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.
RAPE and Genocide IN RWANDA: The ICTR’s Akayesu Verdict 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 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[i][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.[ii][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.[iii][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?

[pic] 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.[iv][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.”[v][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.”[vi][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."[vii][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.[viii][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.[ix][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 ...."[x][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.[xi][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.[xii][12] Under the U.S. alien tort claims act, women from Ethiopia and Bosnia brought civil actions to recover damages for sexual attacks. [xiii][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 ...."[xiv][14] l 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.[xv][15]. Belgium practiced divide and rule, granting to minority Tutsis more power, educational opportunities, social and economic privileges than the Hutu.[xvi][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,[xvii][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.[xviii][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.[xix][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.[xx][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.[xxi][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.[xxii][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.” [xxiii][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”.[xxiv][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.

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).[xxv][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.[xxvi][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.[xxvii][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.[xxviii][28] In a two year period the prosecutors indicted only forty individuals for the $60 million tribunal.[xxix][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.[xxx][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.[xxxi][31]

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.”[xxxii][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."[xxxiii][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".[xxxiv][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,[xxxv][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...[xxxvi][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.[xxxvii][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

VI. VI. Primary Issues for Judgment A. Threshold Requirements
1. 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. 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. 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. 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.[xxxviii][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.[xxxix][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. VII. The ICTR’s Akayesu Verdict A. A. The Decision and Rationale In a 200 page opinion, the ICTR found Akayesu guilty on 9 of the 15 counts.[xl][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 |Satisfied for Articles 2 and|Liability under the Genocide Convention and customary |
|individual or command |3, |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.

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.[xli][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.[xlii][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.”[xliii][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. [xliv][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. 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.[xlv][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. 3. Should the Geneva Conventions be revised to add rape as a “grave breach” of international humanitarian law?

[pic]

-----------------------
[i][1] Interview, quoted by Bill Berkeley, “Judgment Day,” Washington Post, October 11, 1998, Sunday Magazine, Pg. W10.
[ii][2]Internews Reports on the International War Crimes Tribunal for Rwanda, U.N. RWANDA COURT ELECTS NEW LEADERSHIP Arusha, June 5, 1999. http://www.internews.org/PROJECTS/ICTRnews
[iii][3] 42 organizations led by Working Group on Engendering the Rwandan Criminal Tribunal; Rhonda Copelon, International Women's Human Rights Law Clinic; and Jennifer Green, Center for Constitutional Rights. In the Trial Chamber of the International Criminal Tribunal for Rwanda The Amicus Brief regarding Rape in Rwanda Respecting Amendment of the Indictment and Supplementation of the Evidence to Ensure the Prosecution of Rape and Other Sexual Violence Within the Competence of the Tribunal.
[iv][4] Thucydides, Reflections on the Peloponnesian War, reprinted in Classic Readings of International relations 183 (Phil Williams, Donald M. Goldstein & Jay M. Shafritz eds., Wadsworth Publishing Company, 1994).
[v][5] Quoted in Niarchos, Catherine N. Women, War and Rape: Challenges Facing The International Tribunal for the Former Yugoslavia, 17 Human Rights Quarterly 649 (1995).
[vi][6] Theodor Meron, Rape as a Crime Under International Humanitarian Law, 87 Am. J. Int’l L. 424 (1993). at 112
[vii][7] Convention Respecting the Laws and Customs of War on Land, with Annex of Regulations, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631 (Hague Convention No. IV), reprinted in M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 638 (1992) (discussing the philosophical justifications behind this category of crimes).
[viii][8] Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and the Charter of the International Military Tribunal London, August 8, 1945, Charter of the International Military Tribunal, 59 Stat. 1544, 82 U.N.T.S. 279 (1945).
[ix][9] 1 The Tokyo Judgment: the International Military Tribunal for the Far East, 29 Apr. 1946 12 Nov. 1948, at 389 (B. V. A. Roling & C. F. Ruter eds., 1977).
