hutu could become victims of the genocide against the Tutsi, whereas other Trial Chambers ruled that all those perceived as Tutsi by their perpetrators could become victims of genocide. Therefore it is best if killings of Hutu during genocidal massacres on the assumption that they were Tutsi, or for other reasons, are also charged as crimes against humanity. In this situation, crimes against humanity could serve to describe the full criminal conduct of an accused. If crimes against humanity were not charged cumulatively, the killings of Hutu individuals would remain unpunished. In their commentary to the Kayishema and Ruzindana Judgement, Ambos and Wirth pointed out that genocide was a crime committed against a group of people, whereas crimes against humanity targeted the basic rights of individuals on a vast scale.45 Hence, in the case of genocide, only those belonging to the group or perceived as belonging to the group can be considered victims, whereas any individual can become victim of a crime against humanity regardless of his origins, on the condition that the individual is part of the civilian population. From this perspective, it is important that genocide and crimes against humanity are charged cumulatively, and that multiple convictions are possible. Crimes against humanity may also cover other important crimes, which have not received much attention so far. For example, crimes against humanity in the ICTR context may apply to the murder of the ten Belgian peacekeepers. Furthermore, the killings of Hutu opponents in the first days after the plane crash can be characterised as crimes against humanity. The definition of crimes against humanity may also be especially useful for prosecuting RPF conduct, one of the great challenges of the ICTR at this stage. Even in a clear-cut situation of genocide, as was the case in Rwanda, other crime definitions are certainly necessary in order to describe the whole situation and cover all the crimes committed. From this perspective, genocide and crimes against humanity are

44 45

As may be the case in the case against Miloševic´ before the ICTY. Ambos and Wirth (2001: 704).

256

Chapter VI

two co-existing crimes, which may seem to overlap in certain specific circumstances, but which each have their own value.

VI.3.2 Genocide and war crimes When the genocide commenced on 6 April 1994, the RPF broke the cease-fire and the internal armed conflict resumed. While politicians and historians may focus on the question of cause and effect – which event triggered the other – lawyers are restricted to dealing with a more technical question, viz. whether and under what circumstances the genocidal massacres can also be qualified as war crimes. Two closely related questions are whether genocide can actually be committed in peacetime, as the conventional definition provides, or whether in fact, genocide constitutes a war in itself, given the means employed. The question whether genocidal massacres can also be defined as war crimes depends on the interpretation of one element of war crimes, viz. the link to an armed conflict. In practice, the relationship between genocide and war crimes involves the compatibility between the mental element of genocide, the intent to destroy a group, and the requirement of a link for war crimes. Section V.6 showed that the definition and application of the latter element was not easy, and that the exact relationship between the genocide and the armed conflict was still rather obscure. Different general views were expressed in the course of the development of the case law on this point. Whereas the Trial Chamber in the Akayesu Judgement spoke of two concurrent but distinct events, the government of Belgium stated in an amicus curiae brief that the armed conflict initiated by the RPF in 1990 was one of the main causes of the genocide. Despite these disparate views, it was agreed in several instances that the armed conflict served as a pretext for the genocide. It was also submitted that the existence of a link to the armed conflict had to be determined on a case-to-case basis, and no general definition was provided apart from the broad definition that was borrowed from the ICTY. Given that the requirement of a link has not been conclusively defined by the ICTR, the reality suggested by some ICTR case law is that a genocidal act committed on the pretext that the act is intended to fight the enemy can also be qualified as a war crime, and that genocidal acts that do not use this pretext cannot be qualified as war crimes. In the case of Imanishimwe, there was proof that specific individuals had been picked out of the group for their suspected ties with the RPF. This selection fulfilled the requirement of a link. In the Semanza case, it was considered that Tutsi were targeted as the enemy in a more general sense. This broad finding was also considered to meet the requirement of a link. The question is whether this case law is wholly satisfactory. It can be argued that it is not. As was already submitted in section V.6, it is necessary to carry out a general assessment of the entire situation. This general assessment can

The interrelationship between the three crimes

257

serve as the basis for the application of the requirement of a link in specific cases. It is only if the pretext of the war is used vis-à-vis specific persons, as was the case in the Imanishimwe case, that the requirement of a link can be regarded as being fulfilled. General propaganda that defines all Tutsi as the enemy, as in the Semanza Judgement, should not be sufficient to satisfy the requirement of a link, as it does not establish a real link to the armed conflict. Indications of a general assessment by the ICTR are contradictory. On the whole, the ICTR fails to observe that the Tutsi within Rwanda cannot necessarily be equated with the RPF. Although some Tutsi may have sympathised with the RPF and may even have offered their support, the Tutsi living in Rwanda in 1990 and the Tutsi coming from abroad can still be viewed as two different groups. From this perspective, the link between the genocide and the armed conflict is less apparent. On the basis of this view, it may be argued that the Rwanda Armed Forces (RAF) had two ‘war fronts’, one against the RPF and the other against the Tutsi population in Rwanda. In fact there is speculation that the RAF lost the war against the RPF because they concentrated their efforts more on the genocide. The fact that the RAF, as well as militias and the Presidential Guard, were the main executors of the genocide, does not render this ‘war’ against the Tutsi population an armed conflict, given the requirements of an armed conflict as set out in Chapter V. In conclusion, in the author’s opinion, genocide and war crimes committed during an internal armed conflict are not generally mutually exclusive. However, in the case of Rwanda, a genocidal act cannot at the same time be qualified as a war crime, given the general assessment set out above. Nevertheless, if, in an individual case, a Tutsi was murdered because of suspicions that he had aided the enemy, this act may constitute a war crime. In this case, the act cannot be qualified as genocide as well, as there was no genocidal intent. Moreover, as indicated above, genocide does not constitute an armed conflict in itself, even though the means employed may be similar to those used in an armed conflict, and even though the army may be involved. Therefore, we can conclude that in the Rwandan context, the two crime definitions served to cover different events.

VI.3.3 Crimes against humanity and war crimes: the requirement of a connection As set out above, according to prevailing case law of the ad hoc Tribunals, there is no general hierarchy between crimes against humanity and war crimes. However, some judges and scholars argued for acknowledging a specific hierarchy in the case that the same set of facts may be qualified as a crime against humanity and as a war crime. In support of their arguments, these scholars pointed to the contextual element of the two crimes. The statutory definition of crimes against humanity requires that the crimes be committed ‘as part of a widespread or systematic attack’. War crimes are crimes that

258

Chapter VI

must have a link to an armed conflict. Hence, both crimes require a link to a certain context. It should be noted that these requirements of a connection were interpreted in different ways. For crimes against humanity the mental element was relevant for the requirement of a connection. It has to be proven that the perpetrator had knowledge of the attack. For war crimes, this requirement depends more on the factual situation and is established on a case-by-case basis. It is because of this higher mental element that some people consider crimes against humanity to be more serious than war crimes, because the perpetrator is considered to be more culpable.46 He knew of the attack and he furthered it with his own actions. In contrast, the link to an armed conflict may, in a way, be viewed as an attenuating circumstance, since times of war are exceptional circumstances in which individuals may be pushed to behave in exceptional and irrational ways. However, in the author’s view, this line of reasoning should not be followed. The different ways in which the requirement of a link is interpreted emphasises the fact that two different crimes are involved here, protecting different values, even though in times of war the two crime definitions may both be applicable. In short, war crimes concern violations of international humanitarian law, while crimes against humanity concern grave violations of basic human rights. Fenrick submitted that crimes against humanity cannot (yet) replace war crimes given their different scope. He pointed out that crimes against humanity do not include a proportionality test as regards unlawful attacks, whereas humanitarian law has developed the doctrine of ‘collateral damage’. Furthermore, he observed that humanitarian law protects broader interests, including issues such as belligerent occupation and environmental protection.47 To summarise, war crimes have their own status and serve to protect many different interests that are not covered by the other crime definitions. Consequently, there is no basis for in general classifying this crime as a lower crime. In some instances, war crimes may overlap with crimes against humanity. In other instances, they may not, since the commission of war crimes does not necessarily go hand in hand with the commission of crimes against humanity.

VI.4

CONCLUSION

On the basis of the ICTR practice and of factual crime situations, this chapter demonstrated that the three crimes co-exist and have their own value. Each crime definition has its own peculiarities, which render it applicable in cases where another crime may not be relevant. Even though the three crimes, especially genocide and crimes against

46 47

Bohlander (2000), Frulli (2001), Danner (2001), Ambos and Nemitz (2002). Fenrick (1999b).

The interrelationship between the three crimes

259

humanity, cover the same set of facts in certain cases, the specific survey of the correspondence between the crimes showed that each crime definition also extends across specific acts that cannot be brought under the other crime definitions. Crimes against humanity are particularly relevant to describe murders committed against moderate Hutu opponents and the UN peacekeepers, as well as the RPF crimes. War crimes may also serve this purpose. In addition, war crimes can be charged as acts that were committed by the Rwandese government forces against the RPF and vice versa. Finally, crimes committed against specific Tutsi who were suspected of affiliations with the RPF also fall under this heading. Hence, despite a certain overlap, the three crimes were all needed as tools to prosecute different criminal acts that had been committed in Rwanda in 1994. They were needed to provide a comprehensive picture of the crimes committed in 1994.

Chapter VII

CONCLUSIONS: CONTRIBUTIONS, CHALLENGES AND CONCERNS In the more than ten years of its existence (up to 2005), the ICTR has completed the cases of 23 defendants in first instance of whom 20 were convicted and three acquitted. The Security Council has stated that the ICTR should have completed all the cases in the first instance by 2008. It is expected that by then, the ICTR will have prosecuted about 70 defendants. This thesis focuses on the operation of the ICTR in the years 19942004. The object of this thesis is to scrutinise the function and the role of the ICTR as a new body in the international legal arena. The main question of the study is: what has been the contribution of this new institution to the development of public international law? The study demonstrates that the ICTR has contributed significantly in various ways. First of all, the establishment of a tribunal as a new tool in the maintenance of peace and security can in itself be regarded as an important development. To some extent, the ICTR, together with the ICTY, redresses the previous lack of enforcement mechanisms in public international law. In the process of applying international law, the ICTR has substantially elaborated upon the rules in this field and thus contributed to greater sophistication of the international legal order. Given its character, the ICTR’s main contributions lie in the domain of international criminal law and, to a lesser extent, international humanitarian law. On many occasions, the ICTR broke new ground both in its establishment and operation. On these occasions, which are examined more closely below, the ICTR assumed a more normative role. Nevertheless, it must be conceded that the ICTR often failed to present proper legal arguments as a foundation for these new developments. Some specific challenges which confronted the ICTR were examined in this study, and are summarised and put in a broader perspective in this concluding chapter. The challenges are discussed in the answers to the following eight questions: 1) Has the ICTR addressed the circumstances in Rwanda that necessitated the establishment of an international tribunal? 2) Was the establishment of the ICTR in accordance with international law and to what extent does it serve as a precedent? 3) Has the ICTR expanded the conventional definition of genocide? 4) Has the ICTR further refined the definition of crimes against humanity?

262

Chapter VII

5) Has the ICTR contributed to expanding the definition of war crimes in international law? 6) How can the ICTR’s use of sources of law be evaluated? 7) Has the ICTR contributed to the development of public international law? 8) What will be the ICTR’s legacy?

VII.1 RWANDA AND THE ICTR Chapter I describes Rwandan society before the genocide, with a focus on the feature of that society that played a decisive role during the genocide – the ethnic dimension. The brief historical description devotes some attention to the colonial period, which, although relatively brief, left a deep mark on Rwandan public life. Some Rwandans, who blame colonial rule for the genocide, may have wanted to see this confirmed more clearly in the case law of the ICTR. However, the ICTR explicitly refrained from doing so, arguing that a distinction had to be drawn between providing some background information on the genocide, on the one hand, and explaining, or even justifying, the genocide on the other hand. The ICTR did not delve into the question of how to explain the phenomenon as a whole. Instead, it undertook the exercise of attributing responsibility to individuals for their part in the genocide. The historical context given in the first judgements was only meant as a framework for findings on responsibility based on international criminal law. In contrast to the history, the situation in Rwanda at the time of the genocide bears more relevance to the work of the ICTR. In one of his reports, the Special UN-Rapporteur for Rwanda identified three root causes of the genocide, as described in chapter I. These were: (i) the absence of a rotation of political elites in the power system, (ii) the incitement to racial hatred, and (iii) the existence of a culture of impunity. Rwandan society, though shattered after the genocide, had to address these causes. The international community had its own reasons for supporting Rwanda in its efforts to deal with the genocide and establish the ICTR. In the Security Council, the representative of Rwanda cynically noted that by establishing the ICTR the international community was merely trying to “appease [its] conscience”.1 Other representatives stated in a more positive fashion that the Security Council’s step should be considered as a genuine contribution to post-conflict peace-building in Rwanda.2 Whatever the truth of the matter, the question that is relevant here is whether the ICTR succeeded in addressing the circumstances in Rwanda that necessitated the establishment of an international tribunal.

1 2

Representative of Rwanda, UN Doc. S/PV.3453, 8 November 1994, p. 15. Representative of Oman, UN Doc. S/PV.3453, 8 November 1994, p. 17.

Conclusions: contributions, challenges and concerns

263

In its request for an international tribunal, the new Rwandan government set out the reasons which explained the need for such a tribunal. According to the Rwandan government, an international tribunal would, first of all, be able to arrest key perpetrators who had sought refuge in third states; secondly, it could meet the requirements of impartiality, and thirdly, an international institution would help prevent a reoccurrence. The objectives put forward by the Security Council in the constituting resolution were of a less practical nature than some of the reasons put forward by Rwanda. The preamble of Resolution 955 stated that the ICTR would “contribute to ensuring that such violations [i.e., genocide and other violations of international humanitarian law] are halted and effectively addressed”. This should be interpreted in a broad sense as not only relating to the genocide that had already ended in July 1994. From this broader perspective, the Security Council’s aim is consonant with the general objective of prevention as already stated by Rwanda. Furthermore, the Security Council stated that the ICTR would contribute to the process of national reconciliation and the restoration and maintenance of peace. Thus the expectations of the ICTR, in terms of the results of its operation and its general effect, were quite high. There is one objective that the ICTR has certainly achieved. It has arrested and tried the majority of the most senior de facto leaders of the genocide. Even though there are some notable exceptions, such as Félicien Kabuga,3 the ICTR has been quite successful in making the alleged masterminds of the genocide account for their deeds. In this author’s view, this achievement in itself legitimises the existence of the ICTR, despite its many shortcomings in terms of efficiency and quality. In its case law, the ICTR maintained that its main purpose was to try the génocidaires and other defendants in accordance with fair trial requirements. Impartiality is one aspect of these fair trial requirements, and therefore it is to be expected that the ICTR also embodied the second reason given by the Rwandan government, viz. that it should be impartial and independent. However, in practice, the Rwandan government did not favour an impartial and independent tribunal. The relationship between Rwanda and the ICTR has therefore been consistently tense throughout the ICTR’s existence. Initially, this might have been the result of the reluctance of the international community, more specifically the Security Council, to meet Rwandan demands in terms of the form, mandate, and organisation of the ICTR. However, as demonstrated in chapter II, the structural organisation and jurisdiction were generally quite appropriate for achieving the key objectives of the ICTR. Over the years, the Rwandan regime’s opposition to the ICTR increased because of the wish of the Rwandan political establishment to control the ICTR. The Rwandan regime was prepared to do justice only insofar as this corresponded with its own political

3

Allegedly, Félicien Kabuga was one of the financiers of the genocide.

264

Chapter VII

objectives. In the case of Barayagwiza, in which the Appeals Chamber revoked its decision to release Barayagwiza, the ICTR’s dependence on Rwanda became painfully clear. Nevertheless, the aspect of the ICTR that Rwanda viewed as most problematic was its discretion with regard to prosecution. Up to now, the Rwandan regime has done everything in its power to prevent the ICTR from investigating RPF crimes and prosecuting RPF members.4 Hence, the single most important challenge to the ICTR asserting its independence is its ability to prosecute RPF members. If the ICTR does not do so, it will have failed to eliminate one of the root causes of the genocide – impunity. Not to prosecute RPF members suspected of committing crimes will send out the message that anyone who is in power, need not fear prosecution, and thus contravene the principle laid down in Article 6(2) of the Statute that there will be no immunity. News reports that the regime in Kigali is becoming increasingly dictatorial are becoming frequent, and the situation in the Great Lakes region is still very tense.5 The hope expressed by Rwanda and in the Security Council that the ICTR would prevent a reoccurrence is beginning to fade as a result of the Rwanda regime’s own actions and a lack of support from the Security Council.6 To address the other side of the coin: the direct impact of the ICTR on Rwanda has been fairly minimal. A straightforward assessment of the effectiveness of the ICTR in countering a threat to peace and security in the region may well be negative. In the longer term, and from a broader perspective, an evaluation of the ICTR’s work may be slightly more positive, given that its operation has contributed to paving the way for an international criminal legal order. Of course, the question of the ICTR’s effectiveness is not so much a legal issue per se, but more a question of a political evaluation, depending on several factors. Although the current situation in Rwanda is the main factor to take into account in this respect, some other, more positive results of the ICTR should be mentioned as well for a fair assessment of the ICTR’s work. As noted before, the ICTR, as an international tribunal, did succeed in prosecuting some of the masterminds of the genocide, thus removing these individuals from the political scene. Generally, these individuals were tried in accordance with fair trial requirements. Moreover, the ICTR confirmed that genocide had been committed in Rwanda, destroying the roots of any revisionist accounts. Finally, it can be noted that the work of the ICTR also assisted in keeping Rwanda on the map. International attention can be a relevant tool in changing deep-rooted structures and problems in a society. In conclusion, understanding the

4

5 6

On alleged RPF crimes in 1994, see the OAU report, Rwanda: The Preventable Genocide, Report of the Panel of Eminent Personalities to Investigate the Genocide in Rwanda and the Surrounding Events, CM 12048 (LXVII) (hereinafter OAU report), 29 May 2000, chapter 22, Prunier (1997: 359361), and Reyntjens (2004: 194). Also see Reyntjens (2004). On the importance of Security Council backing in relation to the prosecution of RPF crimes, see chapter II, section II.3.4.

Conclusions: contributions, challenges and concerns

265

relationship between the ICTR and Rwanda, and more specifically, the impact of the ICTR on Rwanda requires a balanced assessment.

