Critically Examine the Contribution made by the International Criminal Tribunal for Rwanda to the Development of the International Law of Genocide.
Critically Examine the Contribution Made by the International Criminal Tribunal for Rwanda to the Development of the International Law of Genocide.
At the core of the international law of genocide is the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). The Genocide Convention came about in 1948 through General Assembly Resolution 260. It came into force in 1951. One hundred forty states ratified the Convention. Its purpose was to deter future acts of genocide and penalize the parties responsible for committing this crime. Fulfillment of the purpose of the Convention relies on the applicability of its provisions to actual cases. Adjudication of actual cases gives rise to flaws and loopholes as well as arguments on the manner of interpreting the Convention provisions to augment these limitations.
The International Criminal Tribunal for Rwanda (ICTR) was an ad hoc criminal tribunal that adopted provisions of the Genocide Convention. The UN Security Council established the ICTR to “prosecute persons responsible for genocide [] in Rwanda and neighboring states, between 1 January 1994 and 31 December 1994”. The ICTR intended to try 900 defendants. Since it opened in 1995, the ICTR has indicted 93 individuals. Of this number, 61 faced sentencing, 10 had their trial moved to national courts, and 8 were defendants in cases that did not prosper. The ICTR contributed to the international law of genocide by implementing the provisions of the Genocide Convention to cases on genocide in Rwanda, identifying the limitations of these provisions, and explaining the rationale for interpretations that augmented some of the flaws and loopholes of the Convention.
Key provisions of the Genocide Convention that operate to prevent and punish the crime of genocide are Article 2 and 3. These provisions define the crime of genocide and the accountable parties. Clear provisions on what constitutes the crime of genocide and who are accountable are important to the effective prosecution of the perpetrators of this crime. A general criticism of the Convention is its “modest and vague nature” that affects its “ability to effectively prevent and punish acts of genocide”. Another criticism of the Genocide Convention refers to loopholes that limits its applicability to different circumstances. Specific criticisms of the two key provisions of the Convention also emerged.
Article 2 of the Genocide Convention provides that:
In the present Convention, 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.
Consideration of the commission of a crime involves the determination of its actus reus or the material, physical or objective element and mens rea or the mental, psychological or subjective element. Elements of the crime of genocide derive from Article 2 of the Convention. This provision addresses the physical element of the crime of genocide by identifying the tangible acts that constitute the crime. The mental element of genocide refers to the “intent to destroy” partially or completely a group characterized by nationality, ethnicity, race or religion.
Limitations of Article 2 emerged. The first limitation is the vague description of intent in the Genocide Convention and the non-consideration of intent during the Nuremburg trials. As a result, interpretation of the psychological element of the crime of genocide did not materialize. The second limitation is the “exceedingly narrow” definition of genocide in identifying the physical acts that constitute the crime and the protected groups under the Convention. Common notions of genocide revolved around “mass killing”. Other acts, apart from “killing members of the group” received little consideration before the creation of the ad hoc Criminal Tribunal for Rwanda. For example, rape and sexual assault did not form part of the acts constituting the crime of genocide under the Convention. Moreover, the protected groups covered by Article 2 of the Convention only included those characterized by nationality, ethnicity, race, and religion. The provision excluded groups characterized by political beliefs and culture. Article 2 seemed to be “inconsistent with the jus cogens prohibition of genocide” by limiting protection to only four groups when customary law has shown that genocide can target other groups, such as the Khmer Rouge atrocities based on political divide. Non-prosecution of these atrocities prevented the potential expansion of the groups protected by the Convention.
Article 3 of the Genocide Convention identified the punishable acts and actors to include: “(a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity to genocide”. Apart from defining the crime of genocide, the Convention also provided guidelines on the parties accountable for committing this crime. As such, direct participation and being an accomplice to genocide are punishable under Article 3. However, interpretation of Article 3 was limited until the adjudication of cases by the ad hoc Criminal Tribunal for Rwanda.
Contribution of the ICTR to the International Law of Genocide
ICTR contributed to the development of the international law of genocide by clarifying the three limitations of Article 2. These limitations refer to intent or the mental element of the crime genocide, acts constituting the crime of genocide, and protected groups covered by the Genocide Convention. The Tribunal also interpreted Article 3 of the Convention.
