Citation
Neo-Colonial Relationships Gone Wrong:
French Leaders Should Be Held Legally
Responsible for their Role in the
Rwandan Genocide
Kirsten T. Bowman
Santa Clara University
This working paper is hosted by The Berkeley Electronic Press (bepress) and may not be
commercially reproduced without the permission of the copyright holder.
http://law.bepress.com/expresso/eps/494
Copyright c 2005 by the author.
Neo-Colonial Relationships Gone Wrong:
French Leaders Should Be Held Legally
Responsible for their Role in the
Rwandan Genocide
Abstract
This article explores the role of outside government intervention in civil war
conflicts and the ability of these government actors to be held responsible for
crimes committed by association and assistance to war criminals. By using the
example of the French/Rwandan relationship and the criminal responsibility
that France may have for its association and assistance to the Hutu majority
government, it looks to the pitfalls that many western countries could find themselves in by assuming similar roles with other repressive and unstable regimes.
This analysis proves particularly timely as lawyers for six Rwandan citizens
recently filed a lawsuit with the Army Tribunal of Paris alleging that French
soldiers had a role in the 1994 Rwanda genocide. Exploring various contemporary theories of criminal responsibility including complicity and other forms
of indirect criminal responsibility, the analysis shows that if the allegations
against French officials responsible for Operation Turquoise and the accompanying diplomatic and arms support are true, they could be held criminally liable
for their participation in the Rwandan genocide of 1994. Beginning by laying
the foundation of the history of the conflict and subsequent genocide as well as
the facts surrounding France’s role before and during this conflict, the article
sets out a case for the culpability of France. Briefly exploring jurisdictional
issues, the analysis moves on to examine three theories of culpability; complicity in genocide, joint criminal enterprise, and command responsibility. Upon
making a strong case under each of these international legal theories the paper
then compares the Rwandan incident with other incidences of neo-colonialism
or imperialism both in past and present times. Finally, the article concludes by
stating the need for global accountability in our responsibility to not participate
in actions against humanity.
Kirsten Bowman
Neo-Colonial Relationships Gone Wrong: French Leaders Should Be
Held Legally Responsible for their Role in the Rwandan Genocide
“It seems…inconceivable that one can watch….thousands of people
being….massacred….every day….and remain passive.” – General Romeo
Dallaire
The events that occurred in Rwanda from April 1994 through June 1994 were some of
the most horrific of the 20th century. Although the killing was low tech – mainly by
machete – the killers were quite effective. Over 800,000 people were dead in only 100
days. The dead in Rwanda accumulated at nearly three times the rate of the dead in the
Holocaust. It is the most efficient mass killing to date since the atomic bombings of
Hiroshima and Nagasaki.1
While the atrocities themselves are overwhelming to
comprehend, the reaction by the international community to the atrocities being
committed is equally difficult to understand. Both the United Nations (UN) and the
United States government (US) have been widely criticized for their lack of action
during the genocides. However, it is important to remember that it was not only the UN
and the US who did not act, but in fact, the entire international community who turned
their back on the crisis unfolding in Rwanda. It is widely thought that “international
involvement in the Rwanda genocide was a profoundly disturbing case of inaction,
where military force was too little and too late”.2 The only action which was finally
taken seems to be that of France near the end of crisis, in June of 1994, when the
French government sent troops into Rwanda to help control the situation. However,
this intervention by France looked suspicious to many international observers. Some
observed that France was the “least appropriate country to intervene” due to its warm
relationship with the Hutu-led government.3 Worse than these general observations are
1
Hosted by The Berkeley Electronic Press
Kirsten Bowman
reports regarding the actions and inaction of French troops while on the ground in
Rwanda.
The purpose of the following analysis is to explore the role of outside government
intervention in civil war conflicts and the ability of these government actors to be held
responsible for crimes committed by association and assistance to war criminals. Many
developed nations hold neocolonial relationships with repressive regimes of developing
nations in order to benefit financially through trade and investment opportunities. It is
important for these nations to recognize that they may hold some measure of
responsibility for criminal acts of regime governments depending on the specific nature
of their relationship.
Specifically, the analysis will focus on the case of French intervention in the Rwanda
crisis to support a theory of individual criminal responsibility. This analysis proves
particularly timely as lawyers for six Rwandan citizens recently filed a lawsuit with the
Army Tribunal of Paris alleging that French soldiers had a role in the 1994 Rwanda
genocide.4 Using the example of the French/Rwandan relationship and the criminal
responsibility that France may have for its association and assistance to the Hutu
majority government, it is possible to see the pitfalls that many western countries may
find themselves in by assuming similar roles with other repressive and unstable
regimes. Exploring various contemporary theories of criminal responsibility including
complicity and other forms of indirect criminal responsibility, the analysis will show
that if the allegations against French officials responsible for Operation Turquoise and
2
http://law.bepress.com/expresso/eps/494
Kirsten Bowman
the accompanying diplomatic and arms support are true, they could be held criminally
liable for their participation in the Rwandan genocide of 1994.
I)
SETTING THE BACKDROP: THE GENOCIDE AND FRENCH INVOLVEMENT
Historical Overview
On April 6, 1994 the plane of Rwandan President Habyarimana and Burundian President
Ntaryamira was shot down and all aboard were killed.5 While it has never been proven
that President Habyarimana’s own Hutu party was responsible for his death, many facts
point to that possibility. Habyarimana had been compelled by popular pressure to make
substantial concessions to reform-minded oppositionists, and Habyarimana’s extremist
entourage was very concerned that Rwanda was slipping toward moderation.6 The final
straw for the Hutu extremists was Habyarimana signing the Arusha Accords in August of
1993. This signature amounted to a political suicide note.7 Hutu leaders charged treason,
saying that Habyarimana had become an accomplice to the treason.8 As well, there
seemed to be a lot of chatter regarding the imminent death of the President.
Hassan Ngeze was telling anybody who would buy his newspaper. In
the March issue of Kangura, he ran the banner headline
“HABYARIMANA WILL DIE IN MARCH.” An accompanying
cartoon depicted the President as a Tutsi-loving RPF
accomplice…Kangura proposed a scenario strikingly similar to the
schemes described by the informant in (General) Dallaire’s fax (to the
Department of Peacekeeping Operations at UN headquarters in New
York, describing an informants description of preparations for genocide,
large storing of imported arms and lack of Habyarimana’s control over
his party) – the President assassinated ‘during a mass celebration’ or
‘during a meeting with his leaders.’ The article opened with the words
‘Nothing happens that we did not predict,’ and ended, ‘Nobody likes
Habyarimana’s life better than he does. The important thing is to tell
him how he will be killed.’9
3
Hosted by The Berkeley Electronic Press
Kirsten Bowman
The assassination of Habyarimana certainly was a boost to the Hutu power leaders. The
removal of Habyarimana eliminated both him and his threat of moderation as well as
inciting a violent response from the Hutu majority in return for the death of their fallen
President.
