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Volumn 90, Issue 3, 1996, Pages 501-510

The international criminal tribunal for Rwanda: The politics and pragmatics of punishment

(1)  Akhavan, Payam a  

a NONE

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EID: 0346674062     PISSN: 00029300     EISSN: None     Source Type: Journal    
DOI: 10.2307/2204076     Document Type: Article
Times cited : (86)

References (55)
  • 1
    • 85050786343 scopus 로고
    • The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia
    • SC Res. 827 (May 25, 1993), reprinted in 32 ILM 1203 (1993)
    • SC Res. 827 (May 25, 1993), reprinted in 32 ILM 1203 (1993). For a comprehensive overview of the legislative history and Statute of the Yugoslav Tribunal, see James C. O'Brien, The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, 87 AJIL 639 (1993).
    • (1993) AJIL , vol.87 , pp. 639
    • O'Brien, J.C.1
  • 2
    • 0347374313 scopus 로고    scopus 로고
    • SC Res. 955 (Nov. 8, 1994) (with annexed Statute), reprinted in 33 ILM 1602 (1994)
    • SC Res. 955 (Nov. 8, 1994) (with annexed Statute), reprinted in 33 ILM 1602 (1994).
  • 3
    • 0346113363 scopus 로고    scopus 로고
    • According to the June 1994 report on the human rights situation in Rwanda, submitted by Special Rapporteur R. Degni-Ségui of the UN Commission on Human Rights: [T]he number of persons killed throughout the territory is to be numbered in the hundreds of thousands, estimates ranging from 200,000 to 500,000. In fact, even the latter figure is probably less than the reality. Some observers think that the figure is close to a million. It is not sure that the exact number of victims will ever be known. UN Doc. E/CN.4/1995/7, at 7, para. 24
    • According to the June 1994 report on the human rights situation in Rwanda, submitted by Special Rapporteur R. Degni-Ségui of the UN Commission on Human Rights: [T]he number of persons killed throughout the territory is to be numbered in the hundreds of thousands, estimates ranging from 200,000 to 500,000. In fact, even the latter figure is probably less than the reality. Some observers think that the figure is close to a million. It is not sure that the exact number of victims will ever be known. UN Doc. E/CN.4/1995/7, at 7, para. 24.
  • 4
    • 0346743965 scopus 로고    scopus 로고
    • According to the statement of the Rwandese representative before the Security Council: "The international community, through its diplomatic representatives and international organizations in Kigali, as well as many reports by human rights organizations, was well aware of [previous] massacres and cannot claim that it became cognizant of the situation only in the wake of the tragedy of April 1994." UN Doc. S/PV.3453, at 15 (1994). In this respect, see, e.g., the report of Bacre Waly Ndiaye, Special Rapporteur on extrajudicial, summary or arbitrary executions of the Commission on Human Rights, UN Doc. E/CN.4/1994/7/Add.1. See also the report of Degni-Ségui, supra note 3, at 7-8, para. 26
    • According to the statement of the Rwandese representative before the Security Council: "The international community, through its diplomatic representatives and international organizations in Kigali, as well as many reports by human rights organizations, was well aware of [previous] massacres and cannot claim that it became cognizant of the situation only in the wake of the tragedy of April 1994." UN Doc. S/PV.3453, at 15 (1994). In this respect, see, e.g., the report of Bacre Waly Ndiaye, Special Rapporteur on extrajudicial, summary or arbitrary executions of the Commission on Human Rights, UN Doc. E/CN.4/1994/7/Add.1. See also the report of Degni-Ségui, supra note 3, at 7-8, para. 26.
  • 5
    • 0347374301 scopus 로고
    • Enforcement of the Genocide Convention: A Challenge to Civilization
    • See, e.g., Payam Akhavan, Enforcement of the Genocide Convention: A Challenge to Civilization, 8 HARV. HUM. RTS. J. 229 (1995).
    • (1995) Harv. Hum. Rts. J. , vol.8 , pp. 229
    • Akhavan, P.1
  • 6
    • 0346113357 scopus 로고    scopus 로고
    • SC Res. 935 (July 1, 1994)
    • SC Res. 935 (July 1, 1994).
