Journal of International Criminal Justice Advance Access originally published online on July 29, 2005
Journal of International Criminal Justice 2005 3(4):989-1006; doi:10.1093/jicj/mqi060
| ||||||||||||||||||||||||||||||||||||||||||||||||||
IV. Focusing on ICTR Case Law |
The Crime of Genocide in the ICTR Jurisprudence
* LL.B. (Osgoode), LL.M., S.J.D. (Harvard); Senior Fellow, Orville H. Schell, Jr. Center for International Human Rights, Yale Law School, and Visiting Fellow, Yale University Genocide Studies Program; formerly Legal Advisor to the ICTY–ICTR Prosecutor's Office. [pakhavan{at}post.harvard.edu]
The jurisprudence of the International Criminal Tribunal for Rwanda (ICTR) has properly focused on the special intent (dolus specialis) to destroy a group as the distinguishing characteristic of genocide and differentiated it from result-oriented crimes. Although the ICTR has crowned genocide as ‘the crime of crimes’, it has simultaneously dethroned it by holding that it attracts the same sentence as other humanitarian law violations. Nonetheless, ICTR jurisprudence attaches considerable importance to characterizing the destruction of the Tutsi as genocide as distinct from crimes against humanity. Because the Tutsi cannot be readily distinguished as one of the protected groups under the Genocide Convention, Trial Chambers have gone to great lengths to characterize them as an ‘ethnic’ group in order to justify the label of genocide.
1 Judgment, Akayesu (ICTR 96–4-T), Trial Chamber I, 2 September 1998.
2 UN Information Centre (Pretoria), Statement by U.N. Secretary-General Kofi Annan on the Occasion of the Announcement of the First Judgement in a Case of Genocide by the International Criminal Tribunal For Rwanda. UN doc. PR/10/98/UNIC, 1998.
3 Judgment, Kambanda (ICTR 97–23-S), Trial Chamber I, 4 September 1998, 
16.
5 See, e.g. Hersch Lauterpacht's remark that ‘to a considerable extent, the [Genocide] Convention amounts to a registration of protest against past misdeeds of individual savagery rather than to an effective instrument of their prevention or repression’ in L. Oppenheim, International Law: A Treatise, H. Lauterpacht (ed.), Vol. I (8th edn, London: Longmans, 1955).
6 ‘Convention on the Prevention and Punishment of Genocide’, 78 UNTS 277 (1951).
7 See Akayesu, supra note 1, 496, where the Chamber notes ‘that Rwanda acceded, by legislative decree, to the Convention on Genocide on 12 February 1975’. For a record of accession to the Convention, see http://www.ohchr.org/english/countries/ratification/1.htm (visited 13 April 2005).
8 Akayesu, supra note 1, 495; see also the Judgment in Musema (ICTR 96–13-A), Trial Chamber I, 27 January 2000, 151 and in Rutaganda (ICTR 96–3), Trial Chamber I, 6 December 1999, 46.
9 ‘Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide’, Advisory Opinion, ICJ Reports 1951. It should be noted that the Akayesu (supra note 1), Musema and Rutaganda (supra note 8) decisions also refer to the ICTY's Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808. UN doc. S/25704, 1993, 45, which states: ‘The Convention is today considered part of international customary law as evidenced by the International Court of Justice in its Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951’. Thus, the ICTY Secretary-General's Report also relies on the ICJ Advisory Opinion in asserting the customary law character of the prohibition against genocide.
11 R.S. Clark, ‘Crimes against Humanity’, in G. Ginsburgs and V.N. Kudriavtsev (eds), The Nuremberg Trial and International Law (Dordrecht: Nijhoff, 1990), at 194.
13 M. Bossuyt, Guide to the Travaux Préparatoirs of the ICCPR (Dordrecht: Nijhoff, 1987), at 331.
14 See, e.g. T. Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford: Clarendon, 1989), at 8–9.
15 Judgment, Kayishema (ICTR-95–1-T), Trial Chamber II, 21 May 1999, 91.
18 Musema, supra note 8, 164; see also Akayesu, supra note 1, 518.
20 Judgement, Rutaganda (ICTR-96–3-A), Appeals Chamber, 26 May 2003, 524.
21 Akayesu, supra note 1, 520.
23 See Kayishema, supra note 15, 92.
24 Akayesu, supra note 1, 479.
28 See, e.g. Judgment, Krsti
(IT-98–33-A), Appeals Chamber, 19 April 2004, 141.
29 It may be noted that the crime of genocide under Art. 6 ICCSt. does not include the punishable acts under Art. III of the Convention. The acts are subsumed by Art. 25 — a general provision on individual criminal responsibility — although Art. 25(3)(e) retains ‘direct and public incitement to genocide’ as a distinct category.
