NEW ENGLAND SCHOOL OF LAW
INTERNATIONAL WAR CRIMES PROJECT
RWANDA GENOCIDE PROSECUTION

MEMORANDUM FOR
THE OFFICE OF THE PROSECUTOR


CAN CIVILIANS BE HELD CRIMINALLY RESPONSIBLE FOR VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW IN A NON-INTERNATIONAL CONFLICT?

Kelly Baldwin

04/28/2000

Table of Contents

I. Introduction and Summary of Conclusions………………………………1

II. Factual Background……………………………………………………..…2

III. Legal Discussion……………………………………………………………3

A. International Court v. National Court………………………………..3

B. International Criminal Tribunal for Rwanda……………..…………7

C. Nuremberg Tribunal…………………………………………………..12

D. Geneva Conventions……………………………………………………19

E. International Criminal Tribunal for Former Yugoslavia…………...22

INDEX OF SOURCES

I. Introduction and Summary of Conclusions

Question Presented:

Can a civilian be held criminally responsible for violating the International Humanitarian Law in a non-international armed conflict?

The International Criminal Tribunal for Rwanda should follow the precedent set by the Nuremberg Tribunal, which allows individuals to be punished.

The principle of individual responsibility and punishment for crimes under international law recognized at Nuremberg is the cornerstone on international criminal law. This principle is the enduring legacy of the Nuremberg Charter and Judgement which gives meaning to the prohibition of crimes under international law by ensuring that the individuals who commit such crimes incur responsibility and are liable to punishment. (1)

Furthermore, "…that international law imposes duties and liabilities upon individuals as well as upon states has long been recognized…individuals can be punished for violations of international law." (2)

The "unwilling" accomplices who committed the crimes of genocide and the radio broadcasters who encouraged others to commit the crimes should be held responsible. Even though they are not high-ranking officials who planned and coordinated the mass killing they still played a part in carrying out the genocide. They committed acts pursuant to orders, but that does not relieve them of responsibility. The Tribunal for Rwanda should find these average citizens to have violated international humanitarian law.

II. Factual Background

There are three categories of people who are responsible for the mass killings in Rwanda. They are 1) the planners, 2) the "military" superiors and subordinates and 3) the unwilling accomplices. The planners include high-ranking officials and government politicians. It also includes the owners and directors of the Radio des Mille Collines, ordinary citizens, which broadcasted the Hutus' hatred for the Tutsis and encouraged the killings. (3) The second category is the military superiors and subordinates who supervised and carried out the killings. (4) The third category is the unwilling accomplices, ordinary citizens, who were forced to kill the Tutsis. (5)

Legal Discussion

A. International Court vs. National Court

There is a big debate about whether the individuals responsible for the atrocities in Rwanda should be prosecuted in the International Tribunal or in the Rwandan courts. There are 4 reasons why the Rwandese Government "…favored the establishment of the an ad hoc international criminal tribunal." (6) First, the government believed that "the genocide committed in Rwanda is a crime against humankind and should be suppressed by the international community as a whole." (7) Second, the government had a "desire to avoid any suspicion of its wanting to organize speedy, vengeful justice and instead of a "victor's justice", an international presence would ensure an exemplary justice that would be seen to be completely impartial and fair." (8) Thirdly, it believed that:

"it is impossible to build a state of law and arrive at true national reconciliation without eradicating the culture of impunity that has characterized Rwandese society. Making reference to the incitement to ethnic hatred and violence by extremist leaders, the Rwandese representative emphasized that those who were taught that it was acceptable to kill as long as the victim was from a different ethnic group or from an opposition party, cannot arrive at national reconciliation unless they learn new values; this goal can only be achieved if equitable justice is established and if the survivors are assured that what has happened will never happen again… and it was also convinced that, through the punishment of those responsible for the Rwandese tragedy, the tribunal will help national reconciliation and the construction of a new society based on social justice and respect for the fundamental rights of the human person." (9)

Fourth, the government wanted an international tribunal so that it would be "easier to get at those criminals who have found refuge in foreign countries." (10) Even though the Rwandese government supported the creation of the Tribunal it did, however, vote against Resolution 955. The government

"apparently envisaged a jurisdiction that would be under its control but would enjoy international judicial assistance and cooperation. The desire to retain sovereignty was actuated in part by the perception that an international criminal jurisdiction may be manipulated or made ineffective by states with ties to the previous regime."