VII.2 THE CREATION OF AN INTERNATIONAL CRIMINAL TRIBUNAL The Security Council started to devote attention to the situation in Rwanda as late as 1993. Its decision in the course of 1994 that the Rwandan situation constituted a threat to the peace opened the door to more active engagement. Deplorably, however, the Security Council, and with it the whole international community, failed Rwanda, as later plainly admitted by Secretary-General Kofi Annan.7 Nevertheless, the Council’s actions in regard to Rwanda are characterised by some notable features from a legal perspective. As set out in chapter II, on several earlier occasions the Security Council had already interfered in situations that did not constitute traditional threats to peace.8 By declaring that the turmoil in Rwanda amounted to a threat to the peace, the Council consolidated the practice that internal situations can also come within the scope of Chapter VII of the UN Charter. Furthermore, by establishing the ICTR, the Council rejected the idea that the ICTY was a unique answer to a unique situation. With this step the Council confirmed its broad discretion, not only under Article 39 of the UN Charter, but more generally, with regard to its powers to restore and maintain international peace and security. In reviewing its own establishment, the ICTR noted these developments. However, it has not been successful in giving them a firm legal grounding. In rejecting challenges of the defence in individual cases that the ICTR had been established unlawfully and that the Security Council had exceeded its powers, the ICTR relied to a great extent on ICTY case law dealing with the same question, and in particular on the Tadic´ Appeal Decision.9 This practice may be accepted and even encouraged where it concerns identical questions of law, such as the question regarding the powers of the Security Council to establish an international tribunal, as well as the more specific question regarding the relationship between the ICTR as a subsidiary organ and the Security Council as its parent organ. Even though there is no formal obligation of the ICTR Trial Chambers to adhere to decisions of the ICTY Appeals Chamber, both Tribunals do share one Appeals Chamber, precisely with a view to preserving the unity of law.10 Hence, decisions of the

7 8

UN Doc. S/1999/1257, 16 December 1999. The examples given concerned Resolution 748 (1992) relating to Libya’s refusal to extradite the ‘Lockerbie-suspects’, and Resolution 841 (1993) relating to the ousting of the legitimately elected President Aristide in Haiti, see more generally, Frowein (2002: 722-726). 9 Prosecutor v. Tadic´, Appeal Decision, 2 October 1995. 10 See chapter II, subsection II.4.1.

266

Chapter VII

Appeals Chamber, rendered in either ICTR or ICTY cases, should be followed as much as possible by all Trial Chambers, unless differing facts preclude this. Given this position, it is surprising that in a decision in the Karemera case, the ICTR Trial Chamber stated that it did not have the authority to review Security Council resolutions, thus contradicting the important ICTY Appeal Decision in the Tadic´ case, that the ICTY had inherent jurisdiction to review its constituting resolution. The ICTR Trial Chamber therefore undermined the unity of law without providing a convincing reference or explanation as to why it deemed it necessary to do so. Where different facts came into play, the ICTR did try to develop some arguments of its own. This was the case with regard to the question whether the situation in Rwanda constituted a threat to the peace in the sense of Article 39 of the UN Charter. In its argument, the ICTR emphasised that international links could bring an internal situation within the scope of Article 39 of the UN Charter. The ICTR’s line of reasoning was, however, neither entirely supported by the examples it gave nor was the fiction of international links necessary, given existing Security Council practice. Therefore, the ICTR was more conservative than it could have been. In conclusion, the ICTR confirmed that its establishment had been legal, but unfortunately it did not develop the thorough legal arguments necessary in order to lay a sound foundation for its further findings. Hence, the ICTR’s case law on these issues of public international law, and more specifically on the international law of peace and security, cannot be regarded as having significant authority. Therefore, the ICTR case law serves less as a precedent than the ICTY case law on this matter.

VII.3 THE ICTR CASE LAW ON GENOCIDE The original purpose of the 1948 Genocide Convention was twofold: to prevent and to punish genocide. In a 2001 report, the International Commission on Intervention and State Sovereignty (ICISS), a commission that was set up by the government of Canada after the international community’s failing in Rwanda and in Srebrenica, built upon these aims to develop a new doctrine.11 This doctrine emphasised the responsibility of States to protect all human beings from extreme human rights violations wherever they occurred. In the UN Secretary-General’s view, the establishment of the ad hoc Tribunals showed some acceptance of this new doctrine.12 The ICTR extensively applied the 1948 Genocide Convention in regard to individuals, in this way stressing its punitive purpose. This conforms to the inherent punitive character

11 The responsibility to protect, report of the International Commission on Intervention and State Sovereignty, (ICISS), December 2001. 12 Press release of the Office of the UN Secretary-General, UN Doc. SG/SM/9126, 26 January 2004.

Conclusions: contributions, challenges and concerns

267

of a criminal tribunal. Nevertheless, as indicated by the Secretary-General, the work of the ICTR may also serve to prevent genocide, albeit more indirectly. In this vein, the General Assembly, in a special Resolution in remembrance of the Rwandan genocide, observed in 2003 that “exposing and holding the perpetrators, including their accomplices accountable, as well as restoring the dignity of victims through acknowledgement and commemoration of their suffering, would guide societies in the prevention of future violations...”.13 The General Assembly did not explicitly reiterate the responsibility of all States to prevent genocide, as formulated by the ICISS. The Assembly thus left open the question whether Article 1 of the 1948 Genocide Convention entails a legal obligation for States to intervene if genocide is committed in a third State. In a report on the reform of the UN, a high level panel endorsed the responsibility to protect, including military intervention in case of genocide, but only within the existing framework of the UN. In the panel’s view, the use of force to stop genocide would only be legal if exercised with Security Council authorisation.14 In a resolution celebrating the fiftieth anniversary of the 1948 Genocide Convention, the General Assembly seemed to emphasise the Convention’s poor results to date in terms of prevention, as it affirmed that the Convention had been “an effective international instrument” only for punitive purposes.15 Hence, the international law on preventing genocide is still in an embryonic state, although the ICTR has made major advancements in effectively punishing the perpetrators of genocide. In chapter III, these advances were analysed with a specific focus on the elements constituting the crime of genocide. Since the findings that the massacres in Rwanda could be classified as genocide per se were not subject to much legal criticism, the case study of Rwanda forms an instructive model for examining the elements of the crime, as laid down in the 1948 Genocide Convention, and repeated in Article 2 of the Statute of the ICTR. With regard to the mental element, viz. the intent to destroy a national, ethnic, racial or religious group, as such, the ICTR had to classify the Tutsi as a group. It is interesting to note that the ICTR was rather reluctant to classify the Tutsi as a racial group. With the strong condemnation of racial discrimination during the apartheid era that still prevails, race as a concept, and the labelling of a certain group as a racial group, has become a taboo in international law.16 The concept of ethnicity has taken its place. This is also more convenient for States, given that peoples fighting racially-based régimes may enjoy the right of self-determination,17 whereas ethnic groups, as minority groups,

13 14 15 16 17

UN Doc. A/RES/58/234 Plen. 39 (b); A/58/PV.78, 23 December 2003. UN Doc. A/59/565, 2 December 2004, paras. 199-203. UN Doc. A/RES/53/43, 2 December 1998. Schabas (2000a: 120). Cassese (1995: 108-124).

268

Chapter VII

may be said only to enjoy rights such as those enshrined in Article 27 of the 1966 International Covenant on Civil and Political Rights.18 In line with these developments, the ICTR qualified the Tutsi as an ethnic group.19 The process of classification was subject to some changes in the first few judgements. Initially, objective criteria, such as a common language and culture, were used to identify a group, whereas later judgements emphasised the importance of subjective criteria, such as the perception of the perpetrator and the victim. Finally, a combination of subjective and objective criteria was used, with the emphasis on the former. The ICTR’s classification of the Tutsi as an ethnic group underlines that ethnicity played a devastating role in the Rwandan genocide.20 Moreover, the case law of the ICTR reveals that even though ethnicity may have certain objective roots that predate the modern society in which the ethnic groups live, classification on the basis of ethnicity should mainly be viewed as a social process that depends on the actors involved. Remarkably, under the current regime, ethnicity has been eliminated from Rwandan public discourse. However, Reyntjens shows that ethnicity still plays an important role in Rwandan politics. He drew attention to the process of Tutsi-ization, meaning that Tutsi currently occupy a disproportionate share of the political posts. Reyntjens denounced the display of “ethnic amnesia” by the current Rwandan government.21 Given the ICTR’s case law that ethnicity is a social concept dependent on the perception of the Rwandan people, it is certainly unlikely that ethnicity would have disappeared from Rwanda overnight. In addition, the ICTR was faced with the often discussed question whether State involvement and a specific plan to commit genocide were also necessary elements in defining the crime. The starting point for this discussion in the context of the ICTR is the ICTR’s legal opinion that genocide, as prohibited in the 1948 Genocide Convention, had been committed in Rwanda, and thus that there had been a specific intent to systematically destroy the Tutsi population. This opinion contrasts sharply with the view put forward by the Rwandan government at the time of the genocide that the massacres resulted from spontaneous violence committed by an outraged population. The ICTR’s opinion underlined that the genocide was organised and based upon a preconceived plan. It remains to be seen whether the ICTR will adopt a different position on the basis of

18 Article 27 of the 1966 International Covenant on Civil and Political Rights reads: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” 19 See chapter III, subsection III.5.2. 20 This is not to say that the conflict in Rwanda was entirely based on age-old ethnic antagonism. Rather, Hutu extremists have incessantly manipulated the population along ethnic lines to serve their own interests. Also see Adedeji (1999: 141). 21 Reyntjens (2004).

Conclusions: contributions, challenges and concerns

269

the recent finding of the French investigating judge Bruguière that it was the RPF which shot down the plane of Habyarimana.22 According to the defence, this demonstrates that there was no prior plan. It can also be argued, however, that the shooting down of the plane was only the catalyst; that it was used as a pretext by the extremists to execute their already existing plans. As Des Forges pointed out in the Akayesu case, the population had been psychologically prepared in the months before the genocide.23 Moreover, militias had been trained and new machetes had been imported from China.24 The shooting down of the plane created the perfect opportunity to set the envisaged genocide in motion. In any event, the question of whether there was a preconceived plan or not has to be further explored and answered by the ICTR in the light of the new findings regarding the plane crash. This issue will particularly have an impact on the conspiracy charges of the Prosecution. As regards general genocide charges, the ICTR indicated that a plan as such is not a necessary element in defining this crime. It also noted, however, that it is hard to imagine a genocide taking place without such a plan. In short, the existence of a plan need not be proved specifically, but will often be relevant in proving that there was a specific intent to destroy. Although the State was clearly involved in the genocide in Rwanda, the ICTR did not require State involvement as a necessary element in defining the crime. In the Kayishema and Ruzindana Appeal Judgement, the ICTR Appeals Chamber noted without much hesitation that the definition of genocide in the 1948 Genocide Convention did not include a requirement that the perpetrator be a State official. Hence, individuals connected to non-State actors, such as the Interahamwe and RTLM, and other persons not affiliated with the government, such as businessmen, who had all played a major role in the preparation, organisation and execution of the genocide, could also be held responsible for genocide. The ICTR’s literal interpretation is sufficient as a basis for the finding that State involvement does not constitute an element of the crime of genocide. It should also be noted that the absence of any requirement of State involvement accurately reflects the prevailing power structures in Rwanda. During the genocide, neither the President nor the Prime Minister was at the top of the hierarchy. Instead, Colonel Bagosora, a former Director of the Cabinet in the Rwandan Ministry of Defence, is generally identified as the man who held full command. Thus the ICTR did not identify new elements in defining the crime as having been implicit in the 1948 Genocide Convention. It was wise not to do so, since some of the existing requirements are already hard to prove in practice. This was especially the case with the mental element. In many instances, it was not easy for the Prosecution to prove

22 See chapter II, subsection II.5.1. 23 The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 118. Also see chapter I, section I.5 and chapter III, section III.3. 24 OAU report, 29 May 2000, paras. 7.27-7.31.

270

Chapter VII

that an individual had had the specific intent to commit genocide. In this vein, it is not surprising that the ICTR did not require a motive as a separate element in defining the crime, even though the drafting process of the 1948 Genocide Convention was extremely vague about this, and even though the definition in the convention certainly left room to include the concept of motive.25 The decision not to require a motive is consonant with the view that it is not the ICTR’s task to explain why the genocide occurred. While the ICTR did not restrict the scope of the definition of genocide by adding necessary elements, it did not widen the scope either. The ICTR retained the definition in the convention. Hence, the massacres of moderate Hutu were not classified as genocide. Of course, a Trial Chamber’s potential to express views on this matter depends on the strategy of the Prosecution which, in the case of the ICTR, did not – expressly – charge the killing of Hutu as genocide. Nevertheless, we may conclude that the ICTR as a whole did not broaden the definition of genocide to include political groups, despite arguments from various scholars that customary international law encompasses this form of genocide. In conclusion, the ICTR neither modified the definition of genocide, nor encouraged any development in that direction. This was the case, however, for crimes against humanity, where both ad hoc Tribunals clearly expressed the view that the statutory definition was too limited and not in line with customary international law. With regard to the ICTR, the most notable limitation of the statutory definition of crimes against humanity in comparison with the customary law definition was the requirement of discriminatory grounds. The difference between genocide and crimes against humanity is, of course, that genocide was defined in a convention, whereas crimes against humanity were not, allowing the ad hoc Tribunals greater discretion. The ICTR’s adherence to the definition of genocide in the 1948 Genocide Convention is to be welcomed. As indicated at the start of this section, full attention should now be focussed on international instruments and initiatives which are clearly aimed at the prevention of genocide.26 Blurring the definition would certainly not be helpful.

VII.4 THE ICTR CASE LAW ON CRIMES AGAINST HUMANITY The rapid development of international criminal law in the 1990s was a great impetus for the further elaboration of the notion of crimes against humanity. As a result of the

25 As explained in chapter III, the motive of a crime is the ulterior reason for the perpetrator to commit his act, see subsection III.4.4. 26 In this respect it is interesting to note the proposals of the Secretary-General to set up a monitoring committee on the prevention of genocide and to create a Special Advisor who would report directly to the Security Council, press release of the Office of the UN Secretary-General, UN Doc. SG/SM/ 9126, 26 January 2004.

Conclusions: contributions, challenges and concerns

271

Statutes and case law of the ad hoc Tribunals, the prosecution of the perpetrators of this crime has developed as the ultimate enforcement mechanism for gross and blatant human rights violations. The ICTR played a special role in this regard since its Statute defined this crime as not necessarily being linked to a war situation, which emphasised that this crime may currently also have a place in the domain of international human rights law rather than only in that of international humanitarian law. The Statute stipulated that violations of basic human rights had to be committed on a widespread scale or in a systematic manner to be defined as a crime against humanity. It is understandable that the definition of crimes against humanity includes the threshold requirement that violations be committed on a substantial scale. This requirement lifts the violations out of the domain of domestic jurisdiction as enshrined in Article 2(7) of the UN Charter. The terms ‘widespread’, ‘systematic’, and ‘against a civilian population’ have all been interpreted as denoting a certain scale. Another threshold requirement that was inserted in the ICTR definition is the discriminatory element. This element corresponded well with the context of genocide in Rwanda, but as both ad hoc Tribunals laid down in their case law, it is not an element of the customary international law definition of crimes against humanity. It is remarkable that the ICTY dealt with this question, since the discriminatory element does not form part of the ICTY definition. This underlines the importance of the ICTY case law for the development of a customary international law definition of crimes against humanity. The ICTR also contributed to this development, albeit more with its Statute than with its case law. As mentioned above, the ICTR statutory definition was innovative as it did not require a link to an armed conflict. In its case law, the ICTR initially maintained that the genocide and the armed conflict were two separate events. From this perspective, some of the crimes against humanity were in fact committed in a ‘non-war situation’ at the ICTR, unlike the ICTY. The ICTR also made other notable contributions, such as its findings on rape and extermination as acts constituting crimes against humanity. The question of how these physical acts should be interpreted caused some juridical dispute in the ICTR Trial Chambers. Eventually, the ICTY Appeal Chamber provided an authoritative definition of rape as “non-consensual penetration, however slight, of the vagina or anus of the victim by the penis of the perpetrator or by any other object used by the perpetrator, or of the mouth of the victim by the penis of the perpetrator”.27 The Kayishema and Ruzindana Judgement proved an important precedent on extermination that was followed in the ICC Elements of Crimes. According to the ICTR Trial Chamber, a single killing could constitute extermination if it were part of a mass killing. Moreover, this Chamber considered that extermination could be committed by indirect means.28 The Trial Chamber in the Kayishema and Ruzindana Judgement also gave a definition of other inhumane

27 The Prosecutor v. Kunarac, Kovacˇ, and Vukovic´, Appeal Judgement, 12 June 2002, paras. 127-133. 28 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 141-147.

272

Chapter VII

acts, namely “acts or omissions that deliberately cause serious mental or physical suffering or injury or constitute a serious attack on human dignity.”29 However, it was the ICTY which took the lead in many respects. As observed in chapter IV, the ICTY case law is generally of higher quality, thus providing a more thorough legal basis for the definition of crimes against humanity. For example, the ICTY frequently carried out more in-depth research of national practices to ascertain the state of customary international law on specific issues. The ICTR, in contrast, often based its findings solely on customary international law without explaining on which state practice it based its conclusion, and without establishing the necessary opinio iuris. The ICTY’s more in-depth approach may not only be based on its role as a pioneer, but might also result from the fact that the principal count in the ICTY proceedings was persecution as a crime against humanity. While the ICTR is popularly called the Genocide Tribunal, the ICTY could be referred to as the Persecution Tribunal. This may help to explain the latter’s dominant role in the development of the concept of crimes against humanity. The success of the ICTY was such that the Trial Chamber in the Kupreškic´ case maintained: “The legal notion of ‘crimes against humanity’ is now firmly embedded in positive international law, its legal contours are neatly drawn and it no longer gives rise to doubts as to its legitimacy.”30 Before finishing its term, the ICTR still has the opportunity to put its mark on the development of the concept of crimes against humanity. In current cases and cases still to be tried, the ICTR will continue to face important questions. One example concerns the charge of crimes against humanity in the case against Bagosora and others, which relates to the murder of Belgian peacekeepers. Interesting questions which arise are whether these UN peacekeepers fall within the definition of a civilian population, or whether the murder of the UN peacekeepers is part of the widespread and systematic massacres of the civilian population of Rwanda. In chapter IV, it was argued that these questions should both be answered in the affirmative. The ten Belgian UN Peacekeepers had surrendered before they were killed and can therefore be considered as forming part of ‘a civilian population’. The ICTR’s precise answers to the above questions will be of great importance to the UN and are not only relevant in the ICTR context. There are certainly other examples of attacks directed against peacekeepers or peace-enforcement troops operating under UN authorisation, e.g., in Somalia and Yugoslavia. The attack against the UN in Baghdad, Iraq, on 19 August 2003, in which the UN High Commissioner for Human Rights Sergio Vieira de Mello died, amongst others, shows that attacks against the UN will have to be taken into account in the future. The effective application of the tool of international

29 The Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999, paras. 148-154. 30 The Prosecutor v. Z. Kupreškic´, M. Kupreškic´, V. Kupreškic´, Josipovic´, Papic´, and Šantic´, Judgement, 14 January 2000, para. 677.

