The Challenge of Linking International Criminal Justice and National Reconciliation: The Case of the ICTR

Leiden Journal of International Law

Volumn 16, Issue 1, 2003, Pages 115-133

  Kamatali, Jean Marie ^a  

^a UNIVERSITY OF GRAZ   (Austria)

Author keywords

collective responsibility; crimes against humanity; genocide; ICTR; individual responsibility; international courts; justices; reconciliation

Indexed keywords

EID: 33748569959     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156503001067     Document Type: Article

References (58)

1. See T. L. H.McCormack and G. J. Simpson (eds.), The Law ofWar Crimes: National and International approaches (1997), 8.; A. Rigby, Justice and Reconciliation After the Violence (2001), 180. See also Anonymous, ‘Human Rights in PeaceNegotiations’, (1996) 18 HR., 251; J. M. Osiel, ‘Why Prosecute? Critics of Punishment forMass Atrocity’, (2000) 22HRQ118-47; L.McGregor, ‘IndividualAccountability in SouthAfrica:Cultural Optimum or Political Façade?’, (2001) 95 AJIL 32-45.
2. See P.Akhavan, ‘Justice in theHague, Peace in the Former Yugoslavia? ACommentary on theUnitedNations War Crimes Tribunal’, (1998) 20 HRQ 737.
3. Rigby, ‘Justice in theHague, Peace in the Former Yugoslavia? ACommentary on theUnitedNations War Crimes Tribunal’ note 1.
4. Preamble of UN Security Council Resolution 995(1994).
5. See Security Council, The Establishment of an 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 Neighboring States, Provisional Verbatim Record, 3453rdmeeting, 8 Nov. 1994, S/PV.3453 (hereafter verbatim report 3453), 7.
6. As, however, eight years may not be enough for a complete evaluation on this issue to be made, this paper should be understood in the limited context ofwhathas been achieved so far and what lessons can be learned.
7. It should be noticed that at the time of adopting this Resolution, Rwanda was a non-permanent member of the Security Council. Concerning the details of voting of this resolutions see verbatim report 3453, As, however, eight years may not be enough for a complete evaluation on this issue to be made, this paper should be understood in the limited context ofwhathas been achieved so far and what lessons can be learned. note 5.
8. It should be noticed that at the time of adopting this Resolution, Rwanda was a non-permanent member of the Security Council., 14.
9. It should be noticed that at the time of adopting this Resolution, Rwanda was a non-permanent member of the Security Council…, 14-16.
10. Laity Kama, It should be noticed that at the time of adopting this Resolution, Rwanda was a non-permanent member of the Security Council… note 6.
11. See the Security Council Resolution that established the ICTR, S/Res/955 (1994) of 8 Nov. 1994.
12. See P. Akhavan, ‘Justice andReconciliation in theGreat LakesRegion ofAfrica:The Contribution of the ICTR’, (1997) 7 Duke Journal of Comparative and International Law 325, at 327.
13. P. Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’ (2001) 95, 7, AJIL 24.
14. See the letter sent to the President of the UN Security Council by the Executive Director of Human Rights Watch on 9 Aug. 2002 (http://hrw.org/press/2002/08/rwanda-ltr0809.htm).
15. the letter sent to the President of the UN Security Council by the Executive Director of Human Rights Watch on 9 Aug., para. 695.
16. See Art. 8(2) of the Statute of the ICTR.
17. See particularly the Report of the National Summit of Unity and Reconciliation held in Kigali on 18-20 Oct. 2000. (http://www.nurc.org.rw/archives.htm).Thevery first policy adoptedbythepost-genocidegovernment in Rwanda as tool of national reconciliation was to erase the mentions ‘ethnic group: Hutu, Tutsi or Twa’ from identity cards and to start teaching Rwandans that these are not ethnic groups.
18. See Laity Kama, Tutsi or Twa’ from identity cards and to start teaching Rwandans that these are not ethnic groups. note 6.
19. Tutsi or Twa’ from identity cards and to start teaching Rwandans that these are not ethnic groups., Separate Opinion of Judge Asoka de Z. Gunawardana, para. 31.
20. Tutsi or Twa’ from identity cards and to start teaching Rwandans that these are not ethnic groups…, para. 56.