34 See, e.g. Musema, supra note 8, at 192, stating that ‘the requisite intent for the crime of conspiracy to commit genocide is, ipso facto, the intent required for the crime of genocide, that is the dolus specialis of genocide’.
35 Ibid., 194, stating that ‘the crime of conspiracy to commit genocide is punishable even if it fails to produce a result, that is to say, even if the substantive offence, in this case genocide, has not actually been perpetrated’. See also Akayesu, supra note 1, 560, stating that ‘the person who is inciting to commit genocide must have himself the specific intent to commit genocide’.
36 See, e.g. Akayesu, supra note 1, 562, stating that ‘genocide clearly falls within the category of crimes so serious that direct and public incitement to commit such a crime must be punished as such, even where such incitement failed to produce the result expected by the perpetrator’.
37 See, e.g. Rutaganda, supra note 8, 34, stating that ‘attempt is by definition an inchoate crime, inherent in the criminal conduct per se irrespective of its result’.
38 See Musema, supra note 8, 172, where the Chamber ‘notes from the Travaux Préparatoires of the Genocide Convention that the crime of complicity in genocide was recognised only where genocide had actually been committed. The Genocide Convention did not provide the possibility for punishment of complicity in an attempt to commit genocide, complicity in incitement to commit genocide nor complicity in conspiracy to commit genocide, all of which were, in the view of some States, too vague to be punishable under the Convention’.
39 See, e.g. Musema, supra note 8, 198, holding that ‘the crime of conspiracy was included to punish acts which, in and of themselves, did not constitute genocide. The converse implication of this is that no purpose would be served in convicting an accused, who has already been found guilty of genocide, for conspiracy to commit genocide, on the basis of the same acts’; but see the Judgement in Nahimana (ICTR-99–52-T), Trial Chamber I, 3 December 2003, holding all accused guilty of both genocide and conspiracy to commit genocide; see also Akayesu, supra note 1, 562, holding that ‘the fact that such acts are in themselves particularly dangerous because of the high risk they carry for society, even if they fail to produce results, warrants that they be punished as an exceptional measure’ and 675 where the Chamber finds that ‘the direct and public incitement to commit genocide as engaged in by Akayesu, was indeed successful’, thus considering it to be a separate ground for liability in addition to genocide.
40 Akayesu, supra note 1, 497.
41 Judgment, Jelisi (IT-95–10-T), Trial Chamber I, 14 December 1999, 100.
42 See Report of the Preparatory Commission for the International Criminal Court, Addendum, Elements of Crimes, UN doc. PCNICC/2000/1 (2000), Article 6 at 6–8.
43 Although Art. 21(1)(a) ICCSt. include the Elements of Crimes as part of the applicable law, Art. 9(1) provides that they ‘shall assist the Court in the interpretation’ of crimes within the ICC's jurisdiction.
44 Article 10 expressly provides: ‘Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.’
46 Kambanda, supra note 3, 16.
47 Judgement, Kayishema (ICTR-95–1-A), Appeals Chamber, 1 June 2001, 367.
48 H. Wechsler, W.K. Jones and H.L. Korn, ‘The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempts, Solicitation and Conspiracy’, in 61 Columbia Law Review (1961) 571, at 579.
49 See, e.g. Krsti, supra note 28, 6–23.
50 Kayishema, supra note 15, 96.
51 See Judgment, Bagilishema (ICTR 95–1A-T), Trial Chamber I, 7 June 2001, 64, and Judgment, Semanza (ICTR 97–20-T), Trial Chamber III, 15 May 2003, 316.
54 See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, GAOR, 50th Sess., Supp. No. 22, UN doc. A/50/22 (1995), 60–61.
60 See Summary Records of the meetings of the Sixth Committee of the General Assembly. UN doc. GAOR, 21 September–10 December 1948, 3rd Sess., 6th Committee, 97.
61 Akayesu, supra note 1, 513.
64 Kayishema, supra note 15, 98.
66 Rutaganda, supra note 8, 56.
69 ICTY Judgement, Kupre
ki (IT-95–16-T), Trial Chamber II, 14 January 2000, 636.
70 Kayishema, supra note 47, 151.
71 Akayesu, supra note 1, 502.
73 Kayishema, supra note 15, 109.
74 Akayesu, supra note 1, 706–707 and 711–712.
80 See Report of the International Law Commission on the Work of Its Forty-Eighth Session. UN doc. A/51/10, 6 May–26 July 1996, GAOR, 51st Sess., Supp. No. 10, 91.
81 See Draft Convention on the Crime of Genocide, UN doc. E/447 (1947), 6–7.
82 See L. Kuper, Genocide: Its Political Use in the Twentieth Century (New Haven: Yale University Press, 1981), at 12 (referring to Winston Churchill's statement that the Holocaust was a ‘crime without a name’).