Citation
UNCLASSIFIED
Un"e
M
grpRwtyrk en
Washington, D.C. 20520
,bre
June 21, 1994
CONFIDENTIAL
TO:
AF - Amb. Moose
AF - Ms. Bushnell
FROM:
L/AF - Joan Donoghuer )C)
SUBJECT: Mechanisms for Holding Individuals Accountable for
Events in Rwanda
Summary. AF/C asked me to provide some information on
mechanisms that could be used to make individuals accountable
for their participation in heinous acts in Rwanda. This
memorandum summarizes mechanisms that have been discussed in
the case of Rwanda or in similar situations (e.g., Yugoslavia
and Cambodia). Included here are a number of mechanisms that
do - not lead directly to prosecution of individuals, but that
could promote accountability.
r- :
I offer these thoughts to help AF assess available options,
recognizing that others in the Office of the Legal Adviser may
have views on the desirability of pursuing some of the options
discussed here.
The UN Human Rights Commission's Special Rapoortenr. On
May 25, the UN Human Rights Commission established a Special
Rapporteur for Rwanda. The Commission asked the Special
Rapporteur to report on the human rights situation in Rwanda
and to make recommendations on bringing violations to an end
and preventing future abuses. He is supposed to compile
systematically information on possible violations of human
rights and international humanitarian law, including crimes
against humanity and acts of genocide.
ration of the Special Rapporteur's report by the
at-in-Itself lead fa-individual
Human Rights_Commissio
accountabaktY. The Commission does not have any means to'
individuals. However, the Special
iriarges
— brigEr
could
promote individual accountability.
Rapporteur's report
At a minimum, the report may increase the political imperative
to devise mechanisms that focus more directly - orEfons_of
against
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UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: PAUL W HILBURN
DATE/CASE ID: 26 JUL 2006 200103014
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EL,.)
(4inti
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- 2 individuals. Information gathered by the Special Rapporteur
could also be sh -died with officials responsible for any future
proceedings that seek to establish individual accountability.
The Commission of Experts. Spain proposed to the UN
Security Council a resolution that would establish a Commission
of Experts to examine and analyze information on Rwanda "with a
view to providing the Secretary-General with its conclusions on
the evidence of possible breaches of the Convention on Genocide
and other grave violations of international humanitarian law."
States are called upon "to collate substantiated information"
and to make it available within thirty days. The Commission is
charged with preparing a report within ninety days, including
recommendations for "possible further appropriate steps in
order to ensure that persons responsible for such acts are
brought to justice." The Commission is asked to coordinate
with the Special Rapporteur.
If the Commission is established, the USG will want" to
provide information to it Conceivably, USG personnel could
provide first nano aCtounCs of incidents that they observed
while they were in Rwanda. If other U.S. nationals (e.g.
missionaries) have information to provide, the USG could
facilitate the Commission's collection of information from
them. The intelligence community might have information that
could be used to build cases against individuals. The possible
use of intelligence information in any public proceeding gives
rise to a tension between the intelligence community's desire
to protect sources and methods and the desire for information
that can be used in a prosecution or other proceeding. AF
would need to work with the intelligence community to determine
what information is available and to encourage it to declassify
useful information. (See the related discussion of a U.S.
investigation, below).
-
A War Crimes Tribunal. There is no standing international
forum for the resolution of cases involving war crimes, crimes
against humanity or genocide. The UN Security Council has the
legal authority to create such a body.
On May 25,_19.93, the_UN_aecgsityCouncil established an Ad
Hoc WarCrimes Tribunal for the former Yugoslavia. The
Commis's-ton is charged with the prosecution of persons
responsible for serious violations of international
humanitarian law committed in the territory of the former
Yugoslavia. Much of the Commission's first year has been spent
on orgenizatipniI —ffetters, in-eluding the UNGA's select-loll of-the eleven judges and hiring oriEeff. (The position of Chief
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- 3 Prosecutor remains vacant). The Tribnial_stall—make_asa—of
records dvmloPeol_bly a UN rnmmicgiOn of Experts that had been
establtihed prior to the Tribunal.
1;7.;-- and much of the hurrien
A War Crimes Tribunal is.G.
for the Yugoslavia tribunal has tai en nn the United States.
The USG has pledged $3 million to assist the Tribunal in its
work. In addition, for the current fiscal year, the President
is authorized to draw down $25 million in goods and services
for the Tr' unal. (Note: no additional funds were
a propriated for_this drawdown). Pursuant to this authority,
• s inveifiptDrs and regional exerts from the
twent
wi out any
US have begun to wor or e iou
reimbursement of their agencies). In addition, the_USG_has
condustAd_ita_own_inxesUgatioms , and has provided the results
of those investigations to the Tribunal.
If there were a desire to establish a similar tribunal for
Rwanda, tw_ aptiont seem evident. First, the mandate of the
existing tribunal could be expanded. This might redUce the
stathigLtime for Rwanda-related prosecutions but E;UT3be
viewed as shifting towards a standing international criminal
court, a proposal that the USG has thus far been reluctant to
endorse. Second, a free-standing tribunal could be
established. From AF'sperspectlIrCiflArro De important to
consider
sider which model would be more likely to lead to the use of
oC
resources targeted at Rwanda.