[x][10] Yamashita v. Styer, 327 U.S. 1, 51, 66 S.Ct. 340, 366 (1946).
[xi][11] Article 4, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977, art. 4, 1125 U.N.T.S. 609.
[xii][12] Christine Strumpen-Darrie, “Rape: A Survey of Current International Jurisprudence,” 7 Human Rights Brief 12 Spring, 2000
[xiii][13] (Doe) Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995). Bill Miller and Christine Haghney, "War Crimes Trials Find a U.S. Home," Washington Post, August 9, 2000 A 1.
[xiv][14] The Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9* (1999) art. 7. (g) 120 nations, not including the U.S. signed the draft treaty.
[xv][15] See Jeremy Sarkin, The Necessity and Challenges of Establishing a Truth and Reconciliation Commission in Rwanda, 21 H. Rts. Q. 767, 773 (1999).
[xvi][16] Gerard Prunier, The Rwanda Crisis: History of a Genocide, 39, (1995).
[xvii][17] In March 2000, reports surfaced that Tutsi Paul Kagame, the vice-president of Rwanda and former RPF military leader, may have ordered the assassination. Three informants claim Kagame instructed them to assassinate the Presidents because the RPF was displeased with the slow pace of the peace talks. The United Nations and Louise Arbour, the chief Prosecutor for the International Criminal Tribunal for Rwanda, may have known about this information as early as August 1, 1997. If true, not only could the Tutsi involved in the assassinations be guilty of war crimes, but it could fundamentally alter the perception of the history of the genocide.
[xviii][18] See Human Rights Watch, Leave None to Tell the Story: Genocide in Rwanda 631 (1999) [hereinafter Leave None to Tell the Story].
[xix][19] See Human Rights Watch, Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath 13-14 (1996) [hereinafter Shattered Lives]. In 1998, UN Secretary General Kofi Annan admitted that there was knowledge from the beginning of the planned killings, but that the leadership in the Security Council chose to not become involved.
[xx][20] Paul J. Magnarella, Some Milestones and Achievements at the International Criminal Tribunal for Rwanda: The 1998 Kambanda and Akayesu Cases,” 11 Florida Journal of International Law 517 Fall, 1997.
[xxi][21] Berkeley, note 1.
[xxii][22] Berkeley, note 1.
[xxiii][23] Quoted from eye witness testimony at trial.
[xxiv][24] Tina Rosenberg, Editorial Observer; New Punishment for an Ancient War Crime, N.N. Times, 5 Apr. 1998, at § 4, 14. See also Shattered Lives, supra note 17, at 1.
[xxv][25] See Statute of the International Tribunal for Rwanda, available at [hereinafter ICTR Statute].
[xxvi][26]China abstained in the final vote. Payam Akhavan, “The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment,” 90 The American Journal International Law 501 July 1996
[xxvii][27] Patricia Viseur-Sellers.
[xxviii][28] Berkeley, note 1.
[xxix][29] For 2000 the General Assembly of the United Nations decided to appropriate to the ICTR a total budget of $79,753,900. The 729 staff in post (Arusha and Kigali) include more than eighty nationalities. ICTY Fact Sheet.
[xxx][30] The Deputy Prosecutor for cases before the ICTR is Mr. Bernard Acho Muna (Cameroon), appointed on 26 April 1997. the Secretary-General appointed Mr. Agwu Ukiwe Okali (Nigeria), as the Tribunal Registrar on 26 February 1997 by. The Registry provides legal and judicial support services for the work of the Trial Chambers and the Prosecution and is responsible for administration and management.
[xxxi][31] Jeffrey Gettleman, “Justice in Rwanda: A Momentous Task,” St. Petersburg Times May 11, 1998, p. 1.
[xxxii][32] Berkeley, note 1.
[xxxiii][33] Gettleman, note 29.
[xxxiv][34] In another trial, "mass graves" repeatedly was translated as "masquerade" Gettelman, note 29. In another erroneous translation, a defendant who expressed compassion was reported to have offered an apology.
