GENOCIDE IN RWANDA AND YUGOSLAVIA

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB, PATIALA

SEMINAR

SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS OF THE

DEGREE OF MASTER OF LAWS

SUBMITTED TO:- SUBMITTED BY:-

Dr. Sukhwinder Virk Ishita Sharma

Assistant Professor of Law Roll No. 16513

Rajiv Gandhi National University of Law Punjab, Constitutional Law

Patiala

March, 2017
 ACKNOWLEDGEMENTS
The seminar undertaken by me has been a remarkable learning experience and the same would
not have been possible without the support and guidance of our professor Dr. Sukhwinder Virk,
Assistant Professor, Rajiv Gandhi National University of Law Punjab, Patiala. I would like to
thank her for her unconditional support and guidance in directing and channelizing my efforts in
the right direction. I would like to thank my university for the opportunity to undertake this
seminar and for their immense support.

I would like to show my gratitude to my resources the institutes library for all the material
available for reference. The librarians of these libraries who spent their valuable time in assisting
me find the required study.

Finally, I would like to thank my parents and well wishers for their consistent motivation and
encouragement throughout the execution of this seminar.

Ishita Sharma

16513

i
 TABLE OF CONTENTS

ACKNOWLEDGMENTS i

CHAPTER-I .................................................................................................................................. 1

INTRODUCTION......................................................................................................................... 1

CHAPTER-II................................................................................................................................. 3

RECOGNITION OF GENOCIDE AS AN INTERNATIONAL CRIME ............................... 3

2.1 Towards a definition.............................................................................................................. 3

2.2 Defining Genocide: The UN Convention ............................................................................. 6

CHAPTER-III ............................................................................................................................... 8

CASE STUDIES: GENOCIDE IN RWANDA AND YUGOSLAVIA ..................................... 8

3.1 Factual details of the Genocide in Rwanda ........................................................................... 8

3.2 Factual details of Genocide in Yugoslavia ......................................................................... 10

3.3 International Criminal Tribunals: Yugoslavia and Rwanda ............................................... 13

CHAPTER-IV ............................................................................................................................. 16

CONCLUSION ........................................................................................................................... 16

CHAPTER-V ................................................................................................................................. ii

BIBLIOGRAPHY ......................................................................................................................... ii
 CHAPTER-I

INTRODUCTION

The word is new, the concept is ancient.

- Leo Kuper, in his seminal text of genocide studies.1

The roots of genocide are lost in distant millennia, and will remain so unless an archaeology of
genocide can be developed.2 As the human civilization progressed, so did the means of
information and technology that transformed the way humans lived. Along with this progress,
the human civilization encountered unprecedented scourges of violence perpetrated against the
masses on such dimensions that are unfathomable. The roots of genocide are not recent, but go
back to ages when civilization had dawned upon this planet as is evident from the quote of
Homer in King Agamemnons quintessential pronouncement of root-and-branch genocide, one
cannot know what basis it might have in fact:

We are not going to leave a single one of them alive, down to the babies in their mothers
wombs not even they must live. The whole people must be wiped out of existence, and
none be left to think of them and shed a tear.3

Genocide, as crime is so heart wrenching that a person even unfamiliar or with no personal
experience with the travails that the actual victims had to go through can become unnerved,
when one reads the accounts of human rights violations that are perpetrated in the commission of
this crime. This is evident from the account of Christian Scherrer, who worked at the Hiroshima
Peace Institute, arrived in Rwanda in November 1994 as part of a United Nations investigation

1
Leo Kuper, Genocide: Its Political Use in the Twentieth Century, Penguin, Harmondsworth, 1981 at p. 9.
2
Frank Chalk and Kurt Jonassohn, The History and Sociology of Genocide: Analyses and Case Studies ,Yale
University Press, New Haven, CT, 1990 at p. 64.
3
Id. at p.58.

1
team, only a few months after the slaughter of a million people had been terminated by forces of
the Rwandan Patriotic Front (RPF).4 Scherrer writes,5

For weeks following directions given by witnesses, I carefully made my way, step by
step, over farmland and grassland. Under my feet, often only half covered with earth lay
the remains of hundreds, indeed thousands, of unfortunate individuals betrayed by their
neighbors and slaughtered by specially enlisted bands of assassins [ . . ]. a state-
sponsored mass murder...carried out with a level of mass participation by the majority
population the like of which had never been seen before [ . . ]. Many of those who came
from outside shared the experience of hundreds of thousands of Rwandans of continuing,
for months on end, or even longer, to grieve, to weep internally, and, night after night, to
be unable to sleep longer than an hour or two. When they returned to Europe, many of
my colleagues felt paralyzed.

