RAPE and
Genocide IN RWANDA: The ICTR’s Akayesu Verdict
SYNOPSIS
The International Criminal Tribunal for Rwanda (ICTR) heard Jean-Paul Akayesu accused of vicious gang rapes and genocide that took the lives of 2,000 Tutsis. The trial court chamber of three judges, two men and one woman, had an unprecedented opportunity to clarify whether rape during internal armed conflict constitutes genocide as well as a crime against humanity. Nongovernmental organizations worked to “engender” the Tribunal while holding accountable the Hutu leaders who orchestrated genocide. The critical 1998 verdict influenced states negotiating improved standards for the prosecution of sexual violence and the creation of a permanent International Criminal Court. “Rape and Genocide in Rwanda” addresses current issues of international law, human rights, women in politics, African Studies, judicial procedure, legal and moral reasoning. Following peer review and pilot testing in August 2000, the case will be freely available online with an interactive student study guide and teaching note as part of Teaching Human Rights Online, http://homepages.uc.edu/thro.
CASE OUTLINE
I. An Unprecedented Opportunity
Glossary and Map
II. Prior Responses to Sexual Violence in War
A. From “Time Immemorial” to 1948
B. From the 1949 Geneva Conventions to an International Criminal Court
III. Genocide In Rwanda
A. A Colonial Legacy of Ethnic Division
B. Mass Killing, Rape and the 1994 U.N. Withdrawal
IV. The U.N. Creates a Criminal Tribunal for Rwanda
V. The Trial of Jean-Paul Akayesu
Trial Chronology and Key Individuals
VI. Issues for Judgment
A.
Threshold Requirements
B.
Distinctive Crimes?
VII. The ICTR’s Akayesu
Verdict
A. The Decision and Rationale
B. Issues on Appeal
Akayesu’s Right to Counsel and an Impartial Tribunal
Common Article 3 and Complicity in Genocide
VIII. Concluding Judgments
References
Evaluation Form
RAPE and
Genocide IN RWANDA: The ICTR’s Akayesu Verdict
From time immemorial, rape has been regarded as spoils of war. Now it will be considered a war crime. We want
to send out a strong signal that rape is no longer a trophy of war.
Judge
Navanethem Pillay[1]
I. An Unprecedented Opportunity
After Judge Navanethem Pillay found Rwandan Jean-Paul Akayesu guilty of genocidal killing, she had to decide whether the rapes he ordered also constituted genocide. The prosecution had charged rape as a crime against humanity. A tribunal judgment that the rapes were also acts of genocide would be unprecedented.
Akayesu, a 43 year old Hutu village mayor compared himself to the U.N. peacekeepers who were unable to protect Tutsi victims. Judge Pillay, and her two male colleagues from the International Criminal Tribunal for Rwanda determined that Akayesu had in fact ordered killings; two mass graves near his administrative office held 2,000 Tutsi victims. Pillay, a South African jurist, also insisted on punishment for the rapes ordered by Akayesu.
Born in 1941 to working-class parents of Indian descent, Navanthem Pillay fought both sexism and apartheid to pursue her dream of practicing law. She became the first woman to start a law practice in Natal Province and was the first woman of color to be appointed to the Supreme Court. Pillay spent years defending anti-apartheid activists in the ANC and other movements, and fought for the rights of political prisoners . . . . In 1988, Pillay earned her Doctorate of Juridical Science from Harvard University. The mother of two currently heads several women’s rights organizations, and acts as honorary chair of the New York-based group Equality Now.[2]
At Akayesu’s trial, Judge Pillay elicited witness testimony about the rape of a six year old, evidence that was not included in the original indictment. Women’s rights groups filed an amicus brief at the tribunal pressing for new rape counts in a revised indictment.[3] The U.N. Chief Prosecutor Louise Arbour of Canada filed an amended indictment charging Akayesu with rape as a crime against humanity.
Would a finding that rape in Rwanda constituted genocide be a reasonable interpretation of international law or a political distortion of legal principles? Would future convictions for rape become more difficult under international law if a Rwanda Tribunal precedent raised expectations that prosecutors must show genocidal intent?
Review Questions:
1. Which life experience would best prepare Judge Pillay to respect Akayesu's right to a fair trial?
a. Law degree from Harvard University
b. Law practice defending political activists and prisoners
c. Board member service with Equality Now
d. Minority group ancestry in South Africa
2. Why might a feminist judge object to defining rape as an act of genocide?
a. Wartime rapes committed for soldiers' pleasure might become more difficult to punish
b. Rape prosecutions involving pregnancy would undermine efforts to legalize abortion
c. Existing international laws on torture and crimes against humanity are sufficient to protect women from sexual violence in war
d. Rape is more like slavery than genocide
Glossary
Arusha, Tanzania Site of the Tribunal trial chambers, detention center and Registrar
Bourgmestre Title of the village mayor responsible for public safety
Burundi Former Belgian Trust territory governed by Tutsi minority
Common Article 3 Provision of Geneva Conventions governing internal conflicts
Crimes Against
Humanity Violate peremptory norms of customary law such as genocide
Geneva Conventions Four treaties codifying war crimes in 1949
Genocide Convention 1948 treaty against extirmination based on group status
ICTR International Criminal Tribunal for
Rwanda, U.N.
ICTY International Criminal Tribunal for Yugoslavia, U.N.
Interahamwe Hutu youth militia responsible for mass killing of
Tutsis
Kigali Capital of Rwanda
Kinyarwanda Principal
language in Rwanda
Nuremberg Tribunal responsible for Nazi prosecutions after
WWII
Protocol II 1977 addition to the Geneva Conventions on
internal conflict
RPF Rwanda Patriotic Front, Tutsi led
military organized in exile
Taba Commune In Gitamara prefecture, forty miles from Kigali
UNAMIR U.N. Assistance Mission to Rwanda
War Crimes Offenses by soldiers during interstate conflict
II. Prior Responses to
Sexual Violence in War
A. From “Time Immemorial” to 1948
Since the very first military conflicts recorded by historians, men have treated women as spoils of war. According to Thucydides, once the Melians surrendered unconditionally to the Athenians, the conquerors sold all of the women and children as slaves.[4] Homer’s Iliad exhorts
those who rescued Helen to bed a faithful
Trojan wife. In Deuteronomy 21:10-14,
soldiers are advised:
When thou goest forth to battle against thine enemies, and the Lord thy God deliverest them into thy hands, and thou carriest them away captive, and seest among the captives a woman of goodly form, and thou has a desire unto her, and wouldst take her to thee to wife; then thou shalt bring her home to the house . . . and she shall . . . bewail her father and mother a full month; and after that thou mayest go in unto her, and be her husband, and she shall be thy wife. And . . . if thou have no delight in her, then thou shalt let her go whither she will; but thou shalt not sell her . . . for money; thou shalt not deal with her as a slave. . .
