Melynda J. Price, Balancing Lives: Individual Accountability and the Death Penalty as Punishment for Genocide (lessons from Rwanda)

• Citation: Vol. 21 No. 2
• Publication year: 2007

BALANCING LIVES: INDIVIDUAL ACCOUNTABILITY AND THE DEATH PENALTY AS PUNISHMENT FOR GENOCIDE (LESSONS FROM RWANDA)

Melynda J. Price^*

INTRODUCTION

How can you balance the thousands and hundreds of thousands killed with the cooperation of the accused? We believe this crime merits nothing less than life imprisonment.

-Response of Deputy Prosecutor Bernard Muna to the calls for a lesser sentence for former Prime Minister Kambanda¹

Since it is foreseeable that the Tribunal will be dealing with suspects who devised, planned, and organized the genocide, these may escape capital punishment whereas those who simply carried out their plans would be subjected to the harshness of this sentence. This situation is not conducive to national reconciliation in Rwanda.

-One of the reasons offered by the Rwandan Representative to the Security Council for voting against the resolution to establish the International Criminal Tribunal for Rwanda.²

Violent conflict among Hutus and Tutsis, the two major ethnic groups of

Rwanda, was not new in April 1994. There had been numerous acts of violence-from both sides-since the Hutus seized power in 1959 in one of the independence movements that swept through Africa during that period. A "bloody stalemate" between the Hutu government and Tutsi Rebels³in 1992 led to the negotiation of the Arusha Accords, which provided for a joint Hutu- Tutsi government.⁴Seeing waning electoral support for a Hutu-dominated government, then-President Juvénal Habyarimana appealed to past ethnic cleavages and solidified Hutu support against a common enemy: the Tutsis.

The international community was alerted to the impending events when Major General Romero Dallaire, the commander of the U.N. peacekeeping forces, "sent a cable to the United Nations Headquarters that the Hutu hardliners were laying the groundwork for a systematic campaign to kill Tutsis."⁵The Hutus carried out that campaign with little resistance from the international community.⁶The United Nations, thwarted by the unwillingness of Member States to commit troops to stop the massacre of Tutsis in Rwanda, "adopted the position that if it could not stop the atrocities, at least it could take steps to eventually bring the perpetrators to justice."⁷Overcoming debates on the location of the Tribunal, procedural and structural issues, the objections of the Rwandan government, and other obstacles, the United Nations passed the

International Criminal Tribunal for Rwanda (ICTR) statute on November 8,

1994, by a vote of thirteen in favor, one abstention (China), and one against

(Rwanda).⁸

Contrary to the Rwandan penal code, the statute authorizing the ICTR does not allow for the imposition of the death penalty.⁹This inconsistency is important because Rwanda supported the establishment of a tribunal and participated in the drafting of the statute. In the end, Rwanda voted against the resolution establishing the ICTR, pointing specifically to the absence of the death penalty as one of the main reasons for its disapproval, as well as the resulting political implications of the discrepancies in sentencing among those tried in the ICTR and those tried in Rwanda's domestic criminal courts.¹⁰The discrepancy between the Rwandan penal code and the ICTR statutes allows architects of the atrocities to escape the death penalty while those with lower ranks, who are being tried in Rwandan courts, can be sentenced to death.¹¹

The appropriateness of the death penalty as a form of punishment is the subject of a great deal of controversy in the international human rights community. Most of the western world-with the notable exception of the United States- and the continent of Africa has moved toward abolishing capital punishment, either de jure or de facto.

The potential inconsistency between domestic punishment policy and acceptable modes of punishment in the international community raises several important questions for the meaning of individual accountability in international law. Should those convicted of human rights violations, such as genocide, be put to death for their crimes? Does this inconsistency reflect conflicting views on one type of punishment-the death penalty-among international and domestic legal communities or a more profound conflict over the appropriate prosecution of participants in genocide? Can other societies, under the auspices of international law, impose their views of justice onto the people of Rwanda who in theory support the death penalty? Lastly, is it also an injustice for those being tried for the same acts to receive such drastically different punishments? The most basic understanding of fairness suggests this is an injustice.

