TABLE OF CONTENTS
LIST OF ICTR JUDGEMENTS, DECISIONS AND OTHER DOCUMENTS XIII
LIST OF ICTY JUDGEMENTS, DECISIONS AND OTHER COCUMENTS XXIII
TABLE OF OTHER CASES XXVII
TABLE OF TREATIES
LIST OF UNITED NATIONS DOCUMENTS XXXV
LIST OF ABBREVIATIONS XLV
INTRODUCTION = 1
1 Aim of the research and statement of the problem = 3
2 Structure of the thesis = 5
3 Methodology = 7
I HISTORICAL AND POLITICAL CONTEXT OF THE EVENTS IN RWANDA IN 1994 = 11
I.1 Reasons for providing background information = 11
I.2 Rwanda before the colonisation = 14
I.3 The colonisation of Rwanda = 17
I.4 Renewed independence for Rwanda = 19
I.5 The four years before the genocide(1990-1994) = 21
I.6 the genocide (April-July 1994)
II THE ESTABLISHMENT, ORGANISATION AND JURISDICTIN OF THE ICTR = 27
II.1 The Rwandan conflict and the international community = 27
II.1.1 The Security Council = 28
II.1.2 Special Rapporteurs = 29
II.1.3 The Commission of Experts = 30
II.2 the establishment of the ICTR = 31
11.2.1 The motion on jurisdictin in the Kanyabashi case = 33
II.2.2 Rwanda: a threat to the peace? = 34
II.2.3 Article 41 of the UN Charter = 37
II.2.4 The ICTR as subsidiary organ: impartial and independent? = 38
II.3 The pros and cons of an international tribunal = 41
II.3.1 facilitating several goals = 41
II.3.2 Rwanda's opposition against the Tribunal = 42
II.3.3 An abundance of objectives = 43
II.3.4 Critical notes = 46
II.3.5 the relationship with national courts = 49
II.3.6 Moderate expectations = 56
II.4 The organisation of the ICTR = 57
II.4.1 Chambers = 59
II.4.2 The Prosecution = 63
II.4.3 The Registry = 66
II.5 The jurisdiction of the ICTR = 67
II.5.1 Substantive jurisdiction = 68
II.5.2 Personal jurisdiction = 71
II.5.3 Territorial jurisdiction = 80
II.5.4 Temporal jurisdiction = 80
II.6 conclusion = 84
III ICTR CASE LAW ON GENOCIDE = 87
III.1 The development of the concept of genocide = 88
III.1.1 The doctrinal concept = 89
III.1.2 The Legal concept = 91
III.1.3 The definition of the Convention = 92
III.1.4 The Draft Codes of the ILC = 95
III.1.5 Two Special Rapporteurs = 96
III.1.6 The ICTY, ethnic cleansing and genocide = 96
III.1.7 the ICC Statute and Elements of Crimes = 98
III.2 The Legality of including genocide in the ICTR Statute = 99
III.3 Genocide in Rwanda = 102
III.4 The mental element = 105
III.4.1 Travaux Preparatoires of the 1948 Genocide Convention = 106
III.4.2 Required Level of the Mental element = 108
III.4.3 Evidence required to prove the mental element = 110
III.4.4 Motive = 115
III.4.5 'In whole of in part' = 117
III.4.6 Evaluation = 121
III.5 The protected group = 124
III.5.1 Travaux preparatoires of the 1948 Genocide Convention and early writings = 124
III.5.2 The Tutsi as a protected group = 127
III.5.3 Evaluation = 132
III.6 The physical element = 135
III.6.1 Diffenent types of genocide = 135
III.6.2 Travaux preparatoires of the 1948 Genocide Convention = 137
III.6.3 Killing members of the group = 138
III.6.4 Causing serious bodily or mental harm to members of the group = 140
III.6.5 Deliberately inflictin on the group conditions of life calculated to bring about its physical destruction in whole or in part =142
III.6.6 Imposing measures intended to prevent births within the group = 143