Numbers 31: 32-35
reported the following items seized by Hebrews from Canaan: “sheep, cattle,
asses, and thirty-two thousand girls who had had no intercourse with a man.”[5]
Not
until the 14th Century did European leaders announce standards of chivalry to
forbid rape and the taking of concubines.
The rules, rarely enforced, also did not apply to cities under
seige; “the licence to rape was
considered a major incentive for the soldier.”[6] Humanitarian law first promulgated in the 19th
Century protected noncombatants, including women. The U.S. Lieber Code of 1863 made rape a capital offense. The
Martens Clause of the 1907 Hague Convention provides that "until a more
complete code of the laws of war has been issued, the High Contracting Parties
deem it expedient to declare that ... inhabitants ... remain under the
protection and the rule of the principles of the law of nations, as they result
... from the laws of humanity."[7] That norm apparently had no impact on forced
prostitution and rape as an instrument of German terror against French and
Belgians during World War I.
Only after World War II did the international community begin rape prosecutions. Control Council Law No. 10, for the Nuremberg Tribunal listed rape as a crime against humanity.[8] Despite evidence of major Nazi sexual crimes against French women, the tribunal at Nuremburg did not mention rape in the final judgment. The French and Soviet judges might have had difficulty holding Germans accountable. Moroccan soldiers were reportedly allowed by the French army to rape at will in Italy, and an estimated 100,000 to 800,000 German women were allegedly raped by the Soviet occupation army in Berlin.
The International Criminal Tribunal for the Far East prosecuted the “Rape of Nanking.” The Tokyo Tribunal heard extensive evidence before concluding that Japanese soldiers in the Chinese city raped an estimated 20,000 women during the first month of occupation.[9] General Yamashita was found guilty of the "torture, rape, murder and mass executions of very large numbers of residents of the Philippines, including women and children ...."[10] The Tribunal never examined the crimes against 200,000 “comfort women” from seven countries who were made sex slaves for Japanese soldiers’ pleasure.
B. From the 1949 Geneva Conventions to an International
Criminal Court
Women gained more international legal protection on paper
after World War II, but suffered even greater violations by rapists who escaped
prosecution. Four Geneva conventions
were drafted in 1949 to codify humanitarian law. War crimes involved mistreatment of enemy aliens during
international conflict; crimes against humanity were identified for internal
armed struggle. The list of war crimes
identified as “grave breaches” did not include rape. Article 27 of the Fourth Geneva Convention to protect civilians
during war states: "women shall be especially protected against any attack
on their honour, in particular against rape, enforced prostitution, or any form
of indecent assault." Common
Article 3 of all four Geneva Conventions applies to “armed conflict not of an
international character” and proscribes "outrages upon personal dignity,
in particular humiliating and degrading treatment . . . at any time and in any place whatsoever
...."
The U.N. failed to establish a permanent international criminal tribunal to enforce the Geneva Conventions, the 1948 Genocide Convention, or the Nuremberg precedent. U.S. courts had jurisdiction over soldiers indicted for rape in Vietnam, but those charges were dismissed. The U.S. military provided brothels with paid Vietnamese sex workers. When East Pakistanis fought for an independent Bangladesh in 1971, West Pakistani soldiers allegedly raped 200,000 Bengali women. Common Article 3 of the Geneva Conventions applied to that internal armed conflict, but no international authority had criminal jurisdiction. In 1977, Protocol II expanded on that article by expressly covering “rape, enforced prostitution and any form of indecent assault” in non-international conflicts.[11]
Women activists with nongovernmental organizations successfully lobbied the U.N. for new human rights standards on sex discrimination and sexual violence in times of war or peace. Human rights advocates brought claims to the Inter-American Court and the European Courts of Human Rights claiming that rape amounted to torture in violation of regional treaties.[12] Under the U.S. alien tort claims act, women from Ethiopia and Bosnia brought civil actions to recover damages for sexual attacks. [13]
NGOs documented mass rapes as a weapon of war in Guatemala, El Salvador, Liberia, Kuwait and especially the former Yugoslavia. As part of an “ethnic cleansing” strategy, Bosnian Serbs established rape camps and deliberately impregnated Muslim women. Rapists calculated that the children of their victims would be regarded as Serbian life the father, and that Muslim men would then reject the woman.
In response, women activists made certain that the International Tribunals for the Former Yugoslavia and Rwanda were charged with prosecuting rape as a war crime. They pressed effectively for more women judges, prosecutors, and court personnel. In 1996 Canadian jurist Louise Arbour became Chief U.N. prosecutor for the two tribunals. Carla Del Ponte of Switzerland succeeeded her in 1999. Women organized an NGO coalition to “engender” the ICTR, insisting that sexual violence be expressly condemned. A Pan-African Conference on Peace- Gender-Development met in Kigali, Rwanda as a follow-up to the U.N. Beijing Conference on Women. The umbrella organization of women's organizations in Rwanda Pro-Femme sponsored a reconciliation visit to Akayesu’s Taba Commune.
In
negotiations for a permanent International Criminal Court, the NGOs lobbied
successfully for new language on forced pregnancy, but failed to gain formal
assurance of gender balance in the selection of judges and prosecutors. Crimes
against humanity would explicitly include "rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization, or any other form of
sexual violence of comparable gravity .... when committed as part of a
widespread or systematic attack directed against a civilian population, with
knowledge of the attack ...."[14]
Review Questions:
1. Which opposed the treatment of women as spoils of war?
- Old Testament scripture
- Classical authors of ancient Greece
- 14th Century feudal rulers in Europe
- 1907 Hague Convention rules on noncombatants
2. The account of prosecutions at Nuremberg implies that Nazis were not convicted of rape because
- German troops were not responsible for mass rape
- Rape crimes were beyond the tribunal's jurisdiction
- There were no women prosecutors and judges
- Judges were from countries responsible for wartime rapes of German and Italian women
3. Which rape victims were ignored in postwar international criminal prosecution of the Japanese?
- Korean women coerced into brothels for Japanese soldiers
- Philippine children raped by Japanese occupation forces
- Chinese women abused when Japan seized Nanking
4. Which provision of the 1949 Geneva Conventions specifically prohibits rape?
- The 3rd Geneva Convention on prisoners of war
- Article 27 of the 4th Geneva Convention on civilians
- Common Article 3 of all four Geneva Conventions
5. After the conflicts in Vietnam and Bangladesh, how did Protocol II of 1977 amend the 1949 Geneva Conventions?
- By creating an international tribunal to prosecute war criminals
- By applying all the rules of international war to internal armed conflicts
- By expanding the coverage of Common Article 3 to include rape
6. What success did NGO promoting women's human rights achieve?
- Rape prosecutions in Guatemala and El Salvador
- Appointment of women as U.N. Chief prosecutor for Yugoslavia and Rwanda
- Guaranteed appointment of female judges to the new International Criminal Court
III. Genocide in Rwanda
A. A Colonial Legacy of Ethnic Division
When Germans colonized present-day Rwanda and Burundi in the late 19th Century they found a feudal society. A Tutsi nobility descended from cattle herding nomads who arrived in the 15th Century ruled Hutu serfs. Individuals might shift from one group to the other by a change in economic status. After Germany lost World War I, the League of Nations entrusted the East African mandate of Ruanda-Urundi to Belgium, and French became the language of government.