[xxxv][35] Amicus Brief Respecting Amendment of the Indictment of Jean-Paul Akayesu, to Ensure Prosecution of Rape and other Sexual Violence (May 27, 1997). The brief was authored by attorneys from the Working Group on Engendering the Rwanda Tribunal, the International Women's Rights Law Clinic at CUNY Law School, and the Center for Constitutional Rights.
[xxxvi][36] Shattered Lives, supra note 17 , at 25-26.
[xxxvii][37] BACKGROUND IN THE TRIAL OF JEAN-PAUL AKAYESU, FORMER MAYOR OFTABA COMMUNE Arusha, 1st September 1998 (Internews))
[xxxviii][38] Convention on the Prevention and Punishment of the Crime of Genocide, adopted 9 Dec. 1948, 78 U.N.T.S. 277, 280 (entered into force 12 Jan. 1951) (entered into force for U.S. 23 Feb. 1989)
[xxxix][39] A few notable proponents include: Catharine A. MacKinnon, Rape, Genocide, and Women’s Human Rights, 17 Harv. Women’s L. J. 5 (1994). Todd A. Salzman, Rape Camps as a Means of Ethnic Cleansing: Religious, Cultural, and Ethical Responses to Rape Victims in the Former Yugoslavia, 20 Hum. Rts. Q. 348 (1998). Darium M. Rejali, After Feminist Analyses of Bosnian Violence and Cynthia Enloe, All the Men Are in the Militias, All the Women are Victims, in THE WOMEN AND WAR READER (Lois Ann Lorentzen & Jennifer Turpin, eds., 1998). Siobhan K. Fisher, Occupation of the Womb: Forced Impregnation as Genocide, 46 Duke L. J. 91 (1996).
The two most prominent challengers who question treating rape as genocide are Rhonda Copelon, “Surfacing Gender: Reconceptualizing Crimes Against Women in Time of War,” in Alexandra Stiglmayer, ed The War against Women in Bosnia-Herzegovina, University of Nebraska Press, 1994. and Aryeh Neier, War Crimes: Brutality, Genocide, Terror and the Struggle for Justice, Random House, 1998.
[xl][40] http://www.ictr.org/new/eng/accused/accused-NEW.htm
[xli][41] NOTICE OF APPEAL, JEAN-PAUL AKAYESU APPELLANT -vs- the prosecutor RESPONDENT; INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA APPEALS CHAMBER, No: ICTR-96-4-T, September 28, 1998. http://ww2.minorisa.es/inshuti/appeal2.htm
[xlii][42] Ubutabera, Judicial Diplomacy http://www.diplomatiejudiciaire.com/UK/Tpiruk/Ubu46.htm
Independent Newsletter on the International Criminal Tribunal for Rwanda. from Intermedia Society http://www.suffolk.edu/law/ihrhlp/1997/14.html
[xliii][43] Africa news online Rwanda http://www.africanews.org/east/rwanda/
[xliv][44] “Top Balkan Tribunal Upholds Ruling on Rape as War Crime,” New York Times, July 22, 2000 reporting on the appeal of Anto Furundzija.
