Responding to Rwanda: Accountability Mechanisms in the Aftermath of Genocide

Author(s): Michael P. Scharf

Source: Journal of International Affairs , Spring 1999, Vol. 52, No. 2, Seeking
International Justice The Role of Institutions (Spring 1999), pp. 621-638
Published by: Journal of International Affairs Editorial Board

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 Responding to Rwanda:
Accountability Mechanisms
in the Aftermath of Genocide

Michael P. Scharf

After the Nazi

.again." Holocaust,
Yet the 50 yearsthe
thatworld community
have followed pledged "never
the Nuremberg
trials have been a golden age of impunity, as over 170 million
civilians have been killed by their own governments without any
hope that their killers would ever be brought to justice.1 Due to
Cold War politics, no steps toward international accountability
were pursued when two million people were butchered in
Cambodia's killing fields, 30,000 disappeared in Argentina's Dirty
War, 200,000 were massacred in East Timor, 750,000 were
exterminated in Uganda, 100,000 Kurds were gassed in Iraq or
75,000 peasants were slaughtered by death squads in El
Salvador.2

There was a simple truth to the situation

in Rwanda: until the masterminds of the
genocide could be brought to trial and
punished, killings would continue.

The world's most recent genocide occurred in the small central

African country of Rwanda, where from April to July 1994,
members of the Hutu tribe murdered over 800,000 members of
the Tutsi tribe.3 Comparing the scale of the international crimes
committed in Rwanda to those committed in Nazi Germany, the
exiled prime minister-designate of Rwanda asked, "Is it because
we're Africans that a court has not been set up?" In November

1 Rudolph J. Rummel, Death By Government (New Brunswick, NJ: Transactions

Publishers, 1994) p. 9.
2 Michael P. Scharf, Balkan Justice (Durham, NC: Carolina Academic Press, 1997) p,
xiii.

3 Daphna Shraga and Ralph Zacklin, "The International Criminal Tribunal for
Rwanda," European Journal of International Lav), 8, no. 4 (1997) pp. 501-502.

Journal of International Affairs, Spring 1999, 52, no. 2. © The Trustees of Columbia
University in the City of New York.

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Journal of International Affairs

1994 the United Nations Security Council, which had been

criticized for failing to take action to prevent or halt the slaughter,
responded by creating the International Criminal Tribunal for
Rwanda with jurisdiction over the genocidal acts committed in
Rwanda between 1 January and 31 December 1994.4
This article addresses the question of whether the creation of
an international tribunal was the best available choice for
responding to the 1994 genocide in Rwanda. By using Rwa
as a case study, it analyzes the range of potential accountab
mechanisms and examines the problems and challenges present
by international criminal trials.

Assessing the Accountability Options in Rwanda

Historically, the international community has relied on five

alternative ways of responding to violations of international
humanitarian law: (1) doing nothing, (2) granting amnesty, (3
creating a truth commission, (4) assisting in domestic prosecution
and (5) creating an ad hoc international criminal tribunal to tr
the offenders.5
The most frequent response of the international community to
genocide, crimes against humanity and war crimes has been to do
nothing. Very few of the perpetrators of such crimes have eve
been brought to justice, and the basic truth of what happened
has seldom been exposed by governmental bodies or governmental
organizations.6 Sometimes this has resulted from internationa
indifference or paralysis. On other occasions, justice and truth
were bartered away to achieve short-term peace. Rwanda was
somewhat unusual in that the victims of the genocide—the
Tutsis—emerged victorious from the civil war, but the country
was so decimated that the new Tutsi government sought
international assistance to achieve accountability for the
genocide.7 Given the international community's failure to head
off or halt the Rwandan genocide, there was tremendous pressure
for the U.N. Security Council to do something in response to the

The statute for the Rwanda tribunal and its rules of procedure are reproduced in
Virginia Morris and Michael P. Scharf, The International Criminal Tribunalfor Rwanda,
2 (Irvington-on-Hudson, NY: Transnational Publishers, 1998) pp. 3-17, 19-73.
See Naomi Roht-Arriaza, Impunity and Human Rights in International Law and
Practice (New York: Oxford University Press, 1995).
M. Cherif Bassiouni, "Searching for Peace and Achieving Justice: The Need for
Accountability," Law and Contemporary Problems, 59 (Autumn 1996) pp. 9, 11.
Morris and Scharf, 1 (1998), pp. 52-53, 61.

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 Michael P. Scharf

atrocities in order to shore up its credibility.8

The granting of amnesty9 can be useful in settling civil conflicts
or facilitating the exit of a dictator and a transition to democracy.
These short-term benefits render the use of amnesty an attractive
tool to the international community.10 In the past few years, the
United Nations, in order to bring an end to abuses and restore
peace, has embraced de jure or de facto amnesties for perpetrators
of attacks on U.N. peacekeepers in Somalia,11 apartheid crimes
in South Africa and torture and disappearances in Central
America.12 The most recent example concerned the military
leaders in Haiti, who in 1992 had murdered some 3,000 civilians
perceived as enemies of the regime.13 In order to induce the
Haitian military leaders to relinquish power to the democratically
elected government, the U.N. Secretariat helped negotiate an