  • 7
    • 0346743967 scopus 로고    scopus 로고
    • UN Doc. S/1994/1125, at 30, para. 148
    • UN Doc. S/1994/1125, at 30, para. 148.
  • 8
    • 0347374310 scopus 로고    scopus 로고
    • Id. at 31, para. 150
    • Id. at 31, para. 150.
  • 9
    • 0346113358 scopus 로고    scopus 로고
    • Id., para. 152
    • Id., para. 152.
  • 10
    • 0348004681 scopus 로고    scopus 로고
    • The request was made in SC Res. 808 (Feb. 22, 1993), followed by the submission of a Report by the Secretary-General, UN Doc. S/25704 (1993), reprinted in 32 ILM 1159 (1993), which included a draft Statute that was approved by SC Res. 827, supra note 1
    • The request was made in SC Res. 808 (Feb. 22, 1993), followed by the submission of a Report by the Secretary-General, UN Doc. S/25704 (1993), reprinted in 32 ILM 1159 (1993), which included a draft Statute that was approved by SC Res. 827, supra note 1.
  • 11
    • 0346743960 scopus 로고    scopus 로고
    • See Report of the Secretary-General pursuant to paragraph 5 of Security Council resolution 955 (1994). UN Doc. S/1995/134, at 2-3, para. 7
    • See Report of the Secretary-General pursuant to paragraph 5 of Security Council resolution 955 (1994). UN Doc. S/1995/134, at 2-3, para. 7.
  • 12
    • 0347374309 scopus 로고    scopus 로고
    • Id. at 3, para. 9
    • Id. at 3, para. 9.
  • 13
    • 0346743940 scopus 로고    scopus 로고
    • In the seminal case of Prosecutor v. Tadit, the appellate chamber of the Tribunal unanimously held: It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict. Indeed, as the Prosecutor points out, customary international law may not require a connection between crimes against humanity and any conflict at all. Thus, by requiring that crimes against humanity he committed in either internal or international armed conflict, the Security Council may have defined the crime in Article 5 [of the Yugoslav Statute] more narrowly than necessary under customary international law. UN Doc. IT-94-1-AR72, at 73, para. 141 (1995), reprinted in 35 ILM 32, 72 (1996)
    • In the seminal case of Prosecutor v. Tadit, the appellate chamber of the Tribunal unanimously held: It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict. Indeed, as the Prosecutor points out, customary international law may not require a connection between crimes against humanity and any conflict at all. Thus, by requiring that crimes against humanity he committed in either internal or international armed conflict, the Security Council may have defined the crime in Article 5 [of the Yugoslav Statute] more narrowly than necessary under customary international law. UN Doc. IT-94-1-AR72, at 73, para. 141 (1995), reprinted in 35 ILM 32, 72 (1996).
  • 14
    • 0346743958 scopus 로고    scopus 로고
    • note
    • Unlike the Yugoslav Statute (Art. 5), the Rwanda Statute expressly requires that the enumerated inhumane acts be committed against a civilian population "on national, political, ethnic, racial or religious grounds." Article 6(c) of the Nuremberg Charter, however, does not condition crimes against humanity as such on the existence of discriminatory grounds. It prohibits serious inhumane acts against any civilian population or persecution on political, racial or religious grounds, indicating two separate categories of crimes against humanity. On this point, see the formulation of the Principles of International Law Recognized in the Charter of the Nũrnberg Tribunal and in the Judgment of the Tribunal, [1950] 2 Y.B. Int'l L. Comm'n 374, 377, para. 120, UN Doc. A/CN.4/SER.A/1950/Add.1.
  • 15
    • 0348004675 scopus 로고    scopus 로고
    • UN Doc. S/25704, at 9, para. 34 (1993)
    • UN Doc. S/25704, at 9, para. 34 (1993).
  • 16
    • 0347374300 scopus 로고    scopus 로고
    • See statement of the United States representative, UN Doc. S/PV.3217, at 15 (1993); see also statement of the French representative, id. at 11, and the United Kingdom representative, id. at 19
    • See statement of the United States representative, UN Doc. S/PV.3217, at 15 (1993); see also statement of the French representative, id. at 11, and the United Kingdom representative, id. at 19.