[xlv][45] Berkeley, note 1. Other commentators praising the result include: Robert F. Van Lierop, “Report on the International Criminal Tribunal for Rwanda,” 3 Hofstra Law & Policy Symposium 1999, p. 203; Paul J. Magnarella, Some Milestones and Achievements at the International Criminal Tribunal for Rwanda: The 1998 Kambanda and Akayesu Cases,” 11 Florida Journal of International Law 517 Fall, 1997; Beth Stephens, “Humanitarian Law and Gender Violence: An End to Cenuries of Neglect?” 3 Hofstra Law & Policy Symposium 87 1999. Critical reviews of the Akayesu verdict include: Jose E. Alvarez, “Crimes of States/Crimes of Hate: Lessons from Rwanda, 24 Yale Journal of International Law 365 Summer, 1999 and Jose E. Alvarez, “Lessons from the Akayesu Judgment,” 5 ILSA Journal of International & Comparative Law 359 Spring, 1999. Todd Howland and William Calathes, “The U.N.'s International Criminal Tribunal, Is It Justice or Jingoism for Rwanda? A Call for Transformation, 39 Virginia Journal of International Law 135 Fall, 1998 REFERENCES Books and Book Chapters Askin, Kelly Dawn War crimes against women : prosecution in international war crimes tribunals / by Kelly Dawn Askin The Hague : M. Nijhoff Publishers ; Cambridge, Mass. : Distributed in the USA and Canada by Kluwer Law International, c1997 LAW Morgan Hum Rts K5301 .A85 1997 Bassiouni, M. Cherif. Crimes Against Humanity in International Criminal Law 638 (1992) Rhonda Copelon, "Surfacing Gender: Reconceptualizing Crimes Against Women in Time of War," in Alexandra Stiglmayer, ed Mass Rape: The War against Women in Bosnia-Herzegovina, University of Nebraska Press, 1994. Neier, Aryeh. War Crimes: Brutality, Genocide, Terror and the Struggle for Justice, Random House, 1998. Ruth Seifert, War and Rape: A Preliminary Analysis, 59-62 in Alexandra Stiglmayer, ed Mass Rape: The War against Women in Bosnia-Herzegovina, University of Nebraska Press, 1994. (Marion Faber trans.). Law Review and Journal Articles Akhavan, Payam. The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment," 90 The American Journal International Law 501 July 1996 Alvarez, Jose E. "Crimes of States/Crimes of Hate: Lessons from Rwanda,” 24 Yale Journal of International Law 365 Summer, 1999 Alvarez, Jose E. "Lessons from the Akayesu Judgment," 5 ILSA Journal of International & Comparative Law 359 Spring, 1999 Askin, Kelly D. Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status," 93 American Journal of International Law 97 (1999) Howland, Todd and William Calathes, "The U.N.'s International Criminal Tribunal, Is It Justice or Jingoism for Rwanda? A Call for Transformation, 39 Virginia Journal of International Law 135 Fall, 1998 Magnarella, Paul J. Some Milestones and Achievements at the International Criminal Tribunal for Rwanda: The 1998 Kambanda and Akayesu Cases," 11 Florida Journal of International Law 517 Fall, 1997. MacKinnon, Catharine A. Rape, Genocide, and Women's Human Rights, 17 Harvard Women’s Law Journal 5 (1994). Meron, Theodor. Rape as a Crime Under International Humanitarian Law, 87 American Journal of International Law 424 (1993). Niarchos, Catherine N. Women, War and Rape: Challenges Facing The International Tribunal for the Former Yugoslavia, 17 Human Rights Quarterly 649 (1995). Ryan, Samantha I. "From the Furies of Nanking to the Eumenides of the International Criminal Court; The Evolution of Sexual Assaults as International Crimes," 11 Pace International Law Review 447, Fall, 1999 Pilch, Frances T. "The Crime of Rape in International Humanitarian Law," 9 United States Air Force Academy Journal of Legal Studies 99 1998/99. Sarkin, Jeremy. “The Necessity and Challenges of Establishing a Truth and Reconcilliation Commission in Rwanda,” 21 Human Rights Quarterly 767 (1999). Stephens, Beth. "Humanitarian Law and Gender Violence: An End to Cenuries of Neglect?" 