Conclusions: contributions, challenges and concerns

273

criminal law not only does justice to the individual victims of such an attack, but may also help to deter such crimes, by revealing them to be a counterproductive strategy. For these reasons, the case law of the ICTR on the possible application of the law of crimes against humanity to the case of the crimes against UN peacekeepers is extremely relevant. This is just one example of cases in which the ICTR still has an important role to play.

VII.5 THE ICTR CASE LAW ON WAR CRIMES The provision on war crimes in Article 4 of the ICTR Statute is paradoxical for two reasons. First, although some viewed this provision merely as a safety net and as less important than the other two crimes, the Rwandan government opposed including precisely this crime in the Statute. Secondly, although the inclusion of this provision per se was an enormous innovation – war crimes committed in an internal armed conflict were criminalised for the first time at the international level – the first defendants were acquitted on this count, and the case law was disappointing. Thus the ICTR did not fulfil the promise of the Statute in practice. In its first judgements, the ICTR had to discuss the legality of Article 4, which assumes individual criminal responsibility under international law. All the Trial Chambers confirmed the legality but differed in their reasoning. Some Trial Chambers did not consider it necessary to infer individual responsibility under customary international law. In this way, they disregarded the importance of sound law making at the international level and therefore failed to adhere to the international rule of law. Nevertheless, the ICTR Statute can be regarded as an important document in introducing the concept of war crimes in an internal armed conflict, a development that has subsequently been consolidated in the ICC Statute. The first defendants were acquitted on the count of war crimes, because the Trial Chambers could not establish a link between their acts and the armed conflict. In later judgements, a modified application of the necessary link led to different results. The underlying question here was the relationship between the genocide and the civil war. This was not primarily a legal question but depended more on an assessment of the political situation in Rwanda. Nevertheless, the position ultimately taken by the ICTR has repercussions for the legal relationship between war crimes and genocide. The leading case on the requirement of a connection is the Rutaganda Appeal Judgement in which the definition was borrowed from the ICTY. In short, this definition of a war crime required that an act be committed under the guise of armed conflict and provided the following factors that could be indicative: “the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military

274

Chapter VII

campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties.”31 Since this legal standard was not clarified until 2003, it has only been applied a few times to the facts and circumstances of Rwanda. So far, these applications have not shown one clear standard for the link between the genocide and the internal armed conflict. Another relevant issue in the case law of the ICTR on Article 4 concerned the classification of the conflict in Rwanda as an internal conflict. Before the operation of the ad hoc Tribunals, the question of when an internal armed conflict becomes internationalised had been dealt with by the ICJ, the principal juridical body of the UN that settles which only settles disputes between states. The ICJ has developed a high standard for responsibility of third States in an internal armed conflict (the doctrine of ‘effective control’).32 The ICTY, being a new and more human-oriented tribunal, showed a greater willingness to be progressive and, viewing the matter from a different angle, specified a lower threshold (the doctrine of ‘overall command’).33 The ICTY’s deviation from ICJ case law was strongly criticised by eminent scholars.34 The ICTR operated in a different context and, given the presumption of the Security Council that the conflict was internal, made no effort to term either the Ugandan or the French State involvement as complicit action. It dutifully subscribed to the ICRC approach and classified the conflict in Rwanda as internal. In conclusion, it can be said that the practice of the ICTR on war crimes was more conservative than might have been expected, given its Statute. Nevertheless, its later findings that war crimes had been committed raises interesting questions on the relationship between the genocide and the armed conflict. Article 4 of the ICTR Statute certainly broadened the notion of war crimes, since it relates to war crimes committed in an internal armed conflict. These violations of international humanitarian law had up to then not been clearly criminalised in international law.

VII.6 THE ICTR AND SOURCES OF INTERNATIONAL LAW International criminal law is a specific branch of public international law. Therefore the sources in which specific rules can be found should in principle be the same as those listed in Article 38 of the ICJ Statute, supplemented by widely accepted sources, such as decisions of international institutions. For example, the prohibition on genocide can

31 The Prosecutor v. Kunarac, Kovacˇ, and Vukovic´, Appeal Judgement, 12 June 2002, paras. 58-59. 32 Military and paramilitary activities in and against Nicaragua, Nicaragua v. United States of America, Merits, Judgement, 27 June 1986, para. 115, ICJ Reports 1986, p. 64. 33 The Prosecutor v. Tadic´, Appeal Judgement, 15 July 1999, par. 88-145. 34 Gill (2001: 872-874), Crawford (2002a: 111-112), and Rosenne (2002: 127-128).

Conclusions: contributions, challenges and concerns

275

be found in a treaty – the 1948 Genocide Convention. Moreover, it is generally agreed that this norm is part of customary international law, and can even be considered ius cogens. However, these sources of law do not regulate in detail how the different elements of a crime should be applied in specific cases, what evidence is needed to sustain a charge and what the consequences of a finding of genocide should be.35 Reference to customary international law does not directly solve all these issues, given that the State practice that underlies this customary rule is a practice of abstention.36 This void has been filled by the ICTR’s case law. As a judicial institution, the ICTR has clarified and further developed the elements that constitute genocide, crimes against humanity and war crimes. The defining elements of crimes were more or less already specified in the Statute, in contrast to sentencing, which was not dealt with in formal sources at all. In line with Article 38 of the ICJ Statute, the ICTR case law should in principle be viewed as a secondary source. The value of the ICTR case law as a secondary source of law depends directly on the quality of that case law. The quality of case law is determined by the legal reasoning37 and the use of the sources employed. Given the rudimentary state of international criminal law, the ICTR had to be creative in its law making. The summary in the previous chapters showed that on many occasions the ICTR based its argument on the existence of a customary rule. However, the finding of a customary rule was not supported on all occasions by clear evidence of an opinio iuris, and, even less, of state practice. With regard to defining the physical acts that can constitute a crime against humanity or a war crime, the reference to customary international law was often confined to the mere statement that the finding was supported by customary international law, without any examination of State practice or indications of an existing opinio iuris on the matter. This approach was severely criticised by an ICTY Trial Chamber in the Vasiljevic´ Judgement as being inconsistent with the principle of nullum crimen sine lege.38 Indeed, the scant reasoning of the ICTR in some instances and its mere declaration that its findings were based on customary international law detract from the quality and per-

35 As Cassese (2003b: 722-723) observed: “The relevant treaties and (the more seldom) customary rules focus upon prohibiting certain acts (such as killing prisoners of war or civilians) rather than addressing the criminal consequences of such acts, let alone the conditions for their criminal repression and punishment.”. 36 In a chapter on sources of international law, Higgins (1994: 22) remarked on the prohibition of genocide as a customary norm: “It is the practice of the vast majority of states that is critical, both in the formation of new norms and in their development and change and possible death. Thus even if genocide and the killing of prisoners of war regrettably sometimes occur, if this is not the usual practice of most states, the status of the normative prohibitions is not changed.”. 37 Legal reasoning is an essential step in the judicial process, as Judge Higgins emphasised in her Dissenting Opinion to Legality of the threat or use of nuclear weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, p. 584, as cited by Klabbers (2002: 187). 38 The Prosecutor v. Vasiljevic´, Judgement, 29 November 2002, paras. 193-204.

276

Chapter VII

suasiveness of its case law. However, as Ruiz Fabri observed, international criminal tribunals exist precisely because national jurisdictions fail to properly execute their tasks in this domain. Given this state of affairs, it is only logical that there are not that many national decisions, which may be taken into account when evaluating the State practice.39 Furthermore, the use of sources by the ICTR must be evaluated in the light of the particular nature of international criminal law as a branch of public international law. International criminal law is based on the general norm of respect for humanity; a relatively new value that is emerging in current international law. The particular nature of international criminal law is reflected in the main sources of law that are used and in how the sources of law are employed. For example, treaties which form the basis for the statutory provisions have often been interpreted by the ICTR in a teleological manner. As the purpose of the treaties was generally to protect human beings, the statutory provisions were widely interpreted in a manner that extends their coverage and protects – in hindsight – as many victims as possible. With regard to customary international law, there has been a similar development, in the sense that there has been an emphasis on the element of opinio iuris, whereas State practice has often been less researched. The element of opinio iuris was then interpreted by referring to the conscience of humankind and to considerations of humanity and was not always inferred from State behaviour, as is normally the case.40 Lastly, it should be observed that the ICTY sometimes quoted the ICTR, and therefore the ICTR case law already served as a secondary source of law in some respects. However, the ICTR made much more frequent use of ICTY case law. This could be viewed as an indication of the respective value and quality of the case law of each Tribunal. To summarise, it could be said that it depends on the subject matter whether or not ICTR case law can serve as an independent source of law for other international or national courts. Moreover, some issues were dealt with in a more thorough and convincing manner and are therefore more relevant, whereas others have up to now resulted in relatively inconsistent case law.41 Hence, whatever the current merits of Thirlway’s statement that international law is what the ICJ declares it to be,42 it is not possible to make a parallel statement that international criminal law is what the ICTR declares it to be. The ICTR operates within the ebb and flow of the ongoing developments in

39 Ruiz Fabri (2004: 385). 40 Cassese (2001: 122) pointed out that the Martens clause puts the ‘laws of humanity’ and the ‘dictates of public conscience’ on the same footing as the ‘usages of States’, or State practice. Therefore, Cassese submitted that in the context of international humanitarian law, the requirement of State practice for the formation of customary international law does not apply, or applies less stringently. 41 Examples of inconsistent case law can be found in the interpretation of murder (subsection IV.6.1), extermination (subsection IV.6.2) and rape (subsection IV.6.5) as crimes against humanity, and the requirement of a connection in relation to war crimes (subsections V.6.3 and V.6.5). 42 Thirlway (1972), as referred to by Higgins (1994: 37).

Conclusions: contributions, challenges and concerns

277

international criminal law, and therefore each finding should be assessed on its own merits. More generally, at the beginning of the 1990s the crime of genocide had been codified in the 1948 Genocide Convention for a long time, whereas crimes against humanity, despite the efforts of the ILC, were only defined under customary international law with all the vagueness that this source of law entails, and war crime definitions were dispersed in various treaties related to international humanitarian law. The Statutes of the ad hoc Tribunals were the first binding international documents, in the form of Security Council resolutions, in which the three crimes were codified together. It was only in 1998, 50 years after the ILC had started working on a draft code to establish a permanent international criminal court,43 that a treaty was finally adopted for this purpose. Thus the Security Council resolutions establishing the ad hoc Tribunals functioned as catalysts for the ICC Statute. Conversely, the current existence of a permanent criminal court may have reduced the role of Security Council resolutions as a source of law for substantive international criminal law. The ICC Statute is now the leading document on the state of the law of the three crimes. In the developments outlined above, the special role of Security Council resolutions is worth noting. These resolutions were the first point of reference for the ad hoc Tribunals. The Tribunals developed the law in their case law; case law that was ultimately codified in a treaty, the ICC Statute. The resolutions therefore functioned as channels for the continued development of international criminal law, and consequently we could say they constituted some sort of ‘programmatory’44 law. Traditionally, Security Council resolutions did not function as sources of law because of their country- and situationspecific nature. However, there has recently been a tendency in the Security Council to adopt resolutions that have a wider scope.45 Examples are Resolution 868 (1993) on attacks against UN personnel,46 Resolution 1373 (2001), which includes general measures to fight terrorism,47 and Resolution 1539 (2004) on child soldiers.48 In this respect, the role of the Security Council is becoming in some way comparable to the

43 GA Res. 260B (III), 9 December 1948. 44 This terminology is borrowed from Schrijver (1997: 374). 45 On the different kinds of Security Council resolutions, see Wood (1998:79). Szasz (2002) pointed out that the operative paragraphs of these general resolutions are not formulated very forcefully, as they use terms such as ‘call upon’ and ‘urge’, weakening the compulsory character of the resolutions. Therefore, Szasz concluded that these resolutions did not establish new rules of international law. 46 UN Doc. S/RES/868, 29 September 1993. 47 UN Doc. S/RES/1373, 28 September 2001. 48 UN Doc. S/RES/1539, 22 April 2004.

278

Chapter VII

role of the General Assembly in furthering the progressive development of the law.49 Thus the practice of the Security Council on Rwanda as analysed in this study demonstrates that the Council, the ultimate fire-fighter of the international legal order, is gradually taking up a new role, that of quasi-legislator.50

VII.7 THE CONTRIBUTION OF THE ICTR TO THE DEVELOPMENT OF PUBLIC INTERNATIONAL LAW

During its existence in the period under review (up to 2005), the ICTR has influenced the evolution of international law. If there was one domain of international law that developed most rapidly during the last decade of the last century, it was international criminal law. The ICTR contributed to this development. In general terms, the establishment and operation of the ICTR contributed to the consolidation of the trend to hold individuals responsible for serious international crimes under international law and to combat impunity. The ICTR emphasised the importance of trying perpetrators of international crimes in accordance with due process. The ICTR had the greatest impact on the African continent, and it is interesting to note that some of the first cases that were brought to the attention of the ICC Prosecutor were African cases, relating to the situation in the Democratic Republic of Congo, Uganda, and the Central African Republic.51 Moreover, out of 97 State Parties to the ICC Statute, 26 are African.52 Since the establishment of the ICTR, there have been new discussions, which are still ongoing, on the goals of international criminal law, as well as the institution that

49 The powers of the General Assembly are described in Articles 12 to 14 of the UN Charter. The General Assembly has often adopted declarations that later became fully-fledged treaties. For example, the Universal Declaration of Human Rights became binding international law in the 1966 International Covenant on Civil and Political Rights and the 1966 International Covenant on Economic, Social and Cultural Rights, Steiner and Alston (2000: 140). 50 This is not to say that this practice will replace the traditional way of international law making. As submitted by Aust (2002: 44, 45), the adoption of the ICC Statute in 1998 demonstrated that a treaty is still preferred as a regulatory instrument. Furthermore, Aust pointed out that Chapter VII measures, including the general resolutions mentioned above, have a narrow subject area when compared with fully-fledged treaties, and they are more temporary. Nevertheless, as also concluded by Szasz (2002: 905), in the new millennium, further legislative activities may be expected from the Security Council. 51 At a press conference on 16 July 2003, the ICC Prosecutor announced that he was surveying the situation in the Democratic Republic of Congo (DRC), after the DRC’s referral in April 2003. In November 2003, Uganda referred the situation of the Lord’s Resistance Army to the Court. The third referral came from the Central African Republic. See ICC press releases of 16 July 2003, 29 January 2004, and 7 January 2005. These referrals are made pursuant to Article 14(1) of the ICC Statute. In the Security Council, Burundi has also expressed its intentions of making a referral with regard to crimes committed on its territory, UN Doc. S/2004/867, 2 November 2004. 52 The figures date from 27 September 2004, www.icc-cpi.int (visited on 5 October 2004).

Conclusions: contributions, challenges and concerns

279

should apply it. An evaluation of the ICTR and the objectives of international criminal justice was provided above. Another interesting question, but less relevant to the ICTR specifically, is what sort of institution is best equipped to apply international criminal law and thus achieve the set objectives. As chapter II indicated, the ICTY served as the model for the ICTR. At the time when the ICTR was established, the time was not ripe for a discussion on a different form of tribunal. Moreover, after the international neglect of Rwanda during the genocide, there was a moral obligation to do for Rwanda what had been done for Yugoslavia. If the Security Council had established a different kind of institution it would have either run the risk of being blamed for letting Rwanda down once again or been susceptible to arguments that it had taken the wrong decision in the case of the former Yugoslavia. At the Council’s meeting in which the Resolution creating the ICTR was adopted, Brazil and China expressed their hesitations about establishing yet another ad hoc tribunal.53 These States argued that a Security Council resolution was not the appropriate modality to establish an international tribunal. Others shared their doubts, and the ad hoc character of both Tribunals was also subject to criticism. This led to a worldwide momentum to draft a treaty that would establish a fully-fledged and permanent international criminal court, resulting in the ICC Statute that was adopted in 1998. Hence, the establishment of the ICTR can be considered as one of the overriding reasons for establishing the ICC, precisely because it undermined the idea that the ICTY was a unique solution to a unique situation. Since the establishment of the ICTR, there have been experiments with other kinds of institutions, such as the internationalised court for Sierra Leone. Moreover, the ICC’s complementarity principle emphasises the role of national courts in the application of international criminal law. Even though the basic rationale for establishing a permanent international criminal court was to overcome the inherent injustices of ad hoc institutions that are established ex post facto, new ad hoc tribunals similar to the ICTR may still be created in the future, in cases where the ICC has no jurisdiction. A relevant example is the call for an international ad hoc tribunal for Iraq.54 There is currently a strong preference for national courts.55 This is partly due to the high costs involved in the ad hoc Tribunals. The US opposition to the ICC also undoubtedly fosters this trend which is to a certain extent further amplified by the ICC’s complementarity principle. The ICTR is therefore clearly a product of its time. In the

53 UN Doc. S/PV.3453, 8 November 1994. Brazil eventually voted in favour because of the extraordinary and urgent situation in Rwanda, and China abstained from voting. 54 See Heinsch (2003, see especially pp. 134-135), who discussed different possibilities for prosecuting international crimes committed in Iraq. 55 UN Doc. S/2004/616, 23 August 2004, paras. 38-48. The current efforts of the ICTR to refer cases back to the national courts of Rwanda form part of this trend.

