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Journal of African Law, 49, 2 (2005), 101-131 ? School of Oriental and African Studies.
doi:10.1017/S0021855305000100 Printed in the United Kingdom.
Introduction
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102 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.
Under the homogenous mode, the victim group8 has been effectively
"eliminated" or negated9 by the oppressor group from occupying a
1 The scope of the literature is too extensive to reference here, although a few titles should be
mentioned. See Z. Bauman, Modernity and the Holocaust, Ithaca, 1996; E. Staub, The Roots of Evil:
The Origin of Genocide and Other Group Violence, New York, 2000; H. Arendt, Eichmann in Jerusalem: A
Report on the Banality of Evil, New York, 1964; V. Jank?l?vitch, L'imprescriptible: pardonner?: dans
l'honneur et la dignit?, Paris, 1986; P-A. TaguiefF, La force du pr?jug?: essai sur le racism et ses doubles,
Paris, 1988; C. Browning, Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland,
New York, 1992; Y. Ternon, L'innocence des victimes au si?cle des g?nocides, Paris, 2001; A. Frossard, Le
crime contre l'humanit?, Paris, 1987; M. Mamdani, When Victims Become Killers: Colonialism, Nativism,
and the Genocide in Rwanda, Princeton, 2001.
2 The interpretive models range from a "uniqueness" thesis, represented by such historians as
Stephen Katz, Deborah Lipstadt, and Alain Destekhe, which claims that each genocide is sui
generis, an event or process which is inherently incommensurable with any other event or process,
to what might be called the "immanent" thesis, represented by such figures as Hannah Arendt or
Zygmunt Bauman, which posits that genocide is an inherent possibility contained within a
modernist mentality, emerging in contexts where traditional social structures are undermined
or subject to a condition of extreme crisis. See A. Destekhe, "The third genocide", (1994-1995) 97
Foreign Policy 3, 4-5; D. Lipstadt, Denying the Holocaust: The Growing Assault on Truth and Memory,
New York, 1993; S. Katz, "The uniqueness of the Holocaust: the historical dimension", in
A. Rosenbaum (ed.), Is the Holocaust Unique? Perspectives on Comparative Genocide, Boulder, 1996.
3 See generally, G. Andreopoulos (ed.), Genocide: Conceptual and Historical Dimensions,
Philadelphia, 1994; L. Chorbajian and G. Shirinian (eds.), Studies in Comparative Genocide,
New York, 1999.
4 See H. Fein, "Genocide: a sociological perspective", (1990) 38(1) Current Sociology; F. Chalk
and K. Jonassohn, The History and Sociology of Genocide: Analyses and Case Studies, New Haven, 1990;
C. McC. Lewin, "The Holocaust: anthropological possibilities and the dilemma of representa
tion", (1992) 94(1) American Anthropologist; K. Bischoping and N. Fingerhut, "Border lines:
indigenous peoples in genocide studies", (1996) 33(4) The Canadian Review of Sociology and
Anthropology; D. Maybury-Lewis, "Genocide against indigenous peoples", in A.L. Hinton (ed.),
Annihilating Difference: The Anthropology of Genocide, Berkeley, 2002.
5 See G. Prunier, The Rwanda Crisis: History of a Genocide, New York, 1997; D. Diner, "On guilt
discourse and other narratives: German questions and universal answers", in Beyond the Conceivable:
Studies on Germany, Nazism, and the Holocaust, Berkeley, 2000, 218-230; Mamdani n. 1 above.
6 M. Drumbl, "Punishment, postgenocide: from guilt to shame to civis in Rwanda", (2000) 75
N.T.U. L. Rev. 1221, 1235-1241; W. Schabas, "Justice, democracy and impunity in post-genocide
Rwanda: searching for solutions to impossible problems", (1996) 7 Crim. L. F. 523; J. Drumtra,
Life after Death: Suspicion and Reintegration in Post-Genocide Rwanda, Washington, D.C., 1998.
7 M. Drumbl, "Sobriety in a post-genocidal society: good neighborliness among victims
and aggressors in Rwanda?", (1999) 1(1) Journal of Genocide Research 25.
8 The phrase "victim group" is intended to refer to those particular national, "racial, ethnic or
political groups" which are subject to intentional extermination. Within a specific context, the
designation, however, may not be stable or capable of being stabilized; the boundary defining the
category may shift and the group who was the victim may become the aggressor and the aggressor
may become the victim.
9 See C.P. Scherrer, "Towards a theory of modern genocide. Comparative genocide research:
definitions, criteria, typologies, cases, key elements, patterns and voids", (1999) 1(1) Journal of
Genocide Research 15 (describing the "complete extermination and destruction-in-whole of a
particular community or group, with the intent to destroy its reproduction (as a group) as well
as its culture and institutions" as "total genocide").
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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 103
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104 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.
19 In some cases, there may exist a series of social issues which are not capable of being
negotiated. If the victim group, for instance, occupies a dominant position in a particular area
of economic life, segregation and social exclusion may be impractical or pragmatically impossible
to implement.
20 See C. Kaufmann, "Possible and impossible solutions to ethnic civil wars", in M.E. Brown
(ed.), Nationalism and Ethnic Conflict, Cambridge, MA, 1997, 265.
21 Ibid, at 277.
22 Drumbl, n. 6 above, at 1239-1240.
23 In pluralist post-genocidal societies, institutional, economic and social arrangements which
operate to mark off or distinguish one group from another may be subject to a process of radical
reconfiguration whereby the loci of authority will be shifted to a different group.
