George S Jr Yacoubian. World Affairs. Volume 161, Issue 4, Spring 1999.
The enforcement of the Genocide Convention is a crucial component of delivering international criminal justice. Leaders who orchestrate mass murders as part of their national policy should be brought to trial in international courts. Domestic courts lack the resources for prompt and decisive trials, exemplified by Rwanda’s difficulty in initiating and concluding court proceedings.
Evaluating the Aftermath of the Rwandan Genocide
If avarice and power are the lifeblood of tyranny, then genocide is the means by which it is secured. Although the crime of genocide has repeatedly stained the pages of history, its contemporary manifestation has indicated a capacity for atrocity on an unprecedented scale. Despite numerous contemporary examples, many still perceive genocide as the province of the bestial. Genocide, however, is not primitive. It requires sustained social organization and rationalization. Although the concept of mass extermination may be irrational, the means are calculated. Simply put, genocide is designed to accomplish one absolute objective—the destruction of a distinct human population (Yacoubian 1997).
Genocide is distinguishable from all other crimes by the motivation behind it. Toward the end of the Second World War, when the full horror of the Third Reich had been revealed, Winston Churchill stated that the world was being brought face to face with a “crime that has no name” (Destexhe 1995). Indeed, history was of little use in finding a recognized word to fit the nature of the crime that Nazi Germany—a modern, industrialized state—had engaged in. There simply were no precedents with respect to either the nature or the degree of the crime.
According to Lemkin (1944), the expression “mass murder” was insufficient to describe the entirely new phenomenon witnessed in Nazi-occupied territories because it failed to account for the motive of the crime, which arose solely from “racial, national, or religious” considerations and had nothing to do with the conduct of war (Lemkin 1944). Although “war crimes” had been defined in The Hague Convention of 1907, the crime of genocide required a separate definition, as it was “not only a crime against the rule of war, but a crime against humanity itself” (Lemkin 1944, 75). The term “genocide” was developed to characterize the organized attempt to eradicate an entire ethnic group. Lemkin (1944, 79) coined the term to denote “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.” Genocide has two phases: first, the desolation of the national example of the oppressed group, and second, the imposition of the national pattern of the oppressor (Lemkin 1944). The objectives of this plan are the erosion of the political, economic, and social institutions of the individuals belonging to such groups.
Lemkin’s (1944) efforts culminated in the Convention on the Prevention and Punishment of the Crime of Genocide on 9 December 1948. This resolution officially came into effect as a binding piece of international law on 12 January 1951. Article II of the Genocide Convention declares genocide to mean,
the commitment of any of the following acts with intent to destroy, in whole or in part, a national, ethical, 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; and e) Forcibly transferring children of the group to another group.
No state has ever advocated that genocide is not a crime, and the definition contained in Article II is considered to be binding international law.
Despite this affirmation, genocide has been perpetrated repeatedly in the last four decades, costing the lives of over 1 million Bengalis in Bangladesh in 1971 (Chalk and Jonassohn 1990; Kuper 1981); 150,000 Hutu in Burundi in 1972 (Chalk and Jonassohn 1990; Kuper 1977); 400,000 civilians in the Vietnam War from 1965 to 1974 (Lewy 1978; Sartre 1968); 1.5 million Cambodians from 1975 to 1979 (Kiernan 1994; Becker 1986; Barron and Paul 1977); hundreds of thousands of Bosnian Muslims and Croats in the former Yugoslavia in 1992 (Bassiouni 1996; Bekker 1993); and 800,000 Tutsi in Rwanda in 1994 (Destexhe 1995; Prunier 1995). To better illuminate this phenomenon, I will explore the Rwandan experience in greater detail.
The popular but dangerously simplistic version of Rwanda’s catastrophe is that it was a primitive, savage eruption of tribal rivalry, taking its place alongside Africa’s other convulsions of senseless violence. Indeed, the killings have been portrayed as having evolved from racial and tribal tensions between the Hutu and Tutsi groups. This description erroneously allows the international community to shrug off not only its complexity, but also its significance to the development of international criminal law. What happened in Rwanda, however, illustrates a situation in which the coexistence of different social groups metamorphosed into an ethnic problem with an overwhelmingly racial dimension. As Destexhe (1995, 47) affirms, “archaic political divisions were progressively transformed into racial ideologies … which then brought them into the political arena.”