However, the story of the Rwanda genocide did not begin on April 6, 1994.10 While no
one knows the exact origins of the Hutu, Tutsi, and Twa peoples (the latter representing
only one percent of Rwanda's population), there is little evidence of deep-rooted or
ancient hatreds among these castes prior to colonial rule.11 With the onset of colonial
rule, Tutsi, despite their minority status, gained greater economic and social status over
the Hutu, particularly through a division of labor that gave many Tutsi control over cattle
and left hard labor to Hutu agriculturalists.12 During this period both Belgium and France
became closely aligned with the majority Hutu against the Tutsi minority.13 In the late
1950s to early 1960s, Rwanda became a more polarized ethnic state with the Hutu
majority periodically and systematically attacking the Tutsi population, prompting
streams of Tutsi refugees to neighboring countries.14 In October of 1990, the Rwandan
Patriotic Front (RPF), made up of Tutsi in exile, attacked Rwanda.15 The Habyarimana
regime, which had been losing political power due to negative economic conditions in the
1980s, took steps to preserve its power.16 As a result, a civil war broke out and mass
killings began occurring in 1990 through 1993.17 In an attempt to halt the violence, on
August 4, 1993, the Rwandan government and the RPF signed the Arusha Accords, a
group of agreements and protocols negotiated between 1990 and 1993.18 The United
Nations Security Council established the United Nations Assistance Mission in Rwanda
4
http://law.bepress.com/expresso/eps/494
Kirsten Bowman
(UNAMIR), a peacekeeping force of 2,500, to oversee the implementation of the peace
accords.19 In 1994, the Rwandan population was made up of eighty-five percent Hutu,
fourteen percent Tutsi, and one percent other ethnic groups, such as the Twa.20
French Involvement in the Conflict
In 1975 the French Government, eager to expand its neocolonial African empire, began
military assistance to Habyarimana’s government.21
Thus, began the friendly and
cooperative relationship between the two governments and their leaders.
This
relationship continued throughout Habyarimana’s life, and even past it, as the French
continued to back the Hutu government throughout the genocide and civil war. Despite
reports of violence against Tutsi and a growing pattern of exclusion from every segment
of society, the French continued their support of Habyarimana’s government with both
troops and arms in the early 1990’s.22 In 1990, hundreds of well equipped French troops
were fighting alongside Habyarimana’s army to hold off the RPF’s advancement.23 In
1990 to 1991, amid continuing massacres of Tutsi, the Rwandan army began to train and
arm civilian militias known as the Interahamwe ("those who stand together").24
Although a military agreement was signed in 1975 between France and Rwanda which
forbade the involvement of French troops in Rwandan combat, training or police
operations, the French funneled huge shipments of armaments to Rwanda though the
early 1990s, all the way through the genocide of 1994.25 As well, throughout the early
1990’s French officers and troops served as Rwandan auxiliaries.26 In 1991, as the RPF
was making advances into Habyiramana’s home territory, government troops, including
French paratroopers drove them out.27 And, in fact, when the US government suggested
5
Hosted by The Berkeley Electronic Press
Kirsten Bowman
that Rwanda should do away with its ethnic identity cards, in order to promote unity, the
French squashed the idea quickly.28
With such strong support from the French, the Habyarimana government was able to
leave the fighting of the RPF to the French troops and concentrate instead on their
campaign against Tutsi civilians.29 In early March of 1992 militia members in the
Bugesera region slaughtered three hundred Tutsi in three days.30
Similar killings
occurred at the same time in Gisenyi and in August – after Habyarimana signed a cease
fire with the RPF - Tutsi were again massacred in Kibuye.31 As the slaughter of the Tutsi
population continued through the early 1990’s, the foreign aid money continued to pour
into Habyarimana’s government, and weapons continued to arrive, supplied mainly by
France, although Egypt and South Africa lent a hand as well.32
With these very close ties to high ranking Rwandan governmental officials and with their
undercover intelligence operations in place, Human Rights Watch suggests that it is
nearly a certainty that France knew of the preparations for killing the Tutsi and Hutu
moderates.33 In fact, it is documented that French diplomats and military officers were
discussing the possibility of genocide in Rwanda in early 1990 and former French
Ambassador Martres said that the genocide was foreseen in early 1993.34 However,
France was loyal to its Rwandan ties and continued its support of the Rwandan
government diplomatically through the Security Council as well as militarily with its
continued supply of arms.35 One example of this was Boutros-Ghali’s hope that France,
Belgium and the U.S. would support him in his efforts to halt the Hutus preparations for
6
http://law.bepress.com/expresso/eps/494
Kirsten Bowman
violence. It is reported that it was France who refused to address the issue within the
Security Council.36
Once the genocide began in April of 1994, the main discussion among the UN, Belgium
and France was the evacuation of their troops. The Belgian and French governments
decided quite quickly that troops under their control would not attempt to restore order in
Rwanda, and instead focused on evacuating only their own troops as quickly as possible
from the area.37 While the French were in a position to save many Tutsi due to their
relative ease at moving around the cities and the country and the cheers with which they
were greeted from the Hutu militia, they choose to save only a few Rwandans, all of
whom were closely linked to the Habyarimana government.38
Even as the number of victims of genocide mounted, French officials such as President
Mitterrand, General Quesnot and General Huchon - both of whom headed the French
military - pursued the goal of assuring the heirs of Habyarimana the predominant political
role in Rwanda.39 They unquestioningly equated the ethnic majority to the political
majority, and never doubted that the Hutu had the right to dominate political life.40 The
Hutu government recognized the necessity of continued French support to their efforts
against the Tutsi and kept French Ambassador Jean-Michel Marlaud well informed of
their progress in the fight.41
Although French soldiers were supposed to have left
Rwanda in December of 1993 as part of the terms of the Arusha Accords, in actuality
forty to seventy soldiers remained in Rwanda.42 There is no account of what role was
played by these French advisers during the first days of the crises, when the officers that
7
Hosted by The Berkeley Electronic Press
Kirsten Bowman
they had been training were ordering their troops to slaughter civilian Tutsi and moderate
Hutus.43 It is thought that the French officials within the country were well-acquainted
with Rwandan military leaders and well-placed to influence them, although there was
apparently no attempt to do so.44 The last of the French troops were officially withdrawn
on April 14.45
Although the troops withdrew by April 14th, it seems clear that Mitterrand’s
administration was continuing to support the Hutu regime, and thus in effect, the
genocidal actions taken by the regime both in diplomatic influence as well as in deliveries
of arms. While official deliveries of arms by the French government are supposedly
regulated by defined rules, in the case of Rwanda, the rules were rarely followed.46
Speaking privately, many French military officials indicated that deliveries of weapons
by French actors took place while the genocide was going on.47 In fact, according to a
U.N. military observer, one of the three French planes involved in the evacuation also
brought cases of ammunition for the Hutu majority.48 French officials told UNAMIR that
the plane would land 2 hours later than it was actually scheduled, and Rwandan soldiers
who were correctly informed of the time, were there to unload the ammunition and take it
away for use by the Hutu majority effort.49 The Human Rights Watch Arms Division
researched the situation and reported back:
The French government and French companies operating under
government license delivered arms to the Rwandan forces five times in
May and June through the town of Goma, just across the border from
Gisenyi, in Zaire. The first of these shipments may have taken place
before May 17, when the Security Council imposed an embargo on the
supply of arms to the interim government, but it was still done in disregard
of its April 30 appeal to refrain from providing arms or any military
assistance to the parties to the conflict. On one of the dates in question,
8
http://law.bepress.com/expresso/eps/494
Kirsten Bowman
May 25, a plane from Malta landed at Goma with a single passenger, T.