21. Tutsi or Twa’ from identity cards and to start teaching Rwandans that these are not ethnic groups…, para. 64.
22. Prosecution v. Clement Kayishema and Obed Ruzindana, Case, ICTR-95-1-T, para. 289.
23. Prosecution v. Clement Kayishema and Obed Ruzindana, Case., para. 564.
24. Prosecution v. Ignace Bagirishema, Prosecution v. Clement Kayishema and Obed Ruzindana, Case. note 21, para. 59.
25. Prosecution v. Ignace Bagirishema., para. 62.
26. Akayesu case, Prosecution v. Ignace Bagirishema. note 16, para. 657.
27. Akayesu case, Akayesu case, Prosecution v. Ignace Bagirishema. note 16, para. note 16, para., para. 664.
28. I. Dennis, ‘The Critical Condition of Criminal Law’, (1997) 50 Current Legal Problems 237.
29. A. C. Ewing, TheMorality of Punishment, with some suggestions for a general theory of ethics (1970), 45.
30. See Akayesu case, TheMorality of Punishment note 16, paras. 738, 742, 744, 717.
31. Ewing, Akayesu case note 32, 43.
32. A.MacIntyre, After Virtue (1985), 61.
33. A. Norrie, Punishment, Responsibility and Justice: A Relational Critique (2000), 4.
34. L. May and S. Hoffmann (eds.), Collective Responsibility: Five Decades of Debate in Theoretical and Applied Ethics (1991), 67.
35. Collective Responsibility: Five Decades of Debate in Theoretical and Applied Ethics., 5.
36. A. Sachs, ‘Truth and Reconciliation’, quoted in L. McGregor, ‘Individual Accountability in South Africa: Cultural Optimum or Political Façade?’ (2001) 95, 7, AJIL 37.
37. Norrie, ‘Truth and Reconciliation’ note 36, 115.
38. Themilitias of the CDR party, also an extremist party preaching the killing of Tutsi.
39. See http//www.ictr.org/.
40. Mouvement ré volutionaire national pour la dé mocratie et le dé veloppement, the former ruling party and party of former President Habyarimana Juvenal.
41. See Akhavan, Mouvement ré volutionaire national pour la dé mocratie et le dé veloppement, the former ruling party and party of former President Habyarimana Juvenal. note 14, 23.
42. The letter sent to the President of UN Security Council by the Executive Director of Human RightsWatch, Mouvement ré volutionaire national pour la dé mocratie et le dé veloppement, the former ruling party and party of former President Habyarimana Juvenal. note 15.
43. See Akayesu case, The letter sent to the President of UN Security Council by the Executive Director of Human RightsWatch note 16, Sentence.
44. It should be recalled that that the Statute of the ICTR forbids it to impose the death penalty.
45. On eight counts the decision of the Tribunal was taken on amajority, Judge Khan dissenting.
46. McGregor, On eight counts the decision of the Tribunal was taken on amajority, Judge Khan dissenting. note 1, 37.
47. The method of awarding a specific punishment for each count used in the case of Akayesu was later abandoned, and the Tribunal started handing down a single punishment without a detailed itemization.
48. Prosecutor v. Akayesu, The method of awarding a specific punishment for each count used in the case of Akayesu was later abandoned, and the Tribunal started handing down a single punishment without a detailed itemization. note 16.
49. Osiel, Prosecutor v. Akayesu note 1, 129.
50. On the concept of ‘just desert’ see, for example, M.W. Jackson, Matters of Justice (1986), 62-76; see also K. D. Moore, Pardons: Justice,Mercy, and the Public Interest (1989), 122-30.
51. Although para. 3 of Security Council Resolution 955(1994) provides that prior notification to the Rwandan Government is required for the application of Art. 27 on pardon or commutation of sentences, I think that notification is not enough if it does not offer the possibility of Rwanda's opposing such a decision.
52. See Prosecutor v. Jean Kambanda, ICTR-97-23 S11, para. 51.
53. Prosecutor v. Omar Serushago, ICTR-98-39 S, para. 42.
54. Prosecutor v. Omar Serushago., para. 40.
55. See verbatim report 3453, Prosecutor v. Omar Serushago. note 5, 7.
56. For more detailed accounts of victims as the forgotten people in criminal justice see W. F. McDonald (ed.), Criminal Justice and the Victim, Sage Criminal Justice System Annuals 6 (1976).
57. ‘The Rights of Victims and International Criminal Justice’., 190.
58. Rigby, ‘The Rights of Victims and International Criminal Justice’. note 1, 12.