The above account makes genocide as a brutal perpetration of violence against the human race
crystal clear. The seminar goes into the vitals of this crime as it came before the international
fora and gives an account of genocide that took place in Rwanda and Yugoslavia.

4
Available at < http://www.mcvts.net/cms/lib07/NJ01911694/Centricity/Domain/155/Textbook.pdf>. Last accessed
on 15 March, 2017.
5
Ibid.

2
 CHAPTER-II

RECOGNITION OF GENOCIDE AS AN INTERNATIONAL

CRIME
2.1 Towards a definition

Until the Second World War, the phenomenon of genocide was a crime without a name, in the
words of British Prime Minister Winston Churchill6. The man, who named the crime, placed it in
a global-historical context, and demanded intervention and remedial action was an obscure
Polish-Jewish jurist, a refugee from Nazi-occupied Europe, named Raphael Lemkin (190059). 7

In four short years, he succeeded in coining a term genocide that concisely captured an age-
old historical phenomenon. He supported it with a wealth of historical documentation. He
published a lengthy book (Axis Rule in Occupied Europe) that applied the concept to campaigns
of genocide underway in Lemkins native Poland and elsewhere in the Nazi-occupied territories.
He then waged a successful campaign to persuade the new United Nations to draft a convention
against genocide; another successful campaign to obtain the required number of signatures; and
another to secure the necessary national ratications. Yet Lemkin died in obscurity in 1959; his
funeral drew just seven people. Only in recent years has the promise of his concept, and the UN
convention that incorporated it, begun to be realized.8

Even prior to Lemkins efforts, Genocide is a difficult concept to define, and a lively debate on
its nature is ever present in the discussions of scholars. The crime itself is said to have existed
since the beginning of mankind, although this is difficult to prove, but the term has only been
used since the Second World War and the Nuremberg trials, and its usage in International law is
a direct consequence of that experience9. Previous genocides, such as the Young Turk genocide
of Armenians (1915-1918), or the colonial settler genocides have thus been conceptualized in
retrospect, being viewed through the prism of the Third Reich, much like all the atrocities that

6
Available at < http://www.preventgenocide.org/ genocide/crimewithoutaname.htm.>. Last accessed on 15 March,
2017.
7
Ibid.
8
Adam Jones, Genocide: A Comprehensive Introduction, Routlege Taylor & Francis Group, New York, 2006 at p.8.
9
Jasna Balorda, Genocide and Modernity, Ph.D Thesis, Available at
<etheses.whiterose.ac.uk/6898/1/FINAL%20DRAFT%20MERGED%20(2).pdf>. Last accessed on 16 March, 2017.

3
took place after WWII. Indeed, as the Holocaust has served as somewhat of a template for the
concept of genocide in general, and, due to the vastness and particularity of the operation itself, it
has since been enormously difficult to define anything else as genocide. Old-school genocide
theorists are Holocaust-centric. As Barbara Harff puts it, the Jewish Holocaust [...] is
employed as the yardstick, the ultimate criterion for assessing the scope, methods, targets, and
victims of [other] genocides.10

With the Holocaust still being perpetrated under the reign of Hitler, Lemkin determined to stage
an intellectual and activist intervention in what he at rst called barbarity and vandalism. The
former referred to the premeditated destruction of national, racial, religious and social
collectivities while the latter he described as the destruction of works of art and culture, being
the expression of the particular genius of these collectivities11. At a conference of European legal
scholars in Madrid in 1933, Lemkins framing was rst presented (though not by its author; the
Polish government denied him a travel visa). Despite the post-First World War prosecutions of
Turks for crimes against humanity, governments and public opinion leaders were still wedded to
the notion that state sovereignty trumped atrocities against a states own citizens. It was this legal
impunity that rankled and galvanized Lemkin more than anything else. But the Madrid delegates
did not share his passionate concern. They refused to adopt a resolution against the crimes
Lemkin set before them; the matter was tabled.