The U.N. secretary-general stated in a report to the Security Council that the
United Nations had reacted with "extreme inadequacy" to the situation in Rwanda;
while the president of the General Assembly said that he had reached the "horrible
conclusion that the international community's ability to respond to massive human
tragedies had evaporated" in light of its inaction in Rwanda. See ibid., p. 48.
Amnesty is an act of sovereign power "decriminalizing" a past offense. See United
Nations Economic and Social Council, Commission on Human Rights, Progress
Report on the Question of the Impunity of Perpetrators of Human Rights Violations, U.N.
Doc. E/CN.4/Sub.2/1993/6 (New York; United Nations, 1993).
The first amnesty agreed to by the international community concerned the Turkish
perpetrators responsible for the massacres of a million Armenians during the First
World War. Initially, the Allied Powers sought the prosecution of those responsible
for the massacres. The Treaty of Sevres, signed on 10 August 1920, would have
required the Turkish Government to hand over those responsible to the Allied Powers
for trial. The Treaty of Sevres was, however, not ratified and did not come into
force. It was replaced by the Treaty of Lausanne, which not only did not contain
provisions respecting the punishment of war crimes, but was accompanied by a
"Declaration of Amnesty" of all offenses committed between 1914 and 1922. See
Treaty of Peace between the Allied Powers and Turkey [Treaty of Sevres], 10 August
1920, in American Journal of International Law, 15 (1921) p. 179; and Treaty of
Peace between the Allied Powers and Turkey [Treaty of Lausanne], 2 4 July 1923, i n
American Journal of International Law, 18 (1924) p. 1.
When troops under the command of Somali warlord Mohammed Farrah Aideed
murdered 24 U.N. peacekeeping personnel in 1993, the Security Council passed a
resolution authorizing Aideed's "arrest, and detention for prosecution, trial and
punishment." However, when Aideed stepped up attacks on U.N. troops, the Security
Council adopted Resolution 885 rescinding the arrest order in an effort to "foster a
political dialogue which can lead to national reconciliation." See Security Council
Resolution 837 (1993), U.N. Doc. S/RES/837 (New York: United Nations, 6 June
1993); Security Council Resolution 885, S/RES/835 (New York: United Nations,
16 November 1993); and Statement of Ambassador Madeleine Albright, U.N. Doc. S/
PV.3315 (New York: United Nations, 16 November 1993).
Roht-Arriaza, pp. 299-300.
See Lawyers Committee for Human Rights, Haiti: A Human Rights Nightmare (New
York: Lawyers Committee for Human Rights, 1992); and Amnesty International,
Haiti: Human Rights Held Ransom (New York: Amnesty International, 1992).

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Journal of International Affairs

amnesty for the military leaders,14 and the Security Council later
endorsed the peace accord containing the amnesty provision as
the "only valid framework for the solution of the crisis in Haiti."15
In the short run, the amnesty achieved more for the restoration
of human rights in Haiti than what would have resulted by
insisting on punishment and risking political instability; President
Jean Bertrand Aristide was permitted to return to Haiti and
reinstate a civilian government, the military leaders left the
country, much of the military surrendered their arms and most
of the human rights abuses promptly ended—all with practically
no bloodshed or resistance.16
Yet amnesty would not have been a valid option for Rwanda.
The provision of amnesty to the Hutus responsible for the 1994
genocide would have been in violation of the Genocide
Convention, which provides an absolute obligation for states
parties to prosecute persons responsible for genocide as defined
in the convention.17 Indeed, this was one of the reasons the U.S.
government and the other members of the Security Council were
initially reluctant to use the "genocide" label for the atrocities in
Rwanda.18 In addition to this legal obstacle, there are several
reasons why an amnesty would not have made sense under the
circumstances. Failure to prosecute genocidal crimes in Rwanda,
which has suffered from repeated cycles of ethnic violence and
abuse for 30 years, would have served as a virtual license to repeat

See The Situation of Democracy and Human Rights in Haiti: Report of the Secretary
General, U.N. Doc. A/47/975-S/26063 (New York: United Nations, 1993).
Statement of the President of the Security Council, U.N. Doc. S/INF/49 (New York:
United Nations, November 1994).
Michael P. Scharf, "Swapping Amnesty for Peace: Was There a Duty to Prosecute
International Crimes in Haiti?" Texas International Lan Journal, 31, no. 1 (Winter
1996) p. 11.
Article 4 of the Genocide Convention states: "Persons committing genocide or any
of the acts enumerated in Article 3 shall be punished, whether they are
constitutionally responsible rulers, public officials or private individuals." Article 5
requires states to "provide effective penalties" for persons guilty of genocide.
(Convention on the Prevention and Punishment of the Crime of Genocide, 78
U.N.T.S. 277 [New York: United Nations, 9 December 1948] arts. 3-5).
The term "genocide" was specifically struck from the text of Security Council
resolutions adopted during the first two months of the Rwanda crisis. It was not
until the special rapporteur for Rwanda issued a detailed report on 25 May 1994,
documenting the extent of the Rwandan killings, that the Security Council finally
acknowledged, in the Preamble to Resolution 925 adopted in June 1994, that "acts
of genocide have occurred in Rwanda." (Morris and Scharf, 1 (1998), pp. 62-63).

