INTERNATINAL CRIMINAL TRIBUNAL FOR RWANDA: GENOCIDE

/ CEZA HUKUKU / Yazan

Introduction

The crime of genocide was first described in the Nuremberg Trial for the Nazi Holocaust as a “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. However, it was not specifically mentioned in the Nuremberg court decisions.[1] One of the courts that contribute to international criminal law regarding the definition of the crime of genocide is the International Criminal Tribunal for Rwanda (ICTR). ICTR was established by United Nation (UN) Security Council (SC) in 1995 with Resolution 955 in Arusha under Chapter VII and ICTR gave verdict of conviction from genocide.[2] This court was also set up in time to crimes committed between 1 January 1994 and 31 December and individuals were tried, not states. This article examines the striking decisions of the ICTR regarding the protected groups, special intent, public incitement and gender crimes in terms of defining the crime of genocide.

  1. The Events That Leading to The Establishment of ICTR in Rwanda

There was violence and propaganda against Tutsi individuals just for their existence in Rwanda. Women were raped, children belonging to other groups were forced to give birth to bring the world. Approximately 75% of the Tutsi people were killed even children are not forgiven. People, including women and children, were burned alive. In Hutu-dominated Radio Television Libre des Millis Collines (RTLM) and a pictorial magazine, Kangura, the people were encouraged to genocide. Songs were sung to promote genocide by Bikindi. Unfortunately, for a while, the states remained silent to the genocide.

UN want to establish a court to try these crimes based on International Criminal for Former Yugoslavia (ICTY) jurisprudence. Some states fear that ICTY could be permanent court, so they didn’t want to the court to be established. Rwanda government supported to established of the court. As we said before, ICTR was established by the SC with Resolution 955 to try these crimes under the genocide.

  • Genocide

The crime of genocide was organized with Holocaust in mind, but in Nuremberg Tribunal didn’t convict of genocide, tried crimes against humanity. Namely, the first time ICTY tried from genocide after a long time. Genocide is a serious crime because of that it called ‘crime of crimes’. Hannah Arendt said no punishment suffer for these crimes. As a word Genocide consist of the words ‘geno’ which means tribe or race in Greek, and ‘cedere’ which means to kill in Latin. Crime of genocide can be committed against national, religious, ethnic and racial groups. It isn’t possible to commit genocide according to the political view or against groups which promoted by the states. It is argued that involuntary identity is a feature of protected group in which genocide was committed. Genocide is defined as a crime committed against these groups with the intention of destroy them partially or completely.

  • Defining of Protected Groups

The protected group is defined as a national, ethnic, religious and racial group in Article II(II) of the ICTR statute. This group limitation can’t be expanded by comparison. Namely, systematic attacks against civilians due to a political connection can’t be considered as genocide. There were no ethnic, national, religious or racial differences between Tutsis and Hutus groups in Rwanda. ICTR, consider the events in ship between Hutus and Tutsis, had decided that social facts aren’t collective identities and ethnicities, but social structures depend on perception. For the first time, ICTR attracted attention from an objective conception of ethnic origin to the combination of objective and subjective elements in Kayishema case.[3] In other words, it emphasized that both perception and self- perception are important.[4] The court concluded that Tutsis who see themselves as a different and Hutus who see them as different from themselves have separate ethnic origins. Although this was an appropriate decision for that period, it was criticized in terms of the fact that this determination was very ambiguous and if the subjective perception was considered, many events were evaluated within the scope of genocide.  

  • Special Intention Review

Article II of the ICTR statute mentions the intention to destroy the protected groups in whole or in part. It is difficult to detect the existence of intention because of that intention is a subjective term. Intention is when the perpetrator knows that they will cause a certain result or is aware that events will occur in the ordinary course of life. ICTR stated that intention was a difficult mental factor to determine in Musema case. The court also mentioned that certain facts could be used in determining the intention in this case. It states that the intention of genocide could be deduced from the nature of the crime committed systematically. It ruled that determination should be made considering factors such as the extent of the persecution committed in a region or country, its general characteristics, and deliberate and systematic targeting due to their membership in a particular group.[5]

  • Public Incitement

At that time, there were also broadcast on the radio station (RTLM) that the Tutsis were a cockroach and that they should be killed. The newspaper (Kangura) also tried to incite hatred towards the Tutsis group. In addition, song on the genocide against Tutsis were sung by the singer named Bikindi.[6] Speech is used as a weapon.ICTR also tried the cases of incitement of genocide. Media cases of ICTR were filed against CEO of RTLM, editor and director of Kangura. The indictments concern the media as an open call to insult the Tutsi minority and to show hatred to them.  Pillay, one of the three judges who will decide in the media case, stated that to Nahimana: ‘Without a firearm, machete or physical weapon, [you] caused the deaths of thousands of innocent civilians’[7]. ICTR acted on 4 basic criteria in media cases. These are; aim, text, context, and the relationship between speaker and subject. The court ruled that it was known that the media influencing the public and dragging the public into hatred against the Tutsis would lead to genocide. In other words, based on the influence of the media on the public, ICTR admitted that there was an intention of destruction sought for the crime of genocide. As a result, the court assigned a primary role to media in the planning of the genocide based on common Article 3 of the Geneva Conventions and of Additional Protocol II.