The Hutu party and its leader, General Juvenal Habyarimana, came to power in 1973 through a military coup (Destexhe 1995, Vassall-Adams 1994). For the next twenty years, Hutu rule dominated Rwanda. Although Habyarimana claimed to have established a nation of balanced resources and job distribution, the president and his National Republican Movement for Democracy and Development ruled Rwanda as a one-party state (Destexhe 1995, Vassall-Adams 1994). Throughout Habyarimana’s rule, Rwandan Tutsi in neighboring countries tried to return to their homeland, but were denied repatriation (Destexhe 1995, Vassail-Adams 1994). On 1 October 1990, however, approximately 4,000 Rwandan fighters entered northern Rwanda from Uganda (Vassall-Adams 1994). The Rwandan Patriotic Front (RPF) comprised mainly Tutsi who had fled Rwanda years before. They demanded democracy and power-sharing from what they claimed was a corrupt Habyarimana regime (Destexhe 1995, Prunier 1995).
Although several concessions were made to Tutsi rebels, the government’s more extreme Hutu elements became more organized and took steps to consolidate their power (Prunier 1995, Vassall-Adams 1994). In response to overwhelming political frustration, Tutsi rebels attacked President Habyarimana’s plane on 6 April 1994 (Destexhe 1995, Prunier 1995). Everyone on board was killed. The murders “acted as the fuse for the eruption of the violence which led to the greatest tragedy in the history of the country” (Destexhe 1995, 31). Instantaneously, the call for the annihilation of all Tutsi and of all those who opposed the Hutu began. By July, Hutu soldiers, police officers, and militia members, recurrently aided by civilians, had killed approximately 800,000 Tutsi in several well-coordinated waves of mass killing (Destexhe 1995, Prunier 1995).
The crisis in Rwanda was seen exclusively as a humanitarian catastrophe affecting hundreds of thousands of refugees, eliciting international compassion, but distracting attention from the genocide that had already run its course. As Destexhe (1995, 58) affirms, “humanitarian action provided a way of responding to the crisis while continuing to conveniently overlook the fact that a genocide had taken place until the situation had evolved to the point where it could be forgotten altogether.” In a belated response to the atrocities, the United Nations Security Council established a Commission of Experts in July 1994 to investigate violations of international humanitarian law in Rwanda. In its first interim report, the commission concluded that “there exists overwhelming evidence to prove that acts of genocide against the Tutsi groups were perpetrated by Hutu elements in a concerted, planned, systematic, and methodical way,” and that “abundant evidence shows that these mass exterminations perpetrated by Hutu elements against the Tutsi group as such … constitute `genocide’ within the meaning of the Genocide Convention.” Furthermore, the commission strongly recommended that the Security Council take action to “ensure that the individuals responsible [be] … brought to justice before an independent and impartial international criminal tribunal.” Having confirmed that genocide and other flagrant violations of international humanitarian law had been committed, the UN Security Council established the International Criminal Tribunal for Rwanda (ICTR) at Arusha in 1994. Although Rwanda encouraged the creation of the ICTR, government officials also began arresting and prosecuting nationally accused genocidal perpetrators. To further assess these proceedings, I examine below both the ICTR and Rwanda’s internal prosecutions.
Genocide Enforcement
Article VI of the Genocide Convention states that “persons charged with genocide … 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 accepted its jurisdiction.” Thus, two options exist to prosecute accused genocidal perpetrators. Domestic officials can prosecute internally individuals accused of genocidal behavior, or the United Nations may convene ad hoc criminal tribunals. To date, four such temporary tribunals have been convened: the International Military Tribunal at Nuremberg (IMT) in 1945, generally considered the first modern paradigm of international criminal law in action (Bassiouni 1987), the International Military Tribunal for the Far East at Tokyo (IMTFE) in 1946, the International Criminal Tribunal for the Former Yugoslavia at The Hague (ICTY) in 1992, and the International Criminal Tribunal for Rwanda.