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 Michael P. Scharf

the crimes.19 As it was, Tutsis who had suffered at the hands of

the Hutu extremists had already begun seeking personal revenge
since no prompt effort seemed to be imminent to bring those
responsible for their suffering to justice.
Finally, given the scale of the atrocities in Rwanda, if the
international community had encouraged or merely condoned
an amnesty for the perpetrators, it would have sent a signal to
other rogue regimes throughout the world that they have nothing
to lose by engaging in such acts. For instance, history records that
the international amnesty given to the Turkish officials responsible
for the massacre of more than 1 million Armenians during the
First World War encouraged Adolph Hitler some 20 years later
to conclude that Germany could pursue his genocidal policies with
impunity. In a speech to his commanding generals, Hitler dismissed
concerns about accountability for acts of aggression and genocide
by stating, "Who after all is today speaking about the destruction
of the Armenians?"20 Similarly, the failure of the international
community to prosecute Pol Pot, Idi Amin, Saddam Hussein and
Mohammed Aideed, among others, likely encouraged the Hutu
extremists to launch their genocidal campaign against the Tutsis
in Rwanda with the expectation that they would not be held
accountable for their international crimes.
A third alternative was to set up a truth commission, as was
done in South Africa in 199621 and El Salvador in 1992.22 Truth
commissions can establish a historic record of international crimes,

19 The U.N. Human Rights Commission has concluded that impunity is one of the
main reasons for the continuation of grave violations of human rights throughout
the world. See United Nations Commission on Human Rights: Report on the Consequences
of Impunity, U.N. Doc. E/CN.4/1990/13 (New York: The United Nations, 1990).
U.N. fact-finding reports on Chile and El Salvador indicate that the granting of
amnesty or de facto impunity has led to an increase in abuses in those countries.
Impunity enjoyed by Chilean security forces "is the cause, and an undoubted
encouragement in the commission, of multiple violations of fundamental rights."
(Report Prepared by the Special Rapporteur on the Situation of Human Rights in Chile
in Accordance with Paragraph 11 of the Commission on Human Rights Resolution 1983/
38 of March 1983, U.N. Doc. A/38/385 [New York: United Nations, 1983] para.
341).
20 Hitler's Speech to Chief Commanders and Commanding Generals, 22 August 1939,
in M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law
(Boston: Martin Nijhoff Publishers, 1992) p. 176.
21 See Promotion of National Unity and Reconciliation Act, No. 34, 1995, (South
Africa).
22 Report of the Commission on the Truth for El Salvador: From Madness to Hope, U.N.
Doc. S/25500 (New York: United Nations, 1 April 1993).

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Journal of International Affairs

thereby "preventing history from being lost or re-written, and

allowing a society to learn from its past in order to prevent a
repetition of such violence in the future."23 Moreover, by
acknowledging the suffering of victims and their families, helping
to resolve uncertain cases and allowing victims to tell their story,
a truth commission can serve as a sort of "historical group therapy
session" for an entire country, facilitating national reconciliation
and individual rehabilitation and imparting to the citizenry a
sense of dignity and empowerment that can help them move
beyond the pain of the past.24 In addition, truth commissions
can promote justice by imposing moral condemnation and laying
the groundwork for other sanctions and victim compensation.
Finally, truth commissions can contribute to the future by offering
specific recommendations for reform. Past truth commission
reports have included recommendations covering military and
police reform, the strengthening of democratic institutions,
measures to promote national reconciliation and reform of the
judicial system.25
Although truth commissions can play an important role,26 they
are a poor substitute for prosecutions. Unlike courts of law, they
do not have prosecutory powers such as the power to subpoena
witnesses or punish perjury. They are inherently vulnerable to
politically imposed limitations and manipulation; their structure,

Priscilla B. Hayner, "Fifteen Truth Commissions—1974 to 1994: A Comparative

Study," in Transitional Justice: How Emerging Democracies Reckon With Former Regimes,
3 vols., ed. Neil Kritz, 1 (Washington, DC: U.S. Institute of Peace Press, 1994) pp.
225-262.
Studies of torture victims suggest that production of a written document syst
and summarizing their experiences is therapeutic because it helps the victim
the traumatic experience into their lives by placing their individual his
more meaningful context of political and social events. In addition, psy
have found that the process of testifying about traumatic events before an inv
body helps channel victims' anger into socially constructive action and p
form of catharsis. See Roht-Arriaza, p. 19.
See Chad: Report of the Commission of Inquiry into the Crimes and Misapp
Committed by Ex-President Habre, His Accomplices and/or Accessories, May
Kritz, 3, pp. 91-92; Chile: Report of the National Commission on T
Reconciliation, February 9, 1991, in Kritz, 3, pp. 152-166; and Report
Salvador Truth Commission in Kritz, 3, pp. 204-215.
See Interim Report of the Commission of Experts Established Pursuant to Secur
Resolution 780 (1992), U.N. Doc. S/25274 (New York: United Nations, 10
1993), in Virginia Morris and Michael P. Scharf, 2, An Insider's Gui
International Criminal Tribunal for the Former Yugoslavia (Irvington-on-H
Transnational Publishers, 1995) p. 320; and Preliminary Report of the In
Commission of Experts Established in Accordance with Security Council Res
(1994), U.N. Doc. S/1994/1125 (New York: United Nations, 4 October