  • 17
    • 0347374307 scopus 로고    scopus 로고
    • See Tadić, UN Doc. IT-94-1-AR72, at 71, para. 137, 35 ILM at 71 (emphasis added)
    • See Tadić, UN Doc. IT-94-1-AR72, at 71, para. 137, 35 ILM at 71 (emphasis added).
  • 18
    • 0348004673 scopus 로고    scopus 로고
    • UN Doc. S/1995/134, at 3-4, para. 12
    • UN Doc. S/1995/134, at 3-4, para. 12.
  • 19
    • 0346743959 scopus 로고    scopus 로고
    • Id.
    • Id. For a recent discussion of the customary law status of common Article 3 and Protocol II, see Theodor Meron, International Criminalization of Internal Atrocities, 89 AJIL 554 (1995).
  • 20
    • 84882199782 scopus 로고
    • International Criminalization of Internal Atrocities
    • Id. For a recent discussion of the customary law status of common Article 3 and Protocol II, see Theodor Meron, International Criminalization of Internal Atrocities, 89 AJIL 554 (1995).
    • (1995) AJIL , vol.89 , pp. 554
    • Meron, T.1
  • 21
    • 0347374305 scopus 로고    scopus 로고
    • note
    • I.e., the Bosnian Serb administration in Pale and the Krajina Serb administration in Knin.
  • 22
    • 0346113338 scopus 로고    scopus 로고
    • See Letter from the Permanent Representative of Rwanda Addressed to the President of the Security Council (Sept. 28, 1994), UN Doc. S/1994/1115. Furthermore, in his address to the General Assembly in October 1994, President Pasteur Bizimungu of Rwanda emphasized that "it is absolutely urgent that this international tribunal be established." UN GAOR, 49th Sess., 21st plen. mtg., at 5 (1994), quoted in UN Doc. S/PV.3453, at 14 (1994)
    • See Letter from the Permanent Representative of Rwanda Addressed to the President of the Security Council (Sept. 28, 1994), UN Doc. S/1994/1115. Furthermore, in his address to the General Assembly in October 1994, President Pasteur Bizimungu of Rwanda emphasized that "it is absolutely urgent that this international tribunal be established." UN GAOR, 49th Sess., 21st plen. mtg., at 5 (1994), quoted in UN Doc. S/PV.3453, at 14 (1994).
  • 23
    • 0346113354 scopus 로고    scopus 로고
    • UN Doc. S/PV.3453, at 14 (1994)
    • UN Doc. S/PV.3453, at 14 (1994).
  • 24
    • 0346743934 scopus 로고    scopus 로고
    • See Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 ICJ REP. 15, 51 (Advisory Opinion of May 28)
    • See Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 ICJ REP. 15, 51 (Advisory Opinion of May 28).
  • 25
    • 0346113301 scopus 로고    scopus 로고
    • UN Doc. S/PV.3453, at 14 (1994)
    • UN Doc. S/PV.3453, at 14 (1994).
  • 26
    • 0346113339 scopus 로고    scopus 로고
    • Id
    • Id.
  • 27
    • 0346113347 scopus 로고    scopus 로고
    • Id
    • Id.
  • 28
    • 0348004660 scopus 로고    scopus 로고
    • Id
    • Id.
  • 29
    • 0346743938 scopus 로고    scopus 로고
    • Unlike the Yugoslav Statute, annex to UN Doc. S/25704, supra note 10, which was adopted unanimously by the Security Council, the Rwanda Statute was adopted with the dissenting vote of Rwanda in addition to an abstention by China. Chinese representative stated that it is "an incautious act to vote in a hurry on a draft resolution and statute that the Rwanda Government still finds difficult to accept" and that may also have an uncertain impact on "relevant efforts in future." UN Doc. S/PV.3453, at 11 (1994)
    • Unlike the Yugoslav Statute, annex to UN Doc. S/25704, supra note 10, which was adopted unanimously by the Security Council, the Rwanda Statute was adopted with the dissenting vote of Rwanda in addition to an abstention by China. Chinese representative stated that it is "an incautious act to vote in a hurry on a draft resolution and statute that the Rwanda Government still finds difficult to accept" and that may also have an uncertain impact on "relevant efforts in future." UN Doc. S/PV.3453, at 11 (1994).
