Achievements and shortcomings of international criminal tribunal for Rwanda


Research Paper (postgraduate), 2009
24 Pages, Grade: A-

Excerpt

Table of Contents

ABSTRACT
Aim of paper
Hypotheses
Analytical framework
Main conclusions

1. INTRODUCTION

2. ANALYSIS OF GENOCIDE
Genocide characteristics
Humanitarian intervention
Ignorance of genocide

3. THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (ICTR)
Creation of ICTR
Landmark Cases of the International Criminal Tribunal for Rwanda

4. LEGAL, FINANCIAL AND POLITICAL ASPECTS
Evaluation of ICTR
Analytical framework
4.1. LEGAL ASPECT
Significant contribution: law of genocide and international criminal justice (achievement)
Procedural novelty (achievement)
Extension of legal concepts: universal liability, genocide, rape (achievement)
Internal misconduct and administrative proficiency (shortcoming)
Procedural justice. Role of victims. Definition of victim (shortcoming)
Length of trials. Procedural effectiveness (shortcoming)
4.2. FINANCIAL ASPECT
High costs rather than investing in social programs (shortcoming)
4.3. POLITICAL ASPECT
Establishing historical record (achievement)
National reconciliation and maintenance of peace as an aim (achievement)
Need for reconciliation of witnesses is not achieved (shortcoming)

CONCLUSION
Achievements and shortcomings
Suggestions

TABLE
Evaluation and suggestions (legal, financial, political aspect)
BIBLIOGRAPHY
ENDNOTES

ABSTRACT

Aim of paper

This paper deals with the effectiveness and achievements of ICTR that can be viewed in light of aims set out in the UN Resolution 955, 1994. In the Resolution UN is determined to: 1) have effective application and enforcement of restrictions against the warfare perpetrators; 2) bring justice and ensure that violations are halted; 3) have fair trials; 4) contribute to criminal justice and process of reconciliation and restoration and maintenance of peace.

Hypotheses

In the present paper author put forward two hypotheses. The first hypothesis is that creation of ICTR was a logical, but moderate step, which would have not been necessary if global society would have appropriately reacted to previous warnings about possible genocide in Rwanda. The second hypothesis is that ICTR was merely a vehicle of justice, but it is hardly designed as a vehicle for reconciliation.

Analytical framework

Author has discussed the work of ICTR and refer to particular aims, possibility of their achievement and assess outcomes. Author used three tools of analytical framework: legal, political and economical, as from these different standing points it is possible to assess the work of ICTR in its entirety. Legal aspects of work of ICTR extend from mere procedural points to ICTR’s contribution to legal tradition and legal developments. Author depicted which of legal aspects have undermined the authority and image of ICTR, as well as could be deemed as actual shortcomings, and how these aspects influence achievement of justice as the ultimate goal of legal authority. Financial aspect shows the costs of ICTR, but political aspect deals with assessment of set goals in the Resolution and bringing justice as a prerogative, as it is expected to be effective and appropriate.

Main conclusions

The paper shows that while making a significant contribution to the law of genocide and international criminal justice and establishing historical record (achievements), ICTR was incapable in reconciliation of witnesses and survivors and was described as “job creation for foreigners” (shortcomings).

1. INTRODUCTION

,, Dans ces pays-là, un génocide, ce n'est

pas trop important …’’

Francois Mitterand (1994) [i]

Population of Rwanda consists of three ethnic groups: Hutus (88%), Tutsis (11%), and Twa pygmies (1%). There are different resources that say how many people died during three month period of the genocide in 1994. Some of them estimate 500 000, another 800 000. However, there is also data more than 1 million people killed. In this paper last data been used. The Rwanda Patriotic Front (led by Tutsi) was victorious and formed a new government. Many refugees (mostly Hutus) moved to neighboring Zaire (approximately 2 million), Tanzania (approximately 480 000), Burundi (approximately 200 000) and Uganda (approximately 10 000). These refugees have concentrated in huge numbers at places with no sanitation, polluted water and less food. These factors have caused great suffering and mass death.[ii]

No other conflict in Africa was so violent in such a short period, in which a million people were massacred. From April to July 1994, extremist political groups organized the massacre not only against the minority Tutsi ethnic group, but also against those from the Hutu majority who were counter the killings or had been active in the pro-democracy movement. The carnage ended when rebel forces of the Rwanda Patriotic Front (hereinafter - RPF) vanquished the genocidal government. Rwanda genocide had significant impact on neighboring regions (Burundi and the Democratic Republic of Congo): it created political instability and humanitarian crises throughout the Great Lakes region.