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 Michael P. Scharf

mandate, resources, access to information, willingness or ability

to take on sensitive cases—even the wording of the final report—
are all largely determined by political forces at play when they
are created. When truth commissions name perpetrators, they
impose the moral punishment of public condemnation, sometimes
combined with the sanction of lustration—the disqualification
from public office. Yet because of their institutional limitations,
truth commissions do not first provide those named as
perpetrators with the panoply of rights available to a criminal
defendant.27
The fourth option was for the international community to have
assisted the government of Rwanda in launching domestic
prosecutions as the exclusive means of bringing the perpetrators
of the genocide to justice. The most authoritative rendering of
the truth is possible only through the crucible of a trial that accords
full due process. Such trials can generate a comprehensive record
of the nature and extent of violations, how they were planned
and executed, the fate of individual victims, who gave the orders
and who carried them out. Supreme Court Justice Robert Jackson,
the U.S. Chief Prosecutor at Nuremberg, underscored the logic
of this proposition when he reported that one of the most
important legacies of the Nuremberg trials following the Second
World War was that they documented the Nazi atrocities "with
such authenticity and in such detail that there can be no
responsible denial of these crimes in the future and no tradition
of martyrdom of the Nazi leaders can arise among informed
people."28 By way of contrast, critics of the South African Truth
Commission have asked "what will be the quality of the truth
that is established? Will one be forced to make negative
comparisons between the commission's truth and judicial truth
or historical truth?"29
Ethiopia, where the international community recently provided
funding, attorneys and judges to facilitate the prosecution of some
3,000 officials of the fallen Mengistu regime, serves as a model
for this approach.30 Like Ethiopia, the new Rwanda coalition

For a criticism of truth commissions, see Hayner in Kritz, 1, pp. 225-262.

See Report of Robert H. Jackson, United States Representative to the International
Conference on Military Trials, London, 1945 (Washington, DC: U.S. Government
Printing Office, 1949).
Anton Ferreira, "South Africa's Road to Healing Paved with Problems," in LEXIS
News Library, CURNWS File (11 April 1996).
See Luc Huyse, "Justice After Transition: On The Choices Successor Elites Make in
Dealing with the Past," in Kritz, 1, p. 335; and "Ethiopia: Report of the Office of
the Special Prosecutor" in Kritz, 3, p. 107.

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Journal of International Affairs

government had expressed its willingness to institute domestic

prosecutions against those responsible for the genocide.31 In
contrast, domestic prosecutions would not have been feasible for
the former Yugoslavia, where Serb leaders could not seriously be
expected to prosecute diligently someone like Dusko Tadic for
allegedly murdering and torturing prisoners at the Omarska prison
camp in the Serb-controlled area of Bosnia.32
The Rwandan domestic trials that have been held to date
indicate why the creation of an international tribunal, the fift
option available to the international community, may be view
as a necessary adjunct to assisting in-country prosecutions.
first domestic genocide trials held during the early part of 199
have been severely criticized by international trial observe
According to Amnesty International, these trials lasted an aver
of only four hours, the defendants were not represented by le
counsel, nor were they able to call witnesses on their behalf
cross-examine prosecution witnesses, and the atmosphere in
courtroom was openly hostile to the defendants, with spectator
frequently booing the defendants and applauding th
prosecutors.33 At the time of this writing, the domestic courts
Rwanda have found more than 100 defendants guilty of genocid
and sentenced them to death; twenty-two were publicly execut
on 24 April 1998.34
The fear of unfair domestic trials conducted by the Tu
dominated government prompted several of the countries
which the Hutu leaders had fled to refuse their extradition to the
government of Rwanda.35 The members of the Security Council
believed, with good reason, that the creation of an international
tribunal would make it more likely that the responsible Hutu
leaders would be apprehended and surrendered by host countries.
In addition, prosecutions before an international tribunal would
be less likely to be perceived by the Hutus as revenge and would

Reuters, "Rwandan Premier Wants to Try 30,000 for Genocide," in LEXIS News
Library, CURNWS File (3 August 1994).
See Indictment of Dusko Tadic before the International Criminal Tribunal for the
Former Yugoslavia, ICTY-94-1-T (issued 2 February 1995; amended 1 September
1995 and 14 December 1995).
Boston Globe, "Amnesty Voices Fears on Rwanda Trials," 14 January 1997, p. A2;
Boston Globe, "Most Rwanda Genocide Trials Unfair, Amnesty Says," 8 April 1997,
p. A10; and Amnesty International, Rwanda: Unfair Trials: Justice Denied (New
York: Amnesty International, 8 April 1997).
M2 Presswire, "Amnesty International Report 1998 Updates," in LEXIS News Library,
CURNWS File (16 June 1998).
United Press International, "U.N. Panel Urges Rwanda Tribunal," in LEXIS News
Library, CURNWS File (4 October 1994).

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 Michael P. Scharf

therefore facilitate political reconciliation and the return of

thousands of refugees.36
This, then, is why the establishment of an international tribunal
was viewed by the Security Council as the best response to the
genocide in Rwanda. When the world community fails to prevent
genocide from occurring, it should at least seek to prosecute the
alleged perpetrators in an institution that is—and is perceived to
be—fair.37 In this way, the Rwanda tribunal "serves as the
conscience of the international community. It is the manifestation
of the moral outrage of humanity over the transgressions of
civilizational norms and ethics."38 After the scale of atrocities in
Rwanda became known, the Security Council, recently freed of
its Cold War paralysis,39 was ready to respond; and the existence
of the Yugoslavia tribunal that had been created in 1993 provided
a handy blueprint for action.

