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Prosecutor v. Akayesu

Published online by Cambridge University Press:  27 February 2017

Bernard H. Oxman  and
Diane Marie Amann
Diane Marie Amann
Affiliation:
University of California, Davis, School of Law
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Extract

Prosecutor v. Akayesu. Case ICTR-96-4-T.

International Criminal Tribunal for Rwanda, September 2, 1998.

This pioneering opinion marks the first time an international criminal tribunal has tried and convicted an individual for genocide and international crimes of sexual violence. The case arose out of the massacres of perhaps a million Tutsi in Rwanda in 1994. At least two thousand died in Taba, a rural commune where defendant Jean-Paul Akayesu was mayor. A trial chamber of the International Criminal Tribunal for Rwanda concluded that, although Akayesu may at first have tried to prevent killings, he eventually donned a military jacket and participated in or ordered atrocities. The Tribunal found him guilty of one count each of genocide and incitement to commit genocide and seven counts of crimes against humanity. It acquitted Akayesu of five counts brought under common Article 3 of the 1949 Geneva Conventions and Protocol Additional II to those Conventions on the ground that he was not within the class of perpetrators contemplated by them.

Type
International Decisions
Information
American Journal of International Law , Volume 93 , Issue 1 , January 1999 , pp. 195 - 199
Copyright
Copyright © American Society of International Law 1999

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References

1 Case ICTR-96-4-T, Judgement, §2 (Sept. 2, 1998) (Kama, Aspegren, Pillay, JJ.) [hereinafter Judgement]. In July 1994, the Tutsi-led Rwandan Patriotic Front seized control, which it holds to this day. Id.

2 Id., §5.2.1.

3 Rwanda’s former Prime Minister, who had pleaded guilty to genocide, was sentenced to life in prison two days after this judgment. See James C. McKinley, Jr., Ex-Rwandan Premier Gets Life in Prison on Charges of Genocide in ’94 Massacres, N.Y. Times, Sept. 5, 1998, at A4. Akayesu received three life sentences plus 80 years in prison; he has appealed. Ann M. Simmons, Prosecutor’s Convictions Span the World Law, L.A. Times, Oct. 3, 1998, at A1.

4 It also acquitted him of a count charging complicity in genocide, having found him guilty as a principal. Judgement, §§6.3.2, 7.8. See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST 3114, 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts [Protocol II], June 8, 1977, Art. 17, 1125 UNTS 609.

5 Id., §2. He and Burundi’s President, also killed in the crash, had just attended a meeting to discuss Hutu-Tutsi power sharing. Id.

6 See id., §§6.3.1, 7.8. Count 1 of the indictment alleged killings, beatings and sexual violence, as genocide. Id., §§1.2, 7.8. These alleged acts also provided the bases for convictions for crimes against humanity. See id., §§1.2, 7.2–7.4, 7.6–7.7, 7.9.

7 Statute of the International Tribunal for Rwanda, Art. 2(2), SC Res. 955, annex (Nov. 8, 1994), reprinted in 33 ILM 1602, 1603 (1994) [hereinafter ICTR Statute]; Convention on the Prevention and Punishment of the Crime of Genocide, Art. II, Dec. 9, 1948, 78 UNTS 277 [hereinafter Genocide Convention].

8 Judgement, §6.3.1; see id., §3. The ICTR Statute, unlike other instruments, in Article 3 also requires proof of protected status for all crimes against humanity. Compare ICTR Statute, supra note 7, Art. 3 with Statute of the International Tribunal for the Former Yugoslavia, Art. 5, UN Doc. S/25704, annex (1993), reprinted in 32 ILM 1192, 1193 (1993) (requiring showing of protected status only in case of persecution); Rome Statute of the International Criminal Court, July 17, 1998, Art. 7(1), UN Doc. A/CONF.183/9*, reprinted in 37 ILM 999 (1998) [hereinafter Rome statute] (same). Because Article 3 expressly protects political groups, however, the defendant may be held liable for crimes against humanity committed against Tutsi.

9 Judgement, §7.8; see id., §6.3.1 (citing summary records of the meetings of the Sixth Committee of the General Assembly, pt. 1, 21 September–10 December 1948).

