1 1Khoti Kamanga, LL.M (Hons) Public International Law, LL.M European Union Trade Law (ASIR), Ph.D (Patrice Lumumba University), Lecturer, Department of International Law, Faculty of Law University of Dar es Salaam, Tanzania. The author wishes to thank Dr. Mpazi Sinjela for providing the intellectual seeds from which grew this paper, finalised at the University of Amsterdam in the course of studies in European Community Law, following kind grant of scholarship by NUFFIC. For this reason I am indebted to Prof. Peter Malanczuk and colleagues of the 1996/97 class at the Amsterdam School of International Relations (ASIR).
1 For further details and versions (and, 4 are advanced) of the plane crash, see Alain Destexhe, Rwanda and Genocide in the Twentieth Century. New York, New York University Press, 1995. See also African Rights, Rwanda: Death, Despair and Defiance, London: 1995. 2 Tanzania was the facilitator of the so called Arusha Accords, meant to end hostilities between government forces and the Rwandese Patriotic Front (RPF), and to the establishment of "a broad-based transitional government." See Security Council Resolution 893 (06 January 1994) which makes reference to the "Arusha Peace Agreement." " 3 See the blow by blow account by Lindsey Hilsum who happened to be in Kigali at the outbreak of the mass killings in "Doomsday," BBC Focus on Africa, July-September, 1994, pp.6-8.
4 This is in accordance with Articles 1 and 2 of the Convention to Discourage Acts of Violence against Civil Aviation (Montreal Convention) reproduced in 10 International Legal Materials, (1971), p.1151. Supporting case law includes Questions of Interpretation and Application of the 1971 Montreal Convention arising from the aerial Incident at Lockerbie, Libya v. UK, LC.J. Reports, 1992 and Libya v. U.S., LC.J. Reports, 1992. Among detailed studies on the question, is Sami Shubber, "The Destruction of Aircraft in Flight Over Scotland and Niger: The Questions of Jurisdiction and Extradition Under International Law" 66 British Yearbook of International Law, 1995, pp. 239-282. 5 Of particular relevance are, Convention Relative to the Protection of Civilian Persons in Time of War 1949 (Geneva Convention IV) and Additional Protocol II 1977. 6 The genocide consumed nearly 1 million lives in the space of several months making it the largest in the country's history. The 1971 genocide in Bangladesh obliterated nearly 3 million lives. 7 One strand is the manner in which repatriation of Rwandese refugees from eastern Zaire (then) was "secured," and the alleged involvement of the Rwandese authorities in the military campaign that led to the ouster of Marshall Mobutu's administration. We are further witness to a probable shift in the balance of power in neighbouring Angola, clashes in the Republic of Congo and renewed tensions in the Central African Republic, all of which are likely to rekindle the "sovereignty/intervention" discourse. 8 Full text in United Nations Treaty Series, Volume 78 (1951), p.277. Since then the binding nature of the prohibition of genocide has been reaffirmed in a number of cases, including the Barcelona Traction case (I.C.J., Reports, 1970, at para 33 and 34). More recent case law includes that emerging from Ethiopia and the UN tribunals on Yugoslavia and Rwanda. See in addition, Boyle, Francis A., The Bosnian People Charge Genocide: Proceedings at the ICJ Concerning Bosnia v. Serbia on the
Prevention and Punishment of the Crime of Genocide. Amherst (Massachusetts): Aletheia Press, 1996. 9 Nyerere, who gracefully retired in 1985, continues to play an active role in regional and international fora (he is Chairman of the Geneva based "South Commision" and currently serves as Mediator in the Burundi crisis), is quoted by a kiswahili weekly (Rai, July 7-13, 1994, p. 1) as admonishing government for embracing mass murderers (Msiwakunbatie WaMC/t)- 10 ··RpF Claims Tanzania is Harbouring Murderers," Interview with the editor of the kiswahili weekly, Rai, June 1-7, 1994, p.3 11 A term found in works in the english language and convenient shorthand for denoting "persons suspected of having committed the crime of genocide." See for an example "Death Shadows Africa's Great Lakes," The Economist, October 19'" 1996, p. 52 and the article by Payam Akhavan (note 73 below). 12 Bassiouni, M. Cherif, and Wise, Edward M., Aut DedereAut Judicare: The Duty to Extradite or Prosecute in International Law. Dordrecht/Boston/London: Martinus Nijhoff Publishers, 1995. Its authors argue that the principle is a rule of both conventional and customary international law and that it is applicable to the crime of genocide (pp. 121-123). 13 For a critical assessment see Joint Evaluation of Emergency Assistance to Rwanda. The International Response to Conflict and Genocide: Lessons from the Rwanda Experience. Copenhagen, March 1996. Another source, critical of the UN (and Belgian Government) response is "Does Belgium Have Rwandan Blood on its Hands?" The Bulletin (Brussels), February 27, 1997, pap.18-19.