Problems and Prospects for Success

The stakes are high for the success of the Rwanda tribun
both for Rwanda and the neighboring countries of central Afr
Since 1994, more than half of Rwanda's population has b
displaced by massacres or exile. There are 400,000 orpha
Rwandan children and 500,000 widowed women, many of wh
were the victims of rape and sexual abuse during the genocide.4
The new Tutsi-led government is confronted with the daunt
task of gaining the confidence of the Tutsi victims while at
same time enticing Hutu refugees to return in peace. With mo
than a million Hutu refugees—including thousands of memb
of the genocidal Interahamwe militia—streaming back into Rwan
ethnic tension remains high and insecurity continues to pre

John Shattuck, "War Crimes First," Washington Post, 23 August 1994, p. A19.
The Nuremberg and Tokyo tribunals have been criticized for the application of
post facto law and procedural shortcomings. Accordingly, the International Tribu
has recognized that it must do better than its predecessors; to achieve success—
to continue to receive international support—it must be seen as scrupulously fair
detailed rules of procedure were designed to meet that goal. See Michael P. Scha
"Have We Really Learned the Lessons of Nuremberg?" Military Law Review, 1
(Summer 1995) p. 65; Annual Report of the International Tribunal for the Prosecut
of Persons Responsible for Serious Violations of International Humanitarian Law Commi
in the Territory of the Former Yugoslavia since 1991, U.N. Doc. A/49/342 (New Y
United Nations, 29 August 1994) p. 24.
Statement of Malaysia, U.N. Doc. A/51/PV.78 (10 December 1996) p. 18.
See Robert Rosenstock, "Symposium: Should There Be An International Tribun
for Crimes Against Humanity?" Pace International Law Review, 6 (1994) p. 84.
Rwanda, U.N. Chronicle, 2 (1996) p. 42.

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Journal of International Affairs

throughout the country.41

The power struggle between the Hutu and Tutsi that ignited
the 1994 genocide in Rwanda is spreading to other countries in
the region, most notably the Democratic Republic of the Congo
(formerly Zaire [hereinafter the DRC]), Burundi, Uganda and
Tanzania.42 In this context, international judicial proceedings
before the Rwanda tribunal offer hope of breaking the cycle of
ethnic violence and retribution that has engulfed the region. As
the president of the Rwanda tribunal told the General Assembly
in December 1996:

Political and social stabilization in Rwanda depends

on whether all citizens, regardless of their ethnic
origin, can be reconciled. Such national
reconciliation would imply the due administration
of justice, first of all to ensure that the guilty parties
no longer feel they can act with impunity, which
would act as a deterrent. Secondly, it would enable
victims and their families to feel that justice was
being done and that the real perpetrators were being
punished, which would dampen any feelings of
revenge. If justice is not done, there may be no end
to hatred, and atrocities could go on and on...43

If it achieves its aims, the Rwanda tribunal will do far more to

secure lasting peace in the region than would the placement of
thousands of U.N. peacekeepers or foreign troops.
Yet the limited temporal and territorial jurisdiction of the
tribunal may impede that goal by giving the impression that the
warring ethnic groups can commit new crimes with impunity
throughout the region.44 When voting on Resolution 955, which
established the Rwanda tribunal, members of the Security Council
suggested that if genocidal acts were repeated in Rwanda after
the end of 1994, the Security Council would extend the tribunal's

James C. McKinley, Jr., "New Rwanda Killings Dim Hopes for Amity," New York
Times, 14 February 1997, p. A8.
Report on the Situation of Human Rights in Rwanda Submitted by Mr. R. Degni-Ségui,
Special Rapporteur of the Commission on Human Rights, under Paragraph 20 of
Commission Resolution S-3/1 of 25 May 1994, U.N. Doc. E/CN.4/1997/61 (New
York: United Nations, 1996) paras. 135-143.
U.N. GAOR, 51st Sess., U.N. Doc. A/51/PV.78 (New York: United Nations, 10
December 1996) p. 5.
The tribunal's jurisdiction is limited to crimes committed in Rwanda and by Rwandan
citizens in neighboring states between 1 January 1994 and 31 December 1994.
Rwanda Tribunal Statute, art. 1, in Morris and Scharf, 2 (1998).

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 Michael P. Scharf

competence beyond that time period.45 The Commission of

Experts for Burundi, established by the Security Council in 1995,
subsequently recommended "that international jurisdiction
should be asserted" with respect to the acts of genocide against
the Tutsi minority committed in Burundi in October 1993.46 In
light of the explosive situation in the Great Lakes region of central
Africa, a strong case can be made for amending the tribunal's
statute to expand its temporal and territorial jurisdiction to cover
serious violations of international humanitarian law throughout
Burundi, Rwanda, Uganda, the DRC and Tanzania beginning in
October 1993 and extending to a date to be decided by the
Security Council.
Unlike the situation in the former Yugoslavia, the leading
Rwandan perpetrators of genocide were defeated militarily,
removed from positions of leadership and forced to flee to refugee
camps in neighboring African countries or take refuge in Europe.47
Consequently, the prospect of apprehending and trying the major
perpetrators is arguably more feasible. As of the date of this
writing, 31 of the 43 persons indicted by the Rwanda tribunal
had been surrendered to it.48 Among the first to be transferred to
the tribunal's custody for trial were Jean Kambanda, the prime
minister of the genocidal Hutu government; Theoneste Bagosora,
the alleged coordinator of the genocide; Andre Ntagerura, the
Minister of Transport and Communications, who implemented
Bagosora's genocidal policies; Ferdinand Nahimana, manager of
an extremist radio station that encouraged Hutus to kill Tutsis;
Georges Anderson Nderubumwe, leader of the Interahamwe militia,
which was responsible for the majority of killings; and Clement
Kayishema, former governor of Kibuye province, who allegedly
encouraged more than ten thousand Tutsis to seek shelter in a
stadium and church by promising protection before firing the shot
that launched their mass murder. These are not minor players
like Dusko Tadic, the first person tried before the Yugoslavia
tribunal;49 these are some of the masterminds of the Rwanda