280

Chapter VII

aftermath of the Cold War there was a renewed belief in abstract values and norms of justice and a fair trial. Towards the end of and as a result of the ICTR’s operations, a new, more pragmatic trend is emerging to support national initiatives and in this way strengthen national judicial infrastructures. It was thought that although national proceedings might not always entirely live up to all the standards of fair trial, they may still, in the end, be more effective. However, international law is anything but static, and circumstances and (op)positions of States and other emerging international actors regarding the appropriate forum for the application of international criminal law may and will vary over time. Moreover, applying the ICC’s complementarity principle might quite often lead to the conclusion that international prosecutions will still be required, since it is precisely in States which have suffered large-scale violence that national courts are often unable or unwilling to prosecute.56 In addition to these general observations on the contribution of the ICTR as an institution for the development of public international law, it is appropriate to recall some of the most prominent developments in international criminal law that have been analysed in this study. At the beginning of the 1990s, international criminal law was understood as regulating transnational legal issues resulting from national criminal cases. Despite the efforts of the ILC after the Nuremberg and Tokyo experiences, there was no complete branch of international law that regulated substantive matters of criminal law at the international level. Given this state of affairs before the ICTR commenced its work, the effect of the ICTR has clearly been positive. The ICTR, jointly with the ICTY, has developed a comprehensive criminal law regime for the three crimes of genocide, crimes against humanity and war crimes. The ICTR defined and applied the concept of each of the three crimes, and thus elaborated on the constitutive elements in the definition of these crimes while explaining their scope and limitations. The most notable case law of the ICTR concerns genocide. The ICTR provided some indicators that may be used to infer the special mental element. Furthermore, the ICTR laid the groundwork for classifying groups of victims; it chose for the subjective approach complemented by objective factors. The question of whether a person belongs to a certain group therefore mainly – but not exclusively – depends on the perception of the perpetrator. This is an extremely important finding, particularly in Rwanda, where there is an ongoing debate on whether Hutu, who were perceived as Tutsi and were therefore murdered, can also be characterised as victims of the genocide. Furthermore, ICTR case law shows that each

56 See e.g., the advice of the Commission of Inquiry on Darfur that the situation be referred to the ICC, Report of the Commission of Inquiry on Darfur to the United Nations Secretary-General, 25 January 2005, paras. 571-572. Also see the plea of Human Rights Watch for an international or mixed tribunal for Ivory Coast, Côte d’ Ivoire: ending impunity key to resolving crisis; UN Commission should recommend tribunal to address serious abuses, 6 October 2004, and note the following warning of Human Rights Watch, Balkans: local courts currently unprepared to try war crimes, 14 October 2004.

Conclusions: contributions, challenges and concerns

281

of the adjectives characterising the group has a separate meaning. Thus there are four specific categories of groups that are protected by the 1948 Genocide Convention: national, ethnic, racial, and religious groups. The ICTR’s finding that rape may constitute genocide is also worth noting. Although this new interpretation was not so well founded in law, it was taken up in the report on the Elements of Crimes prepared for the ICC. The interpretation has received considerable attention and may therefore serve to promote the idea that genocide can also be committed by physical acts other than killing. There are other examples of the pioneering work of the ICTR. The ICTR greatly contributed, directly and indirectly, to clarifying and streamlining the definition of the physical acts that may constitute genocide, crimes against humanity or war crimes. For example, the ICTR defined various physical acts, such as those ‘causing serious bodily or mental harm’ and ‘deliberately inflicting conditions of life calculated to bring about the physical destruction of a group’. The examples given to illustrate these physical acts have also been adopted in the ICC Elements of Crimes. Moreover, the definition of extermination given in the Kayishema and Ruzindana Judgement that a single killing could constitute extermination if it were part of a mass killing, was subsequently adopted in the ICC Elements of Crimes. In addition to this case law, the ICTR Statute can also be regarded as an important development in itself, because it defines crimes against humanity without a link to an armed conflict, and because it includes war crimes committed in an internal armed conflict. It may be concluded that, by its establishment and its case law, the ICTR has greatly contributed to the development of this new branch of public international law, also called new international criminal law.57 In addition to these considerable contributions, the ICTR also faced and still faces great challenges, and there are some concerns for the future. First, some of the lessons that have been learnt on the role that new international criminal law plays in contemporary public international law will be recapitulated. The very establishment of the ICTR confirmed that the question of criminal responsibility for international crimes is a matter that can no longer be neglected. The issue of accountability for international crimes will always be relevant in discussions on both conflict prevention and post-conflict peace building. ICTR case law has demonstrated that one of the side-effects of international criminal law may be the confirmation that certain crimes did actually occur. A close examination and classification of these crimes may prevent the rewriting of history for political purposes. In its case law, the ICTR also stated that international criminal law

57 As explained in the introduction, new international criminal law is the law on the three international crimes of genocide, crimes against humanity and war crimes. In contrast, traditional international criminal law, also called transnational criminal law, deals with issues such as extradition and other forms of international cooperation.

282

Chapter VII

is not capable of explaining the dark side of humanity and may therefore have disappointed some of the more ambitious expectations. The practice of the ICTR shows that the new international criminal law has a limited function in many respects. Like criminal law at the national level, it addresses ex post facto behaviour that is harmful to society. The new international criminal law developed thus far is confined to the three crimes of genocide, crimes against humanity and war crimes, but may in future relate to other crimes such as acts of aggression or international terrorism. Some acts, which may have provoked the outbreak of the genocide, are not subject to the new international criminal law. Examples of such acts are the invasion by the RPF in October 1990 and the shooting down of the presidential plane on the eve of the genocide. The invasion must be dealt with at the political level, and should be scrutinised by historians. The attack on the Presidential plane may come within the scope of the 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation. However, at face value, it cannot be classified as one of the crimes in the ICTR Statute. Therefore expectations of the possible achievements of the new international criminal law should be modest, so that its role can be properly appreciated. From this modest perspective, it can be concluded that international criminal law may have some indirect impact on international law and international politics. In this respect, it may be recalled that in the first months of the genocide in Rwanda there was great reluctance to use the “G-word”. Even the UN soldiers in Rwanda were initially hesitant to qualify the killings as genocide, as they equated the word genocide with the Holocaust.58 By clarifying what the exact elements of a crime are, and how these should be understood in practice, the ICTR provides useful guidance to assess whether genocide or one of the other crimes is being committed in future situations. This guidance has assisted the commission of inquiry that investigated the crimes committed in Darfur, since the Security Council had expressly requested that this commission ascertain whether genocide has been committed.59 The ICTR guidelines may also be relevant for the doctrine of humanitarian intervention. In this respect, it is important to note Article 4(h) of the constituent Charter of the African Union, which stipulates “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity”.60

58 Interview with General Dallaire, commander of UNAMIR, broadcast on 24 February 2004, Dutch tv programme Netwerk, NCRV. Also see http://www.netwerk.tv/index.jsp?p=items&r=deze_week&a= 95897 (visited on 2 March 2004). 59 UN Doc. S/RES/1564, 18 September 2004. Of course, real action to prevent human catastrophes is far more important than any legal debate on how to classify certain mass killings, as was also remarked by the Secretary-General and the Representative of Canada in their addresses to the General Assembly on 21 and 22 September 2004, General Debate, 59th Session of the General Assembly. 60 For more on the African Union as a collective security system, see Abass and Baderin (2002).

Conclusions: contributions, challenges and concerns

283

VII.8 THE ICTR’S LEGACY: LOOKING TOWARDS THE FUTURE In conclusion, it is appropriate to address three concerns for the final years of the ICTR’s existence. Since the ICTR’s establishment, the genocide has increasingly become an event of the past. It is, of course, to be welcomed that the atmosphere surrounding the genocide has been allowed to recede, but from a legal perspective the lapse of time poses some problems. The first concerns problems of evidence, which will only increase as time passes. The ICTR depends heavily on witnesses to provide evidence. The fragile nature of this evidence demands meticulous work of the Prosecution. A failure on the part of the Prosecution to do its work properly must lead to acquittal, which inevitably results in the denunciation of the ICTR by the government as well as the population of Rwanda. This regrettable situation can be demonstrated by the following example. On 25 February 2004, the former Prefect Bagambiki and the former Minister Ntagerura were acquitted in the first instance, not only because the evidence was insufficient to establish any criminal conduct, but also because the indictments against them were too vague. Some counts were dismissed because even if the allegations supporting the counts had been proven, they would not have constituted the criminal conduct for which the defendants were charged, while other charges were disregarded because they failed to plead criminal conduct.61 If defendants are acquitted because there is insufficient evidence, that is the proper course of justice. However, if defendants are acquitted because the indictment against them is too vague or because the Prosecution has not collected evidence properly, the Prosecution has failed in its duty. The prosecution of RPF defendants is a concern of a different nature. Of course, the alleged RPF crimes, even though heinous, do not amount to genocide, and the doublegenocide theory which holds that genocide was also committed against the Hutu is not credible. In this author’s view, however, prosecuting RPF members for their alleged crimes under the category of crimes against humanity would in fact emphasise that the RPF did not commit genocide. In any event, it is imperative that these crimes be investigated and prosecutions undertaken before the ICTR in order to avoid the label of ‘victor’s justice’. It should be noted here that the RPF emerged as the winner of the armed conflict with the former Rwandan government and that it is still clinging to power. Despite the ‘Washington agreement’ concluded between the ICTR and Rwanda on the deferral of cases, the ICTR should initiate some RPF cases in order to emphasise its impartiality and in this way reinforce all its other findings. A final concern relates to the quality of the case law. It was stressed throughout this study that the ICTR made some notable contributions by its mere establishment, but that it also failed on several occasions to give sound legal arguments in its case law to support

61 The Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Judgement, 25 February 2004, e.g., paras. 69, 70.

284

Chapter VII

these contributions. While the first ICTY judgement in the Tadic´ case was groundbreaking and has been and will be cited for many years to come, the quality of the first ICTR judgement, the Akayesu Judgement is relatively poor. At a later stage, an effort was made to rectify some of the earlier omissions. The Semanza Judgement is one particular example. Naturally, in future judgements, the Trial Chambers will increasingly rely on earlier case law. This will help to accelerate the trials, but is only acceptable if the legal issues concerned have been properly addressed. The three Trial Chambers of the ICTR should not hesitate to learn from each other, and they should abandon their tendency to refer only to their own case law. Even though a proper assessment of the facts may seem to be the most important part of the trial, an adequate interpretation and application of the law is certainly no less relevant. It is to be hoped that these concerns will be taken into account in the last phase of the ICTR’s existence. Subsequent to the ICTY’s pledge in the course of 2002 to complete all trials in the first instance by 2008, and to achieve total completion by 2010,62 the Security Council has also urged the ICTR to draw up a timetable in order to finish its work within the same period taken by the ICTY.63 In its 2004 report to the Security Council, the ICTR pledged to complete its activities in line with the given deadlines. However, it remains to be seen whether this will be achieved. Of course, the judgements to come can build on the case law which already exists. However, some important cases, which are still on the roll, will address new issues including the Military and Government cases. And of course, the possible prosecution of RPF members should not be forgotten either. The Security Council resolution that will ultimately bring the ICTR to a close will most probably include provisions on future reviews and pardons or the commutation of sentences.64 It would be an efficient step to assign these powers to the ICC President. However, the US may perceive this as an implicit recognition of the ICC and thus not agree. In that case, a different solution must be sought within the context of the UN system itself. More generally, in the future, individual accountability for international crimes will be part and parcel of any reconstruction plan for a post-conflict society. With its case law, the ICTR has provided the groundwork for this process of accountability. Moreover, as an international institution, the ICTR shows that if the international community acts in unison, concerted efforts can make a difference.

62 UN Doc. S/2002/678, 19 June 2002. This completion strategy was welcomed by the President of the Security Council, UN Doc. S/PRST/2002/21, 23 July 2002. 63 UN Doc. S/2004/341, 3 May 2004. 64 See Articles 25 and 27 of the ICTR Statute respectively.

BIBLIOGRAPHY

Abass, A. and Baderin, M.A. (2002), ‘Towards effective collective security and human rights protection in Africa: an assessment of the constitutive act of the new African Union’, in Neth. Int. L. Rev. 49: 1-38. Abi-Saab, R. (1991), ‘Humanitarian law and internal conflicts: the evolution of legal concern’, in Delissen and Tanja (1991: 209-223). Abi-Saab, G. and R. (2000), ‘Les crimes de guerre’, in Ascensio, Decaux and Pellet (2000: 265-291). Adedeji, A. (1999), Comprehending and mastering African conflicts, Zed Books: London. Akande, D. (1997), ‘The International Court of Justice and the Security Council: Is there room for judicial control of decisions of the political organs of the United Nations’, in Int. and Comp. L. Q. 46: 309-343. Akhavan, P. (1997), ‘Justice and Reconciliation in the Great Lakes Region of Africa: the Contribution of the Internationl Criminal Tribunal for Rwanda’, in Duke J. of Comp. and Int. L. 7: 325-348. Akhavan, P. (1998), ‘Justice in The Hague, peace in the Former Yugoslavia? A commentary on the United Nations war crimes Tribunal’, in Hum. R. Q. 20: 737-816. Aldrich, G.H. (1996), ‘Jurisdiction of the International Criminal Tribunal for the former Yugoslavia’, in Am. J. of Int. L. 90: 64-69. Alvarez, J.E. (1996), ‘Nuremberg Revisited: The Tadic Case’, in Eur. J. of Int. L. 7: 245-264. Alvarez, J.E. (1999), ‘Crimes of State/Crimes of Hate: Lessons from Rwanda’, Yale J. of Int. L. 24: 365-484. Amann, D.M. (1999) ‘Prosecutor v. Akayesu – Judgment by International Criminal Tribunal for Rwanda on charges of genocide and international crimes of sexual violence’, in Am. J. of Int. L. 93: 195-199. Amann, D. M. (2002), ‘Group mentality, expressivism, and genocide’, Int. Crim. L. Rev. 2: 93-143. Ambos, K. (1999), ‘General principles of criminal law in the Rome Statute’, in Eur. J. of Int. L. 10: 1-32. Ambos, K. and Nemitz, C. (2002), ‘Commentary’, in Klip and Sluiter (2002: 469-475). Ambos, K. and Wirth, S. (2001), ‘Commentary’, in Klip and Sluiter (2001a: 701-708).

286

Bibliography

Ambos, K. and Wirth, S. (2002), ‘The current law of crimes against humanity’, in Crim. L. F. 13: 1-90. Amnesty International (1997), Rwanda: unfair trials: justice denied, 8 April 1997, AI Index AFR 47/08/97. Amnesty International (1998), Rwanda: African Commission on Human and Peoples’ Rights to appeal for a halt to executions in Rwanda, 23 April 1998, AI Index: AFR 47/13/98. Amnesty International (2000), Rwanda: the troubled course of justice, 26 April 2000, AI Index: AFR 47/010/2000. Amnesty International (2002), Rwanda: gacaca: a question of justice, December 2002, AI Index: AFR 47/007/2002. Amnesty International (2003), Rwanda: end of provisional release of genocide suspects, 29 April 2003, AI Index: AFR 47/005/2003. Andersen, R. (2000), ‘How multilateral development assistance triggered the conflict in Rwanda’, in Third World Q. 21: 441-456. Andreopoulos, G.J. (ed.) (1994), Genocide – conceptual and historical dimensions, University of Philadelphia Press: Philadelphia. Aptel, C. (2002), ‘The intent to commit genocide in the case law of the International Criminal Tribunal for Rwanda’, in Crim. L. F. 13: 273-291. Arendt, H. (1963), Eichmann in Jerusalem: a report on the banality of evil, Viking Press: New York. Ascensio, H., Decaux, E. and Pellet, A. (2000), Droit international pénal, Pedone: Paris. Ashworth, A. (1995), Principles of Criminal Law, Clarendon Press: Oxford. Askin, K.D. (1999), ‘Sexual violence in decisions and indictments of the Yugoslav and Rwandan Tribunals: current status’, in Am. J. of Int. L. 93: 97-123. Aust, A. (2002), ‘The Security Council and international criminal law’, in Neth. Yb. of Int. L. 33: 23-46. Bassiouni, M.C. (1994), ‘Crimes against humanity: The Need for a Specialized Convention’, Colum. J. Transnat. L. 31: 457-494. Bassiouni, M.C. and Manikas, P. (1996), The law of the International Criminal Tribunal for the Former Yugoslavia, Transnational: Irvington-on-Hudson, NY. Bassiouni, M.C. (1997), ‘From Versailles to Rwanda in seventy-five years: the need to establish a permanent international criminal court’, in Harv. Hum. R. J. 10: 11-62. Bassiouni, M.C. (1999), Crimes against humanity in international law, 2nd ed., Kluwer International Law: The Hague. Bertrand, J. (2000), Rwanda, le piège de l’histoire; l’opposition démocratique avant le génocide (1990-1994), Karthala: Paris. Bettati, M. (2000), ‘Le crime contre l’humanité’, in Ascensio, Decaux and Pellet (2000: 293-317).

Bibliography

287

Boed, R. (2002), ‘Individual Criminal Responsibility for Violations of Article 3 Common to the Geneva Conventions of 1949 and of Additional Protocol II Thereto in the Case Law of the International Criminal Tribunal for Rwanda’, in Crim. L. F. 13: 293-322. Bohlander, M. (2000), ‘Prosecutor v. Dusko Tadic´: waiting to exhale’, in Crim. L. F. 11: 217-248. Boot, M. (2002), Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court: Genocide, Crimes Against Humanity, War Crimes, Intersentia: Antwerp. Bos, A. (2002), ‘From the International Law Commission to the Rome Conference (19941998)’, in Cassese, Gaeta and Jones (2002: 35-65). Bothe, M. (2002), ‘Peacekeeping’, in Simma et al. (2002: 648-700). Braeckman, C. (1996), De wortels van het geweld, EPO: Berchem. Bucyana, J. (1996), ‘The International Penal Tribunal for Rwanda and National Reconciliation’, in Int. J. of Ref. L. 8: 622-625. Buisman, C. (2001), ‘Europees Hof laat Joegoslavië-Tribunaal de ruimte’, in NJCM Bulletin 26: 50-57. Calas, B. (1995), ‘Ouganda: un recentrage contrarié sur les enjeux internes’, in Guichaoa (1995: 361-373). Cassese, A. (1995), Self-determination of peoples; a legal appraisal, Cambridge University Press: Cambridge. Cassese, A. (2000), ‘The Martens clause: half a loaf or simply pie in the sky?’, in Eur. J. of Int. L. 11: 187-216. Cassese, A. (2001), International Law, Oxford University Press: Oxford. Cassese, A., Gaeta, P. and Jones, J.R.W.D. (eds.) (2002), The Rome Statute of the International Criminal Court: A Commentary, vol. I and II, Oxford University Press: Oxford. Cassese, A. (2002a), ‘Genocide’, in Cassese, Gaeta and Jones (2002: 335-351). Cassese, A. (2002b), ‘Crimes against humanity’, in Cassese, Gaeta and Jones (2002:353378). Cassese, A. (2003a), International criminal law, Oxford University Press: Oxford. Cassese, A. (2003b), ‘International criminal law’, in Evans (2003: 721-754). Chalk, F. and Jonassohn, K. (1990), The history and sociology of genocide: analyses and case studies, Yale University Press: New Haven CT. Charney, I.W. (1997), ‘Toward a generic definition of genocide’, in Andreopoulos (1994: 64-94). Chesterman, S. (2000), ‘An Altogether Different Order: Defining the Elements of Crimes Against Humanity’, in Duke J. of Comp. and Int. L. 10: 307-343. Chrétien, J.-P. (2002), Rwanda; les médias du génocide, nouvelle edition 2002 revue et augmentée, Karthala: Paris.