14 See Milton Leitenberg "US and UN Actions Result in Escalation of Genocide and Higher Costs" in Jongman, Albert J.(ed.), Contemporary Genocides: Causes, Cases, Consequences, Leiden, PIOOM, 1996, pp. 131-140. 15 Kuhn, Arthur K., "The Genocide Convention and State Rights,'' 43 American Journal of International Law, 1949, p.500. 16 Two works accomplish this well. Von Glahn, G., Law Among Nations: An lntroduction to Public lnternational Law (2nd ed.), Toronto: Collier-Macmillan Canada Ltd, 1995 and Jacobs, S.L., Raphael Lemkin's Thoughts on Nazi Genocide. Lewiston, New York: Edwin Mellen Press, 1992. 17 Lemkin, R., Axis Rule on Occupied Europe, Washington D.C.: Carnegie Endowment for International Peace. 1944, p.79. 1g Kunz, Josef L., Editorial Comment, 43 American Journal of International Law, 1950, p. 739. See in addition Yearbook of the UN ( 1948-1949), New York: UN, pp. 950-959.
19 Pictet, Jean, Development and Principles of International Humanitarian Law. Dordrecht: Martinus Nijhoff Publishers, 1985, pp. 25-26. 20 For details see Morris, V., and Scharf, M.P., An lnsider's Guide to the Internationale Criminal Tribunal for the Former Yugoslavia (2 Volumes). 1995, especially the section (pp.2-10) entitled "The Nuremberg Precedent" 21 Full text in 41 American Journal of International Law (1947), pp.172-233. 22 In a widely quoted obiter the tribunal held (para 29) that: "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced" 23 "The fact that the defendant acted pursuant to order [sic] of his government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determine that justice so requires" (Article 8, Charter of the International military Tribunal). 24 See decision of the court in the Eichmann case (note 60 below), which drew authority from, among others, judgement of the International Military Tribunal.
25 Bernhardt, R.,(ed.), Encyclopedia of Public lnternational Law. Amsterdam: North- Holland, Volume II, 1995, p. 1124. 26 The trials lasted from 1947-1949. For details see Bernhardt, R., ib., pp. 50-57. 27 By 1951. and in accordance with Article XIII of the Convention, the requisite number of ratification instruments had been deposited for the Convention to acquire the force of law. It is not uncommon for longer periods to elapse, the 1966 Human Rights Covenants, and the Convention on the Law of the Sea 1982, being ready examples.
28 A number of scholars in the field of political science and government regard the definition of genocide embodied in Article II as unjustifiably narrow. They propose the adoption of additional categories such as "democide," "politicide." See for an example, Barbara Harff and Ted Gurr "Victims of the State: Genocides, Politicides and Group Repression from 1945-1995" in Jongman, Albert J., Contemporary Genocides, Causes, Cases, Consequences, 1995. 29 See note 2 above.
30 For an example see Barbara Harff & Ted Gurr, op. cit., pp.33-58. 31* Leitenberg, op. cit., p.132. 32 Interview with Journal Traits D'Union (Belgium). Special Issue on Rwanda. No. 5. November 1994, p.13. One study on the genocide in Rwanda lists "ex-interim prime minister Jean Kambanda" as amongst those sought by the ICTR in Arusha (Jean Biramvu, "The Case of Rwanda: The Role of Local Human Rights Organisations," in Jongman, Albert, J. (ed.) Contemporary Genocides. 1995, p.165f). 33 Although rather belatedly, the UN did come to the conclusion that the events in Rwanda do subscribe to the concept of genocide. See in this respect, Leurdijk, Dick A., and Okma, Aisia, Decision-making by the Security Council: The Case of Rwanda, 1993-1995 (2nd ed.), The Hague: Clingendael,1995. 34 Annual Report(1995). International Committee of the Red Cross.