24 See generally Human Rights Watch, Iraq's Crime of Genocide: The Anfal Campaign Against the
Kurds, New Haven, 1995; D. McDowall, A Modern History of the Kurds, London, 1996.
25 See M. Caianiello and G. Illumin?t, "From the International Criminal Tribunal for the
Former Yugoslavia to the International Criminal Court", (2001) 26 N.C. J. Int'l L. & Com.
Reg. 407.
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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 105
26 See A.M. Warnke, "Vagabonds, tinkers, and travelers: statelessness among the East
European Roma", (1999) 7 Ind. J. Global Legal Stud. 335.
27 The notion of "ethnicity" has been subject to decades of scholarly debate without achieving
even an agreed-upon speculative ostensive definition. Some cultural anthropologists and histor
ians, such as Benedict Anderson, have argued that boundaries marking ethnicity are constantly
shifting and adapting. The image of a fixed, permanent ethnie or ethnic community is replaced by
the idea of an "imagined community". For the purposes of this essay, the following definition of
the term ethnie will be assumed: "a named human population with myths of common ancestry,
shared historical memories, one or more elements of common culture, a link with a homeland and
a sense of solidarity among at least some of its members". See R.A. Schermerhorn, Comparative
Ethnic Relations: A Framework for Theory and Research, Chicago, 1978, 12; E. Tonkin, M. McDonald,
and M. Chapman, History and Ethnicity, New York, 1989, 11-17 (tracing the history of the term
and defining the scope of usage); M. Nash, The Cauldron of Ethnicity in the Modern World, Chicago,
1989, 10-15 (positing a set of "index features" to identify ethnic boundaries); D. Wippman,
"Ethnic Claims and International Law", in D. Wippman (ed.), International Law and Ethnic Conflict,
Ithaca, 1998, 3-4.
28 See C. Newbury, The Cohesion of Oppression: Clientship and Ethnicity in Rwanda, New York, 1988
(tracing the system of feudal clientship existing through portions of Rwanda in the pre-colonial
era. The author emphasizes that the categories of "Hutu" and "Tutsi" were shifting social
designations which could be altered through economic mechanisms).
29 See Prunier, n. 5 above, at 23?40.
30 See W.R. Louis, Ruanda-Urundi, 1884-1919, Oxford, 1963, Chapters 2 and 4; J. Vansina,
Le Rwanda ancien: le royaume nyiginya, Paris, 2001; Prunier, n. 5 above, at 13, 15.
31 See L. Kuper, Genocide: Its Political Use in the Twentieth Century, New Haven, 1981,
at 61-62.
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106 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.
32 See Prunier, n. 5 above, at 15; D. Newbury, "The clans of Rwanda: a historical hypothesis",
in Centre de Civilisation Burundaise (ed.), La civilisation ancienne des peuples des Grands Lacs, Paris,
1981, 186-197 (arguing that clans operated simply as a mechanism of social control, rather than
as an authentic social structure).
33 Ibid.; P. Gourevitch, We Wish to Inform Tou That Tomorrow We Will Be Killed with Our
Families: Stories from Rwanda, New York, 1998, 48; Prosecutor v. Akayesu, Case No. ICTR-96-4-T,
Par. 81 (1998) (http://www.ictr.org) (questioning whether Hutu represent a distinct ethnic group
under the definition posited by the ICTR Statute).
34 See Prunier, n. 5 above, at 366.
35 Ibid, at 368.
36 Ibid, at 15; A. Des Forges, "Leave None to Tell the Story": Genocide in Rwanda, New York, 1999,
31; Gourevitch, n. 33 above, at 47.
37 Drumbl, n. 6 above, at 1243; Des Forges, n. 36 above, at 4, 31 (noting that Tutsi and Hutu
"attended the same schools and churches, worked in the same offices, and drank in the same
bars . . . [They] celebrated the same heroes: even during the genocide, the killers and their
intended victims sang of some of the same leaders from the Rwandan past").
38 Hutu and Tutsi, as Gourevitch writes, "intermarried, and lived intermingled, without
territorial distinctions, on the same hills, sharing the same social and political culture". See
Gourevitch, n. 33 above, at 47.
39 As Prunier notes, the boundaries marking Hutu from Tutsi were socially and economic
ally defined. He describes the process of social mobility in Rwandan society as a function
of cattle ownership. An individual Hutu who acquired cattle would become icyihuture,
"de-hutuised" and, therefore, "tutsified". "Similarly," Prunier writes, "a very poor Tutsi who
lost all his cattle and had to cultivate the land would in due course become umuwore (fallen),
i.e., hutuised." The institution of marriage constituted another mechanism "to reinforce either
trend, the children of the successful Hutu marrying into a Tutsi lineage and the children of the
impoverished Tutsi marrying into a Hutu family". See Prunier, n. 5 above, at 13 14,
fn. 31.
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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 107
40 This interpretation is confirmed by examining the work of contemporary race theorists, such
as Hippolyte Taine, Joseph-Arthur de Gobineau, Ernest Renan and Gustave Le Bon.
41 See T. Todorov, On Human Diversity: Nationalism, Racism and Exoticism in French Thought,
Cambridge, MA, 1993, 114 (defining scientism as "essentially based ... on two postulates:
integral determinism and the subordination of ethics to science").
42 See ibid, at 1?32; A.L. Stoler, Race and the Education of Desire: Foucault's History of Sexuality and
the Colonial Order of Things, Durham, 1995, 8; P. van den Berghe, "Does race matter", in
J. Hutchinson and A.D. Smith (eds.), Ethnicity, Oxford, 1996, 264 (arguing that cultural mod
alities determine the choice of privileged physical characteristics defining a "social race").