Following a 1930s census, the Belgian administration required all Africans to carry cards identifying their ethnicity, despite considerable intermarriage, a common language and religion. The mostly Christian peoples were divided into ethnic groups comprised of approximately 80 to 85% Hutu, 14 to 19% Tutsi and 1% Twa. The Belgians determined that the Hutu were an inferior Bantu people--darker skinned with shorter builds; Tutsi were considered a superior race, a Hamitic or Nilotic peoples who tended to have light skin, were tall and had thin noses and lips, a more European look. In a system of indirect rule, Tutsis were born to lead.[15]. Belgium practiced divide and rule, granting to minority Tutsis more power, educational opportunities, social and economic privileges than the Hutu.[16]
After World War II, Rwanda and Burundi became U.N. Trust Territories; the Tutsi monarchy resisted Belgian efforts at democratic reform. In 1959 Rwanda’s Hutu revolted, killing about 20,000 Tutsi and driving up to a third of the group into exile. The Hutus won a U.N. conducted referendum; Belgium granted the Hutu government of Rwanda full independence in 1962. By 1994 Rwanda had a population of 7 million in a landlocked, mountainous country the size of Maryland. Neighboring Burundi became independent under a Tutsi constitutional monarchy. A Hutu rebellion in 1972 left an estimated 10,000 Burundi Tutsis dead. In retaliation, the Burundi Tutsis killed an estimated 150,000 Hutu.
Tutsi exiles in Uganda formed the Rwandan Patriotic Front. In 1990 the RPF attacked the corrupt regime of Hutu President Juvénal Habyarimana. During a three year civil war, France provided weapons and military training to the established government, while Uganda and others supported the RPF. A power sharing agreement negotiated at Arusha, Tanzania in 1993 provided for a U.N. Assistance Mission in Rwanda (UNAMIR) and transition to an elected government. U.N. donors concerned about the high cost of peacekeeping approved a contingent of 5,000, only one-third the recommended size. Hutu extremists opposed to the accords began plotting the elimination of Tutsi and moderate Hutus. The armed forces and political parties began training and arming the Interahamwe youth militia to extirminate enemies.
UNAMIR commander General Romeo Dallaire warned of imminent massacres in a January 1994 fax to his superior, Kofi Annan. The U. S. Central Intelligence Agency predicted that 500,000 people could die. Human Rights Watch reported that all the elements needed for genocide were in place: a Hutu propaganda machine that operated through the written press and the national radio stations; a military trained to kill; a stockpile of arms and ammunition; and a political system of governmental officials and military leaders was in place to act as the leaders for an attack. Years of propaganda taught the Hutu that the Tutsi were oppressors and responsible for all that was wrong in the country.
B. Mass Killing, Rape, and the 1994 U.N.
Withdrawal
After agreeing to more meaningful power sharing with the RPF, Habyarimana and Burundi’s President died when a missile downed their plane approaching the Rwanda capital of Kigali on a return flight from Tanzania. Hutu extremists in a military camp near the airport may have assassinated Habyarimana in order to cast blame and trigger mass killing. Although culpability remains in dispute,[17] Hutus did blame the RFP. Within hours of the April 6 assassination, Hutu militia set up roadblocks where they checked identification cards and killed Tutsi. Rwandan Army soldiers killed moderates who favored sharing power and Hutus who shielded Tutsi. Ten Belgian UNAMIR peacekeepers were also murdered.
Interim Prime Minister Jean Kambanda began implementing a systematic plan of elimination. Human Rights Watch reported to the Security Council that the deteriorating situation should be considered genocide.[18] The United States, still shaken by the UN casualties in Somalia, advocated a full withdrawal. On April 21 the Security Council agreed, deciding to leave only a few hundred observers.[19]
Bourgmestre
Akayesu in Taba commune of Gitarama prefecture initially fulfilled his
responsibility for public order by resisting the Interahamwe militia. The 44
year old mayor was a well educated former school teacher and inspector and the
father of five. On April 18, Prime Minister Jean Kambanda summoned Akayesu to a
security meeting attended by Rwanda’s President and the Armed Forces Chief of
Staff. They called on local officials
to assist in the fight against the RPF and its "accomplices,"
understood to be the Tutsi and moderate Hutu.[20] Akayesu replaced his suit coat with a
camouflage jacket and began exhorting his people to kill. A U.S. journalist concluded:
Jean-Paul
Akayesu was neither a psychopath nor a simpleton. He was not a top figure like
. . . Rwanda's Himmler, . . ., nor a lowly, illiterate, machete-wielding
peasant. He was, instead, the link between the two: an archetype of the
indispensable middle management of the genocide. He personified a rigidly
hierarchical society and a culture of obedience, without which killing on such
a scale would not have been possible.[21]
Witnesses
testified that hundreds of victims came to his administrative compound seeking
protection or hoping to be shot instead of hacked to death by machete.[22] In the next two months 2,000 bludgeoned,
severed corpses were buried near his office in two mass graves, an average of
more than 200 dead a week, over thirty per day. The bourgemestre appeared at
Hutu rallies with the local Interahamwe boss and beat those who withheld
information about Tutsis in hiding.
Akeyesu incited drunken men to gang rape women held at a cultural center
next to his office. The militiamen made
the women strip naked, do gymnastics and walk so that the men could see the
thighs of Tutsi women. After
observing several rapes, Akayesu told his men “So never ask me again what a
Tutsi woman tastes like. . . . Tomorrow they will be killed.” He encouraged
ripping babies from a mother’s womb and declared: “The person who kills a rat
never spares the one who is pregnant, you never spare a pregnant rat.” [23]
By early July, an estimated 500,000 to 800,000 Rwandans were massacred, a large majority of them Tutsi. The United Nations “estimated that at least a quarter-million women were raped”.[24] Up to three million refugees fled the country. French troops intervened in June, shielding some refugees in Rwanda and enabling others to flee.