35 As to their subsequent fate see "Still in Need of Protection: Repatriation, Refoulement and the Safety of Refugees and the Internally Displaced," Amnesty International Focus on the Great Lakes Region. March 1997, Volume 27, No.2, pp. 3-6. 36 For a relatively recent study on topical aspects of this vast theme, see Gowlland- Debbes, V. (ed.), The Problem of Refugees in the Light of Contemporary International Law Issues, The HagueBoston/London: Martinus Nijhoff Publishers, 1996. 37 Zieck, Marjoleine, UNHCR and Voluntary Repatriation of Refugees: A Legal Analysis. Ph.D. Thesis, University of Amsterdam, 1997, p. 29. 38 See note 8 above. In addition, see "Central Africa's Cycle of Violence," 161 National Geographic, No. 6, 1997, pp. 124-133, which incidentally makes the crucial observation that the hostilities in Rwanda are "not a tribal war" and that abahutu and abatutsi "are socio-economic castes" (p. 130). 39 Rwanda is "caged in" between Burundi, Tanzania, Uganda and Zaire, with the Tanzanian districts of, Karagwe, Kasulu and Ngara being Rwanda's immediate neighbours. See The Times Atlas of the World (5th ed.), Edinburgh: John Bartholomew & Sons Ltd., 1975, plate 92.
40 General Assembly Resolution 2625 (XXV), also known as the Declaration on Principles of International Law which enjoins States (under the rubric of the duty to co- operate), to conduct their international relations "in accordance with the principles of sovereign equality and non-intervention." In this connection it is also important to mention Article 111 (5) of the OAU Charter for its characteristic "non-intervention" clause. 41 Genocide in Rwanda: Genesis, Foundations and Magnitude. Report by the Ministry of lnformation, Kigali, 1994. 42 Both Rwanda and Tanzania are members of the Organisation of African Unity (OAU), the Kagera Basin Development Organisation (KBO) and the Common Market for Eastern and Southern Africa (COMESA). An exhaustive list of such organisations may be obtained from the series Yearbook of lnternational Organisations (31 st ed.) Munchen: K.G. Saur Verlag GmbH & Co. KG. 1994.nd 43 "Kinkel [German Foreign Secretary] Tells Turkey Its Not Ready for EU: He Cites Rights, Greece and Economy," lnternational Herald Tribune, March 27, 1997, p. 1, 10. 44 As Rwandese refer to themselves collectively.
45 Comments made to the International Conference on the Refugee Problem in the Great Lakes Region, organised by Faculty of Law, University of Dar es Salaam and OXFAM, held in Arusha from August 17-19, 1995. 46 The ICTR is located within the Arusha International Conference Centre complex. It is from here that on December 12, 1995 Justice Richard Goldstone, the (then) Chief Prosecutor of the tribunals read the first indictments. See UN Doc. ICTR-95-1-1 (1995).
47 According to Article 36 of the Statute of the International Court of Justice, jurisdiction is conditional upon prior recognition by States parties to the dispute, for which two general modes have been identified. In Nicaragua (Jurisdiction and Admissibility), Nicaragua v. US, LC.J., Reports, 1984, p.392, the US had challenged (unsuccessfully) the ICJ's jurisdiction. On jurisdiction generally, see Malanczuk, P., Akehurst's Modern Introduction to International Law (7th revised edition), forthcoming, pp. 98- 106. 48 Multilateral Treaties Deposited with the Secretary General: Status as at Decem6er 31, 1995. New York: United Nations, p.88. 49 As at December 31, 1995. 50 For-this legal doctrine, the rules of international law and those of municipal law exist separately and cannot purport to have an effect on, or overrule, each other, the inevitable consequence being that for a rule of the former system to be enforceable within and by national authorities, "transformation" becomes indispensable. For a detailed discussion see Harris, D.J., Cases and Materials on International Law (4th ed.), London: Sweet and Maxwell, 1991, pp. 69-72.
51 Compiled from Presidential Circular No. 6 of 1963 (Ref. No. SHC/C. 180/1 of October 16, 1963) on "Ministerial Responsibility and Administrative Procedure" and Waraka wa Rais (Presidential Circular) Na. 1 wa 1985 (Kumb. Na. SHC/C 180/1/C/70) which replaces the (then) existing administrative procedure applicable to central government (Utaratibu Mpya wa Uimarishaji wa Ofisi Kuu za Serikali). 52 Interview with legal officers at the Ministry of Foreign Affairs and International Co- operation, and separately, with the Director of Public Prosecution, and Chief Parliamentary Draftsman. November 9, 1994. Meanwhile, a number of European States and such far off jurisdictions as Australia have formally entered into "co- operation agreements" with the Tribunals. For details see Robert Kushen and Kenneth J. Harris, "Surrender of Fugitives by the United States to the War Crimes Tribunals for Yugoslavia and Rwanda," 90 American Journal of International Law (1996), p.510. 53 Elucidating this point, the ICJ, in the Nuclear Test cases has held: "One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential. Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the character of an international obligation assumed by unilateral declaration. Thus interested States may take cognisance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected..." Australia v. France, New Zealand v. France, l.C.J., Reports 1974, pp. 253, para 46.