Bagosora (General of the Rwanda Hutu army), in addition to its cargo.50
By the beginning of May, France began planning for a military intervention in order to
slow the advance of the RPF and prop up the interim government.51 The French had a
great interest in keeping their allies, the Hutu government in place in Rwanda. According
to accounts from Philip Gourevitch, France was desperate for an opportunity to rescue its
investment in Rwanda, and “communication between Paris and Kigali was constant, if
not downright conspiratorial”.52 However, the fact that by this time the genocide was an
international concern made any move by the French to help the Hutu government to stay
in power politically risky. The French press was hounding the French political and
military administrations with stories of blatant complicity in the preparation and
implementation of the genocide.53 The French therefore ended up billing their move into
Rwanda as a humanitarian mission and was able to get the U.N., desperate for help, to
sign on.54
By mid-June President Mitterrand finally pushed Operation Turquoise into action. The
Security Council endorsed the ‘impartial’ French deployment and allowed the mission
the ability to use aggressive force, which had been denied to UNAMIR.55 Thus, France
declared its intention to turn all of Rwanda into a safe zone, but the question remained;
safe for whom?56 In fact, France’s ex-President Valery Giscard d’Estaing accused the
French military of protecting those who had carried out the genocide.57 This, indeed,
appeared to be the case. While it cannot be denied that French presence in western
Rwanda, where the French brought their media to watch and report, saved many Tutsi,
9
Hosted by The Berkeley Electronic Press
Kirsten Bowman
thousands more continued to be killed in French-occupied zones.58 It seems that from the
moment they arrived, and wherever they went “the French forces supported and
preserved the same local political leaders who had presided over the genocide”.59 Many
human rights NGO’s and individual observers would later look to Operation Turquoise
and say that the “signal achievement of the operation was to permit the slaughter of Tutsi
to continue for an extra month, and to secure safe passage for the genocidal command to
cross, with a lot of its weaponry, into Zaire.”60
II)
RESPONSIBILITY OF FRENCH OFFICIALS FOR THEIR PART IN THE GENOCIDE
Jurisdiction
French individuals complicit in these events could be tried either in a national court or
military tribunal or in the International Criminal Tribunal for Rwanda (ICTR).61
Universal jurisdiction under customary international law gives States the right to use
their domestic courts to prosecute war criminals, as well as the crimes of genocide and
crimes against humanity committed outside of war.62
Thus, under the theory of
universal jurisdiction, a State can prosecute a war criminal irrespective of their
nationality or place of the commission of the offense, or any link between the
prosecuting State and the war criminal.63
Therefore, under a theory of universal
jurisdiction, various interested national courts64 would be able to try French military
leaders and diplomats for their involvement in the genocides of 1994. 65
10
http://law.bepress.com/expresso/eps/494
Kirsten Bowman
The ICTR would also have jurisdiction over French officials involved in the Rwanda
genocide. The ICTR holds jurisdiction over natural persons for serious violations of
international humanitarian law.66 Thus, the tribunal holds jurisdiction over individual
persons, but not government entities, political parties and the like.67 The territorial
jurisdiction of the ICTR extends to “the territory of Rwanda including its land surface
and airspace, as well as to the territory of neighboring States in respect of serious
violations of international humanitarian law {committed by Rwandan citizens}”.68 The
last part of the provision is a limitation on jurisdiction specifically for acts in
neighboring countries.69 Thus, if the acts occurred outside of Rwanda, the tribunal
would only have jurisdiction over Rwandan citizens, but if the acts happened within
Rwanda territory the tribunal has jurisdiction over all natural persons.
The final
jurisdictional limitation of the ICTR is the temporal jurisdiction limitation which reads,
“The temporal jurisdiction of the International Tribunal for Rwanda shall extend to a
period beginning on 1 January 1994 and ending on 31 December 1994”.70 Thus the
territorial and temporal jurisdictional limits that are placed on the tribunal would only
allow for prosecution of French actions which took place in Rwanda during the year of
1994.
Despite any jurisdictional or immunity limitations, it is certainly possible and likely
that, through either the jurisdiction of the ICTR or universal jurisdiction, French actors
who participated and contributed to the Hutu Power acts of brutality against the Tutsi
could be held responsible under various forms of liability through indirect
responsibility.
Under article 6 of the ICTR a superior can be held individually
11
Hosted by The Berkeley Electronic Press
Kirsten Bowman
responsible for the acts of a subordinate71 or for the aiding and abetting in the planning,
preparation or execution of crimes72 and the official position of a person will not relieve
them from responsibility.73
Further, the ICTR has adopted the language of the
Genocide Convention in Article 2 of its statute which includes the ability to punish an
individual for complicity in genocide.
Complicity in Genocide
Under both the Genocide Convention and the ICTR Statute complicity in genocide is a
punishable act.74 In fact, participation by complicity in the most serious violations of
international humanitarian law was considered a crime as early as Nuremberg.75 The
Chamber in the Prosecutor v. Akayesu noted that complicity is viewed as a form of
criminal participation by all criminal law systems. Further, since the accomplice to an
offense may be defined as someone who associates himself in an offence committed by
another, complicity necessarily implies the existence of a principal offense.76
It has been stated that the events in Rwanda during the spring and summer of 1994
were the clearest example of genocide since the Jewish holocaust during World War
II.77 The ICTR Chambers have found many defendants guilty of various forms of
genocide and there are many more defendants still to be tried for genocidal crimes. In
the case of Prosecutor v. Kayishema the Chamber analyzed the crimes of genocide by
identifying and analyzing the mens rea and actus reus for the crime. The Chamber
identified the mens rea of the crime of genocide as the specific intent to destroy a group
in whole or in part.78 As well, they found that for the crime of genocide to occur, the
12
http://law.bepress.com/expresso/eps/494
Kirsten Bowman
intent must be formed prior to the acts of genocide.79 They clarified though, that the
acts do not require premeditation, only that the act is done in furtherance of the
genocidal intent.80 In order to find proof of the intent the court can look to either words
or deeds to establish this intent. From there, the Chamber also looked at what the
destruction of a group means specifically.
They concurred with the view of the
International Law Commission which stated that “it is not necessary to intend to
achieve the complete annihilation of a group from every corner of the globe”.81 Thus
the Trial Chamber in the Kayishema case was of the opinion that the phrase
“destruction of a group in whole or in part” requires the intention to destroy a
considerable number of individuals who are part of a group.82
As well, these
individuals must be targeted due to their membership in that particular group.83
When looking to the actus reus element of genocide the Chamber in the Kayishema
case looked to the list of acts listed in the statute. They specifically were able to clarify
what the words “killing members of the group” meant. While debating the meaning of
the words killing, homicide and the French word meurtre, the court found that “there is
virtually no difference between the term killing in the English version and meurtre in
the French version of Article 2 of the statute…..hence killing and meurtre should be
considered along with the specific intent of genocide”.84 Upon analysis of the crime of
genocide and the mens rea and actus reus, the Trial Chambers of the ICTR have found
on many occasions that the perpetrators of the massacres in Rwanda had the requisite
mens rea and actus reus to be found guilty of genocide.85 Thus, the underlying crime
13
Hosted by The Berkeley Electronic Press
Kirsten Bowman
of genocide is easily found and the principle offense is established in the case against
French actors.
Once genocide has been established, it is then necessary to complete an analysis of the
elements of complicity. Because the statute provision Article 2(3)e, while stating that
complicity in genocide is a recognized criminal offense, does not seek to define the
elements of the crime, the Chamber in Akayesu defined complicity taking into account
both common and civil law systems as well as looking specifically at the Rwandan
Penal Code.86 After assessing each of the various systems the Chamber defined the
elements of complicity in genocide as 1) complicity in procuring means, such as
weapons……used to commit genocide, with the accomplice knowing that such means
would be used for such a purpose; and 2) complicity in aiding or abetting in the
planning or enabling of genocide.87
The mens rea element requires that the accomplice must have acted knowingly. It is
not necessary for the accomplice to have the specific intent to destroy the group, only
that the accomplice acted while they knew or had reason to know that the principal was
acting with genocidal intent.88
It seems unlikely that any of the French military or political officials would be able to
claim that they did not have knowledge of the genocide occurring in Rwanda. As was
discussed earlier, French officials began discussing the threat of genocide in Rwanda in
1990, and former French Ambassador Martres claimed that genocide was foreseen in
14
http://law.bepress.com/expresso/eps/494
Kirsten Bowman
1993.89 Therefore, providing that the accounts of French actions before and during the
genocide are accurate, it would likely be found that the French were well aware that
their actions leading up to the events in April of 1994 were enabling the Hutu power
base to plan and implement the genocide. Further, by the end of April it seems
irrefutable that any country could claim a lack of knowledge of the genocide which was
being perpetrated in Rwanda. Throughout the first weeks of killing, international
leaders refused to talk of genocide, quite possibly because they feared the legal and
moral obligations that would follow from recognizing that the crime was being
committed.90 However, by the end of April, the word “genocide” was popping up in
speeches of various world leaders regardless of the international community’s reticence
to use it. The Pope used the word “genocide” to condemn the violence on April 27.