10 Id., §6.3.1.

11 Id., §5.1; see id., §3.

12 Id., §§5.1, 7.8; see id., §3.

13 Id., §7.8; see id., §5.1.

14 Id., §§3, 7.8.

15 Id., §7.8.

16 Id., §5.5; see id., §§1.2, 1.4.1; Bill Berkeley, Judgment Day, Wash. Post Mac, Oct. 11, 1998, at W10.

17 Judgement, §6.4; see id., §7.7.

18 Id., §6.4; see id., §7.7. See also Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, 1465 UNTS 85.

19 Judgement, §§6.4, 7.7.

20 Id., §§6.4, 7.7. See ICTR Statute, supra note 7, Art. 3(g).

21 Judgement, §§6.4, 7.7. The Tribunal concluded that the “sexual violence” is “serious bodily or mental harm” constituting genocide, ICTR Statute, supra note 7, Art. 2(2)(b); an “inhumane ac[t]” constituting a crime against humanity, id., Art. 3(i); and an “outrag[e] upon personal dignity” constituting a serious violation of Article 3 common to the 1949 Geneva Conventions, id., Art. 4(e).

22 See Judgement, §7.7.

23 Id., §5.5. The identities of witnesses remained secret to the public but were disclosed to the defense, id., §§1.4.1, 4, thus avoiding one concern about the fairness of the first trial before the International Criminal Tribunal for the former Yugoslavia. See, e.g., Monroe Leigh, The Yugoslav Tribunal: Use of Unnamed Witnesses Against Accused, 90 AJIL 235 (1996) (criticizing ruling that identities of victim-witnesses could be withheld from defense).

24 Judgement, §7.7. For acts of rape and sexual violence to constitute these international crimes, other elements needed to be shown. To be genocide, they had to have been committed with the intent to destroy a protected group. To be crimes against humanity, they had to have been part of a widespread or systematic attack against a civilian population. The Tribunal held that the prosecution had proved these additional elements. See id., §§7.7, 7.8.

25 ICTR Statute, supra note 7, Art. 2(3) (c); Genocide Convention, supra note 7, Art. III(c).

26 Judgement, §6.3.3.

27 Id., §7.5.

28 Id.

29 Judgement, §§1.2, 7.1.

30 Id., §6.5 (citing, inter alia, Prosecutor v. Tadić, Appeal on Jurisdiction, No. IT-94-1-AR72, paras. 116–17, 134 (Oct. 2, 1995), reprinted in 35 ILM 32 (1996) [hereinafter Tadić Appeals Chamber Decision]).

31 Id., §6.5.

32 Id.

33 Judgement, §7.1.

34 See 1948–49 U.N.Y.B. 954, 957; 1947–48 U.N.Y.B. 597–98.

35 See Report on the Study of the Question of the Prevention and Punishment of the Crime of Genocide, UN Doc. E/CN.4/Sub.2/416, paras. 69–73 (1978), reprinted in 1 International Criminal Law 293 (M. Cherif Bassiouni ed., 1986). Whereas the Tribunal focused on the common language and culture of Hutu and Tutsi, this source suggests that “descent” and “kinship ties,” characteristics Hutu and Tutsi might not share, see Judgement, §§3, 5.1, help determine what an ethnic group is.

36 Recent scholarship maintains that ethnic, even racial, group membership is the product of social construction rather than heredity. See, e.g., Stephen Jay Gould, The Mismeasure of Man 391–412 (2d ed. 1996); Michael Omi & Howard Winant, Racial Formation in the United States 54–55 (2d ed. 1994).

37 See Jordan J. Paust et al., International Criminal Law 1083 (1996). France extends protection not only to the four enumerated groups, but also to any “group determined by any arbitrary criteria.” C. Pén. (nouveau) Art. 211-1 (Fr.).

38 Similarly, the trend for hate-crimes laws in the United States is to enhance punishment of one who commits a crime because of the victim’s group identity, actual or perceived. See Cal. Penal Code §422.7 (West 1998); Federal Hate Crimes Prevention Act of 1998, S. 2484, 105th Cong., §3700 (1998).

39 Berkeley, supra note 16 (quoting Judge Pillay). Cf. Theodor Meron, Rape as a Crime under International Humanitarian Law, 87 AJIL 424 (1993) (arguing for prosecution of rape as an international crime).

40 See Judgement, §7.8 (stating that “[s]exual violence was a step in the process of destruction of the Tutsi group”).

41 See Prosecutor v. Erdemović, Judgement, No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 75 (Oct. 7, 1997).

42 In recognition of this concern, the statute for the proposed international criminal court calls for adopting specific elements of crimes within its jurisdiction. Rome statute, supra note 8, Art. 9.

43 See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (permitting proscription of speech “directed to inciting or producing imminent lawless action” and “likely to incite or produce such action”).

44 Tadić Appeals Chamber Decision, supra note 30, paras. 128–37; Prosecutor v. Tadić, Opinion and Judgment, No. IT-94-1-T, paras. 609–17, 661–88 (May 7, 1997), excerpted in 36 ILM 908 (1997).