43 In her The Origins of Totalitarianism, Hannah Arendt suggested that the European encounter
with Africa (particularly, South Africa), from the late sixteenth century, generated an epistemic
framework which led to the establishment of a precedent for treating people as "superfluous" in
Europe during the interwar period, and a mindset that could encourage their elimination.
Carrying the connection a step further, Franz Fanon, the Algerian philosopher and psychologist,
argued that Fascism and the Holocaust represented colonialism "brought back home". See
H. Arendt, The Origins of Totalitarianism, New York, 1966; F. Fanon, The Wretched of the Earth,
New York, 1968.
44 See Newbury, n. 32 above, at 118-128; A. Zimmerman, Anthropology and Antihumanism in
Imperial Germany, Chicago, 2001; M. Bunzl, "Franz Boas and the Humboldtian tradition: from
volksgeist and nationalcharakter to an anthropological concept of culture", in G.W. Stocking, Jr.
(ed.), Volksgeist as Method and Ethic: Essays on Boasian Ethnography and the German Anthropological
Tradition, Madison, 1996.
45 Drumbl, n. 7 above, at 28. See also M. Bunzl and H.G. Penny (eds.), Worldly Provincialism:
German Anthropology in the Age of Empire, Ann Arbor, 2003.
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108 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.
The European presence also permitted the Tutsi aristocracy to solidify its
control over non-appropriated Hutu sub-chiefdoms, particularly those of the
northwest who had traditionally resisted Tutsi attempts at incorporating
them into a centralized state system controlled by Tutsi elites.46
First developed by British race theorists, European colonial powers actively
appropriated the so-called "Hamide hypothesis"47 as an epistemic framework
for organizing the social geography of Rwanda. According to this anthro
historical approach, the Tutsi, who appeared to the Europeans to be generally
taller and thinner than the Hutus, derive their ethnic origin from a superior
"Caucasoid" race which inhabited the Nile Valley at one time and later
migrated south to the south-central portion of Africa. The theory also posits
a distinct Christian heritage to these migrating groups. Under the analytic of
racial evolutionism dominant in contemporary race discourse, the Tutsi were
constructed as an inferior mode of white European, not ontologically identi
cal, of course, but exhibiting certain traits with which the European coloni
alist could feel comfortable. According to this interpretive framework, the
Tutsi possessed greater intelligence, were more reliable, approached work
with an appreciation of its social (and, more importantly, ethical) value and
seemed to resemble the white European more than the "Bantu" Hutu
majority.48
Structured by European aesthetic and cultural preferences, the Germans
and, later, the Belgians set up a political system designed to facilitate a
"tribalism without tribes"49 and, in effect, to naturalize the pre-existing
system of social authority through a racial hermeneutic which explained
and legitimized the social geography privileging the Tutsi in relation to the
Hutu. By reading the social structure of Rwandan society according to a
racial framework, European colonialism was responsible for the stabilization
and internalization of the social distinctions informing the historical relations
between the Tutsi and the Hutus. Under colonialism, the economic and
political hegemony of the Tutsi elite was expanded, while the Hutu majority
was progressively excluded from the centers of economic and political author
ity. The European colonial authorities instituted an administrative system
designed to ascribe legal status for its racial discourse. In a series of adminis
trative measures, known as "les reformes Voisin" (after the contemporary
colonial governor, Charles Voisin), promulgated between 1926 and 1932,
for instance, the Belgian colonial authority mandated the use of identity
cards by all citizens of Rwanda. Emblazoned on each card was the
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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 109
individual's "racial" or ethnic group association.50 Having legal effect for over
sixty years, the system of ethnic differentiation and categorization established
by the mandated use of identity cards was appropriated during the genocide
to distinguish (for the process of extermination) Tutsi from Hutu. Unlike
the fluidity encoding the social geography of pre-colonial Rwanda, the
stabilization of the social and epistemological boundaries marking the Hutu
from the Tutsi during the period of European colonialism represented an
attempt to fashion an African society according to a framework structured by
a European discourse on race. Inculcated by theories of social and natural
evolution, European colonialism required a closed and stable system of racial
(and ethnic) identity as a mechanism to justify and naturalize their "imperial
gestures".51 The deeper tragedy, however, is the appropriation by Rwandan
society of this racial framework. Through the experience of European coloni
alism, both the Hutu and the Tutsi adopted this "artificial" colonial discourse
of race and applied it to their own social structure.52 In the process of
articulating and constructing a post-colonial society framed by a "foreign"
notion of racial normativity, both groups have gradually negated or forgotten
the condition of consanguinity informing the social geography of pre-colonial
Rwandan society. The appropriation of the European discourse of race
coupled with the abrogation of the open social framework permeating pre
colonial Rwanda operate as fundamental components structuring the
genocide of 1994.53
In reorganizing or re-mapping the social geography of Rwanda along a
racial or ethnic divide, both the European colonial authorities and the
Catholic Church54 operated according to an "ethnogenesisic"55 orientation
in which racial or ethnic identity is stabilized and naturalized in order to
promote a particular political or social program, such as colonialism. The
legitimacy of the "ethnic divide" was not questioned. When the period of
European hegemony came to an end in the region, the principles of
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110 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.
ethnogenesis were endorsed and sustained by the group of native elites who
began the process of fashioning a post-colonial civil society in Rwanda.
