Prosecuting Perpetrators of : Influencing the Development of International Law

Claire Crites University of Oxford, England

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I. Introduction Immanuel Kant stated in Eternal Peace “injustice in one part of the world is felt in all 1 ​ parts.” While this declaration may not ring true for every injustice, it seems to apply when examining atrocities such as genocide. Attempting to deliver justice after genocide has been and continues to be a complex process of international and national law combined with diplomatic and political tensions. The after World War II were a pivotal moment in international legal history that redefined how of genocide should and could be prosecuted. These trials set a precedent for involving the international community in the future prosecutions of perpetrators of genocide. The actions at Nuremberg directly affected the prosecutions of both the Cambodian and Rwandan . However, it must be noted that the prosecutions of the Nazi, Cambodian, and Rwandan genocides are not the only legal action taken against genocide perpetrators that have influenced . Nevertheless, this does not minimize their importance as each response by the international community to these genocides developed international law both directly and indirectly. In this piece, I aim to examine how justice was sought in the criminal prosecutions of Nazi, Cambodia, and Rwandan genocide perpetrators, and the impact of those prosecutions on international human rights law development.

II. Nazi Genocide Prosecutions The prosecution of Nazi leaders after the end of the Holocaust created imperative changes in international law that would serve as precedent for the international community’s actions against genocide atrocities in the future. Adolf Hitler’s short reign brought about the greatest genocide in history. The Holocaust resulted in the death of over six million persons of 2 Jewish descent and seventeen million deaths in total. The legal prosecution to bring the leaders of this genocide to justice began at the end of World War II in the Nuremberg trials. The Nuremberg trials were the starting point in the punishment of genocide perpetrators because the legal developments of the post war period served as the crucible for subsequent developments in 3 international human rights legalism. The atrocity crimes perpetrated by Nazi Germany prompted the international community to take unprecedented action in bringing the perpetrators to justice. The Allied powers of the United Kingdom, United States, and the Soviet Union jointly declared to the in 1943 that most assuredly they “will pursue the members of the Nazi 4 Party to the uttermost ends of the earth…so that justice may be done.” This process began with the London Agreement, which resulted in the International Military Tribunal (IMT) Charter. The Charter of the IMT signed by the Allied powers in 1945 established the procedural and substantive rules to the court to try war criminals of the Nazi Party whose offenses had no 5 particular location. The IMT’s establishment was a monumental achievement in international

1 Hannibal Travis, Genocide, Ethnonationalism, and the United Nations: Exploring the Causes of Mass Killing Since ​ 1945 (New York: Routledge, 2013), 161. ​ 2 “Documenting Numbers of Victims of the Holocaust and Nazi ,” Holocaust Encyclopedia, accessed ​ ​ April 9, 2018. https://www.ushmm.org/wlc/en/article. ​ ​ 3 Donald Bloxham and A. Dirk Moses, The Oxford Handbook of Genocide Studies (Oxford: Oxford University ​ ​ Press, 2010), 617. 4 Herbert R. Reginbogin, et al, The Nuremberg Trials: International Criminal Law Since 1945 (München: K.G. ​ ​ Saur, 2006), 106. 5 Robert K. Woetzel, The Nuremberg Trials in International Law (London: Stevens & sons, 1960), 3. ​ ​ ​

2 legal history as the first instance of the international community uniting to prosecute war criminals. Under the IMT Charter, defendants could be charged with the of conspiracy to wage wars of aggression, crimes against peace, war crimes, and under 6 temporal jurisdiction for the years 1939 to 1945. The legal definition and of these crimes at the international level further developed international human rights law. Outside of the IMT, another influential prosecutorial agent against the Nazi Party included the twelve trials 7 conducted by the American military tribunals at Nuremberg. The trials conducted by the IMT along with the American military tribunals established the primary precedent for national courts and future prosecutorial cases of genocide perpetrators.