Undeterred, Lemkin continued his campaign. He presented his arguments in legal forums
throughout Europe in the 1930s, and as far aeld as Cairo, Egypt. The outbreak of the Second
World War found him at the heart of the inferno in Poland, with Nazi forces invading from the
West, and Soviets from the East. As Polish resistance crumbled, Lemkin took ight. He traveled
rst to eastern Poland, and then to Vilnius, Lithuania. From that Baltic city he made use of
connections in Sweden, and succeeded in securing refuge there. After a spell of teaching in
Stockholm, the United States beckoned. Lemkin believed the US would be both receptive to his
framework, and in a position to actualize it in a way that Europe under the Nazi yoke could not.
An epic 14,000 mile journey took him across the Soviet Union by train to Vladivostok, by boat
to Japan, and across the Pacic. In the US, he moonlighted at Yale Universitys Law School

10
Ibid.
11
Samantha Power, A problem from hell: America and the age of Genocide, Basic Books, United States, 2013 at
p.21.

4
before moving to Durham, North Carolina, where he had been offered a professorship at Duke
University.12

Lemkin trolled through his impressive linguistic resources for a term that was concise and
memorable. He settled on a neologism with both Greek and Latin roots: the Greek genos,
meaning race or tribe, and the Latin cide, or killing. Genocide was the intentional destruction
of national groups on the basis of their collective identity. Physical killing was an important part
of the picture, but it was only a part, as Lemkin stressed repeatedly:13

By genocide we mean the destruction of a nation or an ethnic group.... Generally

speaking, genocide does not necessarily mean the immediate destruction of a nation,
except when accomplished by mass killings of all members of a nation. It is intended
rather to signify a coordinated plan of different actions aiming at the destruction of
essential foundations of the life of national groups, with the aim of annihilating the
groups themselves. The objectives of such a plan would be disintegration of the political
and social institutions of culture, language, national feelings, religion, and the economic
existence of national groups, and the destruction of the personal security, liberty, health,
dignity, and even the lives of the individuals belonging to such groups. Genocide is
directed against the national group as an entity, and the actions involved are directed
against individuals, not in their individual capacity, but as members of the national
group. Genocide has two phases: one, destruction of the national pattern of the
oppressed group; the other the imposition of the national pattern of the oppressor. This
imposition, in turn, may be made upon the oppressed population which is allowed to
remain or upon the territory alone, after removal of the population and the colonization
of the area by the oppressors own nationals.

But for Lemkins word to resonate today, and into the future, two further developments were
required. The UN Convention on the Prevention and Punishment of Genocide (1948), adopted in
remarkably short order after Lemkins indefatigable lobbying, entrenched genocide in
international and domestic law. And beginning in the 1970s, a coterie of comparative genocide

12
Supranote8 at p.9.
13
Henry Morgenthau, Murder of a Nation, Armenian General Benevolent Union of America, United States of
America, 1974 at p.25.

5
scholars drawing upon a generations work on the Jewish Holocaust, began to discuss, debate,
and rene Lemkins concept a trend that shows no sign of abating.14

2.2 Defining Genocide: The UN Convention

In the first legal definition, coined in 1948 after several years of extensive lobbying by a Polish
lawyer Raphael Lemkin, an agreement between member states had been reached, defining
genocide as one of the following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such: 15

a) Killing members of the group;

b) Causing serious bodily or mental harm to members of the group;

c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;

d) Imposing measures intended to prevent births within the group;

e) Forcibly transferring children of the group to another group.

The final genocide definition remained unmodified since 1951, and has thus not evolved in
accordance with the new theoretical discussions, mostly for political reasons. Attempts to
annihilate political groups and classes have, for example both been excluded from the definition,
largely due to international pressures from Russia and Western Europe respectively.16

However, at no point did the Conventions drafters actually dene national, ethnical, racial or
religious groups, and these have been subject to considerable subsequent interpretation. The
position of the Rwanda tribunal (ICTR), that any stable and permanent group is in fact to be
accorded protection under the Convention, is likely to become the norm in future judgments.17

With regard to genocidal strategies, the diversity of actions in Article II that qualify as genocidal
in marked contrast to the normal understanding of genocide. One does not need to exterminate

14
Supranote8 at p. 12.
15
Convention on the Prevention and Punishment of Crime of Genocide (adopted 9 December 1948, entered into
force 12 January 1951) 1021 UNTS 78.
16
Supranote9. Last accessed on 16 March, 2017.
17
Supranote8 at p.13.