The UN Secretary General, Boutros-Ghali followed with the use of the term a few days
later and even French Minister Alain Juppe used the word to describe the events taking
place in Rwanda in early May at a meeting of the European Union.91 It would be
awfully difficult for any of the French officials, whether diplomatic or military, to
claim that they did not have a knowledge and understanding of what was occurring in
Rwanda. Still they allegedly provided arms to the Hutu majority. Thus, by supplying
arms with the knowledge that the Hutu were carrying out genocide with the help of
those arms, the French have met the elements of complicity in genocide by their
actions.
It is important as well to note that the Chamber in Akayesu specifically distinguishes
the crime of complicity in genocide from aiding and abetting by requiring a positive,
15
Hosted by The Berkeley Electronic Press
Kirsten Bowman
affirmative action for complicity, while aiding and abetting can be found in failing to
act or an omission.92 However, to find aiding and abetting the mens rea element is only
found when the accused has the specific intent to destroy the group.93
Under these
guidelines, French actors in Rwanda during Operation Turquoise cannot be held
responsible under a complicity theory for merely failing to act to stop the genocide.94
Thus, under the complicity theory, if the reported actions of the French are accurate
they could be held liable under this theory for diplomatic assistance, arms assistance,
and any actions that were taken on the ground during the operation to provide Hutu
leaders cover to finish their genocidal actions, but cannot be held responsible for
inaction.
The French could argue that they did intervene to save many Tutsi lives.95 And, it
cannot be argued that their presence in Rwanda did not save Tutsi lives. However,
their presence in the country also provided cover for many more Tutsi lives to be taken,
as the Hutu’s spent the last month of the genocide focusing on carrying out the killing
of the remaining Tutsi when they understood that the RPF would most likely win.96 At
that point, they focused their military power not on holding off the RPF, and instead
allowed the French troops to take over more of the civil war work, enabling them to
focus their attention on the genocidal killing of Tutsi.97 Assuming the accounts of
French actions toward Rwanda in the year of 1994 are accurate, their actions both
within Rwanda and diplomatically on the Hutu Power government’s behalf, coupled
with their funneling of arms to the Hutu power base strongly suggests that French
16
http://law.bepress.com/expresso/eps/494
Kirsten Bowman
military and political leaders should be held accountable for complicity in genocide
under the Statute of the ICTR.
Joint Criminal Enterprise
Article 7 of the ICTY and Article 5 of the ICTR statute authorize accomplice liability,
providing for individual responsibility for substantive offenses for persons who
planned, instigated, ordered, committed or otherwise aided and abetted in the planning,
preparation or execution of the offense.98 Within this constellation, the ICTY has
identified Joint Criminal Enterprise (JCE) as another form of indirect liability. While
the ICTR has not applied individual criminal responsibility in a JCE theory as of yet, it
is implicit in the section of the ICTR statute dealing with accomplice liability. As well,
the ICTY has successfully applied it in numerous cases.
The ICTY in Prosecutor v. Tadic identified three categories of joint activity that could
subject a perpetrator to liability for the acts of others. First are the cases where all codefendants, acting with a common plan, possess the same criminal intent.99 A second
category derives from World War II’s classic concentration camp scenario, where
members of military or administrative units act pursuant to a common plan, each with
the requisite mental element deriving from knowledge of the system and intent to
further the common design.100 A third category where joint criminal enterprise might be
found are offenses that do not necessarily fall within a common plan or are not the
object of a common criminal purpose, yet the defendants actions furthered the joint
criminal enterprise and thus culpability exists.101 A main reason to separate these types
17
Hosted by The Berkeley Electronic Press
Kirsten Bowman
of joint criminal enterprise into the three categories is that the mens rea requirement for
each of the categories is different. The French involvement in Rwanda fits most
closely into the third category of possible joint criminal enterprise liability and thus, it
is necessary to find the requisite mens rea which attaches to that category. In the
instance of joint criminal enterprises which are not the object of a common plan or
criminal purpose, liability attaches if two factors are present. First, the accused must
possess the intention to take part in a joint criminal enterprise and to further the
criminal purpose of that enterprise.102 Secondly, the offenses committed by members
of the group must be foreseeable.103
While France may not have had the exact same common plan in the genocide of the
Tutsi population, it is possible to find the requisite mens rea of intention to take part in
and further the enterprise. As well, the genocide committed by other members of the
joint criminal enterprise was certainly foreseeable. Assuming that the accounts of
French involvement with the Hutu majority government are accurate, France’s interest
in helping the Hutu’s to stay in power and fight against the RPF was a major driving
force behind their actions during the lead up and actual events of the genocide. By
transferring weapons to the Hutu government and helping to train their soldiers before
the genocide began in the interest of helping to keep the Hutu majority in power a court
would likely find the requisite intent to further the enterprise of the Hutus Power base.
The second element required to find the mens rea here, would also be easily found, if
the accounts of events are accurate. Because it has been documented that the French
were well aware of the possibility of genocide breaking out against the Tutsi in the
18
http://law.bepress.com/expresso/eps/494
Kirsten Bowman
early 90’s building up to the actual genocide of 1994, it would certainly be foreseeable
to them that the training that they were providing, along with diplomatic cover and
large arms transfers would be used in the criminal outcome of genocide.
Upon finding the requisite mens rea for liability under joint criminal enterprise, it is
still necessary to look to the actus reus elements of the criminal theory. During the
Krystic case at the ICTY the trial chamber laid out the three actus reus elements
required for a finding of joint criminal enterprise.104 There must be a plurality of
persons; the existence of a common plan which amounts to or involves the commission
of a crime provided for in the statute; and participation of the accused in the execution
of the common plan.105 In regards to the second element of the existence of a common
plan, the Chambers specified that it is not necessary for this plan, design or purpose to
have been previously arranged or formulated.106 The common plan or purpose may be
inferred from the fact that a plurality of person are acting in unison.107
The plurality of persons element involved in the Rwandan genocides is very clear. The
crime of genocide was committed by many Rwandan actors, and the joint criminal
enterprise would include those that actually committed the acts of genocide as well as
those who acted to aid in the actions of the perpetrators. In this case those actors would
be namely those French officials who supported the Hutus through transfer of weapons
and the provision of diplomatic and military support. The existence of the common
plan certainly seems to be an element easily met. It is important to remember that the
French need not have participated in the planning of the genocide, it is enough that the
19
Hosted by The Berkeley Electronic Press
Kirsten Bowman
plan of genocide existed and that the French knew or should have known of the plan.
The accountings of the genocide clearly indicated that the Hutu had planned the
genocide well in advance and that the French had every indication of the possibility of
genocide in Rwanda leading up to the events of 1994 and certainly were aware of the
genocide occurring during the months of April through June of 1994. Finally, the last
element of the actus reus requirement is met as long as the accounting of French
involvement are indeed accurate. According to the accounts, the French participated in
the commission of the crime of genocide by providing diplomatic cover, military
assistance and the supply of weapons to the Hutu power base. Having met all of the
elements for both the mens rea and actus reus of joint criminal enterprise, it would
seem likely that individual French actors could also be held criminally responsible
under this theory of joint criminal enterprise for working with the Hutus and aiding
them in their fight to destroy the Tutsi population.