The creation of the ICTR supported Rwandan efforts to allocate individual responsibility for genocide and other crimes against humanity by offering an objective forum for investigating genocidal events. The Security Council decided to create the ICTR to bring to justice those persons responsible for acts of genocide and violations of humanitarian law in Rwanda between 1 January and 31 December 1994 (Akhavan 1996). The ICTR is authorized to prosecute four clusters of offenses: grave breaches of the 1949 Geneva Convention; violations of the laws or customs of war; genocide; and crimes against humanity (Wisskirchen 1997, Akhavan 1996).
To date, the ICTR has indicted twenty-one persons, eleven of whom are in detention in Arusha, Tanzania (Wisskirchen 1997, Akhavan 1996). Several trials opened at the beginning of 1997. The first four defendants were charged with genocide, crimes against humanity, and violations of Article 3 of the Geneva Convention. All pleaded not guilty. Although the first verdicts from Arusha are expected in 1998, no judgments had yet been pronounced at the time of this writing. In addition, four of the ICTR’s top suspects were transferred from Cameroon for initial appearances and detention in Arusha. The four have been charged with genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, crimes against humanity, and violations of Article 3 of the Geneva Convention. All have pleaded not guilty. Their trial dates have yet to be set.
Despite its clear and reasoned support for the establishment of the ICTR, Rwanda eventually voted against Resolution 955. The primary reasons were fourfold. First, the Rwandan government believed the temporal jurisdiction of the tribunal was too restrictive (Akhavan 1996, Wang 1995). Although the tribunal was prosecuting offenses committed during calendar year 1994, the Rwandan government believed genocidal plans had been in effect for months prior to their actual commission. Second, the Rwandan government believed that the “composition and structure” of the tribunal was “inappropriate and ineffective” (Akhavan 1996, Wang 1995). In light of the massive work awaiting the tribunal staff, the Rwandan government requested that the number of trial judges be increased. The request was taken under consideration and eventually denied (Wisskirchen 1997). Third, the Rwandan government could not accept the fact that individuals convicted by the tribunal would be imprisoned outside of Rwanda, and that issues of their confinement would be determined by host states (Akhavan 1996, Wang 1995). The ultimate concern was that deferring punishment responsibilities would ultimately result in some prisoners being released. Fourth, the strongest punishment available to the tribunal was life imprisonment, whereas Rwanda permits capital punishment (Akhavan 1996, Wang 1995). Given the horrific and extensive nature of the crimes committed, capital punishment was seen as appropriate by Rwandan officials for convicted high-ranking perpetrators of genocides.
In light of these objections, and the massive number of anticipated defendants, the Rwandan government initiated national prosecutions against individuals accused of genocide. In December 1996, Rwandan authorities began a series of trials against the first of 125,000 detainees, most of whom were from the majority Hutu tribe (Tucker 1998). To date, 330 Hutu have been convicted of genocide and similar offenses, 112 of whom have been sentenced to death (Tucker 1998). Of these 112, 22 (20 percent) were executed publicly on 25 April 1998. Attempts by various international organizations to block the executions were not successful. Furthermore, the executions were heralded by the Rwandan populace as incomparable criminal justice (Tucker 1998). Few Rwandan officials have been swayed by what opponents insist were exceedingly expeditious trials. Rather, Rwandan officials maintain that the ICTR has been exceedingly slow (Tucker 1998). This is clearly an accurate perception. Although Akhavan (1996) argues that the competence of Rwanda’s courts to prosecute accused genocide perpetrators is limited, as compared to the capabilities of the international community, national trials have yielded 300 convictions and 22 executions. Of those defendants brought before the ICTR, only four trials have even begun.
Merely establishing the ICTR was a monumental international endeavor, one that many concede financially and logistically strained the capabilities of the United Nations (Akhavan 1996, Bassiouni 1995). Moreover, several ICTR trials have continued for over sixteen months, with no results. Given the numerous Hutu still awaiting trial in Arusha, and the inability of the tribunal to prosecute genocidal perpetrators expeditiously, the ICTR should be viewed as both an organizational nightmare and a legal failure. Given this distressing example, the international community should reconsider the creation of a permanent international criminal court. Instead, domestic successes in Rwanda indicate that individual states should step forward to prosecute accused genocide perpetrators. I explore this suggestion in greater detail below.