Specific Intent as Element of the Crime of Genocide
Discussion on the mental element of the crime of genocide or “genocidal intent” occurred during the trials at the Tribunal for Rwanda. ICTR uniquely interpreted intent under Article 2 of the Genocide Convention and Article 2(2) of the ICTR Statute as “special intent” or dolus specialis. Consideration of special intent transforms mass killing “from an ordinary crime to an international wrongdoing”. The ICTR determined special intent in adjudicating the case of Prosecutor v Akayesu. In doing so, the Tribunal issued the first conviction for genocide after finding that the facts and evidence supported the existence of special intent among the other elements of the crime. Jean Paul Akayesu served as the bourgmestre or mayor of the Taba commune. In his capacity as mayor, Akayesu performed executive functions, controlled the commune police and gendarmes, and facilitated the implementation of laws and administration of justice. Around 2,000 Tutsis met their death and many women fell victim to repeated rape and sexual assault at Taba. The Tribunal recognized the difficulty of proving genocidal intent. Direct evidence shows special intent. Circumstantial evidence may also emanate from the collective action of the perpetrators. Special intent may emerge from “presumptions of fact” and the general context of the commission of other actions against the victimized group that when taken together amounts to genocide. This ruling constitutes a major development in the international law of genocide. It offers prosecutors and courts with a practical means of evaluating the satisfaction of the element of special intent in each case. By clarifying this aspect, the judgment of the ICTR strengthened the process of prosecuting parties who commit genocide.
In the succeeding case of Prosecutor v Kumuhanda, the ICTR inferred genocidal intent from the context of mass killing. This implied that the Tribunal intended that other acts could only comprise genocide when committed in the context of mass killing. While the ICTR’s interpretation limited genocidal intent to the context of mass killing, consideration of the Tribunal’s interpretation together with jurisprudence in international law may broaden its interpretation to accommodate other aspects, such as mental harm or destruction of property.
Rape and Sexual Assault as Acts of Genocide
One of the substantive contributions of the ICTR to the development of the international law of genocide is in considering rape and sexual assault as acts of genocide in the Akayesu case. Rape and sexual violence committed in the manner that indicates specific intent to destroy a target group constitutes genocide. In this case, rape and sexual violence did not form part of the initial charges against Akayesu. During the trial, inquiry by one of the judges about evidence of the many cases of rape and sexual violence in Taba led to the suspension of the trial to provide the prosecutor with the opportunity to amend the charges to include rape and sexual violence. In its judgment, the Tribunal argued that rape constitutes “a form of aggression and that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts”. The Tribunal further explained rape as “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive” and defined sexual violence as “any act of a sexual nature which is committed on a person under circumstances which are coercive”. In using these definitions, the Tribunal removed the need to prove the absence of consent. This advanced the gender jurisprudence, especially since consent loses meaning during conflict. The Tribunal further explained that sexual violence does not only refer to physical acts, but also covers acts that do not comprise penetration or physical contact.
Adoption of this interpretation of acts comprising genocide varied in succeeding cases. Several cases after Akayesu focused solely on the physical aspect of rape. However, in Prosecutor v Muhimana, the Tribunal adopted the definition of rape pursuant to the Akayesu decision and considered rape and sexual assault as a crime against humanity. The ICTR’s interpretation of rape and sexual assault led to the abandonment of the ICC of consent in its definition of rape. Rape as having physical and non-physical aspects led to the conviction of a woman for her involvement in rape as perpetuation of genocide in Prosecutor v Nyiramasuhuko.
Broader Interpretation of Protected Groups under the Genocide Convention
ICTR clarified the protected groups covered by the Genocide Convention. It needed to interpret the scope of protected groups because prosecutors and judges faced the problem of characterizing those involved in the Rwanda genocide based on the groups specified by the Convention. The Convention identified protected groups as those characterized by nationality, ethnicity, race, and religion. Prosecutors held different perspectives of the characterization of the Tutsis as a group under the Convention. Some of the first indictments vaguely referred to the Tutsis. The Tribunal also did not see an accurate categorization of the Tutsis in the four groups provided by the Convention. Establishing genocide requires proof of acts committed against a national, ethnic, racial or religious group. In the case of Rwanda, the Tutsis and Hutus formed a nation and exhibited identical ethnic and racial characteristics. Tutsis and Hutus do not adhere to any distinct religion. Since they do not fall under the four groups identified in the Convention, the Tribunal in the Akayesu case interpreted the groupings as non-exhaustive and recommended that the protection provided by the Convention should apply to any group that was “stable and permanent” by having a distinct identity. As such, the Tribunal settled the issue of whether genocide occurred in Rwanda.
The ICTR reiterated this broader interpretation of protected groups under the Genocide Convention in subsequent cases by explaining that failing to adopt its interpretation in the Akayesu case amounts to injustice. In Prosecutor v Kayishema and Ruzindana, the judgment further built on the interpretation of protected groups in the Akayesu case by adopting a more subjective approach. This case considered as protected groups those who have declared themselves as a group or those recognized as a group by the perpetrators of genocide. In Prosecutor v Rutaganda, the Tribunal added that in observing the lack of “generally and internationally accepted precise definitions” of national, ethnical, racial or religious groups, it is fitting to consider together the objective and subjective definition of protected groups. The objective definition refers to all stable and permanent groups with distinct identity. The subjective definition rests on the view of the victim and/or perpetrator. Interpretations of protected groups by the ICTR in several cases resulted to the “careful mediation of the objective and subjective approaches to the definition of protected groups” under the Convention. Protection can now extend to more groups that qualify under the broader interpretation.