6
or seek to exterminate every last member of a designated group. In fact, one does not need to kill
anyone at all to commit genocide! Inicting serious bodily or mental harm qualies, as does
preventing births or transferring children between groups. It is fair to say, however, that from a
legal perspective, genocide unaccompanied by mass killing is rare, and has stood little chance of
being prosecuted.

Controversial and ambiguous phrases in the document include the reference to serious bodily or
mental harm constituting a form of genocide. In practice, this has been interpreted along the lines
of the Israeli trial court decision against Adolf Eichmann in 1961, convicting him of the
enslavement, starvation, deportation and persecution of [. . .] Jews . . . their detention in ghettos,
transit camps and concentration camps in conditions which were designed to cause their
degradation, deprivation of their rights as human beings, and to . . . cause them inhumane
suffering and torture. The Rwanda tribunal (ICTR) adds an interpretation that this includes
bodily or mental torture, inhuman treatment, and persecution as well as acts of rape and
mutilation. In addition, several sources correctly take the view that mass deportations under
inhumane conditions may constitute genocide if accompanied by the requisite intent.18

In its opening sentence, the Convention declares that the Contracting Parties undertake to
prevent and to punish the crime of genocide. A subsequent article (VIII) states that any
Contracting Party may call upon the competent organs of the United Nations to take such action
under the Charter of the United Nations as they consider appropriate for the prevention and
suppression of acts of genocide or any of the other acts enumerated in Article III.19 But this
leaves actual obligations vague.20

18
Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities: Beyond the Nuremberg
Legacy, Oxford University Press, Oxford, 2001, pp. 30, 32.
19
Convention on the Prevention and Punishment of Crime of Genocide (adopted 9 December 1948, entered into
force 12 January 1951) 1021 UNTS 78.
20
Supranote8 at p. 14.

7
 CHAPTER-III

CASE STUDIES: GENOCIDE IN RWANDA AND YUGOSLAVIA

3.1 Factual details of the Genocide in Rwanda

From April to July 1994, members of the Hutu ethnic majority in the east-central African nation
of Rwanda murdered as many as 800,000 people, mostly of the Tutsi minority. Begun by
extreme Hutu nationalists in the capital of Kigali, the genocide spread throughout the country
with staggering speed and brutality, as ordinary citizens were incited by local officials and the
Hutu Power government to take up arms against their neighbors. By the time the Tutsi-led
Rwandese Patriotic Front gained control of the country through a military offensive in early July,
hundreds of thousands of Rwandans were dead and many more displaced from their homes. The
RPF victory created 2 million more refugees (mainly Hutus) from Rwanda, exacerbating what
had already become a full-blown humanitarian crisis.21

The genocide that consumed the tiny Central African country of Rwanda from April to July 1994
was in some ways without precedent. In just twelve weeks, at least one million people
overwhelmingly Tutsis, but also tens of thousands of Hutus opposed to the genocidal
government were murdered, primarily by machetes, clubs, and small arms. About 80 percent of
victims died in a hurricane of death . . . between the second week of April and the third week of
May, noted Grard Prunier. If we consider that probably around 800,000 people were
slaughtered during that short period...the daily killing rate was at least ve times that of the Nazi
death camps.22

By the early 1990s, Rwanda, a small country with an overwhelmingly agricultural economy, had
one of the highest population densities in Africa. About 85 percent of its population is Hutu; the
rest is Tutsi, along with a small number of Twa, a Pygmy group who were the original
inhabitants of Rwanda. Part of German East Africa from 1894 to 1918, Rwanda came under the
League of Nations mandate of Belgium after World War I, along with neighboring Burundi.
Rwandas colonial period, during which the ruling Belgians favored the minority Tutsis over the
21
Available at < http://www.history.com/topics/rwandan-genocide>. Last accessed on 17 March, 2017.
22
Grard Prunier, The Rwanda Crisis: History of a Genocide, Columbia University Press, New York 1997, at p.
261.