There are several reasons why the Rwandese government did eventually vote against Resolution 955. First, they thought, "the temporal jurisdiction was too restrictive" (11) because it would not account for the period before the actual genocide which includes the planning. Secondly, the government thought that "the composition and structure of the tribunal was inappropriate and ineffective." (12) They wanted to increase the number of trial judges and to have its own Appeals Chamber and prosecutor. (13) Thirdly, the government was concerned that there were not enough financial resources so that the tribunal would only try crimes that came under the tribunal jurisdiction.

Another point to be made by the Rwandese government is that the tribunal

"establishes a disparity in sentences since it rules out capital punishment, which is nevertheless provided for in the Rwandese penal code…and those in positions of leadership appearing before the Tribunal who devised, planned and organized the genocide may escape capital punishment, whereas lower-ranking perpetrators who simply carried out their plans and would presumably appear before the Rwandese courts would be subjected to the harshness of the death sentence." (14)

Despite the fact that the Rwandese government did not agree with the establishment of the tribunal it was created. However, the tribunal should be able to prosecute any individual from whichever tier of responsibility. The tribunal was established to prosecute those who commit war crimes and since genocide is a war crime it should prosecute any and all defendants.

Some other arguments that can also be made. If the prosecutions were held in the international court there would be a bigger impact because it would "1) convey a clear message that the international community will not tolerate such atrocities, deterring future carnage of this sort not only in Rwanda but worldwide; 2) be staffed by experts able to apply and interpret evolving international law standards; 3) be more likely to have the necessary human and material resources at its disposal; 4) function on the basis of independence and impartiality rather than retribution; 5)advance the development and enforcement of international criminal norms; 6) have a much greater chance than Rwandan courts of obtaining jurisdiction over the majority of senior officials who are no longer in Rwanda." (15)

However, if the Rwandan courts were to prosecute it

"could enhance the legitimacy of the new Rwandan government and of the judiciary, be more sensitive to nuances of local community, emphasize that Rwandan society would henceforth hold individuals accountable for their crimes, and stress a local alternative to vigilante justice." (16)

The debate can still go on to which is court is more appropriate. However, if the international court prosecutes the defendants it will set more of an example for others in the future.

International Criminal Tribunal of Rwanda

Applicable Law

Article 6: Individual Criminal Responsibility

A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present Statute shall be individually responsible for the crime.

The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

The fact that any of the acts referred to in articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal for Rwanda determines that justice so requires. (17)

This Statute illustrates that all those involved with the commission of the crimes, such as, government officials, the military or private citizens, will be held responsible. There was some question as to whether war crimes could be committed by government officials or civilians as well as military personnel. (18) This question was answered affirmatively by the Nuremberg Tribunal and the subsequent military tribunals which recognized that the principle of individual responsibility for crimes under international law applied equally to all persons regardless of their position or occupation. (19) The 1948 Genocide Convention explicitly recognized that public officials or private individuals could commit the crime of genocide. (20) The duty to comply with international humanitarian law and the corresponding responsibility for violations thereof extends to both the military and the civilian population. (21)

Furthermore, ordinary citizens like the radio broadcasters and the unwilling accomplices who also took part in the crimes should be added to the growing list of criminals. The radio broadcasters were given orders to put messages across the airwaves to all Hutus to kill the Tutsis. But even though it was an order does not mean that they should not be held accountable for their actions.

The unwilling accomplices who were forced to kill by the other two categories of people should also be included under section 4. As the human rights organization, African Rights, explains:

"The interahamwe (those who attack together) were sent to rural areas not just to kill, but to force the local people to kill. Often, people were compelled to kill their neighbors or members of their own families. The extremists' aim was for the entire Hutu populace to participate in the killing." (22)

2. Akayesu

Jean Paul Akayesu born in 1953 in Murehe sector, Taba commune, served as bourgmestre of that commune from April 1993 until June 1994. Prior to his appointment as bourgmestre, he was a teacher and school inspector in Taba. (23)

As bourgmestre Akayesu had many duties and performed executive functions such as maintaining public order and exclusive control over the police to name a few. He was directly involved with the government because he held an official position. He was charged with crimes against humanity for committing crimes that are recognized under Article 3 of the Tribunal statute. (24) In Akayesu's commune there were 2,000 Tutsis that were killed, and since these killings were so open Akayesu should have known that they were going on. However, he never attempted to stop these killings and he had the power to stop the killings. (25)

Akayesu was charged with genocide, crimes against humanity and violations of Common Article 3 to the 1949 Geneva Conventions and Additional Protocol II of 1977. (26) He was found guilty of committing genocide and crimes against humanity, but was found not guilty for violations of Common Article 3 to the Geneva Conventions and of Article 4(2)(e) of Additional Protocol II. (27) However, the tribunal should have found him guilty of violating Common Article 3 because he was in an authoritative position and had the power to stop the killings. He knew what was going on because it was his commune and he had a duty to protect and prevent violence to people and especially to the civilians of his commune.