Despite the staggering loss of Tutsi, the RPF defeated the Hutu government in July. A new multi-ethnic Tutsi dominated regime imprisoned 120,000 suspected killers; Among the two million Hutu who fled Rwanda, Jean-Paul Akayesu escaped to Zambia.
Review Questions:
1. Which fact might Belgians use to refute criticism of their colonial policies in Rwanda?
- Belgium is legally divided into French and Dutch speaking constituencies with schools and government posts formally assigned to distinct language groups.
- Biologists and anthropologists offer conclusive scientific support for the tribal classifications used to identify the Tutsi group for leadership in Rwanda
- Delegating power to a minority group in Rwanda enabled Belgian colonists to secure the most loyal African administrators.
2. What factors differentiated Hutu and Tutsi?
- Religion
- Language
- Race
- None of the above
3. After independence in the early 1960s
- Tutsis held power in both Rwanda and Burundi
- Hutus held power in both Rwanda and Burundi
- Burundi had not experienced the mass killing suffered by Rwandans
- Tutsis in exile posed a threat to Rwanda's Hutu government
4. Which laid plans to commit genocide in 1994?
- RPF
- Interhamwe
- UNAMIR
- Twa
5. Why might Hutu forces assassinate President Habyarimana?
- He was a Tutsi
- He agreed to share power with the RPF
- He was unintentionally killed in the assassination of Burundi's Tutsi President
6. Rwanda army forces were predominantly
- Hutu
- Tutsi
- Belgian
7. Which individual urged action to prevent the genocide?
- Kofi Annan
- Romeo Dallaire
- Juvenal Habyarimana
- Jean Kambanda
8. A. U.S. journalist accused Akayesu of
- Orchestrating mass murder like Himmler in Germany
- Wielding primitive weapons in brutal murders
- Following orders from above to direct subordinates who killed Tutsi
9. Akayesu personally
- served as an Interhamwe leader
- raped Tutsi women as a spoil of war
- attacked fellow Hutus who protected Tutsis
- joined the genocide at the earliest opportunity
IV. The U.N. Creates a Criminal Tribunal for
Rwanda
As reports of the Rwanda genocide spread, public outrage persuaded U.N. Security Council members to establish an International Criminal Tribunal for Rwanda (ICTR).[25] The International Criminal Tribunal for the Former Yugoslavia (ICTY) at the Hague provided a model. Located in the Netherlands, the ICTY had been granted jurisdiction for war crimes that began with Yugoslavia’s break-up in 1991. Prior to creating each tribunal, the Council appointed a Commission of Experts to investigate. Compelling evidence of genocide was deemed a threat to “international peace and security” under Chapter VII of the U.N. Charter, thus justifying the Council’s action of November 1994. Skeptics regarded the Council response as inadequate, symbolic, and undertaken merely for public relations value. Proponents wanted the two ad hoc tribunals to provide models for a permanent International Criminal Court.
Although Rwanda was the first to propose a special tribunal, the new government voted against the final Security Council resolution for many reasons: the death penalty would not be used, proceedings would be held in neighboring Tanzania, judges would be nationals of states that previously betrayed Rwanda, jurisdiction was limited to the crimes of 1994, those convicted would be imprisoned outside Rwanda, and the U.N. would not provide adequate resources for the massive undertaking required. Rwanda had already begun death penalty proceedings in national courts, and the government wished to have greater control over the international prosecutions.[26]
The
General Assembly elected six judges to conduct trials with three member trial
Chambers in two Arusha courtrooms.
Appeals would be heard by a five judge Chamber at the Hague. The Office of the Prosecutor at the Hague
assumed new responsibilities for the ICTR with a deputy prosecutor in Kigali.
Both tribunals also share a legal officer for gender-based crimes.[27] The trial Chambers and Registrar are in
Arusha, Tanzania, 400 miles from the prosecutors and Rwanda investigators. A staff from seventy countries that grew to
500 employees by 1998 began work under extremely difficult conditions—irregular
power supply, limited telephone service, makeshift office equipment. One
attorney reported using a door as her desk.
Court documents and official proceedings required translation into both
French and English. While the ICTY has
access to the world court library at The Hague, at the ICTR
The
law library is a single, spare room with one long table and mostly empty
bookshelves with a smattering of legal texts (there is, at least, a complete
set of the Nuremberg trial transcript). Everything from computers to stenographic
equipment to slide projectors to microphones has had to be airlifted in, not to
mention staff qualified to operate and maintain them. There is no forensic lab.[28]
In a two year period the prosecutors indicted only forty individuals for the $60 million tribunal.[29] The U.N. went after major leaders, while Rwanda pursued all the killers. Following a U.N. investigation that revealed gross mismanagement and corruption, the Secretary General replaced the ICTR Registrar and Deputy Prosecutor.[30] The General Assembly elected three additional ICTR judges for a third trial court panel to expedite long delayed trials. Mali agreed to imprison those convicted by the U.N. tribunal. A Rwandan firing squad using machine guns publicly executed the first 22 sentenced to death in the national courts.[31]
Review Questions:
1. Which evidence would be most critical in determining whether the Security Council had authority under the U.N. Charter to create a criminal tribunal for Rwanda?
- Hutus had raped over 250,000 Tutsi women
- Over half a million Tutsi were killed
- Tutsi refugees threatened to involve neighboring states in the conflict
- Hutu leaders had copied ethnic cleansing from Serbs in Yugoslavia
2. What did Rwanda want for the new U.N. tribunal?
- French speaking judges from Belgium, France and Quebec
- Prosecution and imprisonment in a neighboring state
- The power to sentence Hutu killers to death
- A Tutsi court registrar and Tutsi prosecutor
3. The International Criminal Tribunal for Rwanda had a
- trial chamber in Rwanda and appellate panel in Arusha, Tanzania
- prosecutor in Rwanda and trial chambers in Arusha, Tanzania
- trial chamber in Rwanda and appellate panel at The Hague, Netherlands
4. Rwanda's representative on the Security Council correctly anticipated that the U.N.
- would not give sufficient funding for prompt, effective investigation and prosecution
- court would ignore Hutu leaders and convict their subordinates
- would be unable to locate detention facilities for those convicted
- would convict RPF members of war crimes
V. The Trial of Jean-Paul Akayesu
Akayesu
was the first to stand trial as the ICTR struggled to organize. After his arrest in Zambia at the request of
Rwanda, the U.N. prosecutor obtained an
ICTR arrest warrant. Zambia then
transferred Akayesu to the U.N.’s Arusha detention center in May 1996. During a
nine hour recorded interrogation, Akayesu professed his innocence; he denied
meeting the Prime Minister on April 18 and subsequent collaboration with the
local Interahamwe leader.
