Stephen Vasciannie WHEN A grave humanitarian crisis occurs within a country, two basic questions arise for international law. The first concerning what lawyers call the jus ad bellum is whether the circumstances of the humanitarian crisis allow foreign countries to intervene to prevent murder, mayhem and perhaps genocide. The second concerns what happens after the immediate crisis has been brought to an end: to what extent should the law impose penal sanctions on those deemed responsible for engendering the humanitarian crisis?
The case of Rwanda highlights how these two questions tend to be resolved in practice, and demonstrates some of the weaknesses of international law in the area of humanitarian crisis. On April 6, 1994, President Habyarimana of Rwanda and President Ntaryamira of Burundi perished in a plane crash; their plane had been shot down on its approach to Kigali, the Rwandan capital. On the following day, the Prime Minister of Rwanda was killed, and soon, Rwanda was overtaken by a humanitarian catastrophe which the then United Nations Secretary-General Boutros Boutros Ghali characterised in his memoirs as a case of "Tropical Nazism".
In a period of months, historical tensions between the majority Hutus and the minority Tutsi ethnic groups resulted in the massacre of between 500,000 and 800,000 people: as the Carnegie Commission on Ending Deadly Conflict noted in 1997, there was more killing in Rwanda in the three months following April 1994, than occurred in four years in Yugoslavia between 1991 and 1995.
SECURITY COUNCIL
Faced with this genocide, the United Nations Security Council failed to act in any meaningful way responsibility for United Nations inaction has been attributed by Boutros Ghali primarily to the United States, but it must be said that no Permanent Member of the United Nations emerges from the travesty of Rwanda with much respectability. In short, the major powers initially felt that no significant strategic interests were at stake in Rwanda, and in the early stages of the crisis opted not to support a peacekeeping mission that might have averted the explosion to hundreds of thousands of deaths.
In the end, the genocide, crimes against humanity and other forms of brutality which prevailed in 1994 came to an end partly as a result of French intervention (allegedly in a biased way in favour of the Hutus). More significantly, the carnage ended when the Rwandese Patriotic Front, dominated by Tutsis and operating from an exile base in Uganda, prevailed in military action.
By virtue of Article 1 of the Genocide Convention (1948), States have a duty to "prevent and punish" the crime of genocide, whether committed in time of peace or in time of war. Signi-ficantly, however, neither the Genocide Convention nor the United Nations Charter expressly gives States the right to intervene in the territory of another State in order to put an end to genocide. If the United Nations Security Council finds that events in a particular country may affect international peace and security, it may authorise military action pursuant to Chapter VII of the United Nations Charter, and this may bring about an end to genocide in that particular country. But, the existence of genocide (without the threat to international peace and security) does not give rise to a right of intervention through the Security Council.
DILEMMA
Similarly, although the law on this point may be in a transitional stage, there is still no irrefutable basis for arguing that individual countries have the right to intervene in foreign countries to prevent the type of crisis that prevailed in Rwanda. International law may still attach greater premium to State sovereignty than it does to the avoidance of genocide and grave human rights abuses within countries. The case of Rwanda highlights the political nature of the dilemma faced by the international community: if States could have intervened, they may have done so to secure the interests of one ethnic group over another. Also, foreign intervention could have exacerbated the crisis; more generally, too, foreign intervention in the justifiable case of Rwanda could have set a precedent for humanitarian intervention in less appropriate cases, giving rise to Big Power abuses. Today, Rwanda is trying to address the second international law question that arises from humanitarian crisis, namely, how to resolve the question of culpability?
Two methods are now being used, but it should be readily appreciated that any attempt to attribute legal responsibility in respect of over half a million deaths, after a period of seven or eight years, is bound to encounter serious, if not insurmountable, problems. With the assistance of the United Nations, two methods are being used to bring perpetrators of genocide and other crimes in Rwanda to justice. The first is through the International Criminal Tribunal for Rwanda (ICTR), which has its seat in Arusha, Tanzania.
CRIMINAL TRIBUNALS
This court was established in 1995, and up to the start of 2003, had expended about $500 million in the quest for justice. It is concerned mainly with the Big Fish: in 1998, Jean Kambanda, an interim president of Rwanda, pleaded guilty to genocide, and was sentenced to life imprisonment. But, generally, the pursuit of justice has been slow: for instance, Samantha Powers, writing in the New York Review of Books, reports that after about seven years, the tribunal had handed down only nine decisions.
The other method for assessing guilt or innocence in Rwanda is home-grown. Over 100,000 people have been detained in Rwanda for crimes allegedly committed in 1994; to ensure relatively speedy trials for these persons the small fry a system of gacaca courts have been established. These courts are locally based, and have as their judges, village members who are given a 36-hour course in legal procedure. They hear evidence, often given without the safeguards associated with Western legal tradition, and make judgements about which of the accused must proceed to full trial. Neither the big fish trials in Arusha nor the small fry gacaca hearings are likely to work to the satisfaction of the people of Rwanda, even in the long run. However, the fact that trials exist may help to convince leaders in the future that they cannot act with impunity. They will be held responsible for murder and brutality. This is an important development in international affairs. As part of the same trend that has brought about the International Criminal Court and other tribunals designed to promote justice under international law, it should be encouraged.
Stephen Vasciannie is Professor of International Law at the University of the West Indies, Mona, and a consultant in the Attorney General's Chambers.