Like Akayesu, the unwilling accomplices should also be held criminally responsible. The unwilling accomplices were given orders to kill or be killed and they carried out the orders. They did not do it voluntary because there was a threat, but they still could have chosen to not kill others. Also, there was such hatred towards Tutsis from most Hutus and that hatred could have influenced those that did kill.

In Akayesu there were not enough facts to prove that he was responsible for the outbreak of, or "…directly engaged in the conduct of hostilities." (28) However, the civilians in Rwanda were directly involved in the hostilities because they did kill and because they did take the lives of others they should be held accountable.

Nuremberg Trials

The Nuremberg Tribunal recognized 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." (29) Furthermore, the principle of individual responsibility for violations of international law was confirmed by the Nuremberg Judgment:

"It was submitted that international law is concerned with the actions of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of State, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon states has long been recognized… individuals can be punished for violations of international law." (30)

Despite the fact that no industrialists were tried at the Nuremberg trials, President Truman issued an executive order, authorizing the prosecution "to proceed before United States military or occupation tribunals, in proper cases, against other Axis adherents, including, but not limited to, cases against members of groups and organizations declared criminal by the…international military tribunal." (31) So, the Allied Powers adopted Control Council No. 10 "in order to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders." (32)

Among those tried were industrialists, Tesch and Stabenow, who contributed to the genocide of the Jews by selling lethal gas to the concentration camps to be used as part of the extermination.

The industrialists were not officials in the German Army; they were ordinary citizens with an occupation. However, they were contracted by the government and the military to supply the gas. They voluntary sold the lethal gas to the German army, but we cannot be too sure if they knew for what they would use the gas. At the trial of Tesch and Stabenow the court sentenced them to death stating that:

"The provisions of the laws and customs of war are addressed to combatants and to members of state and other public authorities as well as to anybody who is in a position to assist in their violation." (33)

Also, the court held that a civilian "who is an accessory to a violation of the laws and customs of war is himself also liable as a war criminal." (34)

Comparable to the industrialists, the Rwandan radio broadcasters are ordinary citizens who were given orders by high-ranking officials. They encouraged the killings by broadcasting that the Hutus should kill the Tutsis "and dump their bodies in the rivers of Rwanda." (35) They should be held responsible like the industrialists because the broadcasters knew that their encouraging words would influence some Hutus to kill.

Furthermore, the unwilling accomplices who took part in the genocide should be held liable like the industrialists were because the unwilling accomplices knew what they were participating in. It may not have been voluntary because there was a threat, but there was a choice. Also, the industrialists were involved with the killings because they were contracted which made them connected with the government. The unwilling accomplices are also connected with the government because they are citizens of Rwanda. They are citizens who are connected with the Rwandan government. According to the Principles of Nuremberg any person who follows orders from a Government official or superior is not relieved of their responsibility.

Just as in this case, the leaders of the Radio de Milles Collines gave the broadcasters an order to "exhort every Hutu to kill a Tutsi. But even though it was an order should not relieve the broadcasters from all liability

The Rwandan statute concerning Individual Criminal Responsibility states that "the fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility." (36) Applying this statute to the civilians involved, the unwilling accomplices, does not mean that they are free from liability. They still carried out acts such as murder and torture, which are not permitted by Rwandan law. The language of the statute clearly infers that whether you are a superior or a civilian both can be found guilty of violating humanitarian law.

Another industrialist case is the Roechling case where the court acquitted Roechling of preparing Crimes against Peace and waging aggressive war, but did convict him of participating in the deportation of over two hundred thousand from the occupied territories and making them work in abominable conditions. (37) The judgement established that "encouraging, planning, and participating in the deportation, allocation and abuse of involuntary workers from the Occupied Territories were also deemed violative of the humanitarian law of war." The conclusion by the court was that Roechling's actions violated the humanitarian law.