A. Results of the Nuremberg Trials The IMT began on November 20th, 1945 and ended on October 1st, 1946. The twelve 8 trials conducted by the American military tribunals lasted until 1949. The IMT held 403 open sessions in which they tried twenty-one defendants whose roles in the Nazi regime ranged from 9 the Gestapo to the Schutzstaffel (SS) to the Reich Cabinet. One of the most powerful figures in the Nazi Party prosecuted at Nuremberg was Hermann Goering, who served as Hitler’s successor after his suicide. Goering was indicted on conspiracy to wage wars of aggression, crimes against 10 peace, war crimes, and crimes against humanity. He was sentenced to death by hanging. The judgments at the IMT resulted in seven defendants receiving prison sentences and three 11 defendants being acquitted, while all others were sentenced to death. The judgments of the IMT would serve as precedent for national courts in Nazi criminal cases, particularly the American military tribunals. The American military tribunals went on to prosecute 183 high ranking 12 German officials in twelve separate trials. The prosecutions initiated by the IMT and the American military tribunals brought swift and decisive justice to some of the most eminent leaders of the Nazi regime.

B. The Effect of the Nuremberg Trials on International Law Apart from its status as the first international tribunal, the Nuremberg trials influenced international law in other significant ways. The Nuremberg trials extended international law beyond its traditional jurisdiction seen through the Nuremberg principles. The International Law Commission (ILC) of the United Nations was established to develop and codify international 13 law, and was tasked by the United Nations to formulate the Nuremberg principles. The

6 International Military Tribunal, The Trial of German Major War Criminals: Proceedings of the International ​ Military Tribunal at Nuremberg (London: Published under the authority of H.M. Attorney General by H.M.S.O, ​ 1946-1951), 171. 7 Herbert R. Reginbogin, et al, The Nuremberg Trials: International Criminal Law Since 1945 (München: K.G. ​ ​ Saur, 2006), 106. 8 Ibid. 106 9 Robert K. Woetzel, The Nuremberg Trials in International Law (London: Stevens & sons, 1960), 1. ​ ​ 10 Ibid. 7. 11 William L. Shirer, The Rise and Fall of the Third Reich: A History of Nazi Germany (New York: Simon and ​ ​ Schuster, 1960), 1143. 12 “International Military Tribunal at Nuremberg,” Holocaust Encyclopedia, accessed April 9, 2018. ​ ​ https://www.ushmm.org/wlc/en/article. ​ 13 Robert K. Woetzel, The Nuremberg Trials in International Law (London: Stevens & sons, 1960), 232. ​ ​

3 codification of the Nuremberg principles served to establish the actions taken in the Nuremberg trials as international law for future cases of genocide. The ILC included seven tenets that summarized the principles of the IMT. One of the primary Nuremberg principles states that an 14 individual can be charged with crimes against peace, war crimes, and crimes against humanity. Not only were the Nuremberg principles imperative in international law for their establishment of the IMT as precedent in future cases of genocide, but they also affirmed international law’s ability to hold individuals responsible for these crimes, contrasting previous notions that only state law could be successful. International law establishing individual responsibility for 15 violations of human rights was one of the most imperative legacies of the Nuremberg trials. The results of the trials created major changes in international legal structure -- as international law was now not exclusively concerned with relations between states, but also relations between 16 an individual and states. Individual accountability developed through international law as a new precedent for future cases against perpetrators of human rights violations due to the Nuremberg trials. The 1948 met in the context of the Nuremburg trials to formulate preventative measures and legal punishment for genocide perpetrators. Genocide was first recognized as an independent crime in the 1948 Genocide Convention as acts committed with 17 “intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” This definition of genocide would serve as the legal definition for every future international law case against perpetrators of genocide, and it was a landmark legal codification making genocide illegal under international law. Another impact of the Nuremberg trials on international law was the Universal Declaration of Human Rights (UDHR). The UDHR was adopted by the United Nations General Assembly in 1948, and the declaration regarded as part of an expression of the 18 United Nations to safeguard human rights. The Nuremberg trials provided a primordial message as to the definition of human rights itself; Nuremberg intended to define universal 19 human rights to all people. The UDHR established the legal centerpiece of the United Nation’s ​ human rights framework, and a core lesson of Nuremberg was that international law should 20 protect these basic rights. An imperative legacy of Nuremberg is the universality of basic human rights to prevent something like the Holocaust from occurring again. The Nuremberg trials redefined, reinvented, and established international law in unprecedented ways that served to impact future prosecutions of crimes of genocide.