  • 30
    • 0346743946 scopus 로고    scopus 로고
    • UN Doc. S/PV.3453, at 14 (1994)
    • UN Doc. S/PV.3453, at 14 (1994).
  • 31
    • 0347374306 scopus 로고    scopus 로고
    • Id
    • Id.
  • 32
    • 0348004672 scopus 로고    scopus 로고
    • UN Doc. S/25266, at 22, para. 76 (1993)
    • UN Doc. S/25266, at 22, para. 76 (1993).
  • 33
    • 0348004671 scopus 로고    scopus 로고
    • UN Doc. S/1995/134, at 4, para. 14 (emphasis added)
    • UN Doc. S/1995/134, at 4, para. 14 (emphasis added).
  • 34
    • 0347374258 scopus 로고    scopus 로고
    • There appears to be some ambiguity in the travaux préparatoires of the Genocide Convention on this point. Although early versions of the draft Convention provided expressly that incitement to commit genocide was punishable "whether such incitement be successful or not," this phrase was deleted by a Belgian compromise amendment that "would allow the legislatures of each country to decide, in accordance with its own laws on incitement, whether incitement to commit genocide had to be successful in order to be punishable." UN GAOR 6th Comm., 3d Sess., 85th mtg., at 220-21, UN Doc. A/C.6/SR.85 (1948). As a general rule, common law systems recognize incitement as a crime irrespective of its outcome, whereas continental systems consider incitement as a crime only when it succeeds in achieving its objective
    • There appears to be some ambiguity in the travaux préparatoires of the Genocide Convention on this point. Although early versions of the draft Convention provided expressly that incitement to commit genocide was punishable "whether such incitement be successful or not," this phrase was deleted by a Belgian compromise amendment that "would allow the legislatures of each country to decide, in accordance with its own laws on incitement, whether incitement to commit genocide had to be successful in order to be punishable." UN GAOR 6th Comm., 3d Sess., 85th mtg., at 220-21, UN Doc. A/C.6/SR.85 (1948). As a general rule, common law systems recognize incitement as a crime irrespective of its outcome, whereas continental systems consider incitement as a crime only when it succeeds in achieving its objective. Nonetheless, the delegates of states with continental legal systems such as France maintained that "all national legislation treated incitement to crime, even if not successful, as a separate and independent breach of the law." Id. at 227.
  • 35
    • 0346743935 scopus 로고    scopus 로고
    • See UN Doc. S/PV.3453, at 15 (1994); see also Interim Report of the Commission of Experts, UN Doc. S/1994/1125, at 13, para. 49. Dr. Mugesera subsequently applied for and obtained residency in Canada and currently faces deportation proceedings under the Immigration Act of Canada on the grounds that he withheld information from immigration authorities that would have otherwise made his application inadmissible
    • See UN Doc. S/PV.3453, at 15 (1994); see also Interim Report of the Commission of Experts, UN Doc. S/1994/1125, at 13, para. 49. Dr. Mugesera subsequently applied for and obtained residency in Canada and currently faces deportation proceedings under the Immigration Act of Canada on the grounds that he withheld information from immigration authorities that would have otherwise made his application inadmissible.
  • 36
    • 0347374292 scopus 로고    scopus 로고
    • UN Doc. S/PV.3453, at 15 (1994)
    • UN Doc. S/PV.3453, at 15 (1994).
  • 37
    • 0348004661 scopus 로고    scopus 로고
    • UN Doc. S/1995/134, at 3, para. 9
    • UN Doc. S/1995/134, at 3, para. 9.
  • 38
    • 0347374291 scopus 로고    scopus 로고
    • SC Res. 955, supra note 2, operative para. 7
    • SC Res. 955, supra note 2, operative para. 7.
  • 39
    • 0348004663 scopus 로고    scopus 로고
    • UN Doc. S/PV.3453, at 15 (1994)
    • UN Doc. S/PV.3453, at 15 (1994).
  • 40
    • 0346113349 scopus 로고    scopus 로고
    • See Press Statement by the Prosecutor of the International Criminal Tribunal for Rwanda, Justice Richard Goldstone (Dec. 12, 1995)
    • See Press Statement by the Prosecutor of the International Criminal Tribunal for Rwanda, Justice Richard Goldstone (Dec. 12, 1995).