Command Responsibility
A third theory of individual criminal responsibility for the French military commanders
is the theory of command responsibility. This doctrine holds that a commanding officer
can be held liable for the acts of another, or for failing to prevent another from
committing an illegal act.108 Thus, under this doctrine, a military commander may be
held liable for the actions of those under his control. Under Geneva Protocol I in 1977,
it was determined that a commander could be held responsible for violations of
international law perpetuated by his or her subordinates, if the commander knew, or
should have known that the crime would be committed and did nothing to prevent the
20
http://law.bepress.com/expresso/eps/494
Kirsten Bowman
crime from being committed.109
As well, the Rome statute of the International
Criminal Court (ICC) states that a military or civilian commander can be held liable in
the ICC for the criminal acts of his or her subordinates if the commander knew the act
would be committed and did not take reasonable steps to prevent the crime from being
committed.110
The Chamber in the Kayishema case at the ICTR first considered whether Kayishema
would be subject to the notion of command responsibility due to his role as a nonmilitary commander. This is a relevant analysis to look at in comparison to the French
commander’s role. While the French on the ground in Rwanda during Operation
Turqoise were with the French military, they were not a part of the Rwandan military
and thus their position as commander is a more difficult question to answer. The
Chamber notes that the crucial question was not the civilian or military status of the
accused, but rather the degree of authority exercised over subordinates.111 Thus, it is
not necessary to be a part of the Rwandan military in order to be held responsible under
a theory of command responsibility. Following this finding, a French military officer
would be able, if all other requirements were met, to be charged and found guilty under
this theory.
However, in order to hold French officials responsible under the Command
Responsibility doctrine it is also necessary to identify who the c ommanders in control
were. There were many various commanders named throughout the operation, with
21
Hosted by The Berkeley Electronic Press
Kirsten Bowman
General Jean-Claude Lafourcade being the Commander of Operation Turquoise and
therefore having complete responsibility for the mission.112
After laying out the parameters for deciding who would constituted a superior, the
Kayishema Judges next considered who would constitute subordinates over whom a
superior would exercise command. Inherent in this discussion, it is necessary to look at
de jure versus de facto command, and which is necessary to establish command
responsibility. The Chamber set out the guiding principle by stating that, “the doctrine
of command responsibility is ultimately predicated upon the power of the superior to
control the acts of his subordinates”.113
Therefore, in order to follow that most
important principle and in view of the chaotic situation in Rwanda, the Chamber
asserted that they must be free to consider whether the requisite control was established
by either de jure or de facto command.114 In making this decision they cited both case
law and the Rome Statute to support the ability to look at both de jure and de facto
command responsibility.115 The Rome Statute stipulates in Article 28(2) that all other
superiors shall be criminally responsible for acts committed by subordinates under his
or her effective control.116 Further the Chamber noted that Article 6 of the Rwanda
Tribunal’s Statute was formulated to include responsibility of all government officials,
all superiors and all those acting pursuant to orders.117 Thus, the statute was designed
to ensure that those culpable under the Statute would not be able to escape
responsibility through legalistic formalities.118
22
http://law.bepress.com/expresso/eps/494
Kirsten Bowman
Under the Chambers rationale in Kayishema and the Rwandan Statute it is necessary to
find that the French has a superior relationship to the Hutu military, as well as to find
the necessary elements of ‘knowledge’ and ‘failure to prevent and punish’ that are set
out in Article 6(3) of the Statute.119 The most difficult hurdle in a case for French
liability under a command responsibility theory is the finding of a superior relationship
over the Hutu military members by Operation Turquoise.
However, if the facts
documented on the ground in Rwanda are true, it would likely be found that this
relationship existed.
Under the facts given, the French would not have de jure
command over the Hutu troops, but a finding of de facto command is likely. Operation
Turquoise landed in Rwanda in June of 1994 and immediately and quickly established
French authority over the part of Rwanda still controlled by the Rwandan government
forces, which were those Hutu government forces that were taking part in and requiring
Hutu civilians to take part in the massacres.120 Even before Operation Turquoise
though there are early accounts of French military command over the Hutu militia.
"French military officers trained the killers in the genocide," De Saint-Exupéry says in
his book 'L'Inavouable - La France in Ruanda' (The unspeakable - France in Rwanda).
"They did that on orders, by teaching the Rwandan army counter-insurgency strategies
and tactics."121
As well it has been documented that the French soldiers were
protecting the Hutu killers as the RPF advanced. In one of many documented acts of
the French military helping the Hutu government soldiers to escape to Zaire near the
end of the genocide, a French convoy consisting of about twenty five vehicles left
Butare, and the RPF forces ambushed it, stopping the convoy and insisting upon
inspection of the vehicles. The French refused and a tense conflict ensued. Eventually,
23
Hosted by The Berkeley Electronic Press
Kirsten Bowman
the French were required to allow inspection, only through force. Upon inspection Hutu
government soldiers were found hiding in the vehicles.122
As well, there were
numerous evacuations planned and carried out by the French.123 These evacuations
were most certainly known of and approved by General Jean-Claude Lafourcade. In
fact, Pierre Banner who headed the parliamentary commission admits now that France
was heavily involved in leading the Rwandan army. "We did support a racist army, and
didn't take the necessary distance at the moment of the genocide. I think France would
do a good thing in accepting its responsibility."124
Upon the finding of both superior and subordinate relationships it is still necessary to
find the mens rea required by the doctrine, which requires that the superior know or
have had reason to know of the subordinates criminal activities. It is not likely that it
would be necessary to look to whether the French commanders should have known of
the massacres. Much of the accounts of French involvement concur that both the
French government and even more specifically French military officers on the ground
in Rwanda knew of the preparations and the carrying out of the genocide by the
Rwanda Hutu militia.
Classified documents and testimonies from international
observers confirm that the French government knew of Hutu plans to carry out the
massacres.125
French military officers posted with the Rwandan army in their
headquarters "necessarily knew what was going on in the Rwanda military structures,
they were fully informed that massacres were in preparation," says Romeo Dallaire, the
Canadian general who headed the UN mission sent to Rwanda in 1993.126
24
http://law.bepress.com/expresso/eps/494
Kirsten Bowman
Finally, it is recognized under the statute that the superior is responsible if they failed to
take the necessary and reasonable measures to prevent such acts or to punish the
perpetrators.127 Clearly the French commanders did little to stop the Hutu killers and in
fact it is documented that they helped the Hutu killers to escape to the Zaire refugee
camps after the genocides and while the RPF was advancing against them.
III)
APPLYING THE FRENCH CULPABILITY TO THE BROADER ISSUE OF NEO-COLONIAL
RELATIONSHIPS
Kwame Nkrumah, the first president of Ghana, coined the term ''neocolonialism" to
characterize the way in which the End of Empire is anything but an end to Western
imperialism.128 One flag comes down, another goes up, but developing national
economies are still controlled by western interests and thus the great Age of Empires has
not really ended, it has simply morphed into a new form.129 Today we see throughout the
globe the existence of neocolonialism and the repercussions from it which wreak havoc
on the developing nations of the world. From the Belgians to the French to the Soviets to
the Americans to the British – the world is full of examples of imperialist nations
developing relationships with regimes in order to help their own economic interests. This
form of neocolonialism can be harmful enough, but when situations such as the Rwandan
genocide of 1994 arise, the fallout from these relationships can be drastic. By taking a
stand against these unhealthy relationships and providing consequences to imperialist
nations, the global community would give these nations cause to think twice before
implicating themselves in the actions of regimes whom they cannot completely control.
25
Hosted by The Berkeley Electronic Press
Kirsten Bowman
Each of the traditional justifications for punishment – retribution, deterrence, isolation
from society and rehabilitation – has been mentioned as an important objective in
establishing international tribunals.130
The Kupreskic Trial Chamber inferred that
retribution and deterrence were the two main purposes to be considered when deciding
sentencing at the ICTY.131 Given that deterrence is clearly an objective of the United
Nations when dealing with international crimes, it would seem an important step to hold
countries who are involved - whether through complicity or other forms of indirect
involvement such as arms sales - responsible for their actions. By using the French as an
example, the global community would be put on notice that their activities within
developing nations will be more closely scrutinized and that irresponsible actions or
relationships leading to international criminal acts will no longer be tolerated. For this
reason alone, prosecuting those French responsible for assisting the Hutu through indirect
support or complicity, seems essential to the integrity of international criminal law.