III. Cambodian Genocide Prosecutions The Cambodian genocide began in 1975 when Pol Pot rose to the position of Prime

14 Ibid. 233. 15 Herbert R. Reginbogin, et al, The Nuremberg Trials: International Criminal Law Since 1945 (München: K.G. ​ ​ Saur, 2006), 251. 16 Robert K. Woetzel, The Nuremberg Trials in International Law (London: Stevens & sons, 1960), 97. ​ ​ 17 “Genocide,” United Nations Office of Genocide Prevention and the Responsibility to Protect, accessed April 6, ​ ​ 2018. http://www.un.org/en/genocideprevention/genocide.html. 18 Machteld Boot, Genocide, Crimes Against Humanity, and War Crimes: nullum crimen sine lege and the subject ​ matter jurisdiction of the International Criminal Court (Antwerpen; Oxford: Intersentia, 2002), 128. ​ 19 Herbert R. Reginbogin, et al, The Nuremberg Trials: International Criminal Law Since 1945 (München: K.G. ​ ​ Saur, 2006), 251. 20 Ibid. 251.

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Minister in Cambodia under the Communist Party of Kampuchea — known as the Khmer Rouge. Reports prepared by the United Nations estimated the death count to range from one 21 million to two million deaths at the hands of the Khmer Rouge. The end of the Cambodian genocide in 1979 was only the beginning of judicial prosecutions of the agents of this genocide. In August of 1979, a special national court entitled the People’s Revolutionary Tribunal was 22 constituted to try the two most powerful leaders of the Khmer Rouge — Pol Pot and Ieng Sary. After the People’s Revolutionary Tribunal ended, the Cambodian did not seek the prosecution of the Khmer Rouge again until increasing pressure from the international community resulted in the establishment of the Extraordinary Chambers in the Courts of 23 Cambodia (ECCC), more commonly known as the . Due to international pressure calling for judicial action against the Khmer Rouge, the Cambodian government partnered with the United Nations, forming the Khmer Rouge Tribunal. While these national tribunals were not as effective as the Nuremberg trials were, they still played an imperative role in developing international human rights law.

A. Results of the Khmer Rouge Trials After the establishment of the People’s Revolutionary Tribunal, Pol Pot and Ieng Sary were tried within the court over a period of five days. Pol Pot was the Prime Minister of Cambodia during the genocide, and Ieng Sary was the deputy Prime Minister of Foreign Affairs. 24 The trials of Pol Pot and Ieng Sary were held in absentia, as both defendants fled to the 25 Cambodian jungle to escape prosecution. This caused the trials to appear as a ‘show trials’ that had little effect on the actual punishment of Khmer Rouge leaders. But, the fact that a trial was held does, at least, display some reconciliatory legal action. Both Pol Pot and Ieng Sary were found guilty of crimes against humanity, war crimes, and genocide as defined in the Genocide 26 Convention in 1948, and they were sentenced to death and had their property confiscated. Because the trial was held in absentia, neither Pol Pot or Ieng Sary faced these charges. Pol Pot died of natural causes in 1998 never having been arrested, and Ieng Sary died in 2013 from heart 27 failure while in containment by the Cambodian government. Following the People’s Revolutionary Tribunal, the joint Khmer Rouge Tribunal between 28 the Cambodian government and the United Nations was established in 1997. The institution of this tribunal was an attempt to prosecute the Khmer Rouge after immense pressure from top leaders within the international community to hold the Khmer Rouge accountable for their

21 Hurst Hannum, “International Law and Cambodian Genocide: The Sounds of Silence,” The Johns Hopkins ​ University Press 11, no. 1 (Feb., 1989): 82-138. ​ 22 Howard J. De Nike, et al, Genocide in Cambodia: documents from the trial of Pol Pot and Ieng Sary ​ (Philadelphia: University of Pennsylvania Press, 2000), 1. 23 Craig Etcheson, After the Killing Fields: Lessons from the Cambodian Genocide (West Port [Conn.]: Praeger, ​ ​ 2005), 184. 24 Howard J. De Nike, et al, Genocide in Cambodia: documents from the trial of Pol Pot and Ieng Sary ​ (Philadelphia: University of Pennsylvania Press, 2000), 1. 25 Ibid. 11. 26 Ibid. 463. 27 Martin Childs, “Ieng Sary: Leading figure of the Khmer Rouge who later stood trial for crimes against humanity,” The Independent, March 27, 2013, https://www.independent.co.uk/news/obituaries/ieng-sary. ​ 28 Craig Etcheson, After the Killing Fields: Lessons from the Cambodian Genocide (West Port [Conn.]: Praeger, ​ ​ 2005), 184.