8
Hutus, exacerbated the tendency of the few to oppress the many, creating a legacy of tension that
exploded into violence even before Rwanda gained its independence. A Hutu revolution in 1959
forced as many as 300,000 Tutsis to flee the country, making them an even smaller minority. By
early 1961, victorious Hutus had forced Rwandas Tutsi monarch into exile and declared the
country a republic. After a U.N. referendum that same year, Belgium officially granted
independence to Rwanda in July 1962.23

Ethnically motivated violence continued in the years following independence. In 1973, a military
group installed Major General Juvenal Habyarimana, a moderate Hutu, in power. The sole leader
of Rwandan government for the next two decades, Habyarimana founded a new political party,
the National Revolutionary Movement for Development (NRMD). He was elected president
under a new constitution ratified in 1978 and reelected in 1983 and 1988, when he was the sole
candidate. In 1990, forces of the Rwandese Patriotic Front (RPF), consisting mostly of Tutsi
refugees, invaded Rwanda from Uganda. A ceasefire in these hostilities led to negotiations
between the government and the RPF in 1992. In August 1993, Habyarimana signed an
agreement at Arusha, Tanzania, calling for the creation of a transition government that would
include the RPF. This power-sharing agreement angered Hutu extremists, who would soon take
swift and horrible action to prevent it.

3.1.1 Genocide

On April 6, 1994, a plane carrying Habyarimana and Burundis president Cyprien Ntaryamira
was shot down over Kigali, leaving no survivors. (It has never been conclusively determined
who the culprits were. Some have blamed Hutu extremists, while others blamed leaders of the
RPF.) Within an hour of the plane crash, the Presidential Guard together with members of the
Rwandan armed forces (FAR) and Hutu militia groups known as the Interahamwe (Those Who
Attack Together) and Impuzamugambi (Those Who Have the Same Goal) set up roadblocks
and barricades and began slaughtering Tutsis and moderate Hutus with impunity. Among the
first victims of the genocide were the moderate Hutu Prime Minister Agathe Uwilingiyimana and
her 10 Belgian bodyguards, killed on April 7. This violence created a political vacuum, into

23
Supranote21. Last accessed on 17 March, 2017.

9
which an interim government of extremist Hutu Power leaders from the military high command
stepped on April 9.24

The mass killings in Rwanda quickly spread from Kigali to the rest of the country, with some
800,000 people slaughtered over the next three months. During this period, local officials and
government-sponsored radio stations called on ordinary Rwandan civilians to murder their
neighbors. Meanwhile, the RPF resumed fighting, and civil war raged alongside the genocide.
By early July, RPF forces had gained control over most of country, including Kigali. In response,
more than 2 million people, nearly all Hutus, fled Rwanda, crowding into refugee camps in the
Congo (then called Zaire) and other neighboring countries.25

After its victory, the RPF established a coalition government similar to that agreed upon at
Arusha, with Pasteur Bizimungu, a Hutu, as president and Paul Kagame, a Tutsi, as vice
president and defense minister. Habyarimanas NRMD party, which had played a key role in
organizing the genocide, was outlawed, and a new constitution adopted in 2003 eliminated
reference to ethnicity. The new constitution was followed by Kagames election to a 10-year
term as Rwandas president and the countrys first-ever legislative elections.26

3.2 Factual details of Genocide in Yugoslavia

In April 1992, the government of the Yugoslav republic of Bosnia-Herzegovina declared its
independence from Yugoslavia. Over the next several years, Bosnian Serb forces, with the
backing of the Serb-dominated Yugoslav army, targeted both Bosniak (Bosnian Muslim) and
Croatian civilians for atrocious crimes resulting in the deaths of some 100,000 people (80
percent Bosniak) by 1995. It was the worst act of genocide since the Nazi regimes destruction of
some 6 million European Jews during World War II.27

In the aftermath of the Second World War, the Balkan states of Bosnia-Herzegovina, Serbia,
Montenegro, Croatia, Slovenia and Macedonia became part of the Federal Peoples Republic of
Yugoslavia. After the death of longtime Yugoslav leader Josip Broz Tito in 1980, growing
nationalism among the different Yugoslav republics threatened to split their union apart. This

24
Ibid.
25
Ibid.
26
Ibid.
27
Available at < http://www.history.com/topics/bosnian-genocide>. Last accessed on 17 March, 2017.