Rather than buttress an ideology of colonialism and racialism, ethnogenesis
was employed by the native elites as a mechanism to "authenticate" and
naturalize their own demands for social authority.56 The segmentation of
Rwandan society into distinct racial or ethnic categories, each bearing a
normative structure and uniting a racial discourse with ethnic codes of
behavior?what the French philosopher Alfred Fouill?e described under the
concept of id?e-forces?reproduced the ideology and effect of colonialism; in
place of the European colonial authorities, native elites now assumed a model
of racial or ethnic difference to sustain their own social authority. The
appropriation of the notion of ethnicity through a framework of ethnogenesis
helped to establish among native elites the identification of power with racial
or ethnic differentiation. This association of power with ethnicity helped to
prefigure the possibility of genocide.
The "Rwandan Revolution" which lasted from 1959 through 1962, when
independence was officially declared, replaced a Tutsi-dominated, colonial
sanctioned monarchy with an independent republic led by a small group of
Hutu counter-elites. Belgium and the Catholic Church enthusiastically
embraced the new regime whose brand of pro-Western African nationalism
was quickly recognized as a possible rampart against the Tutsi-dominated
Rwandan National Union whom the Belgian authorities suspected of ties with
Patrice Lumumba's radical Congolese National Movement and Communist
China.57 Unable to sub?ate an ideology of ethnogenesis, the ruling Hutu elite
began a process of reconfiguring the social geography of Rwanda as to
marginalize and discriminate against the Tutsi minority. By employing a
discourse of race, the new power regime could win the favor of the European
authorities as well as the influential Catholic Church. Race or ethnicity also
represented a common political and social language which was understood by
most Rwandans and could be used itself as a source of social authority.58
Before independence, the "ethnic divide" marking Hutu from Tutsi had
never produced actual ethnic violence. The period from 1962 through 1973,
however, witnessed the beginnings of genuine ethnic violence.59 With the
ascent to power of the Rwandan Democratic Movement under the leadership
of Gr?goire Kayibanda, a graduate of a Catholic seminary, the Tutsi minority
become subject, chronically, to periods of intense ethnic violence.60 As a result
of the violence, many Tutsi fled to neighboring countries in the Great Lakes
Region, generating a severe strain on the social structure of both the Tutsi
communities and the neighbor countries as well. Throughout this period,
the refugee Tutsi initiated a series of commando-like incursions into Rwanda.
These raids, in turn, produced reprisals by the Kayibanda government against
56 Ibid, at 557; Prunier, n. 5 above, at 347 ("Tutsi and Hutu conformed to the images which
had forcefully been projected upon them"); Staub, n. 1 above, at 61.
57 See Prunier, n. 5 above, at 58-59.
58 Ibid, at 60-61.
59 Ibid, at 48-50.
60 Ibid, at 53-61.
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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 111
61 Ibid, at 61-64.
62 Ibid. at 57; Staub, n. 1 above, at 61.
63 Ibid, at 61.
64 See W.E.B. Dubois, Black Reconstruction in America: An Essay Toward a History of the Part Which
Black Folk Played in the Attempt to Reconstruct Democracy in America, New York, 1985.
65 Prunier, n. 5 above, at 76-79.
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112 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.
degree of security and stability. For nearly 17 years, there were no recorded
massacres of Tutsi throughout Habyarimana's territory. He proved to be an
extraordinarily popular leader, even among the Tutsi.66
Beginning on 1 October, 1990, an organized force known as the Rwandese
Patriotic Front (RPF) staged a series of trans-border invasions into Rwanda
from camp installations located in Uganda.67 The invasion allowed the
Habyarimana government to rearticulate or reintroduce an analytic of ethni
city or race as a mechanism to promote social unity among the Hutus and to
strengthen its social authority. This strategy of ethnic ideology?what came to
be referred to as "Hutu Power"?assumed a level of popular credibility
among the Hutu population.68 By portraying the Tutsi as an "alien" race or
"vermin" (inyenzi), the government was able to play off the deep-seated fears
among the Hutu of the possibility of a widespread Tutsi conspiracy to reclaim
the government and initiate a program of systematic slaughter of the Hutu.
The reassertion of a discourse of race into Rwandan society helped to estab
lish the "nexus of coercive [social] constraints", as Habermas might have
described it, which would generate the necessary ideological framework for
genocide.69 Indeed, by the time of Habyarimana's death, the epistemol?gica!
and social conditions for a program of genocide were already in place.
In the days immediately following the death of Habyarimana, the Rwandan
Armed Forces joined with local civilian militias (the interahamwe) to initiate
a program for the systematic elimination of the Tutsi population from
Rwanda.70 Setting up roadblocks throughout the country and conducting
house-to-house searches in cities and villages (a process greatly facilitated by
the bureaucratic system of identity cards designating ethnic origin), Hutu
forces identified and slaughtered both Tutsi and sympathetic or "moderate"
Hutu. The state-sanctioned killing continued until the RPF and local Tutsi
resistance were able to seize control of the government and the countryside in
mid-July. The genocide lasted nearly one hundred days and produced approxi
mately 500,000 to 800,000 deaths. The fact that the dominant method used in
the killing of such a large number of people in such a short period of time
involved individuals attacking other individuals with a machete?an "extra
ordinarily inefficient device"?represents an indication that the actual process
of the genocide had to have incorporated most of the population, rather than a
mere handful of carefully selected elites.71 It has been suggested that as many as
a million Hutu may have been directly involved in the actual slaughter.72
66 Ibid, at 75.
67 Ibid. at 90-100.
68 See M. Mamdani, When Victims Become Killers: Colonialism, Nativism, and the Genocide in
Rwanda, Princeton, 2001.