III.6.7 Foreibly transferring childern of the group to another group = 144
III.6.8 Evaluation = 145
III.7 conclusion = 147
IV ICTR CASE LAW ON CRIMES AGAINST HUMANITY = 151
IV.1 Notion and development of the term crimes against humanity = 152
IV.2 The ICTR definition and rationale of crimes against humanity = 158
IV.2.1 The Commission of Experts = 158
IV.2.2 ICTR case law = 159
IV.3 Part of a widespread or systematic attack against any civilian population = 160
IV.3.1 'A Widespread or systematic attack' = 161
IV.3.1.2 The phrase 'widespread or systematic' = 163
IV.3.2 'Any civilian population' = 167
IV.3.3 'Part of' = 171
IV.4 The mental element = 172
IV.5 The discriminatory element = 174
IV.5.1 Nature of the element: jurisdictinal or substantive? = 175
IV.5.2 Enumeration of the grounds = 178
IV.6 The physical element = 179
IV.6.1 Murder = 180
IV.6.2 Extermination = 183
IV.6.3 Imprisonment = 188
IV.6.4 Torture = 189
IV.6.5 Rape = 191
IV.6.6 Persecution on Political, racial and religious grounds = 194
IV.6.7 Other inhumane acts = 195
IV.7 conclusion = 196
V ICTR CASE LAW ON WAR CRIMES = 199
v.1 The regulation of non-international armed conflicts = 200
V.2 The drafting of Article 4 of the ICTR Statute = 204
V.3 The legality of Article 4 of the ICTR Statute = 207
V.3.1 Relevant ICTY findings = 207
V.3.2 ICTR case law = 211
V.3.3 Evaluation of the case law of the two ad hoc Tribunals = 213
V.4 The armed conflict in Rwanda: was it really non-international? = 214
V.4.1 A non-internal armed conflict = 215
V.4.2 The impact of UN peace operations = 220
V.4.3 The involvement of third States = 221
V.4.4 The role of Uganda = 224
V.4.5 The involvement of France = 225
V.4.6 Evaluation of the ICTR's characterisation of the conflict in Rwanda = 226
V.5 Temporal and territorial applicablility of common Article 3 and Additional Protocol II = 226
V.6 A direct link between the alleged crime and the armed conflict = 228
V.6.1 The class of perpetrators = 229
V.6.2 The class of victims = 231
V.6.3 Further details on the requirement of a link = 232
V.6.4 Some ICTY cases = 233
V.6.5 A shift in the ICTR application of the requirement of a connection = 235
V.6.6 Evaluaion = 239
V.7 The criminal acts = 240
V.8 Conclusion = 244
VI THE INTERRELATIONSHIP BETWEEN THE THREE CRIMES = 245
VI.1 The hierarchy of the three crimes = 245
VI.2 Concurrence and cumulative convictions =249
VI.3 Correspondence between the specific crime definitions = 253
VI.3.1 Genocide and crimes against humanity = 254
VI.3.2 Genocide and war crimes = 256
VI.3.3 Crimes against humanity and war crimes: the requirement of a connection = 257
VI.4 Conclusion = 259
VII CONCLUSIONS: CONTRIBUTIONS, CHALLENGES AND CONCERNS = 261
VII.1 Rwanda and the ICTR = 262
VII.2 The creation of an international criminal tribunal = 265
VII.3 The ICTR case law on genocide = 266
VII.4 The ICTR case law on Crimes against humanity = 270
VII.5 The ICTR case law on war crimes = 273
VII.6 The ICTR and sources of international law = 274
VII.7 The contribution of the ICTR to the development of public international law
VII.8 The ICTR's legacy: looking towards the future = 283
BIBLIOGRAPHY = 285
INDEX = 301
APPENDICES
I: Security Council Resolution 955, 8 November 1994 = 307
II: Statute of the ICTR = 311