United States investigation. The USG has conducted its own
investigations of war crimes in Yugoslavia, with a view towards
providing information to the Commission of Experts and the War
Crimes Tribunal. USG teams (including_State, DOD, Justice and
intelligence community personnel) have interviewed hundreds of
refugees—and—have prepared reports on tnose interviews.
My understanding is that this initiative has required State
'dera e •ressure on other agencies, CiThidh have
tax
much of the expertise necessary • • • uc suc investigations,
but do not regard them as part of their normal work.
The fruits of a U.S. investigation could be shared with a
number of entities, including the Special Rapporteur, the
Commission of Experts (if it is established) and (potentially)
with any tribunal that is established.
United States prosecution. With a few narrow exceptions,
U.S. criminal jurisdiction normally does not extend to actions
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- 4 committed by foreign nationals in foreign countries,
particularly if the victims are also foreign nationals. U.S.
law implementing Articles II -VI of the Genocide Convention
a es wi h juris•iction only over
e nited
provide
defendants who are nationals of the United States or who
'Committed enocidal acts in the territory of the Uni e
es. Depending on the facts of a particu ar si tuatrion, it
in--66iCeivable that certain U.S. statutes could provide
jurisdiction for U.S. prosecution with respect to a small
number of incidents that may have occurred in Rwanda, e.a., the
persons and hostage
kilthars_af_any--4nternationa
taking.
,
`
1
*14
Domestic prosecution in Rwanda. Numerous individuals have
undoubtedly committed acts that violate Rwandan law. Apart
from common crimes (e.g., murder) the Genocide Convention
requires Rwanda to enact laws making genocide a crime and to
prosecute perpetrators of acts of genocide committed in its
•
tion in Rwanda
territory. In the near
may onlleetbearatic_a_kation.. (Ultimately, however, any
ra-conciliation process in Rwanda could include UN or bilateral
assistance to improve the judicial system and/or to assist in
domestic prosecution of war criminals).
.
The International Court of Justicg. The Genocide
Convention provides, in Article IX, that -"Disputes between the Contracting Parties relating to the
interpretation, application, or fulfillment of the present
Convention, including those relating to the responsibility
of a state for genocide or for any other acts enumerated in
Article III, shall be submitted to the International Court
of Justice at the request of the parties to the dispute,"
Under this provision, the International Court of Justice (ICJ)
would have jurisdiction if an action were brought by another
state that is a party to the Convention. Only states cae bring
cases in the ICJ. Rwanda, not i s
1.1.1ibie_the
actions
defendants--Because an
arr-Iffire, it would only indirectly address individual
accountability.
The ICJ would be likely to conclude that it does not have
o f ' f
case brought by th-4-0Hited States against
jurisdicti—
e United—States—became
Rwan a under the Genocide Conven
a varty to the Genocide -Convention subject to a reservation
that it could be sued in the ICJ only with its consent.
Because such reservations are applied reciprocally, Rwanda
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- 5 could invoke the U.S. reservation against the United States.
Other states could bring a case against Rwanda (unless Rwanda
or the other state in question has taken a relevant
reservation, which we would need to examine).
Civil actions in the United States. U.S. statutes provide
a potential basis for civil actions by victims against Rwandan
nationals for violations of human rights committed in Rwanda.
The statutes (the Alien Tort Statute and the Torture Victims
Protective Act) are complex and much of the law relating to
them is controversial. Under the right cirrnmstances, however,
a U.S. court might conclude that it has jurisdiction to hear a
case -brought by one Rw ndan against another Rwandan for acts
occurre in Rwanda, e.g., allegations of torture or
th
eat •7u•icial killing by a wan n w o is present in the United
States.
Human rights groups could . work with a victim to bring such
a suit against a perpetrator. (We understand that one such
suit_has_aliPady been tiled, but have not seen the court
pliers). Absent careful consideration of specific proposals,
grnupc to file
• • . 0it would be unwise to
U-1 right
such cases or o suggest that the USG would support them.
GTV6E-ffie complexity of the legal issues, there is a risk that
a court would ask the USG, through the Justice Department, for
its views on a particular case and that USG views on a legal
point might be unfavorable to a particular plaintiff.
A Commission of Inquiry. The parties to the civil war in
El Salvador agreed, in their peace accords, to establish
certain structures for the resolution of allegations against
04
0“11
both sides. The. "Truth
4-4 •y_the
Security Council and staffed by non-Salvadorans, was a key part
of this process. The Commission examined incidents and -leTibtted
its--conclusions and recommendations, including recommendations
for prosecutions within El Salvador's national system.
RAALda_connflict_t_tkis model
At the very beginning of thew
offered some appeal: At is point, however, there see-MH-no
progpeTtrof-tHi-parties agreeing to such a mechanism.
Cleared:
L/HRR:DPStewart
L/UNA:EHloom
cc: AF/C - Reed Fendrickp ,'e
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