When looking to other examples of past and present versions of imperialism or
neocolonialism around the globe it becomes evident that harm is being done on a large
scale without global accountability.
An Early Look at Neocolonial Relationships: Guatamala – 1954
Plotting for the overthrow of the Guatemalan government of President Jacobo Arbenz
began in 1952 during the Truman administration.132
Arbenz was committed to
modernization, pushing for more labor rights and higher wages, more spending on
26
http://law.bepress.com/expresso/eps/494
Kirsten Bowman
infrastructure and education, and land reform in an effort to break up large holdings of
uncultivated land and create thousands of family farms.133 The U.S. began to worry that
his agrarian reform efforts threatened U.S. business interests--especially the huge land
holdings of the United Fruit Co., which owned more than 500,000 acres in Guatemala
and was well-connected in Washington.134
The CIA staged a violent overthrow of
Arbenz and the rest of his democratically elected government and brought in Col. Carlos
Castillo Armas.135 In return for his new position as dictator, Armas canceled the landreform program, imposed press censorship, banned political parties, outlawed most labor
unions and leftist political activity, and re-hired the chief of the secret police from a
former dictatorship.136 The CIA coup ushered in an era of torture, repression and state
terrorism that took the lives of close to 200,000 Guatemalans.137
The U.S. government supported the repression with arms, training, diplomatic cover and
intelligence.138 State terror escalated to genocide in the 1980s, when entire Mayan
communities were wiped out with the active support of the Reagan administration
according to the finding of the 1999 UN sponsored truth commission.139
The CIA overthrow in Guatemala was their second attempt at this form of imperialism,
having deposed the Iranian government in the early 1950’s and instilling Shah
Mohammed Reza Pahlavi.140 These successes set the precedent for later interventions by
the U.S. in Cuba, British Guiana, Brazil and Chile.141
27
Hosted by The Berkeley Electronic Press
Kirsten Bowman
It is precisely because the United States government recognized their ability to covertly
interfere with the sovereignty of other nations without global condemnation that they
continued to do so throughout Latin America. Never were they faced with the possibility
of being held responsible for the actions of those corrupt politicians that they helped to
put in place and support through their dictatorships. If indirect forms of responsibility
such as complicity in crimes against humanity or genocide had been considered as
possible outcomes, the U.S. government may have considered other options before
choosing to align themselves with dictator regimes which would impose such violations
of human rights.
Throughout the Decades: Examples Abound from the 1960’s to Present Day
The examples of imperialistic or neocolonial relationships become even more complex
and convoluted throughout the decades. As western interests converge and intersect,
competition abounds in the rush to build relationships and place influential leaders at the
head of developing nations in an effort to maximize their economic interests. From the
Middle East to Africa to Asia, neocolonialism has flourished bringing great benefits to
the western world.
East Timor experienced a brutal dictator in General Suharto beginning in 1975 and
reigning through 1998. Suharto’s vicious control during these years resulted in crimes
against humanity and crimes which arguably amount to genocide and the deaths of nearly
28
http://law.bepress.com/expresso/eps/494
Kirsten Bowman
one third of the East Timorian population (nearly 200,000 people).142 The International
Commission of Inquiry on East Timor concluded that:
there were patterns of gross violations of human rights and breaches of
humanitarian law which varied over time and took the form of systematic
and widespread intimidation, humiliation and terror, destruction of
property, violence against women and displacement of people. Patterns
were also found relating to the destruction of evidence and the
involvement of the Indonesian Army (TNI) and the militias in the
violations.143
Vital, material backing for a crime proportionally greater than the killing in Cambodia
under Pol Pot came from the West: principally the US, Britain and Australia.144 Over the
history of Indonesia’s illegal reign over East Timor, Australia has the most clandestine
relationship with the government of Indonesia. As one of the only countries to recognize
de jure the incorporation of East Timor into Indonesia,145 Australia had great interest in
the extensive fish stocks and significant oil reserves along the southern coast and in the
Timor Gap between East Timor and Australia, and entered into very lucrative agreements
with Indonesia to develop those oil deposits.146
Examples of this situation are boundless.
Through 20th century imperialism, the
authorities of Britain, Belgium and France gassed, bombed and massacred indigenous
populations from Sudan to Iraq, Nigeria to Palestine, India to Malaya, Algeria to the
Congo.147
Not one of these crimes has been prosecuted, and most are not even
recognized publicly by the countries who committed them. More disturbing, this form of
global criminal action continues on today.
29
Hosted by The Berkeley Electronic Press
Kirsten Bowman
Present Day: Israel
While the Middle East conflict, which has embroiled Israeli and Palestinian interests in
conflict for more than half a decade, is complex and tensely debated it is hard to contest
that the United States plays a principal role as a major financial supporter of Israel. Israel
receives about one third of the U.S. foreign-aid budget.148 The United States supplies
Israel annually with approximately $ 3 billion per year, $ 1.2 billion in economic aid and
$ 1.8 billion in military aid.149 This statistic is remarkable in light of the fact that Israel is
the sixteenth wealthiest country in the world, and the sixth most powerful in terms of
military might.150 This investment serves the interests of the U.S. well. Israel continues
to work with the U.S. to defeat the radical Arab nationalist movements long seen as the
major opponent to US dominance of the oil-rich states surrounding Israel.151 Fully 99 per
cent of all U.S. aid to Israel has been transferred since the 1967 war that annexed the
occupied territories. It was after this war that Israel established itself decisively as a subregional power in the Middle East.152 U.S. support for Israel is not only politically
convenient, it establishes a base for the most important resource for industrial capitalism - oil.153
Throughout the occupation by Israel and the financial and military support by the U.S.,
debate continues on as to whether Israel or Palestine (or both) act illegally, committing
international crimes against each other. An even more pressing concern is the possibility
of future developments. Our military, economic and political support enable Israel to
develop and maintain nuclear weapons in a hostile regional environment. The volatility
30
http://law.bepress.com/expresso/eps/494
Kirsten Bowman
of this scenario is frightening, and the need for third party accountability has never been
as vital.
While each of the above examples does not mirror identically the French involvement in
Rwanda before and during the genocide, each does have similarities. Clearly the scenario
of neocolonial relationships gone wrong is not isolated to the France/Rwanda
relationship. By prosecuting the French for their actions, other western neocolonialists
would be put on notice. It is clear that we as a global community owe it to our own
humanity to hold each other accountable. If we do not then we must accept our own
moral responsibility for the brutal actions committed against humanity.
CONCLUSION
While it is likely that a case could be found against the French actors who participated
in the Rwandan genocide whether through the availability of arms, diplomatic support
or military participation, this is only one story in a larger picture. This is an example of
what can happen when a neocolonial relationship between a wealthy nation interested
in amassing even greater wealth and a repressive, unstable regime goes wrong and the
repercussions that can ensue. This story also serves as a warning to other nations who
find themselves in the precarious situation of supporting regimes that, in the end, they
will not be able to control. The implications are serious and under international law, it
seems clear that these nations will not only be morally accountable, but could be legally
accountable as well. In the end, the Human Rights Watch report on the events sums it
up well. “….genocide anywhere implicates everyone. To the extent that governments
31
Hosted by The Berkeley Electronic Press
Kirsten Bowman
and peoples elsewhere failed to prevent and halt this killing campaign, they all share in
the shame of the crime.”154
32
http://law.bepress.com/expresso/eps/494
Kirsten Bowman
ENDNOTES
1
PHILIP GOUREVITCH, WE WISH TO INFORM YOU THAT TOMORROW WE WILL BE KILLED WITH OUT
FAMILIES 3 (Picador USA 1998).