69 J. Habermas, Legitimation Crisis, Boston, 1976, 4.
70 Prunier, n. 5 above, at 229-237.
71 Ibid, at 239-248.
72 In his analysis of medieval violence directed toward Jews and Muslims in the regions of
France and the Crown of Aragon (Aragon, Valencia, and Catalonia), David Nirenberg has
argued that the "functional aspects" of social violence serve to define and legitimate group
identity. Systematic and episodic persecution, particularly in the form of ritual violence, operates
as a mechanism "to reinforce the social order" by perpetually reaffirming the boundary conditions
distinguishing the majority/hegemonic community from the minority/subaltern community; it
may constitute, thereby, a performative strategy designed to fashion an epistemically stable
collective identity. "Violence," he contends, draws "its meaning from coexistence, not in opposi
tion to it." See D. Nirenberg, Communities of Violence: Persecution of Minorities in the Middle Ages,
Princeton, 1998, 245.
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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 113
For a collection of victim accounts of the Genocide, see M. Niwese, Le peuple rwandais un pied dans
la tombe. R?cit d'un r?fugi? ?tudiant, Paris, 2001; C. VanderwerfF, Kill Thy Neighbor: One Man's
Incredible Story of Loss and Deliverance in Rwanda, Boise, 1996; P. Gourevitch, n. 33 above. The
French journalist Jean Hatzfeld has recently published a series of interviews and testimonies
conducted with several perpetrators of the Genocide. See J. Hatzfeld, Une saison de machettes, r?cits,
Paris, 2003.
73 Mamdani, n. 1 above, at 233.
74 See D.F. Orentlicher, "Settling accounts: the duty to prosecute human rights violations of a
prior regime", (1991) 100 Yale L. J. 2537, 2552.
75 Ibid, at 2551.
76 See R.O. Nwodo, "The application of regional and international treaties by national
courts", in E.A. Ankumah and E.K. Kwakwa (eds.), The Legal Profession and the Protection of
Human Rights in Africa, Maastricht, 1999, 48-49 ("For a State to accept international obligations
in relation to the treatment of its own citizens always involves the State accepting a certain
limitation of its national sovereignty in its internal affairs").
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114 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.
The field of International Criminal Law has played a dominant role in the
development of Human Rights jurisprudence. Though the roots can be traced
back to the late nineteenth and early twentieth centuries,81 modern human
rights law emerged from the context of the Allied victory in World War II
over National Socialism and the Japanese Empire.82 The Allied Powers
asserted jurisdiction over Nazi and Japanese war criminals based on "a
principle of universality", hostis humani generis (literally "enemy of all man
kind"), which posited that certain acts constituted a universal violation of the
integrity of all "civilized" nations and were subject to prosecution by any
nation, regardless of immediate connection to the act itself83 Traditionally,
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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 115
the scope of international law did not include jurisdiction over crimes com
mitted by a nation state against its own citizens. By extending jurisdiction
over crimes committed by the German Reich against its own nationals, the
Nuremberg tribunals initiated a radical shift in the orientation of interna
tional criminal law, what Rudi Teitel called "a legal anomaly".84 The Allied
prosecution justified this shift by arguing that an international court could
obtain jurisdiction in cases involving "crimes against humanity" because the
particular conduct, by its very nature, offended "humanity" itself and, as the
US Military Tribunal argued in the famous Einsatzgruppen Case, international
judicial enforcement of "the law of humanity" through the mechanism of an
international tribunal operated "to preserve the human race itself".85 In
other words, the atrocities committed by individuals under National Social
ism and the Japanese Empire were conceptualized as violations of the integ
rity of civilization itself, similar to the traditional framing of piracy as an
offense to the welfare of "society".
An attempt to map the boundaries of the notion of "crimes against human
ity" was first promulgated by the drafters of the Nuremberg Charter in 1945.
Engaged in a critical dialogue with the traditional tenets of international
criminal jurisprudence, the drafters articulated a definition designed to
accommodate the shifting human rights framework emerging from the events
of the Second World War. According to article 6(c) of the Nuremberg
Charter, "crimes against humanity" constitute "murder, extermination,
enslavement, deportation, and other inhumane acts committed against any
civilian population ... or prosecutions on political, racial or religious
grounds".86 This definition articulates a set of acts whose very nature violates
the fundamental integrity of humanity or civilization as well as transgressing
what Kant would describe as "reverence for the law";87 the inherent and
"existential" criminality associated with these acts denies a contextualist
interpretation of them.88 The nature of the acts, in other words, gives them
a degree of autonomy, an axiological independence situating them outside the
scope of an historical or cultural hermeneutic. Concomitant with this autonomy
principle, the Charter also articulated the principle that every human being is
entitled to a set of fundamental rights independent of those granted under
domestic law. As structured by the Charter, the autonomy principle operates
as a liminal position framing the principle of human rights; a violation of
human rights, therefore, constitutes a de-contextualized act, a species or mode
of deontological practice {praxis) .89 As will be argued below, this removed
condition allows the crime of genocide to assume a metaphysic, in the
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116 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.
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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 117
Deontological retributivism
95 Kant, n. 87 above, at 63-64; J. Rawls, A Theory of Justice, Cambridge, MA, 1971, 3; RJ.
Araujo, "Justice as right relationship: a philosophical and theological reflection on affirmative
action", (2000) 27 Pepp. L. Rev. 377, 399-401.