The
trial prosecutor was Pierre Prosper, a 36 year old son of Haitian immigrants to
the U.S. Prosper believed his experience prosecuting Colombian drug cartels and
street gangs in Los Angeles was excellent preparation for investigating an
African regime that operated like a racketeering enterprise--marijuana
smuggling, a black-market foreign exchange bureau, and poaching of mountain
gorillas. “The President’s
brother-in-law was the main suspect in the murder of American anthropologist
Dian Fossey.”[32]
Akayesu requested free representation by appointed
counsel. A 30-year-old defense attorney from Montreal, Tiphaine Dickson, worked
for the ICTR downstairs from Prosper.
Her
mission is to prove to the world there never was a genocide in Rwanda, that the
massacres were the result of tribal war, not one-sided evil. "If I do anything here," Dickson
said, "I want to stop this one people
- the Hutus - from being demonized and forever bearing the mark of Cain."[33]
The ICTR maintains a
roster of lawyers available to assist defendants. Most speak French, and over
three fourths come from Europe and North America. Over a three year period between his arrest and sentencing,
Akayesu was defended one after another by lawyers from six countries; a new attorney became appellate counsel.
The
court approved Akayesu’s initial request for Johan Scheers, a Belgian
lawyer. U.S. attorney Michael Karnavas
offered to assist. On September 27,
1996 the first scheduled day of trial, Scheers requested additional time to
prepare. The Court set a new trial date for October 31. Scheers complained that ICTR personnel
failed to provide essential documentation he required and had refused to
reimburse him for £10,000 in expenses.
Karnavas appeared in his place, but the Judges ruled that Akayesu could
only have one appointed representative.
The court rescinded Sheers’ appointment, appointed Karnavas, and set a
new trial date for January 9, 1997.
Three weeks later, Akayesu fired Karnavas after learning that his new
lawyer was a candidate for a position in the prosecutor’s office. Akayesu then
selected a Canadian attorney who appeared on January 9. The court registrar
appointed Nicolas Tiangaye of the Central
African Republic and co-counsel from Cameroon.
Akayesu rejected their assistance and cross-examined the first prosecution
witnesses himself. The court concluded
that Akayesu could not defend himself and approved the Registrar’s selection of
African counsel. They served through a
trial that lasted twenty months until fired by Akayesu after his conviction.
The original indictment charged Akayesu with twelve counts of genocide, crimes against humanity and violations of Common Article 3 of the Geneva Conventions. The amended indictment charging included rape charges in two additional counts of crimes against humanity and one more count under Common Article 3. Five of the final fifteen counts were identical charges identified as both crimes against humanity and violations of Common Article 3.
Three
scarlet robed judges of the first Chamber of the ICTR presided: Tribunal President
Laïty Kama of Senegal, South African Judge Nevanethem Pillay, and Swedish Judge
Lennart Aspegren. Judge Pillay worried about reprisals to witnesses following
their return to Rwanda. “You can’t hold
fair trials unless you have witnesses that can testify without fear.” The ICTR Witness and Victims Support Section
provides relocation when needed, both in and outside Rwanda. The Akayesu trial transcript used code
letters rather than names to identify protected witnesses, although the
defendant was fully informed. The judges adopted rules of procedure to limit
inquiries into rape victims’ prior sexual conduct.
From January to May 1997 Prosper initiated the world’s first international genocide prosecution with testimony from 27 witnesses about the mass killing in Taba Commune. In
THE AKAYESU INDICTMENT
|
|
Threshold Requirements |
Facts |
|
|
Widespread,
systematic violations |
Mass killing and
rape |
|
|
Victims from a
Protected Group |
Tutsi |
|
|
An offender
covered by the Law with |
Public official |
|
|
individual or command responsibility |
|
|
|
|
|
|
|
ICTR Statute Article#
(Count#) |
Indictment
Allegations |
|
|
2 Genocide |
|
|
|
(1)
Genocide |
18 murders |
|
|
(2)
Complicity in Genocide |
Planning |
|
|
(4)
Incitement to Genocide |
Speeches |
|
|
|
|
|
|
3 Crimes
Against Humanity |
|
|
|
(3)
Extirmination |
genocide |
|
|
(5)
Murder |
5 killed |
|
|
(7)
Murder |
8 killed |
|
|
(9)
Murder |
5 killed |
|
|
(11) Torture |
6 beatings |
|
|
(13) Rape (Added 6/17/97) |
Command
responsibility |
|
|
(14) Inhumane Acts Added 6/17/97 |
Sexual violence |
|
|
|
|
|
|
4 Common
Article 3 |
|
|
|
(6) Murder |
5 killed |
|
|
(8) Murder |
8 killed |
|
|
(10) Murder |
5 killed |
|
|
(12) Torture |
6 beatings |
|
|
(15) Outrages (Added 6/17/97) |
rape |
Key Individuals
Akayesu, Jean-Paul Rwanda, bourgmestre Taba commune
Annan, Kofi, Ghana, Director U.N. Peacekeeping, Secretary General
Arbour, Louise, Canada, Office of the Prosecutor, The Hague
Aspegren, Lennart Sweden, ICTR Judge
Dallaire, Romeo Canada, Commander of the U.N.
Assistance Mission to Rwanda (UNAMIR)
Habyarimana, Juvenal Hutu
President of Rwanda, assassinated when plane shot down
Kagame, Paul Rwanda President after the RPF
victory
Kambanda, Jean Hutu, interim Prime Minister responsible for mass killing
Kama, Laïty Senegal,
President of ICTR, and Akayesu’s trial Chamber 1
Okali, Agwu, Nigeria, ICTR Registrar
Philpot, John Canada, after disputed
appointment, representing Akayesu on appeal
Pillay, Nevanethem South Africa, ICTR judge; Tribunal President in second term
Prosper, Pierre U.S.
ICTR Prosecutor
Scheers, Johan Belgium, first defense counsel appointed for
Akayesu
Tiangaye,
Nicolas Central African Republic,
appointed to defend Akayesu at trial
order to meet the genocide convention’s requirements for persecution of an “ethnic” group, a
history expert explained how Hutu and Tutsi had come to
treat each other as distinct hereditary groups despite their common language,
nationality, religion, culture and race. Personal identity cards for Tutsi,
Hutu and Twa used the Kinyarwanda word “ubwoko,” translated as “ethnic” in
English, “ethnie” in French. A linguistics professor also explained to the Tribunal how
the oral tradition of Rwandese culture was responsible for apparent
unreliability of witness testimony in court. For instance, in Rwanda the
expression "I saw" can also mean "I heard" or "I
know".[34]
When questioned by Judge Pillay, witness H implicated Akayesu in rapes; Witness J reported the rape of a six year old. NGOs filed a brief asking the court to consider an amended indictment that included rape counts,[35] and investigators collected relevant evidence.