5 actions. The Cambodian government desired to keep the prosecution small: no less than a dozen defendants were tried to avoid what the Cambodian government viewed as a potential threat to 29 political stability. This tribunal indicted five persons—two of which died during the proceedings and the other three sentenced to life imprisonment, while also having a number of 30 active cases currently on trial. The prosecution initiated by the People’s Revolutionary Tribunal and the Khmer Rouge Tribunal attempted to rid Khmer Rouge leaders of impunity through legal justice.

B. Effect of the Khmer Rouge Trials on International Law The two tribunals prosecuting Khmer Rouge leaders impacted international law through not only their establishment of legal precedents, but also because of their inefficiencies. The People’s Revolutionary Tribunal and the trials of Pol Pot and Ieng Sary were the world’s first trials based on the United Nation’s policy under the 1948 Genocide Convention, as well as the 31 first trial of a head of government on a human rights-related charge. This reaffirmed the United Nation’s development of international human rights law since Nuremberg, and it also established the People’s Revolutionary Tribunal as an important precedent for future cases of international human rights law. The Khmer Rouge Tribunal was a precursor to the judicial proceedings that 32 occurred in the Rwandan genocide prosecutions. The tribunals of the Cambodian genocide ultimately left the low level and mid-level leaders of the Khmer Rouge untouched in judicial 33 proceedings, along with the thousands of people who carried out the actual killing. Even the high profile Khmer Rouge leaders rarely faced justice through a criminal court because by the time the leaders were arrested they had already died years earlier or had died in custody before they could be tried. The failure of the Cambodian national tribunals to end impunity of the Khmer Rouge served as a cautionary tale to later international prosecutions of genocide. These failures created a push from within the United Nations by key figures and organizations such as former Secretary of State Madeleine Albright, former U.S. Ambassador Nancy Soderberg, and organizations like the of Justice (the legal organs of the United Nations) to create an International Criminal Court (ICC). The ICC was established to try human rights offenses in a way that would not permit impunity like the Cambodian tribunals. The national tribunals in Cambodia increased pressure from the international community to create an International Criminal Court to procure judicial remedies to atrocities such as genocide rather than reliance on 34 ineffective national tribunals. The inefficiencies of the Cambodian genocide led to a desire for more significant changes in international law.

IV. Rwandan Genocide Prosecutions Only a few decades after the genocide in Cambodia, the atrocities of the Rwandan

29 Ibid. 30 “Introduction to the ECCC,” Extraordinary Chambers in the Courts of Cambodia, accessed April 5, 2018. ​ ​ https://www.eccc.gov.kh/en/introduction-eccc. 31 Howard J. De Nike, et al, Genocide in Cambodia: documents from the trial of Pol Pot and Ieng Sary ​ (Philadelphia: University of Pennsylvania Press, 2000), 1. 32 Ibid. 18. 33 Craig Etcheson, After the Killing Fields: Lessons from the Cambodian Genocide (West Port [Conn.]: Praeger, ​ ​ 2005), 183. 34 Ibid.

6 genocide occurred. On April 6th, 1994, a missile shot down a plane carrying President Habyarimana of Rwanda. Many foreign observers believed Hutu extremists of Habyarimana’s 35 own military launched the missile. This incident unleashed centuries of racial tension between two ethnic groups of Rwanda — the Hutus and the Tutsis. After the assassination of Habyarimana, the Hutu led government slaughtered Tutsis in a genocide that followed instructions from the highest levels of the Rwandan political, military, and administrative 36 hierarchy. While the genocide only lasted a few months, it produced unparalleled levels of violence. The end of the genocide had murdered approximately 800,000 Tutsi, which exceeded 37 the rate of killing during the Holocaust. The speed and enormity of the genocide in Rwanda prompted immediate action by the international community to prosecute the leaders of the genocide. Additionally, the inaction and failure of the international community to prevent and protect during the actual genocide caused the international community to prosecute the perpetrators swiftly in an attempt to resolve their inaction and mistakes. This led to the international community’s prompt creation of the International Criminal Tribunal for Rwanda (ICTR) to prosecute crimes of genocide. The ICTR was only the second international criminal 38 tribunal since the establishment of the United Nations apart from the Nuremberg trials. On November 8th, 1994 the Secretary-General of the United Nations submitted to the Security Council the statute for ICTR to be established under the United Nations Charter, which the 39 Security Council adopted. The establishment of the ad hoc criminal tribunal displayed the ​ increasing power the international community gained through the United Nations to establish courts of justice outside of national courts.