International Criminal Court
It was widely expected that the successes of the International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East would quickly lead to the establishment of a permanent international criminal court (Bassiouni 1995, Ferencz 1992, Bridge 1964). Those expectations, however, were erroneous. Although the world community has sought to establish a permanent international criminal court since the end of the Second World War (Bassiouni 1995, Ferencz 1992, Pella 1950), the goal has yet to be realized.
The International Law Commission (ILC) studied the question of a permanent international criminal court at its 1949 and 1950 sessions and concluded that such an institution was “desirable” and “possible” (Bassiouni 1995, Ferencz 1992). Two successive ad hoc Committees on International Criminal Jurisdiction appointed by the General Assembly submitted reports to that body with draft statutes for such a court in 1951 and 1953 (Bassiouni 1995, Ferencz 1992). The proposals met with objections from both sides of the cold war, leading to an unfortunate separation of efforts to establish a permanent international criminal court from attempts to draft an international criminal code (Evered 1994, Bassiouni 1993).
Despite these impediments, the impetus for creating a permanent international criminal court has gained momentum in recent years. The General Assembly returned to the question of an international criminal court close to a decade ago (Bassiouni 1995, Ferencz 1992). In 1989, the General Assembly requested that the ILC resume work on an international criminal court with jurisdiction over the crime of drug trafficking (Bassiouni 1995). In response to this request, the ILC completed a report in 1990 (Bassiouni 1995). Although not limited to drug trafficking, the General Assembly encouraged the ILC to continue its work (Bassiouni 1995). Thus, without clear and specific direction, the ILC went from a mandate limited to drug trafficking to an all-encompassing endeavor.
At its forty-fourth session in 1992, the ILC established a working group, which laid down basic parameters for a draft statute of an international criminal tribunal (Akhavan 1995, Bassiouni 1995). At its forty-fifth session in 1993, the commission received the report of a working group containing the draft statute, and without formally adopting the text, referred it to the General Assembly (Akhavan 1995, Bassiouni 1995). At its forty-sixth session in 1994, the commission proceeded to adopt a draft statute for an international criminal court (Akhavan 1995, Bassiouni 1995). Thus, within three sessions, the ILC completed work on a difficult and controversial topic that took over four decades even to approach.
The proposed international criminal court would be a permanent institution designed to investigate and bring to justice individuals who commit the most serious crimes of concern to the international community, such as genocide and crimes against humanity. A conference of plenipotentiaries has been called to draw up a treaty to enact the statute (Wisskirchen 1997). From March to August 1996, several preparatory committees were convened to discuss issues of jurisdiction, definitions of crimes, trigger mechanisms, procedural questions, substantive rights of the accused, and the relationship of the court to the UN Security Council (Wisskirchen 1997). On 17 December 1996, the General Assembly adopted the resolution on the establishment of an international criminal court by consensus (Wisskirchen 1997). The resolution called for the convening of an international treaty conference to establish the court in 1998.
Despite the need that leading scholars perceived for a permanent international criminal court (Bassiouni 1995, Evered 1994, Ferencz 1992), its probability of success should be evaluated in light of the International Criminal Tribunals for Rwanda and the former Yugoslavia. If those tribunals are ultimately viewed as ineffectual, the international community should reconsider its commitment to creating what would amount to a permanent version of a temporary failure. As has been discovered with the ICTR, there is a significant gap between establishing an ad hoc judicial institution through a Security Council Resolution and rendering it operational at the practical level. Ultimately, ad hoc tribunals should be assessed by the international criminal justice they can provide. The “success” of such tribunals, although difficult to achieve, can nevertheless be measured in several ways: organizational logistics, expense, criminal convictions, and sentences imposed.
The expeditious organization and development of an effective ad hoc tribunal is not an uncomplicated assignment. Many difficulties are associated with such an undertaking, including, for example, negotiations with host countries, recruitment and placement of qualified international staff, and training judges for the prosecution of genocide cases (Akhavan 1996, Bassiouni 1996). Indeed, these impediments were among the reasons that the Rwandan government ultimately rejected Resolution 955. In their protest of the tribunal’s structure, Rwandan government officials suggested that “the establishment of so ineffective an international tribunal would only appease the conscience of the international community rather than respond to the expectations of the Rwandan people and of the victims of genocide in particular.” Rwandan officials recognized at the outset that the global community was attempting to develop a mode of international criminal jurisprudence that it was incapable of developing, implementing, and sustaining effectively.