Rwandan
women will talk, but only under certain conditions. Among other things,
investigation of rape...is best carried out by female investigators using
female interpreters...Investigators taking testimonies must also be sensitive
to the trauma of rape victims...[36]
The prosecution added evidence of sexual violence to support two additional counts of crimes against humanity and one count for violating Common Article 3. Rape was not charged as an act of genocide. Four additional witnesses then testified about sexual violence as prosecutors completed their case.
Over a four month period Akayesu called thirteen defense witnesses and then took the stand himself. Rwanda allowed detainees awaiting trial to appear on the defendant’s behalf. Many refused to testify out of fear of reprisals. After receiving a grant of partial immunity, General Dallaire spent over five hours answering questions as a defense witness.
Secretary General . . . Kofi Annan, responsible for UN
peacekeeping operations in 1994, did not authorise Dallaire to testify on
aspects directly linked to the Akayesu affair. Certain diplomatic
correspondences were also out of bounds, specifically a fax from Dallaire to
Annan in January 1994, in which Dallaire gave detailed information on the high
level planning of massacres in Rwanda. . . . Dallaire told the court that he
believed that an international force properly mandated and equipped could have
stopped the massacres during the first few weeks of the genocide.[37]
In late February 1998, the Tribunal President refused Akayesu’s request for five additional witnesses, declaring "a trial is started in order to be concluded".
When
Akayesu testified on his own behalf, questions by Prosper and Judges Kamy and
Pillay forced him to admit that he had attended the April 18 meeting with Prime
Minister Kambanda and had collaborated with the local militia boss. They delighted in exposing obvious lies in
his recorded pre-trial interrogation.
After closing arguments in late March, the court recessed for the
preparation of a verdict. Testimony from 41 witnesses over fourteen months had
produced more than 4000 pages of transcripts, and the parties introduced125
evidentiary documents.
The judges took over five months before announcing a guilty verdict in September. In mid-summer Judge Aspegren publicly disparaged the court in a press interview. The Swedish jurist complained that the new administration had failed to remedy the financial and management irregularities identified when the first Registrar was replaced. Aspegren indicated that he would not serve beyond his current term, and news accounts reported that he had resigned. In an extraordinary response, the Nigerian Registrar issued a press release responding to each allegation, noting that no resignation letter had been received, and charging that Aspegren’s demand for excessive vacation time had delayed a July verdict on Akayesu.
Akayesu Trial Chronology
1995
Oct. 10 Akayesu arrested in Lusaka, Zambia at request of Rwanda
Nov. 22 ICTY Prosecutor requests custody
1996
Feb. 13 12 count indictment presented
Feb. 16 Arrest warrant issued
May 26 Transfer to ICTR in Arusha, Tanzania
May 30 Not guilty plea entered by Johan Scheers of Belgium, appointed trial counsel
Sept. 26 First scheduled trial date, Scheers granted additional time to prepare
Oct. 31 Court replaces Scheers with Michael Karnavas, reschedules trial for January
Nov. 22 Court accepts Akayesu request to dismiss Karnavas
1997
Jan. 9- Trial begins
with dispute over defense counsel and the court appoints Nicolas
Tiangaye from Central African Republic, assisted by Patrice
Monthé. Cameroon.
May 24 27 prosecution witnesses, including expatriates on history,
ethnicity
May 25- Trial in recess as prosecutors investigate sexual
violence and review
June 17 NGO Amicus
Brief; revised indictment adds three charges
Oct. 22- Resume trial 4 women prosecution witnesses
Nov. 17 Defense begins, 5 of 12 witnesses refuse to appear,
1998
Feb 25 Dallaire testifies for the defense with partial immunity
Feb 26 Court rejects defense request for 5 more witnesses
March 13 Akayesu testimony and cross examination
March 23-6 Closing arguments
April Rwandan firing squad executes 22
May Kambanda pleads guilty
July Judge Aspegren and ICTR Registrar trade words in the press
Sept. 2-28 Guilty verdict
Akayesu dismissed counsel, represents self at pre-sentence
Philpot files notice of appeal at the Hague
October 2 Sentenced to life, Registrar denies Akeyesu request for Philpot as appellate
counsel
Oct. 23 Hunger strike by 26 in support of Akayesu’s request for Canadian attorney
1999
July Appellate Chamber rules that Philipot can represent Akayesu on appeal
Oct. 22 Philpot memo to appeals Chamber seeks production of documents, renews
challenge to trial verdict.
Oct. 27 Registrar lifts the ban on adding French and Canadian lawyers to the list
Review Questions:
1. Why was Akayesu not tried until several years after his crimes?
- The U.N. did not obtain custody until nearly two years after he fled.
- The ICTR was slow to organize and begin operations
- A dispute arose over appointed defense counsel
- All of the above
2. Why would Akayesu choose a Belgian lawyer as defense counsel?
- Belgian peacekeepers sided with Hutu in the conflict.
- He needed expert counsel fluent in French.
- He wanted a lawyer with experience in criminal prosecution.
3. Why did the prosecutors add counts to the indictment during the trial?
- They wanted to charge rape as an act of genocide.
- They wanted to charge sexual violence as a crime against humanity.
- They had too few original counts to assure a conviction.
4. If Hutu killers massacred political enemies from their own ethnic group
- that would be genocide
- that would be politicide, not genocide
- that would violate the 1949 Geneva Protocols
5. UNAMIR Commander Dallaire was called by
- the prosecutor to testify that Hutus raped Tutsis
- the defense to testify that the U.N. failed to stop the genocide
- the defense to testify about RPF war crimes
6. Rwanda's government
- allowed Hutus in custody to testify for the defense in Tanzania
- suspended executions in accord with U.N. ICTR procedures
- withheld all cooperation with the ICTR
7. By the end of Akayesu's trial. the ICTR had
a. a significant backlog of cases to process.
b. been unable to obtain custody of major Hutu leaders responsible for genocide.
c. fully resolved early administrative problems.
d. established good working relations between European judges and African court administrators.
VI.
Primary Issues
for Judgment
A. Threshold
Requirements
1.
Did Akayesu
target victims who belonged to “a national, ethnic, racial, or religious
group”?
The
ICTR statute and relevant humanitarian law does not protect groups such as
political/ideological adversaries or economic interest groups. Hutu and Tutsi indisputably had the same
nationality, race, and religion. Both groups also spoke Kinyarwanda, further
evidence of common ethnicity. Should
the court broadly interpret the meaning of ethnicity to include the distinct
group identity historically recognized from birth by law and custom that
individual Rwandans were powerless to change?
Did the mass killing satisfy the legal definition of ethnic genocide or
was the armed conflict a civil war akin to politicide?
2.
Did Akayesu
belong to the class of offenders subject to the Geneva Conventions?