Statement of France, U.N. Doc. S/PV.3453 (New York: United Nations, 8 November
1994).
See Final Report of Commission Established By Resolution 1012, U.N. Doc. S/l 996/
682 (New York: United Nations, 22 August 1996) paras. 496-500.
Payam Arkhavan, "The International Criminal Tribunal for Rwanda: The Politics
and Pragmatics of Punishment," American Journal of International Law, 90 (July
1996) pp. 501-509.
M2 Presswire, "Judicial and Administrative Progress Made by Rwanda Tribunal
Highlighted," in LEXIS News Library, CURNWS File (29 October 1998).
John Lichfield, "Sharks Escape as The Hague Tries a Minnow," Independent (London),
12 May 1996, p. 14.
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Journal of International Affairs

genocide. Thus, the Rwanda tribunal's chief prosecutor, Judge

Louise Arbour of Canada, said the transfer of these men to the
tribunal "marked a capital turning point" in the effort to prosecute
the principal perpetrators of the 1994 genocide.50
The continuing success of the Rwanda tribunal will depend on
the cooperation of states on three levels. The first is the provision
of voluntary contributions of funds, personnel and material
assistance, which so far has played a critical role in the operation
of the tribunal. The second is cooperation in the collection of
evidence and the arrest and detention of persons indicted. The
third level is the modification of national legislation to allow for
this kind of cooperation. In his address to the General Assembly
in December 1996, the president of the tribunal, Judge Laity
Kama of Senegal, noted with regret that no African state had yet
enacted legislation to enable their national courts to cooperate
with the Rwanda tribunal.51 Notwithstanding the absence of such
legislation, the governments of Zambia, Cameroon, Kenya and
the Ivory Coast have surrendered indicted persons to the Rwanda
tribunal. The DRC, on the other hand, has failed to take any
steps to arrest and surrender several indicted persons present in
its territory,52 but this situation may change depending on the
outcome of its ongoing civil war. The U.N. Special Rapporteur
for Rwanda has noted that the circle of states cooperating with
the Rwanda tribunal is widening.53
The favorable prospect of arrests and prosecutions before the
Rwanda tribunal does not mean that a large number of those
who participated in the 1994 genocide will face international
justice. At present, there are over one hundred thousand suspects
in Rwandan prisons.54 With the very limited resources of the
Rwanda tribunal, only a tiny fraction of these can be prosecuted

Boston Globe, "Cameroon Transfers Suspects to UN Panel," 24 January 1997, p.

Al 6.
U.N. GAOR, 51st Sess., U.N. Doc. A/51/PV78 (New York: United Nations, 10
December 1996) p. 8.
The Government of Rwanda has complained to the Security Council that "[ajfter
the completion of genocide in Rwanda in July 1994, all those involved in the
planning and execution of the holocaust were granted safe haven by the Government
of Zaire." (Letter Dated 2 May 1996 From the Permanent Representative of Rwanda to
the United Nations Addressed to the President of the Security Council, U.N. Doc. S/
1996/332 [New York: United Nations, 3 May 1996] p. 3).
Report on the Situation of Human Rights in Rwanda Submitted by Mr. R. Degni-Ségui,
Special Rapporteur of the Commission on Human Rights, under Paragraph 20 of
Commission Resolution S-3/1 of 25 May 1994, U.N. Doc. E/CN.4/1997/61 (New
York: United Nations, 1996) para. 52.
See Amnesty International Press Release, Death Penalty/Unfair Trial (New York:
Amnesty International, 3 January 1997).
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 Michael P. Scharf

before the trial chambers in Arusha. "Nevertheless, the symbolic

effect of prosecuting even a limited number of the perpetrators,
especially the leaders who planned and instigated the genocide,
would have considerable impact on national reconciliation, as well
as on deterrence of such crimes in the future."55 Moreover, the
precedent that emerges from the Rwanda tribunal's judgments
will be useful in national trials both in Rwanda and other countries
in which the perpetrators of the genocide may be located.

Evaluating the Tribunal's Work

The Rwanda tribunal's road toward success has not been

without bumps, potholes and an occasional detour. These we
highlighted in a February 1997 report prepared by Karl Pash
the U.N. Inspector General and head of the Office of Intern
Oversight Services, which was requested by the General Assemb
to perform an audit and investigation of the Rwanda tribunal.5
The Inspector General's report was withering in its conclusio

The review disclosed that not a single administrative

area of the Registry (Finance, Procurement,
Personnel, Security, General Services) functioned
effectively: Finance had no accounting system and
could not produce allotment reports, so that
neither the Registry nor United Nations
Headquarters had budget expenditure information;
lines of authority were not clearly defined; internal
controls were weak in all sections; personnel in key
positions did not have the required qualifications;
there was no property management system;
procurement actions deviated from United Nations
procedures; United Nations rules and regulations
were widely disregarded; the Kigali office did not
get the administrative support needed; and
construction work for the second courtroom had
not even started.57

Arkhavan, pp. 501, 509.