A. Results of Rwandan Genocide Trials The ICTR began in 1994 and lasted until December 31st, 2015. Over the duration of the 40 ICTR, a majority of the high profile leaders of the Rwandan genocide were prosecuted. The ICTR was the first instance in which leaders of genocide were prosecuted and punished in an 41 international forum. These key leaders included Jean Kambanda who was the Prime Minister of the interim Rwandan government during the genocide along with Jean-Paul Akayesu who commanded the Rwandan police. While the tribunal was active, forty-five individuals were tried, eleven fugitives were still at large, nine pled guilty, eight were acquitted, and seventeen were 42 sentenced to life in prison. The mid and low-level perpetrators of genocide were prosecuted

35 Paul J. Magnarella, Justice in Africa: Rwanda’s Genocide, Its Courts, and the UN Criminal Tribunal (Aldershot: ​ ​ Ashgate, 2000), 19. 36 Ibid. 20. 37 Michael Barnett, Eyewitness to Genocide: The United Nations and Rwanda (Ithaca; London: Cornell University ​ ​ Press, 2002), 1. 38 John A. Berry and Carol Pott Berry, Genocide in Rwanda: a collective memory (Washington, DC: Howard ​ ​ University Press, 1999), 129. 39 Paul J. Magnarella, Justice in Africa: Rwanda’s Genocide, Its Courts, and the UN Criminal Tribunal (Aldershot: ​ ​ Ashgate, 2000), 42. 40 Thierry Cruvellier, Court of Remorse: Inside the International Criminal Tribunal for Rwanda (Madison, Wis.: ​ ​ University of Wisconsin Press, 2010), 168. 41 Kingsley C. Moghalu, Rwanda’s Genocide: The Politics of Global Justice (New York: Palgrave Macmillan, ​ ​ 2005), 202. 42 Ibid. 168.

7 through the national court system in Rwanda. However, by 1999 the Rwandan government was forced to admit that their weak and unstructured criminal justice system could not handle the 43 massive caseload. The overcrowded and inhumane conditions of prisons and an underfunded criminal court system could not process the cases. Nevertheless, Rwanda’s institutionalization of the Gacaca courts enabled continued prosecutions of these agents of genocide. The Gacaca courts were a Rwandan tribal form of restorative justice. In 2001, 250,00 judges were elected by the people of their community to lead approximately 11,000 community courts, and through the Gacaca court system 30,000 persons confessed to their crimes, and 250,000 were impacted by 44 those confessions. This court system enabled low-level agents of genocide to face justice through a process of restoration and reconciliation rather than through the Rwandan national 45 court system. The Gacaca courts closed in February of 2010. The international, national, and local justice efforts initiated after the Rwandan genocide brought perpetrators to justice while vastly developing international law.

B. Effect of the Rwandan Genocide Trials on International Law When the Rwandan genocide ended, many of the perpetrators fled the country to avoid consequences. To minimize the effects of this phenomenon on prosecution, the Security Council granted the ICTR the jurisdiction to prosecute Rwandans who allegedly committed certain 46 crimes abroad even if they had fled to another country. According to the ICTR statute, Rwanda’s neighboring countries were forced to surrender alleged perpetrators of the Rwandan 47 genocide to the tribunal without choice. National courts could prosecute crimes that occurred within their borders, but the ICTR’s statute declared that they had superiority over all national courts. This statute added a new dimension to international human rights law by granting the ICTR authority over national court systems. Another critical development of international law that emerged from the ICTR was the prosecution of Jean-Paul Akayesu. The trial of Akayesu 48 was the first trial before an international tribunal of someone charged with genocide. However, the most impactful aspect of this trial in international law was that it was the first trial in which an international tribunal conceptualized rape as an act of genocide; this trial offered definitions 49 of rape and sexual violence for purposes of international human rights law. Including rape as a component within the definition of genocide was an enormous advancement in the development of human rights law. It established precedent for future crimes of mass sexual violence, and it included rape as a human rights offense. Akayesu’s case along with the others tried in the ICTR aided in interpreting and defining the application of the definition of genocide in international 50 criminal cases. Another impactful aspect of the ICTR on international law was the actualization of the International Criminal Court to try individuals of international human rights offenses. The