War
crimes involve military personnel during interstate conflict and to a lesser
extent internal armed conflict. Crimes
against humanity identified in customary international law and the Genocide
Convention involve both military officials and private individuals. Did the prosecution establish beyond a
reasonable doubt that Akayesu was sufficiently controlled by military superiors
to hold him accountable under Common Article 3 of the Geneva Conventions?
B. Distinctive
Crimes?
a. Could Akayesu be found guilty of both genocide and
complicity to commit genocide?
After
convicting him for genocide, would it be improper to hold him separately
accountable for complicity based on his participation at a meeting where public
officials planned the genocide?
b. Could the rapes and sexual violence ordered by
Akayesu constitute both a crime against humanity and genocide?
The prosecution charged that rape was a crime against
humanity and also violated Common Article 3.
The court might on its own authority also rule that the rapes in
evidence constituted one or more of the following crimes identified in the
genocide 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.[38]
Did the Hutu in Taba
commune rape Tutsi women as a spoil of war, or was the sexual violence intended
to destroy the group in one or more of the ways identified in the
convention? Legal experts, both men and
women, have disagreed over whether or not to characterize rape as genocide.[39]
After
an eternity of silence about sex crimes, proponents seek firm precedent
establishing rape as an extraordinarily serious offense. Forced impregnation to prevent women from
bearing children of their own ethnicity amounts to genocide. The children may
be regarded as members of the father's group and the victims thereafter
unacceptable as family partners. Gang rape and mutilation calculated to
humiliate victims furthers the group’s destruction. Rape may in different situations violate humanitarian norms
against torture, slavery, or genocide.
In Rwanda, Akayesu warned his men against seduction by Tutsi women,
promoted attacks on pregnant victims, and sought their elimination. Sexual violence was an integral component of
the genocide.
Skeptics want courts to condemn rape as a separate crime,
whether or not victims can also meet the higher burden of proving sex slavery,
forced impregnation, or genocide. A
decision finding that rapes ordered by Akayesu were crimes against humanity
would set an invaluable precedent. An
unnecessarily broad reading of the Genocide Convention might prove
counterproductive. Political interest
groups brought discredit on the U.N. General Assembly by attempting to define
Zionism as racism. Anti-racist groups had also sought U.N. resolutions
declaring that apartheid constituted slavery and genocide. Courts must take extreme care to apply legal
principles with precision. An ICTR
precedent equating rape and genocide might undermine international prosecution
for non-genocidal rape such as forced prostitution.
VII.
The
ICTR’s Akayesu Verdict
A.
The Decision
and Rationale
In
a 200 page opinion, the ICTR found Akayesu guilty on 9 of the 15 counts.[40] The judges found that Tutsis were not
technically an ethnic group, but a reasonable interpretation of humanitarian
norms justified protection because of their official classification. Akayesu
was the first defendant ever to be found guilty of genocide. He was also convicted for incitement to
genocide and all seven counts of crimes against humanity.
In
a second unprecedented decision, the judges ruled that rape constituted not
only a crime against humanity but also genocide. Akayesu intended to destroy
the group, and he singled out Tutsi women in pursuit of extirmination. The court dismissed the complicity charge
and all five counts based on Common Article 3.
The judges reasoned that the prosecution failed to establish beyond a
reasonable doubt that Akayesu functioned as part of a military unit subject to
the Geneva Conventions. Akayesu
dismissed his trial lawyers and argued on his own behalf at a pre-sentence
hearing. The court sentenced him to
life in prison along with former Prime Minister Kambanda.
In May 1998 Kambanda had entered a guilty plea on six counts that detailed his responsibility for planning and conducting genocide. He reportedly feared Rwanda’s death penalty and agreed to assist U.N. prosecutors. His admissions would expedite future trials, eliminating the need for the extensive background evidence presented against Akayesu. In February 2000 Kambanda appealed and sought to withdraw his guilty plea.
RATIONALE FOR THE ICTR JUDGMENT ON
AKAYESKU
|
Threshhold Requirements* |
Decision |
Judges' Rationale |
|
Widespread,
systematic violations |
Satisfied |
Undisputed
evidence of atrocities in Rwanda and Taba Commune. |
|
Victims from a
Protected Group |
Satisfied |
Distinct group
historically recognized in law and custom from birth. |
|
Offender covered
by the Law with individual or
command |
Satisfied for
Articles 2 and 3, |
Liability under
the Genocide Convention and customary humanitarian law, but Geneva |
|
responsibility |
not 4 |
Conventions do
not apply to the bourgmestre, a non-military post. |
|
*No requirement to show inter-state war;
ICTR statute and applicable laws cover internal armed conflict |
||
|
|
|
|
|
Statute Article#
(Indictment#) |
Verdict |
Judges' Rationale |
|
2 Genocide |
|
|
|
(1)
Genocide 18 murders |
Guilty, rape
included |
Rapes and
murders were done with intent to destroy the Tutsi. |
|
(2)
Complicity in Genocide |
Not Guilty |
Conviction for
genocide precludes separate penalty for complicity. |
|
(4)
Incitement to Genocide |
Guilty |
Direct advocacy
inspired others to acts of genocide. |
|
|
|
|
|
3 Crimes
Against Humanity |
|
|
|
(3)
Extirmination |
Guilty |
|
|
(5) Murder 5 killed |
Guilty |
|
|
(7) Murder 8 killed |
Guilty |
humanitarian
norms found in Common Article 3 and the Genocide Convention. Public officials |
|
(9) Murder 5 killed |
Guilty |
are liable both
for their own acts and for known crimes by individuals under their
supervision. |
|
(11) Torture 6 beatings |
Guilty |
|
|
(13) Rape |
Guilty |
|
|
(14) Inhumane Acts |
Guilty |
|
|
|
|
|
|
4 Common
Article 3 |
|
|
|
(6) Murder 5 killed |
Not Guilty |
Geneva
Conventions and Protocol II were only intended to apply to military personnel
and |
|
(8) Murder 8 killed |
Not Guilty |
do not cover
government officials outside the armed forces absent a showing of direct |
|
(10) Murder 5 killed |
Not Guilty |
accountability
to a commanding officer. |
|
(12) Torture 6 beatings |
Not Guilty |
|
|
(15) Outrages rape |
Not Guilty |
|
After they imposed sentence on Akayesu, Judges Kamy and Aspegren completed their service on the ICTR. The General Assembly elected Judge Pillay to another four year term, and her judicial colleagues elected her to succeed Judge Kamy as Tribunal President.
Review
Questions:
1.
In deciding the issue
of ethnicity, the ICTR judges determined that
a. Hutus and Tutsis satsfied the definition for ethnic groups based on distinct physical characteristics.
b. As a result of legal practice and social custom, Tutsis were a protected group under international law.
c. German and Belgian colonial administrators properly classified the Hutu as Bantu and the Tutsi as Nilotic.