See General Assembly Resolution 213 C, U.N. Doc. A/50/49 (New York: United
Nations, 11 December 1995). The inspection was conducted at Arusha and Kigali
from the end of September to November 1996. Report of the Secretary-General on the
Activities of the Office of Internal Oversight Services, paras. 1-2, in Morris and Scharf,
2 (1998), p. 216.
ibid., para. 9, in Morris and Scharf, 2 (1998), p. 216.

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Journal of International Affairs

The report also exposed bureaucratic infighting, detailing that

"[t]he Deputy Prosecutor reports that his relationship [with the
Registrar] has been 'strained and testy' and that 'the Registrar
has never failed to remind us of his pre-eminence rather than his
readiness to carry out the mission which has brought all of us
together.'"58 Moreover, the report said the tribunal had been
handicapped by weak support from the U.N. headquarters in
New York and lack of supervision from the prosecutor at The
Hague.59
In addition, the tribunal's leadership found itself soundly
criticized in the report. One charge was that, regardless of the
prosecutor's directive that the prosecution strategy should focus
on "national figures," the deputy prosecutor continued to pursue
a geographical strategy that sent investigative teams into the field
and permitted them to set their own plans and strategies. Richard
Goldstone, who had traveled to Kigali 11 times in his 18 months
as prosecutor, was blamed for failing to take affirmative steps to
ensure that the limited resources of the office in Kigali were
redirected to pursue key figures in the genocide. "The absence of
a revitalized prosecution strategy and leadership," the report
continued:

...will not allow the Office of the Prosecutor to

achieve its objectives. This is the single most
significant failing. Unless that is corrected, the
Tribunal will have been created to little effect; the
Rwandans will be right to suspect that justice
delayed is justice denied; and the United Nations
will have failed in its promise to put an end to such
crimes and to take effective measures to bring to
justice the persons who are responsible for them.60

The uproar from these findings resulted in the replacement of

the Rwanda tribunal's deputy prosecutor, registrar, and the heads
of the tribunal's administration, personnel and finance sections,
as well as a host of administrative reforms.61 Yet despite these

5S ibid., para. 42.

59 The report concludes that "once a few key administrators were selected, the Secretariat
failed to take responsibility for providing essential support for the Tribunal until it
could become functional." (ibid., paras. 55-59, 73).
60 ibid., para. 59.
61 U.N. Daily Press Briefing, U.N. Doc. DH/2333 (New York: United Nations, 26
February 1997) p. 2.
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 Michael P. Scharf

setbacks, the tribunal seems to have overcome its early problems,

and has successfully completed it first trial, while several others
are nearing conclusion.62
Perhaps the greatest failing of the Rwanda tribunal has been
the amount of time it has taken to bring those responsible for the
1994 genocide to justice. Echoing the sentiments of many of the
survivors of the genocide, a 24-year old Rwandan woman told a
news reporter in December 1996: "Every day, they say, 'Justice
will be here, justice will be here.' But it's been such a long time,
and nothing has happened."63 Swift justice may well have
prevented the spread of the Hutu-Tutsi conflict to neighboring
countries and stemmed the recent outbreaks of violence between
Hutu and Tutsi in Rwanda.
In August 1994 U.S. Assistant Secretary of State for Human
Rights John Shattuck said, "The wheels must turn quickly.
Successful prosecution [before an international tribunal] will
remove instigators of genocide from the scene, deter vigilante
justice and acts of revenge, and help give Rwandans—and their
neighbors in Burundi—the confidence to restore wounded
societies."64 Yet it was not until November 1994 that the Security
Council decided to establish the Rwanda tribunal and not until
January 1997 that the first indicted Hutus came to trial before
the international tribunal. For the victims of the Rwanda genocide,
for the witnesses who have been killed by returning Interahamwe
militia members and for the returning Hutu refugees who have
died in overcrowded and unsanitary prisons or have been killed
by Tutsi authorities,65 justice delayed has amounted to justice
denied. There was a simple truth to the situation in Rwanda:
until the masterminds of the genocide could be brought to trial
and punished, killings would continue.

On 2 September 1998 the Rwanda tribunal found Jean Paul Akayesu, the bourgmestre
of Taba Commune, guilty of genocide and sentenced him to life in prison. Jean
ICambanda, the prime minister of the genocidal Hutu government, who plead guilty
to genocide in May 1998, was also sentenced to life in prison two days later.
Elizabeth Neuffer, "Amid Tribal Struggles, Crimes Go Unpunished," Boston Globe, 8
December 1996, p. A34.
John Shattuck, "War Crimes Now," Washington Post, 23 August 1994, p. A14.
A second genocide of sorts is occurring in Rwanda as over 100,000 Hutus have been
suffering in severely overcrowded Rwandan prisons, described by one journalist as
"medieval pit[s] of hopelessness," where an average of seven prisoners die each day
from the unsanitary conditions. To date, only about a third of the incarcerated
Hutus have been charged with a crime, and only a handful have been brought to
trial. Tony Freemantle, "Crying for Justice," Houston Chronicle, 17 November 1996,
p. 1.

