The
Statute of the ICTR grants the Tribunal the right to try persons
accused of genocide (art. 2), crimes against humanity (art.
3), and certain war crimes applicable to internal armed conflicts
(art. 4). Like the Yugoslav Statute, the Rwanda Statute also
considers criminal responsibility as individuals and as superiors
(art. 6(1) and 6(3)). Owing to differences in events on the
ground (Rwanda being primarily an internal conflict characterized
by genocide) the language of the ICTY and ICTR Statutes varies
somewhat as to what may be prosecuted within each respective
court.
The
ICTY and ICTR are separate institutions, each having its own
Statute and Rules of Procedure and Evidence. Neither Tribunal
is bound by the jurisprudence of the other, although they
tend to rely upon and agree substantively with the legal conclusions
in prior decisions of the Tribunals. However, the ICTY and
ICTR do share a common Appeals Chamber, which has adopted
the following position on precedent: "[I]n the interests
of certainty and predictability, the Appeals Chamber should
follow its previous decisions, but should be free to depart
from them for cogent reasons in the interests of justice."
(Aleksovski Appeals Chamber Judgment (ICTY) of 24 March 2000,
adopted by the Semanza Decision, Separate Opinion of Judge
Shahabuddeen (ICTR) of 31 May 2000).
Thus
far, the ICTR has tried approximately ten cases, with about
dozen accused. Approximately four cases are in various stages
of the appeals process. Below are summaries of the most notable
precedents to date.
Prosecutor
v. Akayesu
The
Akayesu case was the first international genocide trial
in history, and its findings have been relied upon quite extensively
by subsequent ICTR decisions. Jean-Paul Akayesu was the bourgmestre
(mayor) of Taba commune in Rwanda. In this position he had
significant authority or influence over military, political,
and civil activities in Taba. As a result of mass crimes committed
in his territory by Hutus against Tutsis and Hutu moderates,
Akayesu was charged with genocide, crimes against humanity,
and war crimes for crimes including extermination, murder,
rape, torture, and other inhumane acts.
The
Trial Chamber considered the scope and elements of genocide.
In its Judgment (Sept. 2, 1998), the Trial Chamber held that
to incur responsibility for genocide, any one of an enumerated
list of acts must be committed against an individual specifically
because the individual belonged to a racial, ethnic, religious,
or national group. The "victim is chosen not because
of his individual identity, but rather on account of his membership"
in the protected group. It thus concluded that a victim of
genocide "is the group itself and not only the individual."
The Trial Chamber defined each protected group: in general,
an ethnic group is one "whose members share a common
language or culture"; members of a religious group "share
the same religion, denomination or mode of worship";
a national group constitutes "a collection of people
who are perceived to share a legal bond based on common citizenship,
coupled with reciprocity of rights and duties"; and a
racial group "is based on the hereditary physical traits
often identified with a geographical region, irrespective
of linguistic, cultural, national or religious factors."
In considering whether groups protected by the Genocide Convention
should be limited to these four groups, the Chamber opined
that protection should extend to "any stable and permanent
group," markedly extending the reach of the Convention.
The
Trial Chamber held that direct and public incitement
to commit genocide is punishable even if the accused is not
successful in achieving the result desired; contrarily, for
complicity in genocide to be punishable, it must be
proven that genocide has indeed been committed.
Considering
the scope of crimes against humanity, the Trial Chamber noted
that certain inhumane acts must be committed as part of a
widespread or systematic attack against a civilian population.
It defined a civilian population broadly, as comprising "people
who are not taking any active part in the hostilities, including
members of the armed forces who laid down their arms and those
persons placed hors de combat by sickness, wounds,
detention or any other cause." Notably, it would appear
that crimes against humanity historically associated
with civilians can be committed against prisoners of
war.
The
ICTR defined rape and sexual violence for the first time in
international law. Rape was found to constitute "a physical
invasion of a sexual nature committed on a person under circumstances
which are coercive." Sexual violence, which includes
and is broader than rape, is "any act of a sexual nature
which is committed on a person under circumstances which are
coercive."
The
Trial Chamber convicted Akayesu of genocide and crimes against
humanity for a number of crimes, including historic convictions
of rape as a crime against humanity and as an instrument of
genocide.
Prosecutor
v. Kambanda
This
case represents the first time that a former head of government
has been convicted of genocide or crimes against humanity
by an international tribunal, and confirms that heads of states
do not have immunity from criminal responsibility for certain
international crimes.
The
accused, Jean Kambanda, was the Prime Minister of Rwanda during
the 1994 genocide. Charged with six counts of genocide and
crimes against humanity for extermination and murder, Kambanda
pleaded guilty. The Trial Chamber accepted his guilty plea
as valid, and in its Judgment (Sept. 4, 1998) sentenced Kambanda
to life imprisonment. Kambanda appealed both the sentence
and the judgment, challenging the validity of the guilty plea
and seeking a new trial. The Appeals Chamber Judgment (Oct.
19, 2000) upheld the judgment and sentence.
Prosecutor
v. Barayagwiza
This
case, in which the rights of the accused were central, exploded
in controversy well before it went to trial. Jean Bosco Barayagwiza
was charged with genocide and crimes against humanity. However,
after alleging that his due process rights had been violated
(including that there was a substantial delay in transferring
him to the Tribunal after his arrest; that he was not promptly
informed of the charges against him; and that his writ of
habeas corpus petition had been ignored), and consequently
that his arrest and detention were illegal, he filed an extremely
urgent motion to review and nullify the arrest. The Appeals
Chamber (Nov. 3, 1999) agreed with the accused that his due
process rights had been repeatedly violated by the prosecution.
As a remedy, it dismissed the indictment against him, with
prejudice (meaning that no other court could prosecute him),
and ordered his immediate release.
Outraged, the government of Rwanda announced it would no longer
cooperate with the Tribunal, thus crippling the ability of
the Tribunal to function. The Prosecutor immediately filed
a request for review or reconsideration, asserting that new
facts had come to light which showed that the due process
violations were not as extensive as they had appeared, and
that any violations were not attributable to the prosecution.
In its review of the Decision, the Appeals Chamber (March
31, 2000) concurred largely with the prosecution. It found
that the new information showed that the defendants
rights had still been violated, but the violations were not
nearly as egregious as previously appeared, and most were
not the fault of the prosecution or the Tribunal. Holding
that all violations require a remedy, but that the remedy
should be proportionate to the harm, the Appeals Chamber altered
its previous ruling. Although it now declined to release Barayagwiza,
the Chamber decided that after the trial on the merits, if
the appellant is found not guilty, he will be entitled to
financial compensation; if he is found guilty, "his sentence
shall be reduced to take account of the violation of his rights."
Note on ICTR Precedent:
Of
particular interest is what the Appeals Chamber will hold
in regards to war crimes. In the ICTR, no defendant has yet
been convicted of a war crime, although there have been findings
of guilt of genocide and crimes against humanity. The standard
adopted in Akayesu and followed by subsequent ICTR
judgments that an accused must be acting in "furtherance
of the war effort" to be found guilty under Article 4
of the Statute is up on appeal and will hopefully be
reversed. In applying this standard, the Trial Chambers appear
to be concluding that there was genocide in Rwanda and an
armed conflict in Rwanda, running parallel to each other,
and each of the crimes committed by the accused were committed
during the course of the genocide, not as part of the armed
conflict, even when military leaders are the defendants. All
ICTR defendants have thus far been acquitted of the war crime
charges. This serves as devastating precedent for prosecuting
war crimes in other internal armed conflicts.
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