288

Bibliography

Cissé, C. (1998), ‘The end of a culture of impunity in Rwanda? Prosecution of genocide and war crimes before Rwandan Court and the International Criminal Tribunal for Rwanda’, in: Yb. of Int. Hum. L. 1: 161-188. Clark, R.S. (1990), ‘Crimes against humanity at Nuremberg’, in Ginsburg and Kudriavtsev (1990: 177-199). Clark, R., Feldbrugge, F. and Pomorski. S. (eds.) (2001), International and National Law in Russia and Eastern Europe, Kluwer Law International: The Hague. Clark, R. S. (2001), ‘Crimes Against Humanity and the Rome Statute of the International Criminal Court ’, in Clark, Feldbrugge and Pomorski (eds.) (2001: 139-156). Cottier, M. (1999), ‘Article 8; war crimes; para. 2(b)(iii)’, in Triffterer (1999: 197-196). Crawford, J. (2002a), The International Law Commission’s Articles on State Responsibility; Introduction, Text and Commentaries, Cambridge University Press: Cambridge. Crawford, J. (2002b), ‘Work of the International Law Commission’, in Cassese, Gaeta and Jones (eds.) (2002: 23-34). Cumes, G. (2003), ‘Murder as a crime against humanity in international law: choice of law and prosecution of murder in East Timor’, in Eur. J. of Crime, Crim. L. and Crim. Justice 11: 40-66. Dadrian, V.N. (1995), The history of the Armenian genocide, Berghahn Books: Oxford. Daglish, K. (2001), ‘The crime of genocide: Nulyarimma v. Thompson’, in Int. and Comp. L. Q. 50: 404-411. Dallaire, R.A. and Beardsley, B. (2003), Shake hands with the devil; the failure of humanity in Rwanda, Random House Canada: Toronto. Danner, A.M. (2001), ‘Constructing a hierarchy of crimes in international criminal law sentencing’, in Virginia L. Rev. 87: 415-501. Delissen, A.J.M. and Tanja, G.J. (1991), Humanitarian law of armed conflict; challenges ahead: essays in honour of Frits Kalshoven, Nijhoff Publishers: Dordrecht. Della Morte, G. (2004), ‘Les Tribunaux pénaux internationaux et les références à leur propre jurisprudence: auctoritas rerum similiter judicatarum?’, in Delmas-Marty, Fronza and Lambert-Abdelgawad (2004: 211-222). Delmas-Marty, M., Fronza, E. and Lambert-Abdelgawad, É. (2004), Les sources du droit international pénal, Société de législation comparée: Paris. Des Forges, A. (1999), Leave none to tell the story: genocide in Rwanda, Human Rights Watch: New York. D’Hertefelt, M., Trouwborst, A.A. and Scherer, J.H. (1962), Les anciens royaumes de la zone interlacustre méridionale, International African Institute: London. D’Hertefelt, M. (1962), ‘Le Rwanda’, in D’Hertefelt, M., Trouwborst, A.A. and Scherer, J.H. (1962: 9-112).

Bibliography

289

D’Hertefelt, M. and De Lame, D. (1987), Société, culture et histoire du Rwanda: encyclopédie bibliographique 1863-1980/87, Koninklijk Museum voor Midden-Afrika: Tervuren. Dickens Mushemeza, E. (1992), “The victims’ empowerment”: the case of the Banyarwanda refugees in Uganda, research paper, ISS (on file with the author). Dinstein, Y. (2000), ‘Crimes Against Humanity After Tadic´’, in Leiden J. of Int. L. 13: 373-393. Dixon, R. (1999), ‘Article 7; crimes against humanity; para 1 ‘chapeau’’, in Triffterer (1999: 117-129). Dörmann, K. (2001), ‘The elements of war crimes; elements of specific forms of war crimes; Article 8(2)(a)(ii) – Torture, inhuman treatment and biological experiments’, in Lee (2001: 125-131). Douma, P. (2000), ‘The Netherlands and Rwanda: A Case Study on Dutch Foreign Policies and Interventions in the Contemporary Conflict History of Rwanda’, Occasional paper of the Conflict Research Unit of Clingendael, Clingendael: The Hague. Drost, P.N. (1959), The crime of State, vol. II: genocide, A.W. Sythoff: Leiden. Dupaquier, J.-F. (ed.) (1996), La justice internationale face au drame rwandais, Karthala: Paris. Durham, H. and McCormack, T.L.H. (eds.) (1999), The chancing face of conflict and the efficacy of international humanitarian law, Kluwer Law International: The Hague. Eboe-Osuji, C. (2003), ‘The Contribution of the ICTR to the Development of War Crimes Jurisprudence’, Lecture for the ICTR Internship Education Programme, 11 April 2003. Edwards, C. and Rowe, P. (1996), ‘The International Criminal Tribunal for Yugoslavia: the decision of the Appeals Chamber on the Interlocutory Appeal on jurisdiction in the Tadic´ case’, in Int. and Comp. Law Q. 45: 691-701. Emmer, P.C. (2000), De Nederlandse slavenhandel; 1500-1850, De Abeiderspers: Amsterdam. Evans, M.D. (ed.) (2003), International law, Oxford University Press: Oxford. Fawcett, J.E.S. (1962), ‘The Eichmann case’, in British Yb. of Int. L. 38: 181- 215. Fein, H. (1994) ‘Genocide, terror, life integrity, and war crimes: the case for discrimination’, in Andreopoulos (1994: 95-107). Fenrick, W.J. (1999a), ‘The application of the Geneva Conventions by the International Criminal Tribunal for the former Yugoslavia’, in Int. Rev. of the Red Cross no. 834: 317-329. Fenrick, W.J. (1999b), ‘Should crimes against humanity replace war crimes?’, in Colum. J. of Transnat. L. 37: 767-785. Fenrick, W.J. (2001), ‘The crimes against humanity of persecution in the jurisprudence of the ICTY’, in Neth. Yb of Int. L. 32: 81-96. Fletcher, G.P. (2000), Rethinking Criminal Law, Oxford University Press: Oxford.

290

Bibliography

Finch, G.A. (1949), ‘The Genocide Convention’, in Am. J. of Int. L. 43: 732-738. Frank, D. (2001), ‘Elements of specific forms of war crimes; other serious violations in international armed conflict; Article 8(2)(b)(iii)’, in Lee (2001: 145-147). Freeland, S. (2003), ‘Commentary’, in Klip and Sluiter (2003: 38-47). Fronza, E., Malarino, E. and Sotis, C. (2004), ‘Le principe de précision et la justice pénale internationale’, in Delmas-Marty, Fronza and Lambert-Abdelgawad (2004: 157-210). Frowein, J.A. (2002), ‘Article 39’, in Simma et al. (2002: 717-729). Frulli, M. (2001), ‘Are crimes against humanity more serious than war crimes?’, in Eur. J. of Int. L. 12: 329-350. Garraway, C. (2001), ‘The elements of genocide; elements of the specific forms of genocide’, in Lee (2001: 49-55). Gasser, H.-P. (1991), ‘Negotiating the 1977 Additional Protocols: was it a waste of time?’, in Delissen and Tanja (1991: 81-92). Gill, T.D. (2001), ‘Commentary’, in Klip and Sluiter (2001: 868-875). Ginsburg, G. and Kudriavtsev, V.N. (eds.) (1990), The Nuremberg Trial and international law, Nijhoff: Dordrecht. Glaser, S. (1970), Droit international pénal conventionnel, Bruylant: Brussels. Goodwin-Gill, G.S. and Talmon, S. (1999), The reality of international law; essays in honour of Ian Brownlie, Clarendon Press; Oxford. Gopalani, A.F. (2001), ‘The international standard of direct and public incitement to commit genocide: an obstacle to U.S. ratification of the International Criminal Court Statute?’, in Cal. W. Int. L. J. 32: 87-117. Gourevitch, P. (1998), We wish to inform you that tomorrow we will be killed with our families: stories from Rwanda, Farrar Straus and Giroux: New York, NY. Gray, C. (2003), ‘The use of force and the international legal order’, in Evans (2003: 589-618). Green, L.C. (2000), The contemporary law of armed conflict, Manchester University Press: Manchester. Greenawalt, A.K.A. (1999), ‘Rethinking genocidal intent: the case for a knowledge-based interpretation’, in Colum L. Rev. 99: 2259-2294. Greenwood, C. (1991), ‘Customary law status of the 1977 Additional Protocols’, in Delissen and Tanja (1991: 93-114). Greenwood, C. (1998), ‘International humanitarian law and United Nations military operations’, in Yb. of Int. Hum. L. 1: 3-34. Greenwood, C. (1999), ‘A critique of the Additional Protocols to the Geneva Conventions of 1949’, in Durham and McCormack (1999: 3-20). Greenwood, C. (2000), ‘International humanitarian law (laws of war); revised report for the centennial commemoration of the First Hague Peace Conference 1899’, in Kalshoven (2000: 161-259).

Bibliography

291

Greenwood, C. (2003), ‘The law of war (international humanitarian law)’, in Evans (2003: 789-821). Guichaoa, A. (1995), Les crises politiques au Burundi et au Rwanda (1993-1994), Karthala: Paris. Haak, W.E. (1989), Procederen in Rijnvaartzaken; bevoegdheid en werkwijze van de Nederlandse Rijnvaartgerechten en van de Kamer van Beroep van de Centrale Commissie voor de Rijnvaart, W.E.J. Tjeenk-Willink: Zwolle. Hall, C.K. (1999), ‘Article 7, para. 1 (a)-(f)’, in Triffterer (1999: 129-139). Harvard Law Review Association (2001), ‘Developments in the Law, International Criminal Law’, in Harv. L. Rev. 114: 1943-2073. Hatzfeld, J. (2000), Dans le nu de la vie; recits des marais rwandais, Seuil: Paris. Heinsch, R.W. (2003), ‘Possibilities to prosecute war crimes committed in Iraq: the different forum options’, in Hümanitäres Völkerrecht 16: 132-138. Herik, L.J. van den (2002), ‘Rwandese efforts towards good governance: the care of national criminal justice’, in Griffin’s View on Int. and Comp. L. 3: 84-91. Herik, L.J. van den (2003a), ‘Justice Delayed, Justice Denied? Provisional Release in the ICTR Practice’, in Griffin’s View on Int. and Comp. L. 4: 129-142. Herik, L.J. van den (2003b), ‘War Crimes in Rwanda? The answer of the ICTR so far (1998-2001)’, in Koufa (2003: 1153-1166). Herik, L.J. van den and Schrijver, N.J. (2003), ‘Commentary’, in Klip and Sluiter (2003: 98-106). Herik, L.J. van den, and Sliedregt, E. van (2004), ‘Ten years later, the Rwanda Tribunal still faces legal complexities: some comments on the vagueness of the indictment, complicity in genocide, and the nexus requirement for war crimes’, in Leiden J. of Int. L 17: 537-557. Higgins, R. (1963), The development of international law through the political organs of the United Nations, Oxford University Press: London. Higgins, R. (1994), Problems and process: international law and how we use it, Oxford University Press: Oxford. Hintjens, H.M. (1999), ‘Explaining the 1994 Genocide in Rwanda’, in J. of Modern Afr. Studies 37: 241-286. Hippler Bello, J. and Cotler, I. (1996), ‘Regina v. Finta’, in Am. J. of Int. L. 90: 460-476. Howland, T. and Calathes, W. (1998), ‘The UN’s International Criminal Tribunal, Is It Justice or Jingoism for Rwanda? A Call for Transformation’, in Virgina J. of Int. L. 39: 135-167. Human Rights Watch (1994), Arming Rwanda. The arms trade and human rights abuses in the Rwandan war, January 1994, vol. 6, issue 1. Human Rights Watch (2002), Letter sent to the US Ambassador John Negroponte, President of the Security Council, 9 August 2002.

292

Bibliography

Human Rights Watch (2004), Côte d’ Ivoire: ending impunity key to resolving crisis; UN Commission should recommend tribunal to address serious abuses, 6 October 2004. Human Rights Watch (2004), Balkans: local courts currently unprepared to try war crimes, 14 October 2004. International Commission on Intervention and State Sovereignty (2001), The Responsibility to Protect, International Development Research Centre: Ottawa. International Crisis Group (2002), Tribunal Pénal pour le Rwanda: Le Compte à Rebours, Rapport Afrique nº 50, 1 August 2002. International Crisis Group (2003), Tribunal Pénal pour le Rwanda: Pragmatisme de Rigeur, Rapport Afrique nº 69, 26 September 2003. Jaenicke, G. (2002), ‘Article 7’, in Simma et al. (2002: 217-229). Johnson, L.D. (1996), ‘The International Tribunal for Rwanda’, in Int. Rev. of Penal L. 67: 211-232. Jørgensen, N.H.B. (1999), ‘State responsibility and the 1948 Genocide Convention’, in Goodwin-Gill and Talmon (1999: 273-291). Jørgensen, N.H.B. (2001a), ‘The definition of genocide: Joining the dots in light of recent practice’, Int. Crim. L. Rev. 1: 285-313. Jørgensen, N.H.B. (2001b), A reappraisal of the abandoned Nuremberg concept of criminal organisations in the context of justice in Rwanda’, in Crim. L. F. 21: 371-406. Jørgensen, N.H.B. (2002), ‘Genocide acquittal in the Sikirica case’, in Leiden J. of Int. L. 15: 289-408. Kalshoven, F. (2000), The centennial of the first international peace conference; reports and conclusions, Kluwer Law International: The Hague. Kalshoven, F. and Zegveld, L. (2001), Constraints on the waging of war; an introduction to international humanitarian law, International Committee of the Red Cross: Geneva. Kamminga, M.T. (2001), De humanisering van het volkenrecht, Universitaire Pers Maastricht: Maastricht. Keane, F. (1996), Season of Blood: a Rwandan Journey, Penguin Books: London. Kirgis, F.L. (2004), ‘Security Council resolutions on multinational interim force in Haiti’, available on www.asil.org/insights (visited on 9 March 2004). Kirsch, P. and Oosterveld, V. (2002), ‘The post-Rome conference Preparatory Commission’, in Cassese, Gaeta and Jones (2002: 93-104). Klabbers, J. (2002), An introduction to international institutional law, Cambridge: Cambridge University Press. Klip, A. and Sluiter, G. (2001a), Annotated Leading Cases of International Criminal Tribunals, vol. II, Intersentia: Antwerp.

Bibliography

293

Klip, A. and Sluiter, G. (2001b), Annotated Leading Cases of International Criminal Tribunals, vol. III, Intersentia: Antwerp. Klip, A. and Sluiter, G. (2002), Annotated Leading Cases of International Criminal Tribunals, vol. IV, Intersentia: Antwerp. Klip, A. and Sluiter, G. (2003), Annotated Leading Cases of International Criminal Tribunals, vol. V, Intersentia: Antwerp. Klip, A. and Sluiter, G. (2005), Annotated Leading Cases of International Criminal Tribunals, vol. VII, Intersentia: Antwerp. Kolb, R. (2000), ‘The Jurisprudence of the Yugoslav and the Rwandan Criminal Tribunals on their Jurisdiction and on International Crimes’, in British Yb. of Int. L. 71: 259-315. Koufa, K. (ed.) (2003), The new international criminal law, Thesaurus Acroasium, vol. XXXII, Sakkoulas Publications: Thessaloniki. Kunz, J.L. (1949), ‘The United Nations Convention on Genocide’, in Am. J. of Int. Law 43: 738-746. La Haye (2001a), ‘The elements of war crimes; elements of specific forms of war crimes; Article 8(2)(b)(xxii) – rape’, in Lee (2001: 187-190). La Haye (2001b), ‘The elements of war crimes; elements of specific forms of war crimes; Article 8(2)(c)(i) –torture’, in Lee (2001: 209-210). Leanza, U., and Ciciriello, M.C. (2003), ‘Crimes internationaux et responsabilité individuelle’, in Koufa (2003: 503-586). Leblanc, L.J. (1991), The United States and the genocide convention, Duke University Press: Durham N.C. Lee, R. (1996), ‘The Rwanda Tribunal’, in Leiden J. of Int. L. 9: 37-61. Lee, R.S. (ed.) (1999), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results, Kluwer: The Hague. Lee, R.S. (2001), The International Criminal Court; elements of crime and rules of procedure and evidence, Transnational Publishers: Ardsley, NY. Lemarchand, R. (1970), Rwanda and Burundi, Pall Mall Press: London. Lemarchand, R (2002). ‘Disconnecting the threads: Rwanda and the Holocaust reconsidered’, in IDEA Journal 7, no. 1., www.ideajournal.com/features.html (visited on 21 January 2004). Lemkin, R. (1933), Les actes constituant un danger général (interétatique) consideré comme délites des droit de gens, Pedone: Paris. Lemkin, R. (1944), Axis rule in occupied Europe, Carnegie Endowment for International Peace: Washington. Linton, S. (2001), ‘Cambodia, East Timor and Sierra Leone: experiments in international justice’, in Crim. L. F. 12: 185-246.