The ability to sustain the ICTR financially should also be a concern. In June 1996, the UN General Assembly appropriated $32.6 million to the ICTR for the 1996-97 fiscal year (Tittemore 1996). Problems with inadequate equipment and supplies and poor communications have hampered the ICTR since its inception, suggesting the need for additional funds. Indeed, in its 1996 annual report to the UN General Assembly, the tribunal reiterated the need for additional human and material resources if it is to expedite its work, search for evidence, and issue additional indictments (Tittemore 1996). The funds allocated to the tribunal are adequate to prosecute only a limited number of perpetrators (Akhavan 1996). While limited prosecutions are viewed as symbolically effective (Akhavan 1996), their ultimate accomplishments should nevertheless be considered in light of the expenses incurred.
Even if the organizational impediments and financial costs for developing and sustaining the ICTR are accepted as reasonable, they should be justified only if end products—in the form of criminal convictions—are produced. To date, however, almost four years after its establishment, the Rwandan tribunal has produced no criminal convictions. If, as Akhavan (1995) suggests, international tribunals serve as a deterrent against future perpetrators, they surely cannot do so without convictions. General deterrence reduces the general public’s inclination to offend through the infliction of pain and/or suffering on the offender. If perpetrators of genocide experience no pain or suffering (through criminal convictions and imposed sentences), general deterrence cannot be claimed as an advantage of an international tribunal.
Conclusion
The development of international criminal law enforcement is imperative for the dispensing of commensurate global justice. Social control is predicated on the assumption that law-abiding citizens will be protected from law violators via (successful) criminal prosecution and eventual punishment. The importance of social control is no less meaningful when discussing the enforcement of international criminal law. Indeed, the obligation to develop adequate enforcement mechanisms is perhaps greater internationally because of the comprehensive and threatening nature of the crimes. The consequences of genocide, for example, are clearly more ominous than any single violation of domestic statutory law.
Despite the recognition that the crime of genocide is prohibited by international criminal law, genocidal events continue to be committed before the passive eyes of the international community. The universal failure to take effective action against genocide has made a mockery of the most sacred values of civilization. International criminal law enforcement must be the means by which fundamental human rights are protected and preserved. The core problems of genocide transcend considerations of the fate of individual victim groups. Until all who violate the law are brought before it—an example of genuine international criminal law—the international community must face the realization that global victimization does not elicit commensurate universal jurisprudence.
There can be no dispute that consistent enforcement of the Genocide Convention is imperative to the deliverance of international criminal justice. The preservation of a peaceful global existence, if not international law itself, requires the prosecution of those accused of genocidal behavior. The Genocide Convention requires that accused genocidal perpetrators be prosecuted either before domestic courts or before an international tribunal. Although both options were used to prosecute individuals accused of genocidal behavior in Rwanda, the ICTR has faltered where domestic trials have flourished. While the ICTR has obtained no convictions, Rwanda’s national prosecutions have already executed twenty-two perpetrators of genocide. If successful international criminal justice is measured in terms of concrete results, the ICTR has clearly failed.
For several decades, the international legal community has attempted to realize a permanent international criminal court. The court would be a permanent version of previously convened, transitory tribunals. Logic would dictate, however, that a permanent institution be developed only if its predecessors were successful. No evidence exists to suggest that the International Criminal Tribunal for Rwanda is a model that should be duplicated. In four years, the ICTR has not only financially and organizationally strained the capabilities of the United Nations, but has failed in its mandate to prosecute the accused and punish the guilty.
In 1946, the General Assembly of the United Nations recognized that the denial of the right to existence of entire human groups “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.” Today, genocide is recognized universally as the ultimate crime—an affront to the entire world community. Enforcement of the Genocide Convention should remain the responsibility not of only one institution, but of all who value a peaceful coexistence. Indeed, international law stipulates that there are certain offenses, of which genocide is one, for which any nation may assert jurisdiction. In lieu of a permanent international criminal court, the future productiveness of which is suspect, states should themselves step forward and provide national prosecutions for those offenses that are deemed particularly heinous or harmful to humankind.