LIST OF ICTR JUDGEMENTS, DECISIONS AND OTHER DOCUMENTS XIII
LIST OF ICTY JUDGEMENTS, DECISIONS AND OTHER COCUMENTS XXIII
TABLE OF OTHER CASES XXVII
TABLE OF TREATIES
LIST OF UNITED NATIONS DOCUMENTS XXXV
LIST OF ABBREVIATIONS XLV
INTRODUCTION = 1
1 Aim of the research and statement of the problem = 3
2 Structure of the thesis = 5
3 Methodology = 7
I HISTORICAL AND POLITICAL CONTEXT OF THE EVENTS IN RWANDA IN 1994 = 11
I.1 Reasons for providing background information = 11
I.2 Rwanda before the colonisation = 14
I.3 The colonisation of Rwanda = 17
I.4 Renewed independence for Rwanda = 19
I.5 The four years before the genocide(1990-1994) = 21
I.6 the genocide (April-July 1994)
II THE ESTABLISHMENT, ORGANISATION AND JURISDICTIN OF THE ICTR = 27
II.1 The Rwandan conflict and the international community = 27
II.1.1 The Security Council = 28
II.1.2 Special Rapporteurs = 29
II.1.3 The Commission of Experts = 30
II.2 the establishment of the ICTR = 31
11.2.1 The motion on jurisdictin in the Kanyabashi case = 33
II.2.2 Rwanda: a threat to the peace? = 34
II.2.3 Article 41 of the UN Charter = 37
II.2.4 The ICTR as subsidiary organ: impartial and independent? = 38
II.3 The pros and cons of an international tribunal = 41
II.3.1 facilitating several goals = 41
II.3.2 Rwanda's opposition against the Tribunal = 42
II.3.3 An abundance of objectives = 43
II.3.4 Critical notes = 46
II.3.5 the relationship with national courts = 49
II.3.6 Moderate expectations = 56
II.4 The organisation of the ICTR = 57
II.4.1 Chambers = 59
II.4.2 The Prosecution = 63
II.4.3 The Registry = 66
II.5 The jurisdiction of the ICTR = 67
II.5.1 Substantive jurisdiction = 68
II.5.2 Personal jurisdiction = 71
II.5.3 Territorial jurisdiction = 80
II.5.4 Temporal jurisdiction = 80
II.6 conclusion = 84
III ICTR CASE LAW ON GENOCIDE = 87
III.1 The development of the concept of genocide = 88
III.1.1 The doctrinal concept = 89
III.1.2 The Legal concept = 91
III.1.3 The definition of the Convention = 92
III.1.4 The Draft Codes of the ILC = 95
III.1.5 Two Special Rapporteurs = 96
III.1.6 The ICTY, ethnic cleansing and genocide = 96
III.1.7 the ICC Statute and Elements of Crimes = 98
III.2 The Legality of including genocide in the ICTR Statute = 99
III.3 Genocide in Rwanda = 102
III.4 The mental element = 105
III.4.1 Travaux Preparatoires of the 1948 Genocide Convention = 106
III.4.2 Required Level of the Mental element = 108
III.4.3 Evidence required to prove the mental element = 110
III.4.4 Motive = 115
III.4.5 'In whole of in part' = 117
III.4.6 Evaluation = 121
III.5 The protected group = 124
III.5.1 Travaux preparatoires of the 1948 Genocide Convention and early writings = 124
III.5.2 The Tutsi as a protected group = 127
III.5.3 Evaluation = 132
III.6 The physical element = 135
III.6.1 Diffenent types of genocide = 135
III.6.2 Travaux preparatoires of the 1948 Genocide Convention = 137
III.6.3 Killing members of the group = 138
III.6.4 Causing serious bodily or mental harm to members of the group = 140
III.6.5 Deliberately inflictin on the group conditions of life calculated to bring about its physical destruction in whole or in part =142
III.6.6 Imposing measures intended to prevent births within the group = 143