294

Bibliography

Lippman, M. (1994), ‘The 1948 Genocide Convention on the prevention and punishment of the crime of genocide: forty-five years later’, in Temple. Int. and Comp. L. J. 8: 1-84 Lippman, M. (1997), ‘Crimes against humanity’, in Boston College Third World L. J. 17: 171-274. Maison, R. (1999), ‘Le crime de genocide dans les premiers jugements du Tribunal penal international pour le Rwanda’, in: Revue générale de droit international public 103: 129-145. Mamdani, M. (2001), When victims become killers, Princeton University Press: Princeton. Mani, R. (2002), Beyond retribution – Seeking justice in the shadows of war, Polity Press: Cambridge. Manusama, K. (2000), ‘HIV/AIDS-discussie in de Veiligheidsraad: een kwestie van competentie’, in VN Forum 13: 23-28. Manzini, P. (2004), ‘Le rôle du principe de la légalité dans la determination des sources du droit international pénal’, in Delmas-Marty, Fronza and Lambert-Abdelgawad (2004: 261-267). Maquet, J.J. (1954), Le système des relations sociales dans le Ruanda ancien, Museìe Royal du Congo Belge: Tervuren. Maquet, J.J. (1961), The premise of inequality in Ruanda; a study of political relations in a central African kingdom, Oxford University Press: London. Marrus, M.R. (1997), The Nuremberg War Crimes Trial 1945-1946 – A documented history, Bedford Books: Boston. McAuliffe deGuzman, M. (2000), ‘The Road from Rome: The Developing Law of Crimes against Humanity’, in Hum. R. Q. 22: 335-403. McCormack T.L.H. and Simpson, G.J. (eds.) (1997), The Law of War Crimes; National and International Approaches, Kluwer Law International: The Hague. McCormack, T.L.H. (1997), ‘From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime’, in McCormack and Simpson (1997: 31-64). McCorquodale, R. (2003), ‘The individual and the international legal system’, in Evans (2003: 299-325). Meeren, R. van der (1996), ‘Three Decades of Exile: Rwandese Refugees 1960-1990’, in J. of Ref. Studies 9: 252-267. Mégret, F. (2002), Le Tribunal Pénal International pour le Rwanda, Perspectives Internationales No. 23, Pedone: Paris. Meier Wang, M. (1995), ‘The International Tribunal for Rwanda: Opportunities for Clarification, Opportunities for Impact’ in Colum. Hum. R. L. Rev. 27: 177-226. Melvern, L. (2001), ‘The Security Council: behind the scenes’, in Int. Affairs 77: 101-111. Meron, T. (1989), Human rights and humanitarian law as customary law, Clarendon Press: Ofxord.

Bibliography

295

Meron, T. (1993), ‘Rape as a Crime under International Humanitarian Law’, in Am. J. of Int. L. 87: 424-428. Meron, T. (1995), ‘International Criminalisation of Internal Atrocities’, in Am. J. of Int. L. 89: 554-577. Meron, T. (1996), ‘The continuing role of custom in the formation of international humanitarian law’, in Am. J. of Int. L. 90: 238-249. Meron, T. (1998), ‘Is international law moving towards criminalization?’, in Eur. J. of Int. L. 9: 18-31. Meron, T. (2000a), ‘The Martens clause, principles of humanity, and dictates of public conscience’, in Am. J. of Int. L. 94: 78-89. Meron, T. (2000b), ‘The humanization of international humanitarian law’, in Am. J. of Int. L. 94: 238-278. Meijknecht, A. (2001), Towards international personality: The position of minorities and indigenous people in International law, Intersentia: Antwerp. Miller, E.M. (1961), ‘Legal aspects of the United Nations action in the Congo’, in Am. J. of Int. L. 55: 1-28. Mitchell, A.D. (2000), ‘Genocide, Human Rights Implementation and the Relationship between International and Domestic Law: Nulyarimma v Thompson’, in Melbourne Univ. L. Rev. 24: 15-49. Moir, L. (2002), The law of internal armed conflicts, Cambridge University Press: Cambridge. Momtaz, D. (1999), ‘War crimes in non-international armed conflicts under the Statute of the International Criminal Court’, in Yb. of Int. Hum. L. 2: 177-192. Morris, M.H. (1997), ‘The trials of concurrent jurisdiction: the case of Rwanda’, in Duke J. of Comp. and Int. L. 7: 349-374. Morris, M.H. (1999), ‘Rwandan justice and the International Criminal Court’, in ILSA J. of Int. and Comp. L. 5: 351-358. Morris, V. and Scharf, M.P. (1998), The International Criminal Tribunal for Rwanda, Transnational Publishers: Irvington-on-Hudson, NY. Mubiala, M. (1995), ‘Le Tribunal international pour le Rwanda’, in RADIC 7: 610-619. Mubiala, M. (1995), ‘Le Tribunal International pour le Rwanda: vraie ou fausse copie du Tribunal Pénal International pour léx-Yougoslavie?’, in Revue générale de droit international public 99: 929-954. Müller-Schieke, I.K. (2001), ‘Defining the crime of aggression under the Statute of the International Criminal Court’, in Leiden J. of Int. L. 14: 409-430. Mutua¸ M. (1997), ‘Never Again: Questioning the Yugoslav and Rwanda Tribunals’, in Temple Int. and Comp. L. J. 11: 167-187. Nollkaemper, A. (2003), Concurrence between individual responsibility and state responsibility in international law’, in Int. and Comp. L. Q. 52: 615-640.

296

Bibliography

Nollkaemper, A. and Zegveld, L. (2002), ‘Commentary’, in Klip and Sluiter (2002: 411418). Ntanda Nsereko, D.D. and Ibanda Nahamya, E. (2001), ‘The African Great Lakes Region and the International Criminal Tribunal for Rwanda’, in Neth. Int. L. Rev. 48: 31-66. Nygren Krug, H. (1998), ‘Genocide in Rwanda: lessons learned and future challenges to the UN Human Rights System’, in Nordic J. of Int. L. 67: 165-213. Obote-Odora, A. (2001), ‘Prosecution of War Crimes by the International Criminal Tribunal for Rwanda’, in Murdoch Univ. Elec. J. of L. 8: 2. O’Brien, J. (1993), ‘The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia’, in Am. J. of Int. L. 87: 639-659. Oosterveld, V. (2001a), ‘The elements of genocide; introduction’, in Lee (2001: 41-44). Oosterveld, V. (2001b), ‘The elements of genocide; the context of genocide’, in Lee (2001: 44-49). Österdahl, I. (1998), Threat to the Peace, the interpretation by the Security Council of Article 39 of the UN Charter, Iustus Förlag: Uppsala. Ouguergouz, F. (1996), ‘La tragédie Rwandaise du printemps 1994: quelques considérations sur les premières réactions de l’organisation des Nations Unies’, in Revue générale de droit international public 100: 149-177. Paulus, A. (2002), ‘Article 29’, in Simma et al. (2002: 539-563). Politi, M. (2003), ‘Elements of Crimes’, in Cassese, Gaeta and Jones (2003: 443-473). Power, S. (2003), “A Problem from hell”; America and the age of genocide, HarperCollins Publishers: New York, NY. Prunier, G. (1994), ‘Rwanda: La Crise Rwandaise: Structures et Déroulement’, WRITENET Country Papers, www.unhcr.ch/refworld, through “country information” (visited on 20 January 2004). Prunier, G. (1997), The Rwanda Crisis 1959-1994, History of a Genocide, 2nd ed., Hurst and Company: London. Raimondo, F. (2004), ‘Les principes généraux de droit dans la jurisprudence des Tribunaux ad hoc: une approche fonctionelle’, in Delmas-Marty, Fronza and LambertAbdelgawad (2004: 75-95). Reydams, L. (1996), ‘Universal jurisdiction over atrocities in Rwanda: theory and practice’, in Eur. J. of Crime, Crim. L. and Crim. Justice 4: 18-47. Reydams, L. (2002), ‘Swiss military trial of former Rwanda town mayor accused of war crimes for inciting murder of civilians in Rwanda’ in Am. J. of Int. L. 96: 231-236. Reyntjens, F. (1984), ‘Rwandese hoofden en bureaucratische normen: conflicten onder Belgisch koloniaal bestuur, 1916-1940’, in Sociologische Gids 31: 327-343.

Bibliography

297

Reyntjens, F. (1994), L’Afrique des Grands Lacs en crise: Rwanda, Burundi, 1988-1994, Karthala: Paris. Reyntjens, F. (1995a), Rwanda: Trois jours qui ont fait basculer l’histoire, Institut Africain-CEDAF: Brussels. Reyntjens, F. (1995b), ‘Akazu, «escadrons de la mort» et autres «Réseau Zéro»: un historique des résistances au changement politique depuis 1990, in Guichaoa (1995: 265-273). Reyntjens, F. (1996), ‘Rwanda: Genocide and Beyond’, in J. of Ref. Studies 9: 240-251. Reyntjens, F. (2004), ‘Rwanda, ten years on: from genocide to dictatorship’, in Afr. Affairs 103: 177-210. Roberts, A. and Guelff, R. (eds.) (2000), Documents on the laws of war, 3rd ed., Oxford University Press: Oxford. Robinson, D. and Hebel, H. von (1999), ‘War crimes in internal conflicts: Article 8 of the ICC Statute’, in Yb. of Int. Hum. L. 2: 193-209. Robinson, D. (2001a), ‘The elements of crimes against humanity; introduction’, in Lee (2001: 57-61). Robinson, D. (2001b), ‘The elements of crimes against humanity; elements of specific forms of crimes against humanity; Article 7(1)(a) – extermination’, in Lee (2001: 81-84). Robinson, D. (2001c), ‘The elements of crimes against humanity ; elements of specific forms of crimes against humanity; Article 7(1)(f) – torture’, in Lee (2001: 90-92). Röling, B.V.A. (1977), The Tokyo Judgment, University Press Amsterdam: Amsterdam. Rosenne, S. (2002), ‘The perplexities of modern international law; general course on public international law’, in Receuil des cours; collected courses of the Hague Academy of International Law, Tome 291, Martinus Nijhoff Publishers: The Hague. Ruiz Fabri, H. (2004), ‘Commentaire sur le rapport de Lorenzo Gradoni’, in DelmasMarty, Fronza and Lambert-Abdelgawad (2004: 383-387). Sadat-Wexler, L. (1994), ‘The interpretation of the Nuremberg Principles by the French Court of Cassation: from Touvier to Barbie and back again’, in Colum. J. of Transnat. L. 32: 289-380. Saland, P. (1999), ‘International criminal law principles’ in Lee (1999: 189-216). Sandoz, Y., Swinarski, C. and Zimmerman, B. (eds.) (1987), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, International Committee of the Red Cross: Geneva. Sands, P. and Klein, P. (2001), Bowett’s Law of International Institutions, 5th. ed., Sweet and Maxwell: London. Sarooshi, D. (1996), ‘The legal framework governing United Nations subsidiary organs’, in British Yb. of Int. L. 67: 413-478.

298

Bibliography

Sassòli, M. (1996), ‘La première décision de la Chambre d’Appèl du Tribunal Pénal International pour l’ex-Yougoslavie: Tadic (Compétence), in Revue générale de droit international public 100: 101-132. Schabas, W.A. (1996), ‘Justice, democracy and impunity in post-genocide Rwanda: searching for solutions to impossible problems’, in Crim. L. F. 7: 523-569. Schabas, W.A. (2000a), Genocide in international law: the crime of crimes, Cambridge University Press: Cambridge. Schabas, W.A. (2000b), ‘Groups protected by the Genocide Convention’, ILSA J. of Int. and Comp. L. 6: 375-387. Schabas, W.A. (2000c), ‘Hate speech in Rwanda: the road to genocide’, in McGill L. J. 46: 141-171. Schabas, W.A. (2000d), ‘International decisions. Barayagwiza v. Prosecutor’, in Am. J. of Int. L. 94: 563-571. Schabas, W.A. (2001a), ‘The Jelisic´ case and the mens rea of the crime of genocide’, Leiden J. of Int. L. 14: 125-139. Schabas, W.A. (2001b), ‘Was genocide committed in Bosnia and Herzegovina? First judgments of the International Criminal Tribunal for the former Yugoslavia’, in Fordham Int. L. J. 25: 23-53. Schabas, W.A. (2001c), ‘Commentary’, in Klip and Sluiter (2001b: 753-760). Schabas, W.A. (2003), ‘National courts finally begin to prosecute genocide, the ‘crime of crimes’’, J. of Int. Crim. Justice 1: 39-63. Schermers, H.G. and Blokker, N.M. (2003), International institutional law, 4th ed., Martinus Nijhoff Publishers: Leiden. Schindler, D. and Toman, J. (1988), The laws of armed conflicts: a collection of conventions, resolutions and other documents, Nijhoff: Dordrecht. Schraga, D. and Zacklin, R. (1996), ‘The International Criminal Tribunal for Rwanda’, in Eur. J. on Int. L. 7: 501-518. Schrijver (1997), Sovereignty over natural resources: balancing rights and duties, Cambridge University Press; Cambridge. Schrijver, N.J. (1998), Begrensde soevereiniteit – 350 jaar na de Vrede van Munster, inaugural lecture at the Vrije Universiteit. Schrijver, N.J. (2000a), ‘Nederland en robuuste blauwhelmen; de rapporten van de commissie-Bakker en de commissie-Brahimi’, in Vrede en Veiligheid; tijdschrift voor internationale vraagstukken 29: 369-373. Schrijver, N.J. (2000b), ‘The changing nature of State sovereignty’, in British Yb. of Int. L. 70: 65-98. Schrijver, N.J. (2002), ‘Kroniek van het internationaal publiekrecht’, in Nederlands Juristenblad 77: 500-506. Schrijver, N. and Herik, L. van den (2003), ‘Commentary’, in Klip and Sluiter (2003: 98-106).

Bibliography

299

Schwelb, E. (1946), ‘Crimes against humanity’, in British Yb. of Int. L. 23: 178-226. Shaw, M.N. (2003), International Law, Cambridge University Press: Cambridge. Sibomana, A. (1999), Hope for Rwanda; conversations with Laure Guilbert and Hervé Deguine, Pluto Press: London. Simma, B. et al. (eds.) (2002), The Charter of the United Nations: A Commentary, Oxford University Press: Oxford. Simon, T.W. (1996), ‘Defining genocide’, in Wisconsin Int. L. J. 15: 243-256. Sliedregt, E. van (2003), The criminal responsibility of individuals for violations of international humanitarian law, T.M.C. Asser Press: The Hague. Sliedregt, E. van (2005), ‘Commentary’, in Klip and Sluiter (2005: 767-772). Sluiter, G. (2001), ‘Commentary’, in Klip and Sluiter (2001b: 118-122). Sluiter, G. (2002), International Criminal Adjudication and the Collection of Evidence – Obligations of States, Intersentia: Antwerp. Steiner, H.J. and Alston, P. (2000), International human rights in context; law, politics and morals, Oxford University Press: Oxford. Sunga, L. S. (1992), Individual responsibility in international law for serious human rights violations, Nijhoff: Dordrecht. Sunga, L.S. (1995), ‘The Commission of Experts on Rwanda and the creation of the International Criminal Tribunal for Rwanda, A note’, in Hum. R. L. J.: 121-124. Sunga, L.S. (1997), ‘The first indictments of the International Criminal Tribunal for Rwanda’, in Hum. R. L. J. 18: 329-340. Swaak-Goldman, O. (1998), ‘The Crime of Persecution in International Criminal Law’, in Leiden J. of Int. L. 11: 145-154. Szasz, P.C. (2002), ‘The Security Council starts legislating’, in Am. J. of Int. L 96: 901905. Szurek, S. (2000), ‘Historique’, in Ascensio, Decaux and Pellet (2000: 7-22). Thirlway, H.W.A. (1972), International customary law and codification: an examination of the continuing role of custom in the present period of codification of international law, A.W. Sijthoff: Leiden. Thwaites, N.L.C. (1997), ‘Le concept de génocide dans la jurisprudence du TPIY: avancées et ambiguïtés’, in Revue belge de droit international 30: 565-606. Tomuschat, C. (2000), ‘La cristallisation coutumière’, in Ascensio, Decaux and Pellet (2000: 23-35). Tournaye, C. (2003), ‘Genocidal intent before the ICTY’, in Int. and Comp. L. Q. 52: 447-462. Triffterer, O. (ed.) (1999), Commentary on the Rome Statute of the International Criminal Court; Observers’ Notes, Article by Article, Nomos Verlagsgesellschaft: Baden-Baden. Triffterer, O. (2001), ‘Genocide, its particular intent to destroy in whole or in part te group as such’, Leiden J. of Int. L. 14: 399-408.

300

Bibliography

Turns, D. (1995), ‘War Crimes without War? – The Applicability of International Humanitarian Law to Atrocities in Non-international Armed Conflicts’, in RADIC 7: 804-830. Uvin, P. (1998), Aiding violence: the development enterprise in Rwanda, Kumarian Press: West Hartford, Connecticut. Uvin, P. The introduction of a modernized gacaca for judging suspects of participation in the genocide and the massacres of 1994 in Rwanda, discussion paper prepared for the Belgian Secretary of State for Development Co-operation (not published, on file with the author). Van Schaak, B. (1997), ‘The crime of political genocide: repairing the Genocide Convention’s blind spot’, in Yale L. J. 106: 2259-2291. Van Schaak, B. (1999), ‘The definition of crimes against humanity: resolving the incoherence’, in Colum. J. of Transnat. L. 37: 787-850. Vanderbeken, T. (2001), ‘Commentary’, in Klip and Sluiter (2001: 99-103). Verdirame, G. (2000), ‘The genocide definition in the jurisprudence of the ad hoc Tribunals’, Int. and Comp. L. Q. 49: 578-598. Verhoeven, J. (1991), ‘Le crime de génocide: originalité et ambiguïté’, in Revue belge de droit international 1: 5-26. Walther, S. (2002), ‘Cumulation of offences’, in Cassese, Gaeta and Jones (2002: 475495). Warbrick, C. (1996), ‘The International Criminal Tribunal for Yugoslavia: The Decision of the Appeals Chamber on the Interlocutory Appeal on Jurisdiction in the Tadic´ case, in Int. and Comp. L. Q. 45: 696-696. Warbrick, C. (2003), ‘International criminal co-operation and the new international criminal law’, in Koufa (2003: 209-280). Weckel, P. (2004), ‘L’originalité de la pratique des TPI au regard de la théorie des sources du droit international’, in Delmas-Marty, Fronza and Lambert-Abdelgawad (2004: 439-441). Willis, J.F. (1982), Prologue to Nuremberg; The politics and diplomacy of punishing war criminals of the First World War, Greenwood Press: Westport. Wood, M.C. (1998), ‘The interpretation of Security Council resolutions’, in Max Planck Yb. of United Nations L. 2: 73-95. Zakr, N. (2001), ‘Analyse spécifique du crime de génocide dans le Tribunal pénal international pour le Rwanda’, in Revue se science criminelle et de droit pénal comparé 56: 263-275. Zoller, E. (1993), ‘La définition des crimes contre l’humanité’, in Journal du droit international 120: 549-568.