2. ANALYSIS OF GENOCIDE

Genocide characteristics

In a record of one hundred days characterized with anarchy, Rwanda lost people as a result of ethnic conflicts between the two main ethnic groups of majority Hutu and minority Tutsi. The 1994 tragedy was indeed the climax of a long established political system that was bent on ethnic divisions and political manipulation and suppression of the minority few.

The Rwandan catastrophe was planned for a long period of time. The army (Forces Armee du Rwanda) and Interahamwe militia group went into action, on a destructive behavior of killing, misery, rape, marauding and total destruction. The genocide was characterized by massive destruction of social fabric and physical infrastructure. Rwanda is remembered simply today as the land of genocide the site of senseless massacre, which dominated world headlines over the later part of 1994.

Humanitarian intervention

The international community responded with one of the largest humanitarian assistance efforts ever mounted. The USA was one of the largest contributors. The UN peacekeeping operation (United Nations Assistance Mission for Rwanda, hereinafter - UNAMIR), was boiled down during the combat but brought back up to strength after the RPF victory. UNAMIR remained in Rwanda until March 8, 1996.[iii]

,,During the early weeks of carnage international leaders didn’t used the word “genocide”. They avoided the term because it could eliminate the obligation to confront the crime. The major international actors - Belgium, the USA, France and the UN - all understood the seriousness of the crisis within the first day even if they could not have predicted that violent conflict would eventually take place. They could use national troops or UNAMIR or a combined force of both to resist the genocide perpetrators and immediately save thousands of lives. By shattering the killing campaign at its central and most essential point, the foreign troops could impair it throughout the country. By serving as a counterweight to the elite forces under Bagosora, they could encourage dissentients to step forward as active opponents of the genocide. Nevertheless, some scholars argue that USA and Britain had ‘enlightened self-interest’ not to intervene, but France while using ‘humanitarian intervention’ collaborated with murderers and helped them escape.[iv]

The most significant international leaders were ready to cooperate on the common goal of evacuating their own citizens and expatriate employees, but they rejected any joint intervention to save Rwandan lives. Instead they focused on issues of immediate importance for their own countries: Belgium on disentangling its peacekeepers with a minimum of dishonor; the USA on avoiding committing resources to a crisis far apart from USA concerns; and France on protecting its client and its zone of Francophone influence. Meanwhile most staff at the UN were fixed on preventing another failure in peacekeeping operations, even at the cost of Rwandan lives.’’[v]

Ignorance of genocide

Rather than undertake stopping of genocide, world leaders and the UN treated it as consequence of the war and waited almost two weeks before taking action. As international leaders and at the UN only talked, some of the peacekeepers took the initiative to save lives. Inessential in terms of the numbers who needed to be saved, their exertion to carry out their mission despite that protected thousands who would otherwise almost have been killed. As the genocide perpetrators began their attacks, everyone in Rwanda looked to UNAMIR to see what it would do, but it showed that more could have been rescued if the Security Council ordered that mission and provided the means to execute it.[vi]

There were no states willing and able to stop the genocide. Moreover, Kofi Annan (head of DPKO - UN Department of Peacekeeping Operations) argued that the actions of General Dallaire (Force Commander of UNAMIR) would have violated the UN Charter. Perhaps he made the wrong decisions, but he did what the UN Charter required him to do. Nevertheless, this view is also mistaken. The actions that Dallaire wanted UNAMIR to undertake clearly would not have violated Article 2(4) of the Charter,[vii] because they would have constituted an intervention by the UN itself, not by a member state.[viii]

Paul Kagame, the Rwandan president, has criticized world powers for “abandoning” Rwanda to genocide in 1994. The president made his comments to nearly 20,000 people at a ceremony marking the 15th anniversary of the genocide. Kagame said of those who commanded the UN forces at the time: “They left them to be murdered. Aren’t they guilty? “We are not like those who abandoned people they had come to protect”.[ix]

3. THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (ICTR)

Creation of ICTR

The International Criminal Tribunal for Rwanda (ICTR) is an international court which was established by the Statute annexed to UN Security Council (SC) Resolution 955 on 8 November 1994[x] in order to judge those people responsible for the Rwandan genocide and other serious violations of the international law performed in the territory of Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994. The Tribunal has jurisdiction over violations of the Geneva Convention, genocide and crimes against humanity committed in Rwanda and by Rwandans in neighboring states in 1994.[xi] In 1995 it changed location to Arusha, Tanzania.[xii] Through several resolutions, the Security Council called on the Tribunal to complete its investigations by end of 2004, complete all trial activities by end of 2008, and complete all work in 2010.[xiii]

Landmark Cases of the International Criminal Tribunal for Rwanda

The Akayesu case (ICTR-96-4-T), decided on 2 September 1998, is a landmark case for international humanitarian law. The case marks the first time an international court interpreted the definition of "genocide" as defined in the Convention for the Prevention and Punishment of the Crime of Genocide (1948). Jean-Paul Akayesu was convicted of genocide, crime against humanity, direct and public incitement to commit genocide and was sentenced to a single sentence of life imprisonment.[xiv] The Akayesu conviction had set a precedent for more rape indictments by the Tribunal. Sexual violence crimes during the genocide are still being under investigation and prosecution.

The Kambanda case (ICTR-97-23), decided on 4 September 1998, was the first time a head of government was convicted for the crime of genocide. It was also the first time the accused pleaded guilty to genocide. Kambanda pleaded guilty to the six counts: genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, complicity in genocide, crimes against humanity (murder), punishable under Article 3 (a) of the Statute and crimes against humanity (extermination), punishable under Article 3 (b) of the Statute." Kambanda was sentenced to life imprisonment.[xv] The Tribunal has finished 29[xvi] trials.[xvii] There was also introduced restorative traditional form of justice known as Gacaca to try the thousands of genocide perpetrators still held for genocide related cases.[xviii]

4. LEGAL, FINANCIAL AND POLITICAL ASPECTS

Evaluation of ICTR

Nowadays the crucial question is „ not whether or not there should be legal constraints to warfare, but rather how these restrictions can be enforced and applied effectively against the perpetrators”.[xix] Thus creation of an international criminal tribunal was deemed as one of the means to approach this goal and setting aim to seek justice, fair trials, and application of restrictions against the warfare perpetrators was a logical step.

ICTR has had and still has troubles facing organisational problems and with every day of lengthening trials gains negative public opinion and therefore feeling of deprivation of actual justice through ICTR. Even so it has become a fully operational and efficient court, which has delivered fair trials and wealth of judgments, and has created important jurisprudence.

Analytical framework

It is disputable how important of an assessment point of view are quantitative or indicators (for instance amount of prosecuted perpetrators) in legal aspect as they not always can present bona fide level of justice. More important is to view qualitative indicators. In this analytical part author has analyzed legal, financial and political aspects of ICTR achievements and shortcomings. Author chose these aspects to show the interdisciplinary of approach dealing with evaluation of post-conflict situation. Author will assess qualitative parameters, like procedure of ICTR, problematic issues and contribution to the law of genocide and international criminal justice in general.

Even though one cannot yet make a definitive assessment of the work of the ICTR, there are authors who consider that ICTR is a great achievement in legal perspective[xx], though minding ICTR’s accomplishments we must not forget that there has been a significant critique aimed at mainly procedural behaviour of ICTR as well as shortcoming in the sphere of actually bringing reconciliation.

[...]


[i] Congopage: 1994 Le Genocide Rwandais ,,Pas Trop Important‘‘ pour Francois Mitterand (2004): http://www.congopage.com/article.php3?id_article=1280, [28.04.2009]

[ii] Global security: Rwanda civil war: http://www.globalsecurity.org/military/world/war/rwanda.htm, [28.04.2009]

[iii] Ibid

[iv] Eberlein, Ruben (2004): 15 Years after the Rwandan Genocide: Hutu Power and its Friends Jungle World 15/04 under the title ‘Die Freunde der Hutu-Power’. http://rubeneberlein.wordpress.com/2009/04/02/hutu-power-and-its-friends/ [28.04.2009]

[v] Human rights watch (1999): ,,Leave None to Tell the Story, Genocide in Rwanda’’. http://www.hrw.org/legacy/reports/1999/rwanda/Geno15-8-01.htm#P6_46, [28.04.2009]

[vi] Ibid.