The situation in Rwanda is much worse than just deporting involuntary workers. The Hutus killed innocent people in cold blood because they did not have the same beliefs as them. The acts committed by the accomplices were brutal and torturous to the Tutsis. These acts constitute a violation of humanitarian law. The tribunal should follow the Nuremberg tribunal's finding and conclude that the accomplices' acts violate the humanitarian law.

These two above-mentioned cases were precedents set for the American trials of the industrialists. One of the American trials was United States v. Flick. Flick was charged with the commission of war crimes and crimes against humanity for planning and executing a slave labor program. This program utilized 5 million foreign workers to toil in miserable conditions. (38) Flick was also charged with spoliation of property, by staffing its plants with slave labor. (39) There were 7 German steel companies that retained the profits and provided royalties to the German government. (40) Flick claimed that he was not aware that the employees were part of a slave labor program, but there were so many employees that he had to know what was going on. (41) Also, the company voluntarily allowed the slave labor program. The court held that international criminal law applies to private individuals as well as to public officials. Acts adjudged criminal when done by an officer of the government are criminal also when done by a private individual. (42)

Like Flick, the broadcasters knew exhorting the Hutus to kill the Tutsis would result in murder, and since the messages did influence some to kill they should be held liable. Flick knowingly and voluntarily abused the workers in the steel companies by exploiting them, which is like the broadcasters who voluntarily used the radio to air their hate messages and knew what the possible outcome would be. Furthermore, the unwilling accomplices who were ordered to kill the Tutsis should also be held responsible. Like Flick who was held liable for committing the crime of employing slave labor, the accomplices should be held responsible because they should have known that if they carried out the orders they would be guilty of committing a crime.

D. Geneva Conventions

Article 3 Common to the Four Conventions

"Article 3 common to the four Conventions applies to all armed conflicts of a non-international character and occurring in the territory of one of the Powers parties to the Convention. In such a case, persons taking no active part in the hostilities will in all circumstances be treated humanely without any adverse distinction. The following acts, committed against the persons mentioned above, are and must remain prohibited at all times and in all places:

violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

taking of hostages;

outrages upon personal dignity, in particular, humiliating and degrading treatment;

the passing of sentences and carrying out of executions without previous judgement pronounced by a regularly

constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples." (43)

Protocol II (2): Protection of the civilian population:

The Protocol thus declares that neither the civilian population as such, nor individual civilians may be the object of attacks; moreover, acts of terrorism against them are prohibited. Civilians benefit from this protection as long as they do not take a direct part in hostilities. (44)

The confusion about Common Article 3 and Protocol II is the language and to which situations they apply. The violence, which occurred in the Former country of Yugoslavia, was declared international which allowed the tribunal to impose penal sanctions on those prosecuted before it. However, the International Tribunal of Rwanda has declared the situation an internal conflict, which means that only Article 3 and Protocol II of the Geneva Conventions will apply, and that no penal sanctions will be implemented. Security Council Resolution 955 incorporated Common Article 3 and Protocol II of the Geneva Conventions into Article 4 of Rwanda's statute, which makes prosecutions possible. The statute states:

"The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Prosecution of War Victims, and of Additional Protocol II thereto of 8 June 1977." (45)

Following this Security Council Resolution, the unwilling accomplices who carried out the orders in Rwanda are to be prosecuted for violating Common Article 3 and Protocol II. They were violent to the Tutsis by killing them and torturing them which is a blatant violation of Article 3 and Protocol II and for those actions they should impose penal sanctions.

In Akayesu, the tribunal incorrectly concluded that Akayesu did not violate Common Article 3 and Protocol II. The prosecution proved that he was a commune official which is an official of the government. In addition, there were many killings in his commune that would lead one to believe that he knew of the situation. The statute clearly states that if the accused was violent against someone else's life that person they should be found guilty of violating Common Article 3 to the Geneva Conventions.

These provisions are to protect civilian life in times of attack. It should not matter if it is a military official or an ordinary citizen (unwilling accomplice) who actually carried out the act to be held accountable of violating these provisions.

E. International Criminal Tribunal of Yugoslavia

Prosecutor v. Tadic

Dusko Tadic, traffic cop, was a civilian leader in his town. Tadic was charged with crimes against humanity and violations of Common Article 3. Tadic was found guilty of violating Article 3. In this case the tribunal for the former Yugoslavia held that

"a single act by a perpetrator taken within the context of a widespread or systematic attack against a civilian population entails individual criminal responsibility and an individual perpetrator need not commit numerous offences to be held liable." (46)

In our case, the unwilling accomplices have also participated in a systematic, widespread attack on the Tutsis. The tribunal of Rwanda should follow this precedent set by the Former Yugoslavia and find that those who are violent towards life and attack civilians have violated Common Article 3.