10
process intensified after the mid-1980s with the rise of the Serbian leader Slobodan Milosevic,
who helped foment discontent between Serbians in Bosnia and Croatia and their Croatian,
Bosniak and Albanian neighbors. In 1991, Slovenia, Croatia and Macedonia declared their
independence; during the war in Croatia that followed, the Serb-dominated Yugoslav army
supported Serbian separatists there in their brutal clashes with Croatian forces.28

In Bosnia, Muslims represented the largest single population group by 1971. More Serbs and
Croats emigrated over the next two decades, and in a 1991 census Bosnias population of some 4
million was 44 percent Bosniak, 31 percent Serb, and 17 percent Croatian. Elections held in late
1990 resulted in a coalition government split between parties representing the three ethnicities
(in rough proportion to their populations) and led by the Bosniak Alija Izetbegovic. As tensions
built inside and outside the country, the Bosnian Serb leader Radovan Karadzic and his Serbian
Democratic Party withdrew from government and set up their own Serbian National Assembly.
On March 3, 1992, after a referendum vote (which Karadzics party blocked in many Serb-
populated areas), President Izetbegovic proclaimed Bosnias independence.29

Far from seeking independence for Bosnia, Bosnian Serbs wanted to be part of a dominant
Serbian state in the Balkansthe Greater Serbia that Serbian separatists had long envisioned. In
early May 1992, two days after the United States and the European Community (precursor to the
European Union) recognized Bosnias independence, Bosnian Serb forces with the backing of
Milosevic and the Serb-dominated Yugoslav army launched their offensive with a bombardment
of Bosnias capital, Sarajevo. They attacked Bosniak-dominated town in eastern Bosnia,
including Zvornik, Foca, and Visegrad, forcibly expelling Bosniak civilians from the region in a
brutal process that later was identified as ethnic cleansing. (Ethnic cleansing differs from
genocide in that its primary goal is the expulsion of a group of people from a geographical area
and not the actual physical destruction of that group, even though the same methodsincluding
murder, rape, torture and forcible displacementmay be used.)30

Though Bosnian government forces tried to defend the territory, sometimes with the help of the
Croatian army, Bosnian Serb forces were in control of nearly three-quarters of the country by the

28
Ibid.
29
Ibid.
30
Ibid.

11
end of 1993, and Karadzics party had set up their own Republika Srpska in the east. Most of the
Bosnian Croats had left the country, while a significant Bosniak population remained only in
smaller towns. Several peace proposals between a Croatian-Bosniak federation and Bosnian
Serbs failed when the Serbs refused to give up any territory. The United Nations (U.N.) refused
to intervene in the conflict in Bosnia, but a campaign spearheaded by its High Commissioner for
Refugees provided humanitarian aid to its many displaced, malnourished and injured victims.31

By the summer of 1995, three towns in eastern BosniaSrebrenica, Zepa and Gorazderemained
under control of the Bosnian government. The U.N. had declared these enclaves safe havens in
1993, to be disarmed and protected by international peacekeeping forces. On July 11, however,
Bosnian Serb forces advanced on Srebrenica, overwhelming a battalion of Dutch peacekeeping
forces stationed there. Serbian forces subsequently separated the Bosniak civilians at Srebrenica,
putting the women and girls on buses and sending them to Bosnian-held territory. Some of the
women were raped or sexually assaulted, while the men and boys who remained behind were
killed immediately or bussed to mass killing sites. Estimates of Bosniaks killed by Serb forces at
Srebrenica range from around 7,000 to more than 8,000.32

After Bosnian Serb forces captured Zepa that same month and exploded a bomb in a crowded
Sarajevo market, the international community began to respond more forcefully to the ongoing
conflict and its ever-growing civilian death toll. In August 1995, after the Serbs refused to
comply with a U.N. ultimatum, the North Atlantic Treaty Organization (NATO) joined efforts
with Bosnian and Croatian forces for three weeks of bombing Bosnian Serb positions and a
ground offensive. With Serbias economy crippled by U.N. trade sanctions and its military forces
under assault in Bosnia after three years of warfare, Milosevic agreed to enter negotiations that
October. The U.S.-sponsored peace talks in Dayton, Ohio in November 1995 (which included
Izetbegovic, Milosevic and Croatian President Franjo Tudjman) resulted in the creation of a
federalized Bosnia divided between a Croat-Bosniak federation and a Serb republic.33

31
Ibid.
32
Ibid.
33
Ibid..

12
3.3 International Criminal Tribunals: Yugoslavia and Rwanda

It is one of historys ironies that the International Criminal Tribunal for the Former Yugoslavia
(ICTY) was created to deect accusations of Western complacency in the face of genocide34. In
spring 1992, with war raging in Bosnia, voices were raised for the establishment of a UN-
sponsored tribunal to try the perpetrators of atrocities. In May 1993, the Security Council created
the ICTY at The Hague (hence, the Hague tribunal). For some time following, this was as far as
the West was willing to go. The Balkan wars continued for another three years, with the worst
single atrocity occurring near their end (the Srebrenica massacre of July 1995). The tribunals
creation did not prevent a recrudescence of conict in Kosovo in 199899.35