  • 41
    • 0346743942 scopus 로고    scopus 로고
    • UN Doc, S/PV.3458, at 15 (1994)
    • UN Doc, S/PV.3458, at 15 (1994).
  • 42
    • 0347374295 scopus 로고    scopus 로고
    • Id
    • Id.
  • 43
    • 0346743951 scopus 로고    scopus 로고
    • Id
    • Id.
  • 44
    • 0348004627 scopus 로고    scopus 로고
    • SC Res. 955, supra note 2, operative para. 3
    • SC Res. 955, supra note 2, operative para. 3.
  • 45
    • 0346743952 scopus 로고    scopus 로고
    • UN Doc. S/PV.3453, at 16 (1994)
    • UN Doc. S/PV.3453, at 16 (1994).
  • 46
    • 0346113353 scopus 로고    scopus 로고
    • Id
    • Id.
  • 47
    • 0346743941 scopus 로고    scopus 로고
    • Significantly, during the deliberations of the Security Council, the United States representative, acting as President of the Council, in reference to the position of the Rwandese Government concerning capital punishment that, "indeed, on the death penalty we might even agree [but] it was simply not possible to meet those concerns and still maintain broad support in the Council." Id. at 17
    • Significantly, during the deliberations of the Security Council, the United States representative, acting as President of the Council, in reference to the position of the Rwandese Government concerning capital punishment that, "indeed, on the death penalty we might even agree [but] it was simply not possible to meet those concerns and still maintain broad support in the Council." Id. at 17.
  • 48
    • 0347374293 scopus 로고    scopus 로고
    • There are 26 states parties and 21 signatories to the Second Optional Protocol to the International Covenant on Civil and Political Rights, GA Res. 44/128 (Dec. 15, 1989), reprinted in 29 ILM 1464 (1990), aiming at the abolition of the death penalty. MULTILATERAL TREATIES DEPOSITED WITH THE SECRETARY-GENERAL - STATUS AS AT 31 DECEMBER 1994, at 203, UN Doc. ST/LEG/SER.E/13 (1995)
    • There are 26 states parties and 21 signatories to the Second Optional Protocol to the International Covenant on Civil and Political Rights, GA Res. 44/128 (Dec. 15, 1989), reprinted in 29 ILM 1464 (1990), aiming at the abolition of the death penalty. MULTILATERAL TREATIES DEPOSITED WITH THE SECRETARY-GENERAL - STATUS AS AT 31 DECEMBER 1994, at 203, UN Doc. ST/LEG/SER.E/13 (1995).
  • 49
    • 0346743947 scopus 로고    scopus 로고
    • UN Doc. S/PV.3483, at 16 (1994)
    • UN Doc. S/PV.3483, at 16 (1994).
  • 50
    • 0348004665 scopus 로고    scopus 로고
    • Id
    • Id.
  • 51
    • 0346113348 scopus 로고    scopus 로고
    • UN Doc. ICTR-95-1-I (1995)
    • UN Doc. ICTR-95-1-I (1995).
  • 52
    • 0348004664 scopus 로고    scopus 로고
    • UN Docs. ICTR-96-3-I and ICTR-96-4-I (1996)
    • UN Docs. ICTR-96-3-I and ICTR-96-4-I (1996).
  • 53
    • 0347374296 scopus 로고    scopus 로고
    • UN Docs. ICTR-96-2-D, ICTR-96-5-D, and ICTR-96-6-D (1996)
    • UN Docs. ICTR-96-2-D, ICTR-96-5-D, and ICTR-96-6-D (1996).
  • 55
    • 0348004628 scopus 로고    scopus 로고
    • See Report of the International Law Commission on the work of its forty-sixth session, UN GAOR, 49th Sess., Supp. No. 10, UH Doc. A/49/10 (1994); see also Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN GAOR, 50th Sess., Supp. No. 22, UN Doc. A/50/22 (1995)
    • See Report of the International Law Commission on the work of its forty-sixth session, UN GAOR, 49th Sess., Supp. No. 10, UH Doc. A/49/10 (1994); see also Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN GAOR, 50th Sess., Supp. No. 22, UN Doc. A/50/22 (1995).


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