3 Hofstra Law & Policy Symposium 87 1999 Strumpen-Darrie, Christine. "Rape: A Survey of Current International Jurisprudence," 7 Human Rights Brief 12 Spring, 2000 Van Lierop, Robert F. "Report on the International Criminal Tribunal for Rwanda," 3 Hofstra Law & Policy Symposium 1999, p. 203 Periodical Articles and Nongovernmental Organization Reports Africa News Online Rwanda http://www.africanews.org/east/rwanda/ Berkeley, Bill,"Judgment Day," Washington Post, October 11, 1998, Sunday Magazine, Pg. W10 Gettleman, Jeffrey,"Justice in Rwanda: A Momentous Task," St. Petersburg Times May 11, 1998, p. 1. Human Rights Watch, Leave None to Tell the Story: Genocide in Rwanda (1999). Human Rights Watch/Africa Federation Internationale des ligues des Droits de l'Homme, Shattered Lives: Sexual Violence During the Rwandan Genocide and its Aftermath (1996). Rosenberg, Tina, "New Punishment for an Ancient War Crime, "The New York Times April 5, 1998, Section 4; Page 14 "U.S. Lawyer A Champion Of Victims In Rwanda," The New York Times November 1, 1998, Section 1; Page 13 Ubutabera http://www.diplomatiejudiciaire.com/UK/Tpiruk/Ubu46.htm Independent Newsletter on the International Criminal Tribunal for Rwanda Judicial Diplomacy from Intermedia Society http://www.suffolk.edu/law/ihrhlp/1997/14.html Cases
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR 96-4-T (Sept. 2, 1998) . http://www.ictr.org/new/eng/accused/accused-NEW.htm Amicus Brief regarding Rape in Rwanda, Respecting Amendment of the Indictment and Supplementation of the Evidence to Ensure the Prosecution of Rape and Other Sexual Violence Within the Competence of the Tribunal, Prosecutor v. Akayesu, No. ICTR-96-4-T (Sept. 2, 1998) (submitted by Joanna Birenbaum & Lisa Wyndels, Working Group on Engendering the Rwandan Criminal Tribunal; Rhonda Copelon, International Women's Human Rights Law Clinic; and Jennifer Green, Center for Constitutional Rights) Appeal by Jon Philpot, Sept. 1998 http://ww2.minorisa.es/inshuti/appeal2.htm Yamashita v. Styer, 327 U.S. 1, 51, 66 S.Ct. 340, 366 (1946). Treaties, U.N. and Government Documents Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and the Charter of the International Military Tribunal London, August 8, 1945, Charter of the International Military Tribunal, 59 Stat. 1544, 82 U.N.T.S. 279 (1945). Contemporary Forms of Slavery; Systematic Rape, Sexual Slavery and Slavery Like Practices During Armed Conflict, Final Report submitted by Ms. Gay J. McDougall, Special Rapporteur, 20 U.N. ESCOR, Commission on Human Rights, 50[su'th'] Sess., Agenda Item 6, PP 91-100, U.N.
Doc. E/CN.4/Sub.2/1998/13 (1998) [Special Rapporteur on Slavery] Convention Respecting the Laws and Customs of War on Land, with Annex of Regulations, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631 (Hague Convention No. IV), Martens Clause Declaration on the Elimination of Violence Against Women, G.A. Res. 104, U.N. GAOR, 48[su'th'] Sess., U.N. Doc. A/Res/48/104 (1994), Reference: Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), U.N. SCOR, 49th Sess., Annex, at 3, U.N. Doc. S/1994/1405 (1994) Geneva Convention for the Amelioration of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [First Geneva Convention]; Geneva Convention for the Amelioration of the Condition of Wounded and Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [Second Geneva Convention]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [Third Geneva Convention]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [Fourth Geneva Convention]. International Law Commission Report on the Principles of the Nuremberg Tribunal, 5 U.N. GAOR, 5[su'th'] Sess., Supp. No. 12 at 11, U.N. Doc. A/1316 (1950), The International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda, U.N. S.C. Res. 955, U.N. SCOR, 3453[su'rd'] mtg., U.N. Doc. S/Res/955 (1994) [ICTR Statute]. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977, art. 4, 1125 U.N.T.S. 609 [Protocol II]. The Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9* (1999) Vienna Declaration and Programme for Action, 1993 World Conference on Human Rights in Vienna from 14 to 23 June 1993, U.N. Doc. A/Conf.157/23 (1993)