Following the Dayton Peace Accords of 1996, the ICTY process gradually began to gather
steam. The unwillingness of occupying forces to seize indicted individuals, for fear of
destabilizing the transition process, gave way to a more assertive attitude. The pace of arrests and
prosecutions picked up substantially. With growing cooperation from Croatian authorities, more
than half of the ICTYs indicted gures were in custody by 2001. The process climaxed with the
extraordinary 2001 transfer of former Yugoslav President Slobodan Milosevic for prosecution by
the tribunal.36

The ICTY won praise for impartiality. Its rst conviction was issued against a Croatian (albeit
one who served with Serb forces). The indictments of Croatian General Ante Gotovina and
Kosovo Prime Minister Ranush Haradinaj helped to balance the emphasis on Serb crimes against
Bosnian Muslims, Croatians, and Kosovar Albanians. However, the ICTY was criticized for
ruling out war crimes prosecutions of NATO leaders of the Kosovo war, accused of attacks on
civilian targets and other breaches of international law.37

34
Gary J. Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, Princeton University Press,
Princeton, 2002 at p. 214.
35
Supranote8 at p. 366.
36
By one recent count, the ICTY had issued eighty public indictments, with a number of others kept under seal.
Forty-nine indicted people were in detention at The Hague, with another thirty-one at large. Eleven convictions had
been issued and fteen cases were on appeal. Anne E. Mahle, The Ad Hoc Criminal Tribunals for the Former
Yugoslavia and Rwanda, Available at <http://www.pbs.org/wnet/justice/world_issues_hag.html.>. Last accessed
on 17 March, 2017.
37
Adam Jones, Genocide, War Crimes and the West: History and Complicity, Zed Books, London, 2004, at p. 276.

13
With the Hague tribunal in place, the UN could hardly avoid establishing a tribunal for the
Rwanda genocide of 1994. The International Criminal Tribunal for Rwanda (ICTR) was housed
at Arusha, Tanzania, where the abortive 1993 peace agreements had been signed. The ICTRs
gears ground painfully slowly, however. Understaffed and underfunded, it remains prone to
allegations that it focuses exclusively on Hutu killers of Tutsis, with no consideration of Tutsi
reprisal killings of Hutus. Its operations also appear distorted by the more extensive genocide
trials in Rwanda. These imposed the death penalty, while ICTR proceedings did not, leading to
the paradox that gnocidaires could escape execution at the ICTR, while their underlings could
be (and were) sentenced to death by Rwandan judges.38

The international tribunals at the Hague and Arusha are extremely important to precedent-setting
case law. In a few short years, the ICTY and ICTR together have contributed more to legal
interpretations and applications of the Genocide Convention than all authorities in the preceding
forty-ve years. There follow some examples.

Jurisdictional issues

For decades, applications of international humanitarian law were muddled by the difficulty of
determining which legal instruments could be imposed on sovereign states, and when in
peacetime, or solely in war? In civil wars, or only international ones? These matters are now
largely resolved. In its exhaustive analysis of customary and conventional international
humanitarian law the Hague tribunal concluded by decisively severing...the category of crimes
against humanity [including genocide] from any requirement of a connection to international
wars, or indeed to any state of conict39. In the estimation of scholar Christopher Rudolph, this
ICTY precedent opened the door to international adjudication of internal conicts. It was seized
upon by the Arusha tribunal in extending relevant international law to a civil conict (the
Rwanda genocide). The precedent has become a touchstone for advocates of universal
jurisdiction in cases of genocide and other crimes against humanity.40

38
Martha Minnow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence,
Beacon Press, Beacon, 1999 at p.41.
39
Geoffrey Robertson QC, Crimes Against Humanity: The Struggle for Global Justice, Penguin Publishers, UK,
1999 at p.296.
40
Supranote8 at p.367.