54 In accordance with Article IX of the Genocide Convention: "Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention,... shall be submitted to the International Court of Justice at the request of any of the parties to the dispute." 55 Lissitzyn, O.J., Foreword to Seaton, E.E., and Maliti, S.T., Tanzania Treaty Practice. Dar es Salaam: Oxford University Press. 1973, p.viii. 56 Hatchard, J., "Reporting Under International Human Rights Instruments by African Countries" 28 Journal of African Law, No. 1, 1994, p.62. 57 According to its Statute, the ICTR shall have the power "to prosecute persons committing genocide," adopting for the purpose, the definition of the crime spelled out in the Genocide Convention (Article II). 58 Erades, L. (ed.), Interaction between lnternational and Municipal Law: A Comparative Case Law Study. The Hague: T.M.C. Asser Instituut, 1993, p. 719.
59 Ibid., 60 A maxim embodying the basic principle of the criminal law, that conduct cannot be punished as criminal unless some rule of law has already declared conduct of that kind to be criminal and punishable as such. (Walker, D.M., The Oxford Companion to Law. Oxford: Clarendon Press. 1980, p. 895) 61 Attorney General of the Government of Israel v. Eichmann, District Court of Jerusalem, 36 International Legal Reports, 5 ( 1961). 62 Papadatos, P., The Eichmann Trial. London: Stevens & Sons, 1964, p.44.
63 For an elaboration see the article by Chief Justice of the Supreme Court of Zimbabwe, Anthony Gubbay, "The Protection and Enforcement of Fundamental Human Rights: The Zimbabwe Experience" 19 Human Rights Quarterly, No. 2, May 1997, especially at p.232 and the section "Judicial Protection of Substantive Human Rights." 64 "Chief Justice Reshuffles the Bench," Rai (Tanzania), January 9-15, 1997, p.1 (in kiswahili). 65 See note 53.
66 This is provided for under Rules 9 and 10 of Rules of Procedure and Evidence (Document IT/32/Rev. 9 of % July 1996). In Prosecutor v. Dusko Tadic, acting on the basis of these rules, the Prosecutor of the ICTFY sought deferral by the German courts (under whose jurisdiction Tadic then was) to the competence of the ICTFY. Case No. IT-94-1-T, para 8 and 9). As The Tribunals' former Prosecutor has noted, for this deferral to have taken place, German authorities had to pass a special legislation and the Constitution had to be amended ("50 Years After Nuremberg: A New International Criminal Tribunal for Human Rights Criminals" in Jongman, Albert J., Contemporary Genocides. 1995, p. 219). 67 Jennings, Sir Robert, and Watts, Sir Arthur 9 (eds.), Oppenheim's International Law (9th ed.) Volume 1, parts 2-4, Essex: Longman, 1992, pp. 948-9. 68 As Blakesley writes, the lack of such a bilateral agreement gives rise to the "interesting question about the principle aut dedere aut prosequi" whose purport is to have the individual concerned go "free" were there no treaty in force. (Blakesley, C.L., "Extradition" in Bassiouni, M. Cherif (ed.), Commentaries on the International Law Commission's 1991 Draft Code on Crimes against the Peace and Security of Mankind. Association Internationale du Droit Penal. 1993, p.134. 69 Brownlie, I., Principles of Public International Law (4th ed.), London: Clarendon Press, 1990, p.317. 70 Ibid., pp. 316-317.
71* "Justice, Too, on Trial in Genocide Courts," lnternational Herald Tribune, January 31, 1997, p.2. 72 Biramvu, Jean P., "The Case of Rwanda: The Role of Local Human Rights Organisations" in Jongman, Albert J., Contemporary Genocides. 1995 pp. 165-166. 73 For details see "Central Africa's Cycle of Violence," 191 National Geographic, No. 6, 1997, p.124.