96 I. Kant, Metaphysical Elements of Justice, New York, 1965, 99-101.
97 Thus, Aristotle said the measure o? a. polis is the good at which it aims. See Aristotle, Politics,
(Ernest Barker, ed.), New York, 1966, 39.
98 Kant, n. 87 above, at 62 ("A good will is not good because of what it effects or accom
plishes?because of its fitness for attaining some proposed end....").
99 Ibid, at 69-71; G.P. Fletcher, "Law and morality: a Kantian perspective", (1987) 87
Colum. L. Rev. 533, 538 ("An imperative is categorical, rather than hypothetical, if it does not
posit any ends in the phenomenal world. Only a categorical imperative?also called the moral
law?can lead one to moral action, for any constraint based on ends would invariably inject
sensual impulses into our conduct. However sound the content of the moral law, merely conform
ing to its demands could not guarantee that the resulting action would be moral. The criterion of
morality is not conforming to a prescription, but rather thinking oneself into a form of action that
springs from the noumenal world of reason"). Ruti Teitel labels this conception of universal justice
as derived from an "idealist perspective" espoused by such natural law figures as Lon Fuller in his
debates with H.L.A. Hart concerning the "rule of law problem" emerging from the Nuremberg
Trials. See Teitel, n. 79 above, at 12-15.
100 Kant, n. 87 above, at 98.
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118 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.
all men have by nature [e.g., the aim of achieving happiness] or with the
recognized means of attaining this end."101 It must originate in a moment
prior to all empirical ends; an individual's autonomy is made manifest only
under a condition of freedom in which no particular end is presupposed. The
foundation for moral law, as Kant articulated, rests with the subject, con
ceived of as an autonomous will.102 Rather than represent this subject as
empirically situated, Kant configures it as "a subject of ends, namely a
rational being himself, [who] must be made the ground for all maxims of
action."103 This transcendental subject or homo noumenon, as a pure formal
structure of subjectivity in general, occupies a space "above" or "beyond" the
vagaries of circumstance and context and must be presupposed in order to
secure a condition of freedom. If one were simply an empirical being or homo
phaenomenon, Kant would argue, every exercise of the will would be condi
tioned by the desire for some object or "constitutive" end; under such a
condition, the individual would be locked into a mode of dependent existence,
what Hegel referred to as the "bare level of life" (das Sein des Lebens),104 in
which individual autonomy would be lost in a chronic cycle of desire.105 An
expression of an individual's will would never constitute a first cause, only the
manifestation of some prior cause, the expression of a particular impulse or
inclination.106 "When we think of ourselves as free," writes Kant, "we transfer
ourselves into the intelligible world as members and recognize the autonomy
of the will."107 Freedom and moral action, therefore, are a function of a
noumenal, rather than of a "heteronomic" or empirical analytic. According
to the Kantian ethical framework, therefore, the notion of a transcendental
subject, what Judith Butler described as "a presocial ontology of person",
situated prior to and independent of experience constitutes a necessary pre
supposition for the possibility of freedom.108
Kant's theory of justice in which the right is given priority over the good is
founded on the figure of the transcendental subject, a liminal and formal
subject position removed from historical and psychological context. As the
foundation for a deontological ethic, this transcendental subject operates as
the source of individual autonomy and choice. This subject position entails a
set of universal rights which are presupposed and constituted by justice and,
therefore, "are not subject to the calculus of social interests".109 According to
101 I. Kant, "On the common saying: 'This may be true in theory, but it does not apply in
practice'", in Kant's Political Writings, Cambridge, 1970, 73; Araujo, n. 95 above, at 397-98.
102 Kant, n. 87 above, at 98.
103 Ibid, at 92.
104 G.W.F. Hegel, Ph?nomenologie des Geistes, Hamburg, 1952, 143.
105 Fletcher, n. 99 above, at 537 ("Internal freedom is but one of a number of equivalent
expressions for the emanations of practical reason, or pure reason as expressed in human action.
The notions of autonomy, of will, of the noumenal?all of these expressions represent the same
side of the basic dichotomy in Kant's thinking. The other side of the dichotomy is captured by the
notion of heteronomy, subservience to inclination and the phenomenal. This second set of terms
invokes the world as we perceive it with our senses; the first, a world beyond the senses").
106 Kant, n. 87 above, at 120 ("...for to be independent of determination by causes in the
sensible world (and this is what reason must always attribute to itself) is to be free").
107 Ibid, at 92.
108 See M. Sandel, Liberalism and the Limits of Justice, New York, 1988, 6; J. Butler, Gender
Trouble: Feminism and the Subversion of Identity, New York, 1990, 3 ("The prevailing assumption of
the ontological integrity of the subject before the law might be understood as the contemporary
trace of the state of nature hypothesis, that foundationalist fable constitutive of the juridical
structures of classical liberalism. The performative invocation of a nonhistorical 'before' becomes
the foundational premise that guarantees a presocial ontology of persons who freely consent to be
governed and, thereby, constitutes the legitimacy of the social contract").
109 Rawls, n. 95 above, at 4.
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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 119
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120 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.
119 Convention on the Prevention and Punishment of the Crime of Genocide, adopted 9
December, 1948, G.A. Res. 260 A (III), 78 U.N.T.S. 227.
120 R. Lemkin, Axis Rule in Occupied Europe, Washington, D.C., 1944; see also R. Lemkin,
"Genocide as a crime under international law", (1947) 41 Am. J. Infl. L. 146.