Broader Interpretation of Parties Accountable for Genocide
Article 3 of the Genocide Convention provides for the punishment of parties who were directly and indirectly involved in the crime of genocide. Opportunities for interpreting this provision occurred during the adjudication of cases by the Tribunal for Rwanda. In the Akayesu case, the defendant was found guilty of genocide and incitement to commit genocide. In the latter case of Prosecutor v Elizaphan Ntakirutimana and Gerad Ntakirutimana, the ICTR further clarified the jurisprudence from the ICTY in explaining that a person can become liable for aiding and abetting genocide or for complicity in genocide if it is difficult to ascertain the intent of the person to commit actual genocide. The implication is that indirect participation in genocide is punishable even without establishing actual intent to commit the crime. This clarification of Article 3 of the Convention by the ICTR now form part of the international law of genocide.
In Prosecutor v Nahimana, which is also called the media case, three people who worked at Milles Colline radio station were convicted for the crime of direct and public incitement to commit the crime of genocide. These people were responsible for broadcasting messages calling for the extermination of Tutsis and identifying specific targets for violence. In deciding the case, the ICTR adopted jurisprudence on hate speech. The Tribunal recognized that the radio station was directly involved in the genocide due to the direct role of the defendants in inciting the commission of the crime. The broadcasts of the defendants were considered as acts designed to kill. The Tribunal justified the conviction with the observation that the media holds power over the “creation and destruction of basic human values”. As such, the media is also accorded with great responsibility over the exercise of its power and people who control the media are accountable for the consequences. Hate speech can constitute an act of incitement of genocide. Overall, ICTR expanded the interpretation of Article 3 beyond accountability for mass killing as genocide.
Conclusion
Adjudication of cases by the Tribunal for Rwanda facilitated its contribution to the development of the international law of genocide. Specifically, the ICTR clarified the definition of genocide and the parties accountable for committing this crime. The Tribunal interpreted genocidal intent as specific intent that is proven through direct evidence and/or circumstantial evidence comprising factual inferences from the overall context of the commission of other acts against the target group that amounts to genocide. Prior to the ICTR’s interpretation, there was little international law jurisprudence explaining genocidal intent and limited guidelines on the determination of the mental element of genocide. Interpretation of special intent through the various cases adjudicated by the ICTR constitutes one of the Tribunal’s unique contributions to the international law on genocide. Moreover, the ICTR also clarified the physical acts of genocide contained in the Genocide Convention. The Tribunal broadened the physical element of genocide by considering rape and sexual assault committed within the context of mass killing as constituting an act of genocide. This comprises another unique contribution of the ICTR to international law on genocide and gender jurisprudence. In addition, the ICTR clarified the scope of protected groups as stable or permanent groups with distinct identity. A self-declared group or a collective of people considered as a group by perpetrators may also fall under the protection of the Convention. Prior to this broader interpretation, the ICTR faced difficulties in categorizing Tutsis under the list of protected groups in Article 2 of the Convention. This guideline simplified the prosecution and adjudication of genocide cases not only in Rwanda but also in other jurisdictions. Lastly, the ICTR provided a broader interpretation of Article 3 in order to encompass all of the parties responsible for genocide. Parties may still be liable for genocide through incitement or complicity even without showing intent. Media broadcasts that incite killing constitute direct acts of genocide and parties responsible for these broadcasts have direct responsibility. Although these interpretations of Article 2 and 3 of the Convention are not always consistently applied in the cases adjudicated by the ICTR, these interpretations provided valuable guidelines that now form part of the international law of genocide.
Bibliography
Laws
Convention on the Prevention and Punishment of the Crime of Genocide
Statute of the International Criminal Tribunal for Rwanda
Cases
Prosecutor v Akayesu (Judgment) ICTR-96-4-T, T Ch I (2 September 1998)
Prosecutor v Elizaphan Ntakirutimana and Gerad Ntakirutimana (Judgment) ICTR-96-10-A and ICTR-96-17-A, Appeals Chamber (13 December 2004)
Prosecutor v Kajelijeli (Judgment) ICTR 98-44A-T, Appeals Chamber (23 May 2005)
Prosecutor v Kayishema and Ruzindana (Judgment) ICTR-95-1-T, T Ch II (21 May 1999)
Prosecutor v Kumuhanda (Judgment and Sentence) ICTR-95-54A-T, T Ch II (22 January 2004)
Prosecutor v Muhimana (Judgment and Sentence) ICTR 95-1B-T, T Ch III (28 April 2005)
Prosecutor v Nahimana (Judgment) ICTR-99-52-A, Appeals Chamber (28 December 2007)
Prosecutor v Nyiramasuhuko (Judgment and Sentence) ICTR 98-42-T, T Ch II (24 June 2011)
Prosecutor v Rutaganda (Judgment and Sentence) ICTR-96-3-T, T Ch 1 (6 December 1999)
Prosecutor v Semanza (Judgment and Sentence) ICTR 97-20-T, T Ch III (15 May 2003)
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