74 A number of persons including former President Mengistu Haile-Mariam (in exile in Zimbabwe) have been charged with "genocide, war crimes, homicide, "disappearances" and torture" ("More Than 5,000 Former Officials Charged," Volume 27 Amnesty International News, no. 3, May 1997). 75 A number of deeply researched and insightful articles have appeared on the tribunals. These include: Mutoy Mubiala, "Le Tribunal International Pour le Rwanda," 7African Journal of Internationale and Comparative Law, October 1995; Theodor Meron, "International Criminalization of Internal Atrocities," 89 American Journal of International Law, 1995; and David Turns, "War Crimes Without War: The Application of International Humanitarian Law to atrocities in Non-International Armed Conflicts," 7 African Journal of International and Comparative Law, October 1995. Two, and more recent articles are worth citing: Payam Akhavan, " The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment," and Robert Kushen & Kenneth J. Harris, "Surrender of Fugitives by the US to the War Crimes Tribunals for Yugoslavia and Rwanda," both appearing in 90 American Journal of International Law, pp. 501-510 and 510-518 respectively. The following two essays, in part unjustifiably harsh and sceptical in their assessment, are nevertheless relevant: Africa Direct, "Lessons from Rwanda" Discussion Paper No. 1, September 1995; and Douglas Lummis, "Time to Watch the Watchers," The Nation (New York), 26/9/96, p.6. 76 See note 67 above. 77 Resolution 955 of November 8, 1994. 78 Key to these measures is the authority to '`use whatever means necessary," a clause (Article 42) which has invariably and not without controversy been relied upon to justify the "use of force." On Article 42 in general, see Simma, Brunno (ed.), The Charter of the United Nations: A Commentary. Oxford: Oxford University Press, 1994, pp. 628- 636.
79 Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993). Doc. S/25704, 3 May 1993. Significantly, "illegal foundation of the International Tribunal" was one of the claims at the basis of the appeal at the early stages of Dusko Tadic. See The Prosecutor v. Dusko Tadic, Case No. IT-94-1- AR72, October 2, 1995, para 2. 80 Statute of the ICTR (Article 7 "Territorial and Temporal Jurisdiction"). 81 This, for an example is the position taken by authors of the bookRwanda: Death, Despair and Defiance. 1995. See note 2. 82 Akhavan, Payam, The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment, p.505. 83 For details see, International Law Commission's Draft Statute for an International Criminal Court in the Work of the International Law Commission (5th ed.), New York: United Nations, 1996, pp. 214-238. See in addition, McCormack, T.L.H., and
Simpson, G.J., "A New International Criminal Regime," XLII Netherlands International Law Review, 1995, pp. 177-206. 84 As a participant of the UN organised International Law Seminar (June/ July 1996), the author was privileged to be in attendance when esteemed members of the ILC were deliberating on the Draft Code's status. The rapporteur, Professor Doudou Thiam, and a few other members expressed alarm at the fact that as opposed to an original draft, the present one contains only 6 (from 12) categories of crimes, an event that slightly complicated the process of the Draft's adoption. 85 According to Article 23, the "penalty imposed by the tribunal shall be limited to imprisonment." 86 See note 91 below. 87 The Rwandese representative is quoted as lamenting before the UN Security Council that " persons in positions of leadership appearing before the tribunal who devised, planned and organised the genocide... may escape capital punishment, whereas lower ranking perpetrators who simply carried out their plans and would presumably appear before Rwandese courts would be subjected to the harshness of the death sentence" (Quoted in Akhavan, ib., pp. 507-508). 88 "Rwanda Tribunal Seeks Killer Suspects from Cameroon," Sunday Observer (Tanzania), June 2, 1996, p.3. The paper quotes the ICTR President, Judge Laity Kama.
89 In the words of the Rwandese representative to the UN, "the Statute establishes a disparity in sentences since it rules out capital punishment, which is nevertheless provided for in the Rwandese penal code" (Akhavan, ib. P.507-508) 90 BBC News Bulletin, January 3, 1997, 18:00hrs GMT 91 Genocide, Impunity and Accountability: Dialogue for a National and International Response. Recommendations of the Conference held in Kigali from November 1st to 5th 1995. Kigali: Office of the President, 1995. 92 Security Council Resolution 955 (1994), item 6. 93 Comments made to the Arusha School of Human Rights, International Humanitarian Law and International Criminal Law, Arusha (Tanzania) held November/December, 1995, by Prof. Wladimiroff, counsel for the accused in the ICTFY case of Tadic. 94 International Herald Tribune, February 28, 1997.
95 Akhavan, op. cit., p. 508. 96 Ibid., p. 506. 97 Article 26, Statute of the ICTR. 98 Article 26, Statute of the International Criminal Tribunal for Rwanda.
99 See note 63. 100 In addition to the discussion in sections IV.2 and IV.3 above, see also the article by New York University School of Law Professor Theodor Meron who in 1995 assisted the ICTFY Prosecutor, Judge Goldstone in prosecuting Tadic, "Answering for War Crimes: Lessons from the Balkans," Foreign Affairs, January/February 1997, pp. 2-8.