2
THOMAS G. WEISS, MILITARY-CIVILIAN INTERACTIONS: INTERVENING IN HUMANITARIAN CRISES,
(Lanham MD, Boulder CO, New York, Oxford: Rowman & Littlefield Publishers, Inc., 1999).
3
SAMANTHA POWER, A PROBLEM FROM HELL: AMERICA AND THE AGE OF GENOCIDE 380 (Perennial New
York, NY 2003).
4
Pierre-Antoine Souchard, Lawsuit filed alleging French soldiers had hand in Rwanda genocide,
ASSOCIATED PRESS, Feb. 16, 2005.
5
Power, supra note 3 at 329.
6
Gourevitch, supra note 1, at 95.
7
Id. at 99.
8
Id.
9
Id. at 108-109.
10
The story of events leading up to and including the genocide of 1994, including French involvement is
summarized based on limited sources. The following are the relied upon sources for the information, many
of whom rely on Gerald Prunier’s studies for their theories. See Gerald Prunier, The Rwanda Crisis 19591994; History of Genocide (1995); see also Gourevitch, supra note 1; HRW Report – Leave None to Tell
the Story: Genocide in Rwanda, March 1999 at http://hrw.org/reports/1999/rwanda/index.htm#TopOfPage;
Human Rights Watch, Playing the "Communal Card": Communal Violence and Human Rights 1-17
(1995); Mel McNulty, French Arms, War and Genocide in Rwanda, Crime, Law and Social Change 33:
105-129, 2000 at http://users.skynet.be/wihogora/McNully.pdf.
11
Jose E. Alvarez, Crimes of States/Crimes of Hate: Lessons from Rwanda, 24 Yale J. Itn’l L. 365, 387
(1999).
12
Id. at 388.
13
See id. at 389.
14
Id.
15
Christina M. Carroll, Article: 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, 18 B.U. Int'l L.J. 163, 168 (2000).
16
Id.
17
Id.
18
Id.
19
See S.C. Res. 872, U.N. SCOR, 48th Sess., 3288th mtg., U.N. Doc. S/RES/872 (1993).
20
See Carroll, supra note 14 at 169.
21
Gourevitch, supra note 1, at 76.
22
Human Rights Watch, Playing the "Communal Card": Communal Violence and Human Rights 1-17
(1995) (noting expansive French monetary and military aid). See also Mel McNulty, French Arms, War
and Genocide in Rwanda, Crime, Law and Social Change 33: 105-129, 2000 at
http://users.skynet.be/wihogora/McNully.pdf (the following reporting in this section regarding arms
transfers as well as military involvement by France is corroborated in this article).
23
See Gourevitch at 89.
24
See id. at 93; Frontline: Rwanda Chronology, at
http://www.pbs.org/wgbh/pages/frontline/shows/rwanda/etc/cron.html (last visited April 19, 2004).
25
Id.
26
Id.
27
See id. at 90.
28
See id.
29
See id.
30
Id. at 93.
31
Id.
33
Hosted by The Berkeley Electronic Press
Kirsten Bowman
32
Id. at 94.
See HRW Report – Leave None to Tell the Story: Genocide in Rwanda, Responses of the French, U.S.
and Belgian Governments, March 1999, http://hrw.org/reports/1999/rwanda/Geno4-7-01.htm. [hereinafter
HRW Report].
34
See id.
35
Id.
36
See id.
37
See id.
38
See id.
39
Id.
40
Id.
41
Id.
42
See id.
43
Id.
44
See id.
45
Id.
46
See id.
47
AGNES CALLAMARD, FRENCH POLICY IN RWANDA, in Adelman, HOWARD AND SUHRKE, ASTRI, THE
RWANDA CRISIS FROM UGANDA TO ZAIRE: THE PATH OF A GENOCIDE, 38 (London: Transaction Publishers,
1999).
48
HRW Report, supra note 32 at http://hrw.org/reports/1999/rwanda/Geno15-8-02.htm#P438_141967.
49
Id.
50
Id.The full details of French officials cooperation with the Rwandan Hutu army during the Genocides has
been documented by Human Rights Watch in detail. Id.
51
Id.
52
Gourevitch, supra note 1, at 154.
53
Id. at 155.
54
See id.
55
Id.
56
See id. at 157.
57
See id.
58
See id. at 158.
59
Id.
60
Id. at 161; see also HRW Report, supra note 23 at http://hrw.org/reports/1999/rwanda/Geno15-802.htm#P438_141967.
61
While the Rome Statute for the International Criminal Court (ICC) contains statues and provisions under
which individuals might be held responsible, Article 11 of the statute states that the court only has
jurisdiction over crimes committed after the entry into force of the statute. With no retroactive jurisdiction,
the ICC would not work as a forum under which to hold individual French actors responsible.
62
M. CHERIF BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE 356-60 (3d
ed. 1996).
63
M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 511-13 (1992).
64
One example of this could be Belgium who has not only strong laws regarding the principle of universal
jurisdiction, but strong ties to Rwanda based on it’s own neocolonial relationships as well.
65
It is important to note that French officials may be able to raise certain defenses and issues of diplomatic
immunities in order to escape charges being brought against them, but these issues are beyond the scope of
this discussion. Further, it is worth noting that the political ramifications of suing the French government
make it an unlikely scenario. However, logistically, it is certainly a legal possibility.
66
Statute of the International Tribunal for Rwanda, adopted at New York, Nov. 8, 1994, S.C. Res. 955,
U.N.SCOR, 49th Sess., 3453d mtg., U.N. Doc. S/RES/955 (1994), reprinted in 33 I.L.M. 1598 Art. 5.
[hereinafter ICTR Statute]
67
Kenneth S. Gallant, Jurisdiction to Adjudicate and Jurisdiction to Prescribe in International Criminal
Courts, 48 VLLR 763, 795 (2003).
68
Supra note 63 at art. 7.
69
Supra note 64.
33
34
http://law.bepress.com/expresso/eps/494
Kirsten Bowman
70
Supra note 63 at art. 7.
“The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a
subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to
know that the subordinate was about to commit such acts or had done so and the superior failed to take the
necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.” Id. at art. 6.
72
“A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning,
preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute, shall be individually
responsible for the crime.” Id.
73
“The official position of any accused person, whether as Head of Sate or Government or as a responsible
Government official, shall not relieve such person of criminal responsibility nor mitigate punishment. Id.
74
Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277 (1948).
75
Prosecutor v Akayesu (1998) 37 ILM 1399, Int Trib. para. 526.
76
Id.at para. 527.
77
Gourevitch, supra note 1, at 3.
78
Prosecutor v. Kayishema, Judgment and Sentence, No. ICTR-95-1-T, para. 91 (May 21, 1999).
79
Id.
80
See id.
81
Id.at para. 95.
82
Id.at para. 97.
83
See id.
84
Id.at para. 104.
85
See Prosecutor v. Serushago, ICTR 98-39-DP, I.L.R. (Int'l Crim. Trib. for Rwanda 1999); Prosecutor v.
Kayishema and Ruzindana, Case No. ICTR-95-1-T (May 21, 1999); Prosecutor v. Nahimana, Indictment,
No. ICTR-96-11 (Nov. 15, 1999); Prosecutor v. Barayagwiza, Indictment, No. ICTR-96-19 (Apr. 14,
2000); Prosecutor v. Ngeze, Indictment, No. ICTR-96-27 (Nov. 22, 1999); Prosecutor v. Nahimana, No.
ICTR-97-11-I (Sept. 9, 2000).
86
See supra, note 72 at para. 531-34.
87
In full, the tribunal identified the types of complicity as: complicity by procuring means, such as
weapons, instruments or any other means, used to commit genocide, with the accomplice knowing that
such means would be used for such a purpose; complicity by knowingly aiding or abetting a perpetrator of
a genocide in the planning or enabling acts thereof; complicity by instigation, for which a person is liable
who, though not directly participating in the crime of genocide, gave instructions to commit genocide,
through gifts, promises, threats, abuse of authority or power, machinations or culpable artifice, or who
directly incited to commit genocide. Id. at para. 537.