INDEX

(The numbers refer to sections) A ad litem judges: II.4.1, II.6. aggression: II.5.1, III.1.4, V.4.1, VII.7. aiding and abetting: II.5.4, III.1.6, III.4.2, III.4.3. Akazu: I.5, I.6. Annan, Kofi: II.6, III.7, VII.7. Armenians: II.6, IV.1. Arusha: I.5, II.3.2. Arusha Peace Agreement: I.5, II.1. Assassinat: III.6.3, IV.6.1. B Bagosora: I.6, II.4.1, II.5.3, IV.3.2, IV.5.2, VII.3, VII.4. Belgian peacekeepers: I.6, IV.3.2, IV.5.2, VI.3.1, VII.4. · see also: peacekeepers. Belgium: I.2-I.5, II.1, II.3.5, II.5.1, II.5.2, IV.3.2, IV.5.2, V.4.5, V.6.5, VI.3.2. bodily harm: III.6.4, III.6.6, III.6.8, IV.6.1. Brahimi report: II.5.2, IV.3.2. Bruguière: II.3.4, II.5.1, VII.3. Burundi: I.3-I.6, VII.7. Butare: I.6, II.4.2, II.5.2.

C children: III.3, III.4.3, III.4.5, III.6.1, III.6.2, III.6.7, V.2. civil war: I.5, V.6. · see also: internal armed conflict. civilian population: III.1.2, IV.3.2, IV.4, V.1, VI.3, VI.3.1. combatants: IV.3.2, V.6.5, V.4.2. Commission of Experts for Rwanda: II.1.3, II.2, II.3, II.3.1, II.3.2, III.4.3, III.4.4, III.4.6, III.5.2, III.7, IV.2.1, IV.5, IV.6.5, V.4.1. Commission of Experts for the Former Yugoslavia: III.4.5, IV.5. common purpose doctrine: II.5.2. complementarity, principle of: II.3.5. completion strategy · ICTR: II.3.5, II.4.2. · ICTY: II.3.5, VII.8. complicity: III.1.6, III.3, III.4.2, III.4.6. concurrence: V.6.5, VI.2. conspiracy: II.4.2, II.5.2, II.5.4, III.1.7, III.7. continuing crimes · see: ongoing crimes. Control Council Law No.10: II.5.2, IV.1, IV.2.1. cooperation by States · see: State cooperation.

302

crimes against humanity: II.1.3, II.5.1, III.1.2, III.2, III.5.2, III.6.3, IV, V.4.1, V.6.4, V.7, VI.1, VI.3, VI.3.1, VI.3.3, VII.4, VII.7. crimes against peace: III.1.2. · see also: aggression. criminal organisations: II.5.2. cruel treatment: V.7. cultural genocide: III.4.1, III.6.1, III.6.2. culture of impunity: I.6, VII.7. cumulative convictions: VI.2, VI.3. customary international law: II.5.1, III.1.2, III.1.7, III.2, III.5.1, III.5.3, III.7, IV.1, IV.3.1.2, IV.5.1, IV.6.1, IV.6.4, IV.6.6, V.1, V.2, V.3.1V.3.3, V.6.4, V.7, VII.3-VII.6. Cyangugu: I.6, V.6.5. D Dallaire: I.5, V.4.1, VII.7. deferral: II.5.2. deprivation: III.6.5. direct link · see: requirement of connection. disappearances, forced: II.5.4 discriminatory grounds: IV.1, IV.4, IV.5, IV.5.1, IV.5.2. discriminatory intent: IV.1. E Effective control: V.4.3, VII.5. enslavement: IV.3.1.1. ethnic cleansing: III.1.6, III.4.5. ethnic group: I.1, III.5.2, III.5.3, IV.6.6, VII.3. ethnicity: I.2, III.5.2, V.6.5, VII.3. extermination: IV.3.1.1, IV.3.2, IV.6.2, IV.7, VI.2, VI.3, VII.4, VII.7.

Index

F fair trial: II.2.4, II.3.1, II.3.3, II.3.5, II.3.6, II.6, VII.1, VII.2. First World War: I.3. force, use of: I.5, IV.3.2, V.4.1-V.4.5. forced pregnancy: III.6.1, III.6.7. France: I.5, II.1.1, II.5.2, II.5.4, II.6, V.4.2, V.4.3, V.4.5, V.4.6, VII.5. G gacaca: II.3.5. General Assembly: II.2.4, II.4, III.1, III.1.2, III.1.3, V.4.1, V.4.3, VII.3, VII.6. general principles of law: V.3.1, V.3.3. Geneva law: V.1. genocide: I.6, II.1.1-II.1.3, II.5.1, III, IV.2.2, IV.4, IV.5.1, IV.5.2, IV.6.1, IV.6.6, V.4.1, V.6, V.6.3, V.6.5, V.6.6, VI.1, VI.3, VI.3.1, VI.3.2, VII.2, VII.7. Genocide Convention · Article VI: III.2. · Article IX: III.1.3. Germany: I.2, I.3. grave breaches: V.1, V.3.1. H Habyarimana: I.4-I.6, II.4.2, III.3, V.6.5, VII.3. Hague law: V.1. hierarchy: II.5.1, VI.1, VI.3.3. High Level Panel report: VII.3. Holocaust: III.1.1, III.1.2, VII.7. hors de combat: IV.3.2, V.1. Hourigan report: II.5.1. human dignity: IV.2.2, IV.6.6, IV.6.7, V.7, VII.4.

Index

Human Rights Commission: II.1.2, II.6, III.1.2. humanitarian intervention: V.4.2, VII.7. I ICC Elements of Crimes: III.1.7, III.4.6, III.6.3, III.6.4, III.6.5, III.6.7, III.7, IV.3.1.1, IV.3.1.2, IV.3.3, IV.4, IV.6.2, IV.6.4, IV.6.5, IV.7, V.6.6, VII.4, VII.7. ICC Statute: III.1.7, IV.1-IV.3, IV.3.1.1, IV.3.1.2, IV.5.1, IV.6.1, IV.6.6, IV.7, VII.5-VII.7. · Article 6: III.1.7. · Article 7: IV.3.1.2, IV.4. · Article 8: V.4.2. · Article 11: II.5.4. · Article 24: II.5.4 · Article 25: III.1.7. · Article 30: III.4.6. · Article 31: VI.1. · Article 33: VI.1. · Article 124: VI.1. ICJ Statute · Article 36(2): III.2. · Article 38: III.1.4, III.5.3, VII.6. ICTR Statute: IV.2.1, IV.3, IV.5, IV.6.6, VII.7. · Article 1: II.5.2 · Article 2: II.5.1, III, IV.6.1, VI.1, VII.3. · Article 3: II.5.1, IV. · Article 4: II.5.1, V, VII.5. · Article 5: II.5.2. · Article 6: II.5.2. · Article 7: II.5.3. · Article 8: II.2, II.5.2. · Article 12: II.4.1. · Article 13: II.4.1 · Article 15: II.4.2

303

· Article 23: III.2. · Article 24: II.4.2. · Article 28: II.3.5. · Article 30: II.4. · Article 32: II.4.1. ICTY Statute: III.1.6, V.2, V.6.4, VI.1. · Article 2: II.5.1, V.3.1, VI.3. · Article 3: II.5.1, V.3.1, VI.3, VII.7. ILC: II.5.2, III.1.4, III.4.2, III.4.3. ILC Draft Code (1954): IV.1. ILC Draft Code (1991) : IV.1. ILC Draft Code (1996): III.4.2, III.4.6, III.6.4, III.7, IV.1, IV.6.1. imprisonment: IV.6.3. incitement: I.5, I.6, II.5.4, II.6, III.1.3, III.1.7, III.7, IV.6.6, VII.1. inhuman and degrading treatment: II.3.5, V.7. Interahamwe: I.5, II.5.3, II.5.2, III.3, V.6.1, V.6.5, VII.3. internal armed conflict: II.2.2, II.5.1, IV.1, IV.2, IV.3.2, IV.7, V.4.1, V.5, V.6, V.6.1-V.6.6, V.8, VI.1, VI.3.2VI.3.4, VII.5, VII.7. internal disturbance : V.4.1. International Committee of the Red Cross: V.6.1. international organisations: II.5.2, V.3.1. international peace and security: II.2.2, II.2.4, II.5.2, V.4.1, VII.1, VII.2. J joint criminal enterprise: II.5.2. jurisdictional element: IV(intro), IV.1, IV.4, IV.5, IV.5.1. K Kabuga, Félicien: II.5.2, VII.1.

304

Index

Kagame: II.5.1. Kangura: III.3. Kibuye: I.6, III.4.3, III.4.5, IV.3.2. Kigali: I.5, I.6, VII.1. killing: III.3, III.6.3, III.6.8, IV.6.1, V.7.

nullum crimen sine lege: V.3.1-V.3.3, V.7, VII.6. Nuremberg Charter: II.5.2, III.1.2, IV.1. Nuremberg Judgment: II.5.2, IV.1. Nuremberg Tribunal: Intro(1), II.5.2, III.1.2, III.7, IV.1, IV.2.2, V.3.1.

L League of Nations: I.3. Lemkin: III.1, III.1.1, III.1.2, III.4.1, III.5.1, III.5.3, III.6.1, III.6.8, III.7. life, right to: IV.6.6. linkage requirement · see: requirement of connection.

O OAU report: II.5.2. ongoing crime: II.5.4 ONUMUR: II.1, V.4.2. Opération Turquoise: II.1.1, II.5.2, V.4.2. opinio iuris: V.1, V.3.1, VII.4, VII.6. other inhumane acts: IV.6.7, VII.4. outrages upon personal dignity: V.7. overall control test: V.4.3, VII.5.

M Martens Clause: IV.1, VII.6. mental element: III.4.2, III.4.3, III.4.4, III.4.6, III.6.3, III.6.8, III.7, IV.4, IV.5.1, IV.6.1, IV.6.2, IV.6.5, IV.7, V.8, VI.3.2, VI.3.3, VII.3. mental harm: III.6.4, III.6.8. meurtre: III.6.3, IV.6.1. minority groups: III.1.1, III.5.3, VII.3. motive: III.4.4, IV.1, IV.5.1, IV.5.2, IV.7, V.6.4, V.7. murder: III.6.3, IV.6.1, VI.2. Mugesera, Léon: I.5. Museveni: I.5, V.4.4. N national group: I.5, III.1.1, III.4.1, III.5.1, III.5.2. nexus requirement · see: requirement of connection. Nicaragua test: V.4.3, V.4.4, V.4.6, VII.5. non-international armed conflict · see: internal armed conflict.

P peacekeepers: IV.3.2, IV.5.2, VI.3.1, VI.4, VII.4. persecution: III.6.4, IV.5, IV.6.6. personal jurisdiction: II.5.2, II.6. plane crash: II.3.4, II.4.2, II.5.1, III.3, VII.7. political groups: III.1.3, III.2, III.5.1, III.5.3, VII.3. R racial groups: III.5.1, III.5.2, VII.3. radio station RTLM: I.5, II.5.2, III.3, VII.3. rape: III.6.5-III.6.8, IV.6.4, IV.6.5, IV.7, V.7, VII.4. Rapporteur · see: Special UN Rapporteur. referral: II.3.5, VII.7. Registry: II.4, II.4.3. religious groups: III.5.1, III.5.2, VII.3.

Index

requirement of connection: IV.1, IV.3, IV.4, IV.7, V.6, V.6.1-V.6.6, VI.3.2, VI.3.3, VII.5, VII.7. Rome Statute · see: ICC Statute. RPE (ICTR) · Rule 9(iii): II.5.2. · Rule 11bis: II.3.5. · Rule 89: II.4.1. · Rule 94: II.5.3. · Rule 120: II.4.1 RPE (ICTY) · Rule 61: III.1.6, III.4.3. · Rule 98bis: III.1.6. Rwandan law: III.5.2, V.3.2, V.3.3. Rwandese Patriotic Front (RPF): I.5, II.5.2, II.5.4, III.3, IV.3.2, IV.5.2, IV.6.3, IV.7, V.4.4, V.4.5, V.5, V.6.1, V.6.5, VI.3.1, VI.3.2, VI.4, VII.1, VII.7, VII.8. S Second World War: I.4, III.1.1, III.1.2, III.1.4, III.5, III.7, IV.1, IV.2.2. Security Council: II.1.1, II.1.2, II.1.3, II.2, II.2.1, II.2.2, II.2.3, II.2.4, II.3.1, IV.5.1, V.2, V.3.3, V.8. sexual violence: III.6.4, III.6.5, IV.6.5. Sierra Leone: II.3.6, VII.7. source of international law: Intro(3), V.7, VII.6. sovereignty: III.2, III.7, IV.1, V..3.3, V.8. Special Advisor for the Prevention of Genocide: II.6, III.7, VII.3. Special UN Rapporteur: II.6. · Special UN Rapporteur for Rwanda: I.6, II.1.2, III.4.4.

305

· Special UN Rapporteur on summary and arbitrary executions: II.1.2. · Special UN Rapporteur on the question of the prevention and punishment of the crime of genocide: III.1.5, III.4.3, III.4.6, III.7. Ruhashyankiko: III.5.1, III.5.3. Whitaker: III.4.5, III.5.1, III.6.2. specific intent: III.4.3-III.4.6, IV.2.2, IV.5.1, VII.3. Srebrenica: II.5.2, III.1.6, III.4.3, III.4.5, III.4.6. State cooperation: II.2, II.3.5, II.4.1. State involvement: II.3.4, III.3, VII.3. State practice: III.1.4, IV.6.2, V.3.1, V.4.3, VII.4, VII.6. State responsibility: II.5.2, III.1.3, V.1, V.3.1, V.4.3. substantive element: IV(intro), IV.1, IV.5.1, V.6. substantive jurisdiction: II.3.2, II.5.1, II.6. summary execution: II.5.4. T temporal jurisdiction: II.3.2, II.5.1, II.5.4, II.6, III.3. territorial jurisdiction: II.5.3, III.2. third State interference: V.4.3, VII.5. threat to the peace: II.2, II.2.1, II.2.2, II.2.4, II.3.2, II.6, V.4.1, VII.2. Tokyo Tribunal: II.5.1, II.5.2, III.1.2, III.7. Torture: IV.6.4, V.7. U Uganda: I.4, I.5, II.1, II.5.3, V.4.3, V.4.4, V.4.6, VII.7, VII.5. UN: VII.4, VII.5.

306

UNAMIR: I.5, I.6, II.1, II.1.1, II.5.2, II.5.3. UNAMIR II: II.1.1, II.5.2. UN Charter: VII.2. · Article 2(7): II.2.2, VII.4. · Article 7: II.2.4. · Article 24: II.2.2 · Article 25: III.2. · Article 29: II.2.4. · Article 39: II.2, II.2.2, II.2.4, V.4.1, VII.2. · Article 41: II.2.3 · Article 51: IV.3.1.1 · Chapter VII: II.1.1, II.2.2, V.4.1. Uwilingiyimana: I.6, IV.5.2, V.6. V Vienna Convention on the Law of Treaties: III.5.3. · Article 31: II.3.3, III.5.3. · Article 32: III.5.3. · Article 33: IV.3.1.2, IV.6.1.

Index

W war crimes: II.3.2, II.5.1, IV.1, V, VI.1, VI.3.2, VI.3.3, VII.5, VII.7. women: III.3, III.4.3, III.4.5, III.6.4, III.6.8. Z Zaire: I.4, I.5, II.5.3, V.4.5. Zero Network: I.5.

Appendix I RESOLUTION 955 (1994)

Adopted by the Security Council at its 3453rd meeting, on 8 November 1994 The Security Council, Reaffirming all its previous resolutions on the situation in Rwanda, Having considered the reports of the Secretary-General pursuant to paragraph 3 of resolution 935 (1994) of 1 July 1994 (S/1994/879 and S/1994/906), and having taken note of the reports of the Special Rapporteur for Rwanda of the United Nations Commission on Human Rights (S/1994/1157, annex I and annex II), Expressing appreciation for the work of the Commission of Experts established pursuant to resolution 935 (1994), in particular its preliminary report on violations of international humanitarian law in Rwanda transmitted by the Secretary-General’s letter of 1 October 1994 (S/1994/1125), Expressing once again its grave concern at the reports indicating that genocide and other systematic, widespread and flagrant violations of international humanitarian law have been committed in Rwanda, Determining that this situation continues to constitute a threat to international peace and security, Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them, Convinced that in the particular circumstances of Rwanda, the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the process of national reconciliation and to the restoration and maintenance of peace,

308

Resolution 955 (1994)

Believing that the establishment of an international tribunal for the prosecution of persons responsible for genocide and the other above-mentioned violations of international humanitarian law will contribute to ensuring that such violations are halted and effectively redressed, Stressing also the need for international cooperation to strengthen the courts and judicial system of Rwanda, having regard in particular to the necessity for those courts to deal with large numbers of suspects, Considering that the Commission of Experts established pursuant to resolution 935 (1994) should continue on an urgent basis the collection of information relating to evidence of grave violations of international humanitarian law committed in the territory of Rwanda and should submit its final report to the Secretary-General by 30 November 1994, Acting under Chapter VII of the Charter of the United Nations, 1. Decides hereby, having received the request of the Government of Rwanda (S/1994/ 1115), to establish an international tribunal for the sole purpose of prosecuting persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994 and to this end to adopt the Statute of the International Criminal Tribunal for Rwanda annexed hereto; 2. Decides that all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 28 of the Statute, and requests States to keep the Secretary-General informed of such measures; 3. Considers that the Government of Rwanda should be notified prior to the taking of decisions under articles 26 and 27 of the Statute; 4. Urges States and intergovernmental and non-governmental organizations to contribute funds, equipment and services to the International Tribunal, including the offer of expert personnel;

Appendix I

309

5. Requests the Secretary-General to implement this resolution urgently and in particular to make practical arrangements for the effective functioning of the International Tribunal, including recommendations to the Council as to possible locations for the seat of the International Tribunal at the earliest time and to report periodically to the Council; 6. Decides that the seat of the International Tribunal shall be determined by the Council having regard to considerations of justice and fairness as well as administrative efficiency, including access to witnesses, and economy, and subject to the conclusion of appropriate arrangements between the United Nations and the State of the seat, acceptable to the Council, having regard to the fact that the International Tribunal may meet away from its seat when it considers it necessary for the efficient exercise of its functions; and decides that an office will be established and proceedings will be conducted in Rwanda, where feasible and appropriate, subject to the conclusion of similar appropriate arrangements; 7. Decides to consider increasing the number of judges and Trial Chambers of the International Tribunal if it becomes necessary; 8. Decides to remain actively seized of the matter.