121 Ibid, at 82.
122 Ibid, at 8. See Destexhe, n. 49 above, at 3.
123 See A. Finkielkraut, La m?moire vaine: du crime contre l'humanit?, Paris, 1989, 32 (arguing that
the distinction between the construction of the victim as "enemy" and the representation of the
victim as "vermin" to be systematically negated or exterminated entails a radically incommensur
able set of epistemological and ontological conditions).
124 See Jank?l?vitch, n. 1 above, at 72 (claiming that the crime of genocide represents a crime
against the very essence of humanity, an attempt to negate existence- or being-as-man).
125 Genocide Convention, n. 119 above, at Art. IV, Art. V and Art. VI.
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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 121
126 "Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide", (1951) I.C.J. 15, at 23.
127 S.C. Res. 955, U.N. SCOR, 49th Sess., 3453rd mtg., U.N. Doc. S/RES/955 (1994). A
thorough record of ICTR documents and supporting materials, including protocol, final judge
ments and recent press releases, is contained on the official website of the Tribunal at http://
www.ictr.org.
128 Ibid. art. 1; CM. Carroll, "An assessment of the role and effectiveness of the International
Criminal Tribunal for Rwanda and the Rwandan national justice system in dealing with the mass
atrocities of 1994", (2000) 18 B.U. Int'l. L.J. 163, 171-172; C. Cisse, "An assessment of the
International Criminal Tribunal for Rwanda", in E.A. Ankumah and E.K. Kwakwa (eds.),
The Legal Profession and the Protection of Human Rights in Africa, Maastricht, 1999, 98.
129 Cisse, n. 128 above, at 101; Carroll, n. 128 above, at 172-173.
130 ICTR Statute, n. 127 above, arts. 2, 3, 4.
131 Ibid. art. 8.
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122 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.
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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 123
Scholars have argued that, in certain very specific contexts, the device
of the adversarial trial may not constitute the most effective mechanism
for establishing a framework of social justice and "civil dissensus".138 In the
case of transitional dualist post-genocidal societies, such as Rwanda, the
trial imperative and its concomitant deontological ethic of retributivism
fails to generate an epistemological project capable of facilitating genuine
social accountability and reconciliation. The focus of the ICTR is to
"discover" what Albie Sachs described as "microscopic" or "logical" truth,
an epistemic condition emerging through carefully delineated and controlled
137 See M. Osiel, Mass Atrocity, Collective Memory, and the Law, New Brunswick, 1997, 36-47;
J.E. Alvarez, "Crimes of states/crimes of hate: lessons from Rwanda", (1999) 24 Yale J. Int'l. L.
365, 469.
138 C.S. Nino, Radical Evil on Trial, New Haven, 1996, 128 (contending that litigation can
destabilize transitional political structures).
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124 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.
139 A. Sachs, "Truth and reconciliation", (1999) 52 SMU L. Rev. 1563, 1571-1572.
140 Drumbl, n. 6 above, at 1228.
141 See Sachs, n. 139 above.
142 N. Goodman, "The way the world is", in Problems and Projects, Indianapolis, 1972, 30
("There are very many different equally true descriptions of the world, and their truth is the
only standard of their faithfulness. And when we say of them that they all involve conventiona
lizations, we are saying that no one of these different descriptions is exclusively true, since the others
are also true. None of them tells us the way the world is, but each of them tells us a way the
world is").
143 N. Goodman, Ways of Worldmaking, Indianapolis, 1988.
144 I am using the term "immanent" in the Hegelian sense of "immanent critique", i.e., a
critique which is initiated from within, as opposed to from without, and operates according to the
scope and limitation afforded it by the system itself.
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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 125
Truth Commissions
145 See generally D. Markel, "The justice of amnesty? Towards a theory of retributivism in
recovering states", (1999) 49 Univ. of Toronto L.J. 389, 412.
146 S.P. Garvey, "Punishment as atonement", (1999) 46 UCLA L. Rev. 1801, 1840.
147 J. Braithwaite, "Restorative justice and social justice", (2000) 63 Sask. L. Rev. 185.
148 See H. Zehr, Changing Lenses: A New Focus for Crime and Justice, Scottsdale, 1990, 125.
149 See A.P. Melton, "Indigenous justice systems and tribal society", (1995) 79 Judicature 126.
150 Garvey, n. 146, above at 1841-1842.
151 J. Braithwaite, "A future where punishment is marginalized: realistic or Utopian?", (1999)
46 UCLAL. Rev. 1727, 1743.
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128 Case of the International Criminal Tribunal for Rwanda [2005] J.A.L.
159 There exists a parallel here with the thought of the French philosopher Emmanuel Levinas
who argued that the origin of the moral command has always been external; it derives from an
"Other" with whom the listener has a nonreciprocal relationship of obedience. The one who
receives the ethical imperative can never assume the role of the one who speaks, which makes a
purely humanist ethics, he contends, an impossibility.
160 The notion of "universal determination" represents a counterdistinction to Lyotard's
notion of "local determinant". See J.-F. Lyotard, The Postmodern Condition: A Report on Knowledge,
Minneapolis, 1986, 66.
161 Drumbl, n. 6 above, at 1256.
162 Ibid, at 1257.
163 Braithwaite, n. 147 above, at 100.
164 Ibid, at 57.
165 See T. Massaro, "Show (some) emotions", in S.A. Bandes (ed.), The Passions of Law,
New York, 1999, 80, 87.