88
See id. at para. 541.
89
See HRW Report, supra note 23.
90
Id.
91
Id.
92
See supra, note 72 at para. 548.
93
See id. at para. 547.
94
This is only with no other specific facts included. The issues of command responsibility, explored later
in this paper might lead to responsibility for failure to act when the actor is in a position of power or
responsibility over another.
95
See generally HRW Report, supra note 23. “According to French estimates, their 2,500 elite soldiers,
equipped with the best equipment available, saved some 8,000 to 10,000 people at Nyarushishi, another
1,100 at Bisesero and another 6,000 in Gikongoro, a total of approximately15,000 to 17,000 people.
UNAMIR, with its barely 500 men, poorly armed and equipped, protected at one time nearly twice that
number. Like members of the U.N., the French could and did save lives when it suited their interests. And,
when it did not, they too hid behind excuses of insufficient troops and concerns for their safety or they used
a supposed commitment to adhering to the mandate or to preserving neutrality as pretexts for inaction.” Id.
96
See id.
97
Id.
98
Richard P. Barrett and Laura E. Little, Lessons of Yugoslav Rape Trials: A Role for Conspiracy Law in
International Tribunals, 88 Minn. L. Rev. 30, 36 (2003).
99
See Tadic, supra note 96 at para. 196.
71
35
Hosted by The Berkeley Electronic Press
Kirsten Bowman
100
Id. at para. 202.
Id. at para. 206.
102
Id. at para. 206.
103
Id.
104
Prosecutor v. Krstic, Case No. IT-98-33-T, para. 611.
105
Id.; See also Tadic Appeals Chamber Judgement, para. 227; Furundzjia Appeals Chamber Judgement,
para. 119.
106
See id.
107
See id.
108
Article 6(3) of the Statute of the International Tribunal for Rwanda states that the fact that any of the
acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his
or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was
about to commit such acts or had done so and the superior failed to take the necessary and reasonable
measures to prevent such acts or to punish the perpetrators thereof.
109
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of International Armed Conflicts, June 8, 1977, art. 86(2), T.I.A.S. No. 17512 (entered into force
Dec. 7, 1978) [hereinafter Protocol I].
110
Rome Statute of the International Criminal Court (July 17, 1998), UN Doc. No. A/CONF. 183/9, 37
I.L.M 999, 1017 (entered into force July 1, 2002) [hereinafter Rome Statute].
111
See Kayishema, supra note 75 at para. 216.
112
See HRW Report, supra note 23. Another named with direct contact include Col. Didier Thibault, who
clearly admitted that some of the Rwandan government officials that he was working with and protecting
might “have blood on their hands”, but insisted that “the legitimacy of this government is not my problem”.
Other examples exist throughout this document. Id.
113
Id. at para.217.
114
See id. at para. 218.
115
See id.
116
Rome Statute, supra note 65, at art. 28.
117
See Kayishema, supra note 75 at para. 222.
118
Id.
119
See id. at para. 224. Article 6(3) lays out that if a subordinate commits one of the acts referred to in
Articles 2 to 4 of the Statute, a superior is criminally responsible if he or she knew or had reason to know
that the subordinate was about to commit such acts or had done so and the superior failed to take reasonable
measures to prevent or punish. See ICTR Statute, supra note 63 at art. 6(3).
120
See id.
121
Julio Godoy, Politics: France Again Denies any Role in the Rwanda Massacre, April 7, 2004 at
http://www.globalinfo.org/eng/reader.asp?ArticleId=29134
122
See Gourevitch, supra note 1, at 159.
123
HRW Report, supra note 23.
124
Godoy, supra note 118.
125
Id.
126
Id. French journalist Patrick de Saint-Exupery, author of a book on the Rwandan genocide, confirms
Dallaire's accusations against French military advisers. Id.
127
ICTR Statute, art. 6(3).
128
STEPHEN SLEMON, POST COLONIALISM THE NEW FACE OF IMPERIALISM, The Toronto Star, March 14,
2000.
129
See id.
130
See generally GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 409-18, 461-63, 814-17 (2000); see
also Andrew N. Keller, Punishment for Violations of International Criminal Law: An Analysis of
Sentencing at the ICTY an ICTR, 12 Ind. Int’l & Comp. L. Rev. 53, 57 (2001).
131
See Prosecutor v. Kupreskic, Case No. IT-95-16-T, Judgement, para. 848, 14 January 2000.
132
James Risen, Documents Reveal CIA Guatemala Assassination Plots; Latin America: Newly
Declassified Papers Show that Agency Considered Killing Dozens of Politicians During ’54 Coup, L.A.
TIMES, May 24, 1997.
133
Arnold J. Oliver, U.S. Owes Guatemala More Than an Apology, July 3, 2004.
101
36
http://law.bepress.com/expresso/eps/494
Kirsten Bowman
134
See Risen, supra note 131; see also id.
See Oliver, supra note 132.
136
Id.
137
See id.; see also Stephen Kinzer, Regime Change: The Legacy; Since 1953, U.S. presidents have been
toppling other governments. Now, the consequences, The American Prospect, November 2003.
138
See Howard Zinn, A PEOPLE’S HISTORY OF THE UNITED STATES (New York: Harper & Row) (1980).
139
See Report of the Commission for Historical Clarification, Guatemala: Memory of Silence, Conclusions
and Recommendations (1999), http://shr.aaas.org/guatemala/ceh/report/english/toc.html (last visited
February 27, 2005).
140
Stephen Kinzer, Ideas and Trends: Iran and Guatemala 1953-1954; Revisting Cold War Coups and
Finding Them Costly, N.Y.Times, November 30, 2003.
141
See id.
142
See Tania Voon, Article: Closing the Gap Between Legitimacy and Legality of Humanitarian
Intervention: Lessons from East Timor and Kosovo, 7 UCLA J. Int'l L. & For. Aff. 31, 64 (2002).
143
Report of the International Commission of Inquiry on East Timor to the Secretary General: U.N. High
Comm'r for Human Rights, 54th Sess., Agenda Item 96, P 123, U.N. Doc. S/2000/59 (2000).
144
John Pilger, Turning Sumersaults when there’s no Whip, Sunday Time (South Africa), January 25, 2004;
see also John Pilger, John Pilger reveals Australia's role as Bush's sheriff; Of the token hangers-on who
make up the Anglo-American 'coalition of the willing', only Australia remains true to the uber-sheriff in
Washington, New Statesman, October 5, 2004; Jerry K. Sweeney, A Matter of Small Consequence: U.S.
Foreign Policy and the Tragedy of East Timor, Independent Review, June 22, 2002.
145
See Christine M. Chinkin, East Timor Moves to the World Court, 4 Eur. J. Int'l L. 206, 207 (1993)
(quoting Austl. Dep't of Foreign Aff., Annual Report 1978, at 30 (1979).
146
Australia Sees Reason, The Economist, p 41, July 7, 2001.
147
Pilger, supra note 143.
148
Clyde Mark, Israel: U.S. Foreign Assistance 3, available at http://www.adc.org/IB85066.pdf (last
updated Oct. 17, 2002); Shirl McArthur, U.S. Tax Dollars at Work: Calculating Foreign Aid to Israel,
http://www.hotpolitics.com/tax4israel.htm (last visited March 1, 2005).
149
Id.
150
Id.
151
Abbie Bakan, Opposing Israeli Colonialism in the Middle East: What’s Left? A Rejoinder to Petras and
Herman, Canadian Dimension, May 1, 2002.
152
Id.
153
See id.
154
HRW Report, supra note 32 at http://hrw.org/reports/1999/rwanda/Geno1-3-05.htm#P106_44662.
135
37
Hosted by The Berkeley Electronic Press