  • Gender Crimes Under the Genocide

One of the most important contributions of the ICTR to international law is that its recognition of sexual violence, including rape, as a means of committing genocide. The Akayesu case is very important in this sense. At that time, sexual crimes against women were high with the influence of the media. women were walked naked in front of Hutus. women have been systematically raped. moreover, there are rapes against children. Women, including children (these children are said to be children around the age of 6), were killed even with their legs open. In addition, women were killed by cutting their genitals. The vaginal areas of the murdered women and children were swollen from these systematic rapes. The trial of such a big crime under the name of genocide by the court also shows how great its contribution to international law is. Although the indictment did not include any form of sexual violence, the court stated that sexual violence, mutilation, interrogation, beating or death threats were acts of bodily injury and stated that these crimes were part of the genocide in the Kayishema and Ruzindana decision.[8] The court accepted that the systematic sexual violence included the destructive intention sought for genocide. It decided that the forced birth policy or sterilization of women was intended to eradicate that race. Moreover, the psychological perspective of the court is very important. The court referred to people’s tendency to cling to life as the mental and physical effects of sexual violence. ICTR acknowledged that people who were subjected to sexual violence were already isolated from life and therefore had an intention to be destroyed.

Conclusion

The greatest importance of the ICTR in international law stems from its contribution to the definition of genocide. The court expanded the scope of protected groups in Kayishema case. Although it was criticized in international law in this respect, in my opinion, it made an appropriate evaluation in terms of the events that took place in that period. The court also drew attention to the difficulty of determining specific intent in Musema case and set certain criteria. It acknowledged the existence of special intent, emphasizing the effect of media in incitement to genocide in Media cases. He accepted the intention of destroying in the systematic sexual violence against women and children at that time and stated that sexual violence was a part of the genocide in the Kayishema and Ruzindana decision. All these show the importance of the Rwanda court in terms of international law.

REFERENCES

  1. Askin Kelly Dawn, ‘Gender Crimes Jurisprudence in the ICTR: Positive Developments Special Issue: Genocide in Rwanda: 10 Years On: Focusing on ICTR Case Law’ (2005) 3(4) Journel of İnternational Criminal Justice, 1007.
  2. Carsten Stahn, ‘A Critical Introduction to International Criminal Law’ (2019), Cambrige University Press, 1.
  3. Hollie Nyseth Brehm, Christopher Uggen, Jean-Damascene Gasanabo, ‘Age, Gender, and The Crime of Crimes: Toward a Life-Course Theory of Genocide Participation’(2016) 54(4) Criminology 713, 714
  4. Mose Erik, ‘Main Achievements of the ICTR Special Issue: Genocide in Rwanda: 10 Years On: Appraising the Role of the ICTR (2005) 3(4) Journel of İnternational Criminal Justice, 920, 921.
  5. Payam Akhavan, ‘The Crime of Genocide in the ICTR Jurisprudence Special Issue: Genocide in Rwanda: 10 Years On: Focusing on ICTR Case Law’ (2005) 3(4) Journel of İnternational Criminal Justice, 989.

[1] Hollie Nyseth Brehm, Christopher Uggen, Jean-Damascene Gasanabo, ‘Age, Gender, and The Crime of Crimes: Toward a Life-Course Theory of Genocide Participation’(2016) 54(4) Criminology 713, 714

[2] Mose Erik, ‘Main Achievements of the ICTR Special Issue: Genocide in Rwanda: 10 Years On: Appraising the Role of the ICTR (2005) 3(4) Journel of İnternational Criminal Justice, 920, 921.

[3] Payam Akhavan, ‘The Crime of Genocide in the ICTR Jurisprudence Special Issue: Genocide in Rwanda: 10 Years On: Focusing on ICTR Case Law’ (2005) 3(4) Journel of İnternational Criminal Justice, 989, 1001.

[4] Carsten Stahn, ‘A Critical Introduction to International Criminal Law’ (2019), Cambrige University Press, 1, 36.

[5] Payam Akhavan, ‘The Crime of Genocide in the ICTR Jurisprudence Special Issue: Genocide in Rwanda: 10 Years On: Focusing on ICTR Case Law’ (2005) 3(4) Journel of İnternational Criminal Justice, 989, 997.

[6] Carsten Stahn, ‘A Critical Introduction to International Criminal Law’ (2019), Cambrige University Press, 1, 49.

[7] Nahimana Trial Judgment, para. 1099.

[8] Askin Kelly Dawn, ‘Gender Crimes Jurisprudence in the ICTR: Positive Developments Special Issue: Genocide in Rwanda: 10 Years On: Focusing on ICTR Case Law’ (2005) 3(4) Journel of İnternational Criminal Justice, 1007, 1013.