2. A Tutsi in the RPF who killed and raped Hutus could only be convicted in the ICTR if
- the prosecutor showed intent to extirminate the majority group in whole or in part
- the rapes involved forced impregnation to increase the number of Tutsi
- the conflict was judged an international war
3. If upheld on appeal, the Akayesu verdict would
- help prosecutors in other cases establish that genocide took place
- set a precedent for convicting other village majors under Common Article 3
- set a precedent that laws against conspiracy must not infringe free speech
B.
Issues
on Appeal
Right to Counsel.
Did the Tribunal violate Akayesu’s right to counsel both at trial and on appeal? Akayesu claims that the incompetent and corrupt Registrar’s officers prevented him from having access to his first choice of counsel, Johan Scheers.[41] On the trial’s opening day, Michel Marchand of Canada attempted to defend Akayesu. The Tribunal refused to recognize him and appointed two new defense attorneys. Akayesu attempted to fire them and to represent himself. The appeal contends that the Tribunal forced him to accept the attorneys in violation of the statute. In addition, Akayesu charged his trial counsel with providing incompetent representation. When they failed to appear for the prosecutor’s closing arguments, the judges issued a formal rebuke and warning. For his appeal, Akayesu requested John Philpot, a Montreal lawyer fluent in French who promptly filed notice at the Hague. The Registrar Agwu Okali of Nigeria refused to appoint Philpot who was not on the U.N. roster of approved counsel. Okali decided that no additional Canadian and French lawyers would be added to the list. Akayesu went on a nine day hunger strike, and most of the Hutu detainees at Arusha joined his protest.[42]
The Registrar refused to yield; he reasoned that defendants had a right to retain personal counsel, but the indigent had no right to dictate the appointment of a particular attorney to be paid by the U.N. Defending its conduct, the ICTR published “The Six Lawyers of Akayesu” on the internet: “Mr Akayesu has dismissed each lawyer assigned to him for various reasons. As a result of his penchant for changing lawyers assigned to him at his request, the Tribunal has spent more than $500,000 on payments for the costs of Akayesu’s legal representation.”[43] An assistant prosecutor charged that Akayesu had deliberately obstructed the proceedings by eleventh hour dismissals.
In accord with established Secretariat practice, the Registrar wanted a more balanced geographic representation of legal personnel. U.N. Charter Article 101 calls for appointment of Secretariat staff “based on the highest standards of efficiency, competence, and integrity. Due regard shall be paid to the importance of recruiting the staff on as wide a geographical basis as possible.” Half of the 36 defense attorneys on the ICTR roster came from France and Canada. Okali would not allow more than nine from either country until additional African lawyers were listed.
Akayesu won the first appellate round with a July 1999 ruling that the Registrar should appoint Philpot. Several months later the Registrar expressed satisfaction at the more balanced representation on the list and began allowing new attorneys from France and Canada for other defendants. How should the appellate Chamber resolve Akayesu’s claim that the Registrar failed to provide adequate representation at trial?
Right to an Impartial Tribunal.
1. Was Akayesu’s prosecution a
show trial that sacrificed due process for a symbolic gesture to salvage
blemished reputations and to satisfy political constituents? Philpot argued that the Security Council
lacked authority to create a Tribunal.
Chapter VII of the U.N. Charter empowers the Council to act against
threats to the peace and to check aggression.
The Council failed to act when millions of refugees exported Rwanda’s
internal conflict to neighboring Zaire.
Philpot claimed that the partisan, ad-hoc ICTR completely ignored war
crimes against 30,000 Hutu killed by Tutsis in the civil war.
2. Did the jurists who conducted Akayesu’s trial pre-judge his guilt? Philpot’s appeal charged that all three judges in their zeal to convict violated the presumption of innocence. After witnesses completed their testimony for the prosecution, presiding Judge Kamy expressed sympathy for their suffering before the defense even began cross-examination. Judge Aspegren publicly complained about the undue liberties granted to Hutu detainees. The ICTR yielded to political pressure from Kigali and rescinded a decision ordering the release of a major Hutu detainee. In press interviews and public appearances, Judge Pillay clearly revealed her political intent to secure legal protection for women in war. An ICTY decision convicting Serbs for rape and torture did not follow the ICTR interpretation that sexual violence constituted genocide.
The Serbian’s appeal from that ICTY judgment also claimed bias by a judge with prior service on a U.N. women’s rights commission that favored punishment for rape as a war crime. The appellate chamber ruled that the woman judge from Zambia had not shown bias in conducting the trial. [44] Unlike the Nuremberg Tribunal, the ICTR did not impose “victor’s justice.” The Rwandan government complained that ICTR procedures granted guilty defendants far too many rights.
Common Article 3 and Complicity in Genocide
1. Should Akayesu also have been
found guilty under Common Article 3? Prosper’s
successor as prosecutor appealed the trial Chamber’s not guilty decisions. The appeal reviewed evidence from the trial
that supported conviction under Common Article 3: as a government official,
Akayesu carried out military directives, wore a military jacket to identify
with the armed forces, and singled out RPF “accomplices” as local enemy targets
in the national conflict.
2. Did the Tribunal also err in its holding that Akayesu could not be found separately guilty of complicity to commit genocide? Article III of the Genocide Convention separately lists five punishable acts including: (a) Genocide; (b) Conspiracy to commit genocide; and (e) Complicity in genocide. The Chamber found that rapes ordered by Akayesu could be separately punished both as genocide and as war crimes. Couldn't the same murders also support conviction for both genocide and complicity in genocide?
VIII.
Concluding
Judgments
A Washington Post journalist gave the highest praise to the ICTR verdict:
Half a century after the Nuremberg trials, the Arusha tribunal's judgment against Akayesu establishes justice in its most basic sense -- accountability to the law for criminal acts -- as an answer to bigotry in its most monstrous form, genocide. That is a small measure of justice for Rwanda: that at the end of a blood-drenched century, in which some of the great civilizations of the world likewise descended into barbarism, this tiny, tragic speck of a country, tucked away in a part of the world long maligned as the Heart of Darkness, has yielded a glimmer of light.[45]
Consider the following discussion questions in making your own final judgment.
1. As governments
prepare to grant jurisdiction to a permanent International Criminal Court for
prosecution of their own nationals, what should be learned from the ICTR
proceedings against Akayesu?
2. Do European
governments and the U.S. have the moral authority to conduct international
criminal prosecutions for atrocities in Rwanda that followed racist colonial
policies of ethnic division and after Security Council members withdrew U.N.
forces when the killing began?
3.
Should the Geneva Conventions be revised to add rape as
a “grave breach” of international humanitarian law?