III.6.7 Foreibly transferring childern of the group to another group = 144
III.6.8 Evaluation = 145
III.7 conclusion = 147
IV ICTR CASE LAW ON CRIMES AGAINST HUMANITY = 151
IV.1 Notion and development of the term crimes against humanity = 152
IV.2 The ICTR definition and rationale of crimes against humanity = 158
IV.2.1 The Commission of Experts = 158
IV.2.2 ICTR case law = 159
IV.3 Part of a widespread or systematic attack against any civilian population = 160
IV.3.1 'A Widespread or systematic attack' = 161
IV.3.1.2 The phrase 'widespread or systematic' = 163
IV.3.2 'Any civilian population' = 167
IV.3.3 'Part of' = 171
IV.4 The mental element = 172
IV.5 The discriminatory element = 174
IV.5.1 Nature of the element: jurisdictinal or substantive? = 175
IV.5.2 Enumeration of the grounds = 178
IV.6 The physical element = 179
IV.6.1 Murder = 180
IV.6.2 Extermination = 183
IV.6.3 Imprisonment = 188
IV.6.4 Torture = 189
IV.6.5 Rape = 191
IV.6.6 Persecution on Political, racial and religious grounds = 194
IV.6.7 Other inhumane acts = 195
IV.7 conclusion = 196
V ICTR CASE LAW ON WAR CRIMES = 199
v.1 The regulation of non-international armed conflicts = 200
V.2 The drafting of Article 4 of the ICTR Statute = 204
V.3 The legality of Article 4 of the ICTR Statute = 207
V.3.1 Relevant ICTY findings = 207
V.3.2 ICTR case law = 211
V.3.3 Evaluation of the case law of the two ad hoc Tribunals = 213
V.4 The armed conflict in Rwanda: was it really non-international? = 214
V.4.1 A non-internal armed conflict = 215
V.4.2 The impact of UN peace operations = 220
V.4.3 The involvement of third States = 221
V.4.4 The role of Uganda = 224
V.4.5 The involvement of France = 225
V.4.6 Evaluation of the ICTR's characterisation of the conflict in Rwanda = 226
V.5 Temporal and territorial applicablility of common Article 3 and Additional Protocol II = 226
V.6 A direct link between the alleged crime and the armed conflict = 228
V.6.1 The class of perpetrators = 229
V.6.2 The class of victims = 231
V.6.3 Further details on the requirement of a link = 232
V.6.4 Some ICTY cases = 233
V.6.5 A shift in the ICTR application of the requirement of a connection = 235
V.6.6 Evaluaion = 239
V.7 The criminal acts = 240
V.8 Conclusion = 244
VI THE INTERRELATIONSHIP BETWEEN THE THREE CRIMES = 245
VI.1 The hierarchy of the three crimes = 245
VI.2 Concurrence and cumulative convictions =249
VI.3 Correspondence between the specific crime definitions = 253
VI.3.1 Genocide and crimes against humanity = 254
VI.3.2 Genocide and war crimes = 256
VI.3.3 Crimes against humanity and war crimes: the requirement of a connection = 257
VI.4 Conclusion = 259
VII CONCLUSIONS: CONTRIBUTIONS, CHALLENGES AND CONCERNS = 261
VII.1 Rwanda and the ICTR = 262
VII.2 The creation of an international criminal tribunal = 265
VII.3 The ICTR case law on genocide = 266
VII.4 The ICTR case law on Crimes against humanity = 270
VII.5 The ICTR case law on war crimes = 273
VII.6 The ICTR and sources of international law = 274
VII.7 The contribution of the ICTR to the development of public international law
VII.8 The ICTR's legacy: looking towards the future = 283
BIBLIOGRAPHY = 285
INDEX = 301
APPENDICES
I: Security Council Resolution 955, 8 November 1994 = 307
II: Statute of the ICTR = 311