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The concept of a victim group

Many have criticized the UN Genocide Conventions exclusion of political and other potential
victim groups. Moreover, the four core groups that the Convention does recognize national,
ethnical, racial, and religious are notoriously difficult to dene. Confronted with genocide in
Rwanda, where populations sharing most of the usual ethnic markers language, religion, a
common history descended into savage intercommunal killing, the ICTR chose to dene an
ethnic group as one whose members share a common language and culture; or, a group which
distinguishes itself as such (self identication); or, a group identied as such by others, including
perpetrators of the crimes (identication by others)41. Identities may now be imputed to a
collectivity, as well as avowed by one.

Thus, these are some of the developments that came about with the establishment of these
tribunals.

41
Ibid.

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 CHAPTER-IV

CONCLUSION

Thus, we have seen that the advent of imperialism and colonialism in particular have brought
with them not only sporadic violence but settler genocides as well. In fact, as Arendt states,
genocide was taught in colonies. In addition, the rule of the colonizers was particularly disruptive
to indigenous populations due to creation and naturalization of inequalities between groups and
thus establishment of a foundation for future violence. In Bosnia and Rwanda, the transformation
of classes into ethnic groups took place as a result of the colonizing influence and scientific
racism which replaced less violent religious stereotyping. Indeed, modernity comes hand in hand
with violence. The process of nation state formation in Europe brought with it a decline of ethnic
minorities and resulted in annihilation of groups and languages, through assimilation, but also
killing.

By declaring genocide a crime under international law and by making it a problem of

international concern, the right of intervention on behalf of minorities slated for destruction has
been established. This principle is already accepted by the UN and does not need any specific
confirmation by treaty. Thus the resolution of December, 11, 1946 changes fundamentally the
international responsibilities of a government toward its citizens. The importance of the concept
of genocide from the point of view of international law and the new responsibilities of states was
stressed in the letter of President Truman transmitting his report on the United Nations to the
Congress of the United States on February 5, 1947.

Genocide is now established as a crime under international law on a plane with piracy although
no treaties were signed to this effect. The usefulness of a future international treaty on genocide
lies in facilitating the prevention and punishment of the crime and apprehension of
criminals. According to the second paragraph of the resolution, member states are to enact
suitable legislation. No great difficulties are involved in this field since genocide is a composite
crime and consists of acts which are themselves punishable by most existing legislation. The
main task will be to redraft provisions into criminal law formulae based upon the specific

16
criminal intent to destroy entire human groups. Such redrafted Provisions will have to be
adjusted to the principle that the offenders are punishable in a given country even if the crime is
committed abroad. This last principle is the symbol and practical application of the higher
doctrine of moral and legal solidarity in protecting the basic values of our civilization.

17
 CHAPTER-V

BIBLIOGRAPHY

Books

Bass J. Gary, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, Princeton
University Press, Princeton, 2002.
Chalk Frank and Jonassohn Kurt, The History and Sociology of Genocide: Analyses and
Case Studies, Yale University Press, New Haven, CT, 1990.
Jones Adam, Genocide, War Crimes and the West: History and Complicity, Zed Books, London,
2004.
Jones Adam, Genocide: A Comprehensive Introduction, Routlege Taylor & Francis Group, New
York, 2006.
Kuper Leo, Genocide: Its Political Use in the Twentieth Century, Penguin,
Harmondsworth, 1981.
Minnow Martha, Between Vengeance and Forgiveness: Facing History after Genocide and Mass
Violence, Beacon Press, Beacon, 1999.
Morgenthau Henry, Murder of a Nation, Armenian General Benevolent Union of America,
United States of America, 1974.
Power Samantha, A problem from hell: America and the age of Genocide, Basic Books, United
States, 2013.
Prunier Gerard, The Rwanda Crisis: History of a Genocide, Columbia University Press, New
York, 1997.
Ratner R. Steven and S. Abrams Jason, Accountability for Human Rights Atrocities: Beyond the
Nuremberg Legacy, Oxford University Press, Oxford, 2001.
Robertson QC Geofrrey, Crimes Against Humanity: The Struggle for Global Justice, Penguin
Publishers, UK, 1999.

ii
Conventions & Treaties

Convention on the Prevention and Punishment of Crime of Genocide (adopted 9

December 1948, entered into force 12 January 1951) 1021 UNTS 78.

Web Sources

Balorda Jason, Genocide and Modernity, Ph.D Thesis, Available at

<etheses.whiterose.ac.uk/6898/1/FINAL%20DRAFT%20MERGED%20 (2).pdf>. Last
accessed on 16 March, 2017.

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