In conclusion, the International Criminal Tribunal of Rwanda should follow the precedents set by the Nuremberg Tribunal and that of the former Yugoslavia. Whether high-ranking officials or civilians committed the murders they should all be tried and found guilty of violating international humanitarian law.

INDEX OF SOURCES

1. Statute of the International Tribunal for Rwanda, http://www.un.org/ictr/statute.html.

2. 1 Virginia Morris & Michael P. Scharf, The International Criminal Tribunal for Rwanda, (1998).

3. Theodor Meron, Editorial Comment: War Crimes Law Comes of Age, 92 A.J.I.L. 462 (1998).

4. The Prosecutor v. Jean-Paul Akayesu, 1998 ICTR-96-4-T (Judgement Sept. 2, 1998)

http://www.un.org/ictr/english/judgements/akayesu.html

5. Payam Akhavan, Current Developments: The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment, 90 A.J.I.L. 501 (1996).

6. Neil J. Kritz, Special Report: Rwanda: Accountability for War Crimes and Genocide, A Report on a United States Institute of Peace Conference (1995).

http://www.usip/org/oc/sr/rwanda1.html

7. Michael P. Scharf, International Decision: Prosecutor v. Tadic. Case No. IT-94-1-T., (http://www.un.org/icty/index.html). International Tribunal for Former Yugoslavia. 91 A.J.I.L. 718 (1997).

8. Christopher Keith Hall, Current Development: The Fifth Session of the UN Preparatory Committee on the Establishment of an International Criminal Court, 92 A.J.I.L. 331 (1998).

9. Theodor Meron, Article: International Criminalization of Internal Atrocities, 89 A.J.I.L. 554 (1995).

10. Theodor Meron, Editorial Comment: The Continuing Role of Custom in the Formation of International Humanitarian Law, 90 A.J.I.L. 238 (1996).

11. Theodor Meron, Note and Comment: On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument, 77 A.J.I.L. 589 (1983).

12. Theodor Meron and Allan Rosas, Current Development: A Declaration of Minimum Humanitarian Standards, 85 A.J.I.L. 375 (1991).

13. Asbhorn Eide, Allan Rosas and Theodor Meron, Current Development: Combating Lawlessness in Gray Zone Conflicts through Minimum Humanitarian Standards, 89 A.J.I.L. 215 (1995).

14. Darryl Robinson, Developments in International Criminal Law: Defining "Crimes against Humanity" at the Rome Conference, 93 A.J.I.L. 43 (1999).

15. Matthew Lippman, War crimes Trials of German Industrialists: The "other Schindlers", Temple Int'l and Comp. Law 9 n2 173-267 (1995).

16. Principles of the Nuremberg Tribunal, No. 82, (1950), http://deoxy.org/wc/wc-nurem.htm

17. Michael P. Scharf, Balkan Justice: The Story Behind the First International War Crimes Trial Since Nuremberg, (1997).

18. Jonathan Bush, Book Review Essay, 93 Colum. L. Rev. 2022 (1993) (reviewing Telford Taylor and Alfred Knopf, Nuremberg: The Modern Law of War and its Limitations: The Anatomy of the Nuremberg Trials: A personal memoir(1992)).

19. 1 Virginia Morris & Michael P. Scharf, International Criminal Tribunal for the Former Yugoslavia (1995).

20. Chapter V: Protection of victims of non-international armed conflicts, Article 3 Common to the Four Conventions and Additional Protocol II, http://www.icrc.org/icrceng/ihl.

21. Geoffrey R. Watson, The Humanitarian Law of the Yugoslavia War Crimes Tribunal: Jurisdiction in Prosecutor v. Tadic, 36 Virg. J. of Int'l Law 687 (1996).

22. Laura Lopez, Note: Uncivil Wars: The challenge of Applying International Humanitarian Law to Internal Armed Conflicts, 69 N.Y.U.L. Rev. 916 (1994).

23. Gerry J. Simpson, Conceptualizing Violence: Present and Future Developments in International Law: Panel II: Adjudicating Violence: Problems Confronting International Law and Policy on War Crimes and Crimes Against Humanity; Didactic and Dissident Histories in War Crimes Trials, 60 Alb. L. Rev. 801 (1997).