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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 129
genocide and the need for coexistence structuring post-genocide Rwanda, the
family of a victim may be compelled to live next door to the person responsible
for killing the family member. In order to begin the process of r?int?gration, a
social and judicial framework must be established whose epistemic codes are
understandable and which generates a sense of legitimacy and trustworthiness
among both the families of the victims and the aggressors themselves. In
traditional Rwandan society, a shaming technique known as gacaca was
routinely implemented for centuries to resolve social disputes among clan
members.166 An individual who had committed a violation of the social
rules governing the clan would be brought before a council of sages and
clan elders. Depending on the nature of the offense, the council would
assemble either the offended party or the entire clan and would attempt to
mediate some sort of mutual resolution. Both parties would be given the
opportunity to voice their position; the community would also be given the
chance to express itself. The process o? gacaca establishes a dialogic framework
through which the victim (or the victim's family), the aggressor, and the
community would be afforded a discursive space in which to articulate,
investigate and engage their positions.167 Remedies, such as public apologies
and community shaming, are designed to strengthen communal loyalties and
overcome social diremption by reasserting a common and locally sanctioned
system of punishment. Rather than imposed from without by a fundamentally
alien judicial framework, justice emerges as a function of communal
dialogue.168 As a mode of communal justice, gacaca operates on three crucial
levels: (1) as a traditional mode of dispute resolution, its operation entails a
high degree of social authority and legitimacy; (2) its dialogic function gen
erates an open discursive space through which the community itself can create
a collective memory of the genocide; (3) on a psychological and emotional
level, the process allows the victims, the aggressors and the community to
reach a level of mutual understanding and recognition which may facilitate
the process of social r?int?gration and coexistence.
Conclusion
166 See Carroll, n. 128 above, at 190-192; J. Prendergast and D. Smock, "Postgenocidal
reconstruction: building peace in Rwanda and Burundi", in Special Report 53 of the United States
Institute of Peace (1999), at http://www.usip.org/pubs/specialreports/sr990915.html.
167 Habermas' theory of communicative competence, which he calls a "universal pragmatics",
recognizes that all linguistic communication presupposes a background consensus. This "under
lying consensus" can be analyzed as involving "the reciprocal recognition" of at least four
different nonreducible validity claims "which speakers announce to each other". These claims
include the comprehensibility of the utterance; the truth of its propositional content; the legiti
macy or Tightness of its performative content ("performatory component"); and the veracity or
"authenticity" of the speaker. In normal contexts of communicative action, Habermas argues,
these four claims are not questioned or threatened; but when a language game (in the
Wittgensteinian sense) is disturbed or the background consensus breaks down ?as in the context
of genocide?then the appropriate form and level of discourse is required to reestablish the
normative foundation. The process of gacaca represents a social mechanism designed to repair
the epistemic displacement suffered by the local communities of Rwanda. See J. Habermas, Theory
and Practice, Boston, 1974.
168 Drumbl, n. 6 above, at 1264-1265.
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Vol. 49, No. 2 Case of the International Criminal Tribunal for Rwanda 131
purpose of the trials and the consequences of these trials for local communities,
national reconciliation, and international peace.
The paradigm of deontological retributivism posits a set of rigorously
consistent obligations rather than establishing a network of constructive
practices. The deontological standpoint of retributivism locates the criteria
for meaning and truth in a source external to the shared perspectives of social
agents, in a tertium quid of transcendental subjectivity. The paradigm of
restorative justice, I suggested, represents a more appropriate alternative to
achieving closure within Rwandan society. Under this approach, crime is
understood primarily as a conflict between individuals that generates injuries
to victims, communities, and the offenders themselves. Unlike the retributive
model, it is only secondarily framed as a violation against the state or the
international community. The telos of the criminal justice process, as con
ceived by the restorative model, should be to engender peace in communities
by reconciling the parties and repairing the injuries caused by the dispute.
Criminal justice should facilitate a process of dialogic exchange in which
victims, offenders, and their communities find solutions together to their
conflicts.
Societies which have suffered through mass political violence are not parti
cularly responsive to theories of rational choice and are often inspired by
non-rational impulses. In these contexts, traditional mechanisms of public
punishment, such as shaming, can produce a social framework in which the
offender is reintegrated into society. Unlike the finding of guilt under the trial
model, the public's involvement in such traditional approaches is continuous
throughout the process. A trial in which a detainee faces an unknown prose
cutor, at times behind closed doors, may produce little genuine effect. In the
case of a prosecution held in Tanzania at the ICTR, where the language of
the trial may not be understandable to all Rwandans, where the proceedings
may not be diffused in the media, where the court chambers are distant and
hard to reach, and where the trials may be encumbered by foreign (and
seemingly technical) procedures, the trial may only have negligible shaming
effects. In the context of Rwanda, returning the aggressor to the local com
munity to face shaming is likely to mean that the aggressor must face the
approbation of a neighbor's family or even his or her own family. The process
may entail confronting people whom the aggressor injured, maimed, raped, or
robbed. Reintegrative shaming, for instance, can promote the necessary con
ditions for psychological closure and the development of a stable civis. The
process of creating a political ideology which can generate a stable and safe
social framework also requires that Rwandan society reinterpret the legacy of
ethnicity. Hutu and Tutsi must "re-discover" the "original position" which
Rwandan society maintained before colonial contact in which "Hutu and
Tutsi lived together, shared values, and built institutions independent of
ethnic identity".169 By reclaiming a self-referential identity which is authentic
and legitimate, Hutu and Tutsi can initiate a social dialectic designed to move
Rwandan society beyond the artificial structure engendered by ethnicity.
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