Appendix II STATUTE OF THE INTERNATIONAL TRIBUNAL FOR RWANDA (As amended)

As amended by the Security Council acting under Chapter VII of the Charter of the United Nations, the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994 (hereinafter referred to as “The International Tribunal for Rwanda”) shall function in accordance with the provisions of the present Statute. Article 1: Competence of the International Tribunal for Rwanda The International Tribunal for Rwanda shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, in accordance with the provisions of the present Statute. Article 2: Genocide 1. The International Tribunal for Rwanda shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this Article or of committing any of the other acts enumerated in paragraph 3 of this Article. 2. Genocide means any of the following acts committed 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 of life calculated to bring 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. 3. The following acts shall be punishable: a) Genocide;

312

Statute of the international tribunal for Rwanda

b) c) d) e)

Conspiracy to commit genocide; Direct and public incitement to commit genocide; Attempt to commit genocide; Complicity in genocide. Article 3: Crimes against Humanity

The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: a) Murder; b) Extermination; c) Enslavement; d) Deportation; e) Imprisonment; f) Torture; g) Rape; h) Persecutions on political, racial and religious grounds; i) Other inhumane acts. Article 4: Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to: a) Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; b) Collective punishments; c) Taking of hostages; d) Acts of terrorism; e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; f) Pillage;

Appendix II

313

g) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilised peoples; h) Threats to commit any of the foregoing acts. Article 5: Personal Jurisdiction The International Tribunal for Rwanda shall have jurisdiction over natural persons pursuant to the provisions of the present Statute. Article 6: Individual Criminal Responsibility 1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute, shall be individually responsible for the crime. 2. The official position of any accused person, whether as Head of state or government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment. 3. The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 4. The fact that an accused person acted pursuant to an order of a government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal for Rwanda determines that justice so requires. Article 7: Territorial and Temporal Jurisdiction The territorial jurisdiction of the International Tribunal for Rwanda shall extend to the territory of Rwanda including its land surface and airspace as well as to the territory of neighbouring States in respect of serious violations of international humanitarian law committed by Rwandan citizens. The temporal jurisdiction of the International Tribunal for Rwanda shall extend to a period beginning on 1 January 1994 and ending on 31 December 1994.

314

Statute of the international tribunal for Rwanda

Article 8: Concurrent Jurisdiction 1. The International Tribunal for Rwanda and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens for such violations committed in the territory of the neighbouring States, between 1 January 1994 and 31 December 1994. 2. The International Tribunal for Rwanda shall have the primacy over the national courts of all States. At any stage of the procedure, the International Tribunal for Rwanda may formally request national courts to defer to its competence in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal for Rwanda. Article 9: Non Bis in Idem 1. No person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal for Rwanda. 2. A person who has been tried before a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal for Rwanda only if: a) The act for which he or she was tried was characterised as an ordinary crime; or b) The national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted. 3. In considering the penalty to be imposed on a person convicted of a crime under the present Statute, the International Tribunal for Rwanda shall take into account the extent to which any penalty imposed by a national court on the same person for the same act has already been served. Article 10: Organisation of the International Tribunal for Rwanda The International Tribunal for Rwanda shall consist of the following organs: a) The Chambers, comprising three Trial Chambers and an Appeals Chamber; b) The Prosecutor; c) A Registry.

Appendix II

315

Article 11: Composition of the Chambers 1. The Chambers shall be composed of 16 permanent independent judges, no two of whom may be nationals of the same State, and a maximum at any one time of four ad litem independent judges appointed in accordance with article 12 ter, paragraph 2, of the present Statute, no two of whom may be nationals of the same State. 2. Three permanent judges and a maximum at any one time of four ad litem judges shall be members of each Trial Chamber. Each Trial Chamber to which ad litem judges are assigned may be divided into sections of three judges each, composed of both permanent and ad litem judges. A section of a Trial Chamber shall have the same powers and responsibilities as a Trial Chamber under the present Statute and shall render judgement in accordance with the same rules. 3. Seven of the permanent judges shall be members of the Appeals Chamber. The Appeals Chamber shall, for each appeal, be composed of five of its members. 4. A person who for the purposes of membership of the Chambers of the International Tribunal for Rwanda could be regarded as a national of more than one State shall be deemed to be a national of the State in which that person ordinarily exercises civil and political rights. Article 12: Qualification and Election of Judges The permanent and ad litem judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. In the overall composition of the Chambers and sections of the Trial Chambers, due account shall be taken of the experience of the judges in criminal law, international law, including international humanitarian law and human rights law. Article 12 bis: Election of Permanent Judges 1. Eleven of the permanent judges of the International Tribunal for Rwanda shall be elected by the General Assembly from a list submitted by the Security Council, in the following manner: a) The Secretary-General shall invite nominations for permanent judges of the International Tribunal for Rwanda from States Members of the United Nations and non-member States maintaining permanent observer missions at United Nations Headquarters; b) Within sixty days of the date of the invitation of the Secretary-General, each State may nominate up to two candidates meeting the qualifications set out in article 12 of the present Statute, no two of whom shall be of the same nationality and

316

Statute of the international tribunal for Rwanda

neither of whom shall be of the same nationality as any judge who is a member of the Appeals Chamber and who was elected or appointed a permanent judge of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (hereinafter referred to as ‘the International Tribunal for the Former Yugoslavia’) in accordance with article 13 bis of the Statute of that Tribunal; c) The Secretary-General shall forward the nominations received to the Security Council. From the nominations received the Security Council shall establish a list of not less than twenty-two and not more than thirty-three candidates, taking due account of the adequate representation on the International Tribunal for Rwanda of the principal legal systems of the world; d) The President of the Security Council shall transmit the list of candidates to the President of the General Assembly. From that list the General Assembly shall elect eleven permanent judges of the International Tribunal for Rwanda. The candidates who receive an absolute majority of the votes of the States Members of the United Nations and of the non-member States maintaining permanent observer missions at United Nations Headquarters, shall be declared elected. Should two candidates of the same nationality obtain the required majority vote, the one who received the higher number of votes shall be considered elected. 2. In the event of a vacancy in the Chambers amongst the permanent judges elected or appointed in accordance with this article, after consultation with the Presidents of the Security Council and of the General Assembly, the Secretary-General shall appoint a person meeting the qualifications of article 12 of the present Statute, for the remainder of the term of office concerned. 3. The permanent judges elected in accordance with this article shall be elected for a term of four years. The terms and conditions of service shall be those of the permanent judges of the International Tribunal for the Former Yugoslavia. They shall be eligible for re-election. Article 12 ter: Election and Appointment of Ad Litem Judges 1. The ad litem judges of the International Tribunal for Rwanda shall be elected by the General Assembly from a list submitted by the Security Council, in the following manner: a) The Secretary-General shall invite nominations for ad litem judges of the International Tribunal for Rwanda from States Members of the United Nations and non-member States maintaining permanent observer missions at United Nations Headquarters;

Appendix II

317

b) Within sixty days of the date of the invitation of the Secretary-General, each State may nominate up to four candidates meeting the qualifications set out in article 12 of the present Statute, taking into account the importance of a fair representation of female and male candidates; c) The Secretary-General shall forward the nominations received to the Security Council. From the nominations received the Security Council shall establish a list of not less than thirty-six candidates, taking due account of the adequate representation of the principal legal systems of the world and bearing in mind the importance of equitable geographical distribution; d) The President of the Security Council shall transmit the list of candidates to the President of the General Assembly. From that list the General Assembly shall elect the eighteen ad litem judges of the International Tribunal for Rwanda. The candidates who receive an absolute majority of the votes of the States Members of the United Nations and of the non-member States maintaining permanent observer missions at United Nations Headquarters shall be declared elected; e) The ad litem judges shall be elected for a term of four years. They shall not be eligible for re-election. 2. During their term, ad litem judges will be appointed by the Secretary-General, upon request of the President of the International Tribunal for Rwanda, to serve in the Trial Chambers for one or more trials, for a cumulative period of up to, but not including, three years. When requesting the appointment of any particular ad litem judge, the President of the International Tribunal for Rwanda shall bear in mind the criteria set out in article 12 of the present Statute regarding the composition of the Chambers and sections of the Trial Chambers, the considerations set out in paragraphs 1 (b) and (c) above and the number of votes the ad litem judge received in the General Assembly. Article 12 quarter: Status of Ad Litem Judges 1. During the period in which they are appointed to serve in the International Tribunal for Rwanda, ad litem judges shall: a) Benefit from the same terms and conditions of service mutatis mutandis as the permanent judges of the International Tribunal for Rwanda; b) Enjoy, subject to paragraph 2 below, the same powers as the permanent judges of the International Tribunal for Rwanda; c) Enjoy the privileges and immunities, exemptions and facilities of a judge of the International Tribunal for Rwanda. 2. During the period in which they are appointed to serve in the International Tribunal for Rwanda, ad litem judges shall not:

318

Statute of the international tribunal for Rwanda

a) Be eligible for election as, or to vote in the election of, the President of the International Tribunal for Rwanda or the Presiding Judge of a Trial Chamber pursuant to article 13 of the present Statute; b) Have power: i) To adopt rules of procedure and evidence pursuant to article 14 of the present Statute. They shall, however, be consulted before the adoption of those rules; ii) To review an indictment pursuant to article 18 of the present Statute; iii) To consult with the President of the International Tribunal for Rwanda in relation to the assignment of judges pursuant to article 13 of the present Statute or in relation to a pardon or commutation of sentence pursuant to article 27 of the present Statute; iv) To adjudicate in pre-trial proceedings. Article 13: Officers and Members of the Chambers 1. The permanent judges of the International Tribunal for Rwanda shall elect a President from amongst their number. 2. The President of the International Tribunal for Rwanda shall be a member of one of its Trial Chambers. 3. After consultation with the permanent judges of the International Tribunal for Rwanda, the President shall assign two of the permanent judges elected or appointed in accordance with article 12 bis of the present Statute to be members of the Appeals Chamber of the International Tribunal for the Former Yugoslavia and eight to the Trial Chambers of the International Tribunal for Rwanda. 4. The members of the Appeals Chamber of the International Tribunal for the Former Yugoslavia shall also serve as the members of the Appeals Chamber of the International Tribunal for Rwanda. 5. After consultation with the permanent judges of the International Tribunal for Rwanda, the President shall assign such ad litem judges as may from time to time be appointed to serve in the International Tribunal for Rwanda to the Trial Chambers. 6. A judge shall serve only in the Chamber to which he or she was assigned. 7. The permanent judges of each Trial Chamber shall elect a Presiding Judge from amongst their number, who shall oversee the work of that Trial Chamber as a whole. Article 14: Rules of Procedure and Evidence The Judges of the International Tribunal for Rwanda shall adopt, for the purpose of proceedings before the International Tribunal for Rwanda, the Rules of Procedure and Evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate

Appendix II

319

matters of the International Tribunal for the former Yugoslavia with such changes as they deem necessary. Article 15: The Prosecutor 1. The Prosecutor shall be responsible for the investigation and prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994. 2. The Prosecutor shall act independently as a separate organ of the International Tribunal for Rwanda. He or she shall not seek or receive instructions from any government or from any other source. 3. The Prosecutor of the International Tribunal for the Former Yugoslavia shall also serve as the Prosecutor of the International Tribunal for Rwanda. He or she shall have additional staff, including an additional Deputy Prosecutor, to assist with prosecutions before the International Tribunal for Rwanda. Such staff shall be appointed by the Secretary-General on the recommendation of the Prosecutor. Article 16: The Registry 1. The Registry shall be responsible for the administration and servicing of the International Tribunal for Rwanda. 2. The Registry shall consist of a Registrar and such other staff as may be required. 3. The Registrar shall be appointed by the Secretary-General after consultation with the President of the International Tribunal for Rwanda. He or she shall serve for a four-year term and be eligible for re-appointment. The terms and conditions of service of the Registrar shall be those of an Assistant Secretary-General of the United Nations. 4. The Staff of the Registry shall be appointed by the Secretary-General on the recommendation of the Registrar. Article 17: Investigation and Preparation of Indictment 1. The Prosecutor shall initiate investigations ex-officio or on the basis of information obtained from any source, particularly from governments, United Nations organs, intergovernmental and non-governmental organizations. The Prosecutor shall assess the information received or obtained and decide whether there is sufficient basis to proceed.

320

Statute of the international tribunal for Rwanda

2. The Prosecutor shall have the power to question suspects, victims and witnesses, to collect evidence and to conduct on-site investigations. In carrying out these tasks, the Prosecutor may, as appropriate, seek the assistance of the State authorities concerned. 3. If questioned, the suspect shall be entitled to be assisted by Counsel of his or her own choice, including the right to have legal assistance assigned to the suspect without payment by him or her in any such case if he or she does not have sufficient means to pay for it, as well as necessary translation into and from a language he or she speaks and understands. 4. Upon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute. The indictment shall be transmitted to a judge of the Trial Chamber. Article 18: Review of the Indictment 1. The judge of the Trial Chamber to whom the indictment has been transmitted shall review it. If satisfied that a prima facie case has been established by the Prosecutor, he or she shall confirm the indictment. If not so satisfied, the indictment shall be dismissed. 2. Upon confirmation of an indictment, the judge may, at the request of the Prosecutor, issue such orders and warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required for the conduct of the trial. Article 19: Commencement and Conduct of Trial Proceedings 1. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the Rules of Procedure and Evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses. 2. A person against whom an indictment has been confirmed shall, pursuant to an order or an arrest warrant of the International Tribunal for Rwanda, be taken into custody, immediately informed of the charges against him or her and transferred to the International Tribunal for Rwanda. 3. The Trial Chamber shall read the indictment, satisfy itself that the rights of the accused are respected, confirm that the accused understands the indictment, and instruct the accused to enter a plea. The Trial Chamber shall then set the date for trial. 4. The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its Rules of Procedure and Evidence.

Appendix II

321

Article 20: Rights of the Accused 1. All persons shall be equal before the International Tribunal for Rwanda. 2. In the determination of charges against him or her, the accused shall be entitled to a fair and public hearing, subject to Article 21 of the Statute. 3. The accused shall be presumed innocent until proven guilty according to the provisions of the present Statute. 4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: a) To be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her; b) To have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing; c) To be tried without undue delay; d) To be tried in his or her presence, and to defend himself or herself in person or through legal assistance of his or her own choosing; to be informed, if he or she does not have legal assistance, of this right; and to have legal assistance assigned to him or her, in any case where the interest of justice so require, and without payment by him or her in any such case if he or she does not have sufficient means to pay for it; e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her; f) To have the free assistance of an interpreter if he or she cannot understand or speak the language used in the International Tribunal for Rwanda; g) Not to be compelled to testify against himself or herself or to confess guilt. Article 21: Protection of Victims and Witnesses The International Tribunal for Rwanda shall provide in its Rules of Procedure and Evidence for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity. Article 22: Judgement 1. The Trial Chambers shall pronounce judgements and impose sentences and penalties on persons convicted of serious violations of international humanitarian law. 2. The judgement shall be rendered by a majority of the judges of the Trial Chamber, and shall be delivered by the Trial Chamber in public. It shall be accompanied by

322

Statute of the international tribunal for Rwanda

a reasoned opinion in writing, to which separate or dissenting opinions may be appended. Article 23: Penalties 1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of Rwanda. 2. In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person. 3. In addition to imprisonment, the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners. Article 24: Appellate Proceedings 1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds: a) An error on a question of law invalidating the decision; or b) An error of fact which has occasioned a miscarriage of justice. 2. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers. Article 25: Review Proceedings Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the International Tribunal for Rwanda an application for review of the judgement. Article 26: Enforcement of Sentences Imprisonment shall be served in Rwanda or any of the States on a list of States which have indicated to the Security Council their willingness to accept convicted persons, as designated by the International Tribunal for Rwanda. Such imprisonment shall be in accordance with the applicable law of the State concerned, subject to the supervision of the International Tribunal for Rwanda.

Appendix II

323

Article 27: Pardon or Commutation of Sentences If, pursuant to the applicable law of the State in which the convicted person is imprisoned, he or she is eligible for pardon or commutation of sentence, the State concerned shall notify the International Tribunal for Rwanda accordingly. There shall only be pardon or commutation of sentence if the President of the International Tribunal for Rwanda, in consultation with the judges, so decides on the basis of the interests of justice and the general principles of law. Article 28: Cooperation and Judicial Assistance 1. States shall cooperate with the International Tribunal for Rwanda in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law. 2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including but not limited to: a) The identification and location of persons; b) The taking of testimony and the production of evidence; c) The service of documents; d) The arrest or detention of persons; e) The surrender or the transfer of the accused to the International Tribunal for Rwanda. Article 29: The Status, Privileges and Immunities of the International Tribunal for Rwanda 1. The Convention on the Privileges and Immunities of the United Nations of 13 February 1946 shall apply to the International Tribunal for Rwanda, the judges, the Prosecutor and his or her staff, and the Registrar and his or her staff. 2. The judges, the Prosecutor and the Registrar shall enjoy the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law. 3. The staff of the Prosecutor and of the Registrar shall enjoy the privileges and immunities accorded to officials of the United Nations under Articles V and VII of the Convention referred to in paragraph 1 of this article. 4. Other persons, including the accused, required at the seat or meeting place of the International Tribunal for Rwanda shall be accorded such treatment as is necessary for the proper functioning of the International Tribunal for Rwanda.

324

Statute of the international tribunal for Rwanda

Article 30: Expenses of the International Tribunal for Rwanda The expenses of the International Tribunal for Rwanda shall be expenses of the Organisation in accordance with Article 17 of the Charter of the United Nations. Article 31: Working Languages The working languages of the International Tribunal for Rwanda shall be English and French. Article 32: Annual Report The President of the International Tribunal for Rwanda shall submit an annual report of the International Tribunal for Rwanda to the Security Council and to the General Assembly.