[vii] “Would Dallaire’s proposed actions would have violated Article 2(7) of the UN Charter, which forbids the UN to intervene in matters essentially within the domestic jurisdiction of any state? Among UNAMIR’s official tasks was “to contribute to the security of the city of Kigali inter alia within a weapons-secure area established by the parties in and around the city. ,,Also relevant is “Operational Directive No. 02: Rules of Engagement” (Interim), File No. 4003.1, of November 19, 1993, extensively cited by Des Forges. The UNAMIR mandate allowed the peacekeepers to use force in self-defense, which was defined as including “resistance to attempts by forceful means to prevent the Force from discharging its duties under the mandate of UNAMIR.” Also it was not prohibited to use their weapons “to defend themselves, other UN lives, or persons under their protection against direct attack” and, even more broadly, they were directed to use armed force “when other lives are in mortal danger”. In addition, the strong language of Paragraph 17 of the Rules of Engagement specified that the force was “morally and legally obligated” to “use all available means” to halt “ethnically or politically motivated criminal acts” and that it “will take the necessary action to prevent any crime against humanity.” (Des Forges 1999) ”

[viii] Pogge, Thomas (2003): ,,Power vs. Truth- Realism and Responsibility. [Nasjonalt etikknettverk]‘‘, www.etikk.no/globaljustice/papers/GJ2003_Thomas_Pogge_Power_vs._ Truth_-_Realism_and_Responsibility.doc, [28.04.2009]

[ix] Africaloft: ,World Ignored Rwanda Genocide‘ (2009): http://www.africanloft.com/world-ignored-rwanda-genocide/, [28.04.2009]

[x] United Nations: Security Council resolutions (1994): http://www.un.org/Docs/scres/1994/scres94.htm, [28.04.2009]

[xi] Inside Justice, United Nations Courts and Tribunals (2009): http://www.insidejustice.com/law/index.php/intl/2005/03/04/un_courts_tribunals#ICTR, [28.04.2009]

[xii] United Nations Security Council Resolution 977 S-RES-977(1995): http://www.undemocracy.com/S-RES-977(1995).pdf ,[28.04.2009]

[xiii] United Nations Security Council Resolution 1824 S-RES-1824(2008): http://www.undemocracy.com/S-RES-1824(2008)/page_1/rect_184,654_830,862, [28.04.2009]

[xiv] Inside Justice, United Nations Courts and Tribunals (2009): http://www.insidejustice.com/law/index.php/intl/2005/03/04/un_courts_tribunals#ICTR, [28.04.2009]

[xv] Ibid.

[xvi] Another 24 ( including Nshogoza) trials are in progress. 7 individuals are awaiting trial in detention; but the prosecutor intends to transfer 2 cases (Bucyibaruta Laurent (ICTR-05-85) (France) and Munyeshyaka Wencelas (ICTR-05-87) (France)) to national jurisdiction for trial. 7 persons are awaiting trial (including Muvunyi Tharcisse (ICTR-00-55) (Retrial)), 3 individuals are died (Musabyimana Samuel (ICTR-01-62) (Died before trial), Ntakirutimana Elizaphan (1: ICTR-96-10; 2: ICTR-96-17) (Died after his release upon completion of his sentence) and Serugendo Joseph (ICTR-05-84) (Died while serving his sentence)). 5 individuals were released (after completing his sentence or because of insufficient evidence).

[xvii] International Criminal Tribunal for Rwanda, Status of cases (2009): http://69.94.11.53/ENGLISH/cases/status.htm, [28.04.2009]

[xviii] Ibid.

[xix] Harhoff, Frederik. The Rwanda Tribunal A presentation of some legal aspects//International Review of the Red Cross, 31.12.1997 http://www.icrc.org/Web/eng/siteeng0.nsf/html/57JNZ4 [18.04.2009]

[xx] Kantonen, Arto (2006) Rwanda Crisis and Genocide in Case Law of Rwanda Tribunal, pp. 68-69 [Helsinki University] http://ethesis.helsinki.fi/julkaisut/oik/julki/pg/kantonen/rwandacr.pdf, [19.04.2009].

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Details

Title
Achievements and shortcomings of international criminal tribunal for Rwanda
College
University of Basel  (Europainstitut)
Course
Friedensförderungsseminar
Grade
A-
Author
Year
2009
Pages
24
Catalog Number
V160068
ISBN (eBook)
9783640762057
ISBN (Book)
9783640762316
File size
647 KB
Language
English
Tags
Rwanda, ICTR
Quote paper
Karina Oborune (Author), 2009, Achievements and shortcomings of international criminal tribunal for Rwanda, Munich, GRIN Verlag, https://www.grin.com/document/160068

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