The purpose of this Article is not to answer the question of whether the death penalty is an appropriate punishment for genocide.¹²One could safely argue that there is an emerging norm in international law against the death penalty, but individual countries have maintained their right to use the death penalty and continue to do so in code and in practice.¹³This Article, using Rwanda as a case study, evaluates the real outcomes of such discrepancies in punishment at the domestic and international level, and the ability of both approaches to bring justice to the victims of genocide. Both domestic and international statutes articulate similar goals in prosecuting the perpetrators of genocide-eradicating a culture of impunity, and restoring law and order. This Article argues that the existence of conflicts over the propriety of the death penalty and the resulting punishment discrepancies provide continued opportunities for development of domestic and international responses to genocide.

Part I summarizes the events in Rwanda that led to the establishment of the Tribunal and discusses the resulting statutes of the ICTR and the domestic criminal statues of Rwanda. This section also discusses the additional legal and political issues that have arisen from the discrepancy in punishment regimes. Part II offers two case studies to illustrate the types of actors and the extent of participation in the genocide tried under each regime. This section also outlines the goals of punishment articulated in each statute and how well these case studies reflect those goals. Part III questions the appropriateness of death as punishment for individual participation in international crimes. On the one hand, a majority of nations have moved toward the abolition of the death penalty; however, under Rwandan domestic laws, the death penalty remains a codified and utilized component of the penal code. There is sufficient political will in the international community to bar its use in international tribunals, but abolition has not yet reached the level of international norm. At the core of international law is a necessity for consensus, which promotes higher levels of compliance. Since Nuremberg, there is consensus that genocide is a crime, but the appropriate form of punishment is highly contested. There is also discussion of the employment of pre-colonial methods of adjudication as a way of expediting trials and providing real opportunities for reconciliation on the ground in Rwanda. The Article concludes with a discussion of the prospects for resolution of the punishment paradox in genocide prosecution created by opposing policies on punishment in domestic and international law. The resolution of this paradox may be too late to prevent the negative political consequences of differences in punishment in the Rwandan genocide, but the looming presence of genocide and possible tribunals in other parts of Africa, most specifically in the Sudan, continues to make analysis of this tension between international and domestic law on the death penalty important. The final section outlines concrete lessons that both the international community and domestic authorities can learn from the adjudication of the Rwandan genocide and apply to other prosecutions of participants in genocide.

I. THE GENOCIDE AND THE RESULTING STATUTE

A. The Genocide

Over 800,000 men, women, and children were slaughtered in Rwanda over a 100-day period from April to July 1994.¹⁴This particular episode of violence was triggered by the death of President Juvénal Habyarimana in a plane crash and resulting rumors that the opposition Rwanda Patriotic Front (RPF) shot the plane down, even though "evidence suggests that the Hutu hardliners might actually have been responsible."¹⁵Within hours of the crash, civilian Tutsis and moderate Hutu civilians and politicians were hunted and killed.¹⁶The Presidential Guard, the Rwandan armed forces, and the interahamwe militia began systematically killing Tutsis in Kigali.¹⁷They went from house to house, executing every person present-men, women, and children. Many Tutsis sought refuge in churches, hospitals, schools, and with international aid groups, such as the Red Cross. They were murdered wherever they were found.¹⁸

The interahamwe's main goal was the murder of Rwanda's Tutsi population, but killing was not their only activity. Numerous Tutsi women were also victims of assorted forms of sexual violence.¹⁹From Kigali, the armed militias spread throughout the countryside, committing acts of violence and sexual torture from village to village.²⁰The intimate nature of the violence in Rwanda makes the issue of prosecution and punishment extremely important.²¹In a situation where genocide is perpetrated by neighbors-or in some instances, by family members-the current international trend of removing and prosecuting those at the highest levels of planning and organization may not satiate all the calls for justice or support the end goal of re-establishing the rule of law.

According to one account of the ICTR, "the responsibility for the Rwandan genocide is shared in varying degrees by three categories of individuals: (1) the planners, (2) the 'military' superiors and subordinates and (3) the unwilling accomplices."²²The first group, the planners...