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International Criminal Law as a Spotlight and Black Holes as Constituents of Legacy

Part of: International Criminal Tribunals for the Former Yugoslavia and Rwanda: Broadening the Debate

Published online by Cambridge University Press:  20 January 2017

Larissa van den Herik
Larissa van den Herik*
Affiliation:
Leiden Law School, Grotius Centre for International Legal Studies
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This contribution engages with Sara Kendall’s and Sarah Nouwen’s article on the legacy of the International Criminal Tribunal for Rwanda (ICTR) and their call for an ethos of institutional modesty. I much support the nuanced approach that underlies their call and I see it as a prerequisite to properly and adequately appreciate the ICTR’s past existence and operation. I would even be open to moving one step further in the direction of an ethos of sobriety. Rather than seizing the momentum to celebrate accomplishments and highlight milestones, legacy-talk and legacy-construction of international criminal tribunals should entail a form of reckoning. Indeed, as suggested by Kendall and Nouwen, the “justices not done” and the “justices pending” must be part and parcel of the ICTR’s legacy-constructions so as to offer a fair balance and to capture the ICTR’s overall performance, explicitly accounting for results as well as omissions.

Type
Symposium on the International Criminal Tribunals for the Former Yugoslavia and Rwanda: Broadening the Debate
Information
AJIL Unbound , Volume 110 , 2016 , pp. 209 - 213
Copyright
Copyright © American Society of International Law 2016

References

1 Sara Kendall and Sarah Nouwen, Speaking of Legacy: Toward and Ethos of Modesty at the International Criminal Tribunal for Rwanda, 110 AJIL 212 (2016).

2 Id.at 220-222.

3 Id.at 214-215.

4 Id.

5 Genocide, crimes against humanity,and the basic rules of international humanitarian law are explicitly mentioned as examples of peremptory norms in the International Law Commission’s Commentaries to the Articles on State Responsibilities, Int’l Law Comm’n, Report on the Fifty-third session, commentary to Article 26, para. 5 and commentary to Article 40, paras. 3-5, UN Doc. A/56/10(2001).

6 Larissavan den Herik & Catherine Harwood, Commissions of Inquiry and the Charm of International Criminal Law. Between Transactional and Authoritative Approaches, in The Transformation of Human Rights Fact-Finding 233-254 (Philip Alston and Sarah Knuckey eds., 2016).

7 Martti Koskenniemi, Between Impunity and Show Trials, 6 Max Planck UN Y.B.1, 11-19(2002); Harmen van der Wilt, Srebrenica: On Joint Criminal Enterprise, Aiding and Abetting and Command Responsibility, 62 Neth.Int’l L.Rev. 229-241 (2015); Antony Anghie & B.S. Chimni, Third World Approaches to International Law and Individual Responsibility in Internal Conflicts, 2 Chinese J.Int’L L. 77-103 (2003).

8 Michael J. Matheson & David Scheffer, The Creation of the Tribunals, 110 AJIL 173 (2016).

9 Daniel D. Ntanda Nsereko, Genocidal Conflict in Rwanda and the ICTR, 48 Neth.Int’l L.Rev., 31, 42 (2001).

10 Permanent Representative of Kenya to the United Nations, Letter Dated 11 October 1995 addressed to the President of the Security Council,UN Doc.S/1995/861 (Oct. 11, 1995).

11 The Mechanism for International Criminal Tribunals(MICT) was established by the Security Council on 22 December 2010 to carry out a number of essential functions of the ICTR and the International Criminal Tribunal for the former Yugoslavia (ICTY), after the completion of their respective mandates.

12 Prosecutor v. Nahimana, Case No. ICTR-99-52-A, Appeal Judgment, para.317 (Nov.28, 2007) (further references given in the judgment).

13 A. Odora-Obote, The Kagame-Power Lobby’s dishonest attack onBBC documentary on Rwanda: A rejoinder, Pambazuka News (Nov. 282014).

14 The ICTR President labeled this a “politicization of the defence strategy” in ICTR, Fifth annual report, UN Doc.A/55/435 and S/2000/927, para. 142 (Oct. 2, 2000).

15 Kendall and Nouwen, supra note 1, at 220-221.

16 Organization of African Unity International Panel of Eminent Personalities, Rwanda: The Preventable Geno-CIDE para. 6.1 (May 29, 2000).

17 André Guichaoua, From War to Genocide: Criminal Politics in Rwanda, 1990–1994 ch. 5 (2015).

18 Luc Reydams, NGO Justice: African Rights as Pseudo-Prosecutor of the Rwandan Genocide, 38 Hum.Rts.Q. 547 (2016), Alex de Waal, Writing Human Rights and Getting it Wrong, Bos.Rev. (June 6, 2016), Filip Reyntjens, (Re-)imagining a reluctant post-genocide society: the Rwanda Patriotic Front’s ideology and practice, 18 J. Genocide Res.61 (2016).

19 Prosecutor v. Bagosora,Case No. ICTR-98-41-T, Judgment and Sentence, para. 2112 (Dec. 18, 2008).

20 Kendall and Nouwen, supra note 1, at 222-224 and 227-230.

21 See also, Mark J. Osiel, Mass Atrocity, Collective Memory, and the Law (1997).

22 See, e.g., Magnus Taylor, Debating Rwanda under the RPF: gap between “believers’ and “unbelievers’ remains wide, Afr.Arguments (Oct. 8,2013). On the politics of memory, also on the part of those still denying the genocide, see Guichaoua, supra note 17.