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Journal of International Affairs

The creation of the Rwanda tribunal showed that the

machinery designed for the recently established
tribunal could be employed for other specific circum
offenses, thereby avoiding the need to reinvent th
response to each global humanitarian crisis. It also conf
authority of the Security Council to respond to vio
humanitarian law even in a purely internal conflict.
upon the experience of the Yugoslavia tribunal, the two
the adoption of Security Council Resolution 95
establishment of the Rwanda tribunal; the election of its
the appointment of a deputy prosecutor, registrar and
the negotiation of a Headquarters Agreement. In additio
two years the Office of the Prosecutor was set up in
offices of the Trial Chambers and Registry were est
Arusha, Tanzania; a courtroom and detention unit were
constructed; Rules of Procedure, Rules of Detention and a
Directive for the Assignment of Defense Counsel were
promulgated; indictments and arrest warrants were issued for 21
persons; and the first trials commenced.67
Nevertheless, in the context of Rwanda, two years was still far
too slow. While some of the delays were perhaps avoidable, the
major problem was that an entire international institution had
to be built from the ground up. Officials had to be appointed;
staff had to be recruited and trained; funds had to be
appropriated; offices, courtrooms and detention facilities had to
be erected; international agreements had to be negotiated; and
legal documents had to be promulgated before investigations,
indictments and trials could commence. That such a complex
institution could be operational in such a relatively short time
was due only to the fact that a blueprint existed in the form of
the Yugoslavia tribunal.

66 In Resolution 955 (1996), the Security Council specifically determined that the
"genocide and other systematic, widespread and flagrant violations of international
humanitarian law" committed in Rwanda "constitute a threat to international
peace and security," (Security Council Resolution 955, U.N. Doc. S/RES/955 [New
York: United Nations, 8 November 1996] p. 20).
67 See Morris and Scharf, 2 (1998), p. 132.
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 Michael P. Scharf
Prelude to a Permanent International Criminal Court

The problems faced by the tribunal, especially regarding the

amount of time it took to organize and streamline operations,
could have been avoided altogether if there had existed a
permanent international criminal court. Such an institution could
have immediately launched investigations when the Hutu were
defeated in July of 1994, and begun prosecutions within months,
not years. When voting on Resolution 955, many of the members
of the Security Council said that the establishment of the ad hoc
tribunal only underlined the continuing need for a permanent
international criminal court.68
In addition to the matter of timing, the Rwanda crisis
demonstrated the need for a permanent international criminal
court in other ways. Since the establishment of the Rwanda
tribunal, the members of the Security Council have experienced
what has come to be called "tribunal fatigue."69 The process of
reaching a consensus on the tribunal's statute, electing judges,
selecting a prosecutor and appropriating funds has turned out to
be extremely time-consuming and politically exhausting for the
members of the Security Council.70 At least one permanent
member of the Security Council—China—has openly expressed
concern about using the Yugoslavia and Rwanda tribunals as
precedent for the creation of other ad hoc criminal tribunals,71
despite the existence of a host of other atrocities being committed
around the world, each of which cry out for an international
judicial response.72 Moreover, the expense of establishing ad hoc
tribunals, each with its own staff and facilities, is seen as excessive
for an organization whose budget is already stretched too thin.73

68 Statement of the Russian Federation in ibid., p. 298; Statement of France, in ibid.,

p. 4; and Statement of Spain in ibid., p. 13.
69 See David J. Scheffer, "International Judicial Intervention," Foreign Policy, 102 (22
March 1996) p. 34.
70 ibid.
71 Statement of China, U.N. Doc. S/PV.3217 (New York: United Nations, 25 M
1993) pp. 33-34, in Morris and Scharf, 2 (1995), p. 200. On 8 November 1994
China abstained on Security Council Resolution 955, which established the Rwan
tribunal. Statement of China, U.N. Doc. S/PV.3453 (New York: United Nations,
November 1994) p. 11.
72 For a discussion of seven such situations, see Morris and Scharf, 1 (1995), pp. 34
351.
73 Scheffer, p. 34.

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Journal of International Affairs

Thus, the creation of the Rwanda tribunal has fueled the

momentum toward the creation of a permanent international
criminal court. A huge step in that direction was taken on 17 July
1998, when 120 countries voted in favor of the Statute for a
Permanent International Criminal Court, which had been
negotiated at a diplomatic conference in Rome. Unfortunately,
having failed to achieve what would amount to an iron-clad veto
of jurisdiction over U.S. personnel and officials, the United States
felt compelled to join China, Libya, Iraq, Israel, Qatar and Yemen
as the only countries voting to oppose the Rome Treaty—thus
leaving the fate of the International Criminal Court in question.
Both the successes and failures of the Rwanda tribunal will be
useful to the international community as it moves toward the
establishment of such an institution, so that mistakes and
shortcomings can be prevented in the future.74 "Perhaps the real
yardstick for assessing the success of the Yugoslavia and Rwanda
tribunals," says the tribunals' former Chief Prosecutor Richard
Goldstone, "is whether it leads to the establishment of a
permanent international criminal court."75 sfc

Statement of The Netherlands, U.N. Doc. A/51/PV78 (New York: United Nations,
10 December 1996) p. 13.
Interview with Justice Richard Goldstone (Brussels, 20 July 1996).

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