43 Thierry Cruvellier, Court of Remorse: Inside the International Criminal Tribunal for Rwanda (Madison, Wis.: ​ ​ University of Wisconsin Press, 2010), 170. 44 Ibid. 45 Ibid. 171. 46 Paul J. Magnarella, Justice in Africa: Rwanda’s Genocide, Its Courts, and the UN Criminal Tribunal (Aldershot: ​ ​ Ashgate, 2000), 43-45. 47 Ibid. 48 Ibid. 112. 49 Ibid. 50 Olympia Bekou and Robert Cryer, The International Criminal Court (Aldershot: Ashgate, 2004), 110. ​ ​

8 successes at Nuremberg prompted initiatives to establish a permanent International Criminal 51 Court, but these initiatives were not realized until after the creation of the ICTR. There was general recognition within the United Nations that the ad hoc tribunal of Rwanda was a temporary and inadequate solution to the more fundamental need of an International Criminal 52 Court. Thus, this responsibility fell to the International Law Commission (ILC) within the United Nations. The ILC codified and developed the International Criminal Court into international law by creating a permanent version of the ad hoc tribunal of Rwanda. The similarities between both tribunals were seen through their common structure and subject matter 53 jurisdiction. The 1948 Genocide Convention, crimes against humanity, war crimes, and the expressed additional commonalities between the two as the crimes within 54 the jurisdiction of the International Criminal Court included genocide as defined. The statute of 55 the International Criminal Court was adopted on July 5, 1998. The establishment of a permanent body rather than reliance on ad hoc tribunals to try perpetrators of genocide was a monumental achievement of international human rights law. Because of the precedent set by the ICTR, the International Criminal Court gained the ability to prosecute individuals with crimes of genocide and bring the perpetrators to justice through the court system.

V. Conclusion After the tragedy of genocide occurs, it is difficult to know how to achieve a sense of justice for the nation, community, and, most importantly, the victims that it affected. Deriving legal justice from genocide is an enormous responsibility that neither the Nuremberg trials, Khmer Rouge tribunals, nor the international, national, or local layers of justice after the Rwandan genocide completely achieved. There is no prosecution system that captured and imprisoned every agent of genocide. No system was perfect — even after extensive developments in international human rights law. Additionally, developments in human rights law still have not prevented genocides from occurring in contemporary times. However, Judge Kama of the ICTR reflected on the tribunals stating that “there was a choice: let things go unpunished or render justice, hoping that we can learn from it. We opted for that… Just because convictions 56 do not prevent repetition of the crime does not mean that we should not convict.” The trials brought about by the Nazi, Cambodian, and Rwandan genocides influenced international law in unprecedented ways that charged the international community with the responsibility to strive for some form of justice. In the words of Holocaust survivor Elie Wiesel: “The opposite of love is not hate, its indifference…the opposite of faith is not heresy, it's indifference. And the opposite of life is not death, it's indifference.” Taking criminal action against the horrific crime of genocide is imperative in efforts to not remain indifferent and to continual attempting to render justice after the tragedy of genocide. The prosecutions of the agents of the Nazi, Cambodian, and Rwandan genocides, despite their limitations, were vital in establishing precedent in the new and

51 William Schabas, The UN International Criminal Tribunals: The former Yugoslavia, Rwanda, and Sierra Leone ​ (Cambridge: C.U.P., 2006), 11. 52 Ibid. 30. 53 Ibid. 31. 54 Kathryn Walsh, Responding to Genocide: The Limitations of the International Criminal Court (Thesis: University ​ ​ of Oxford, 2007), 2. 55 Olympia Bekou and Robert Cryer, The International Criminal Court (Aldershot: Ashgate, 2004), 39. ​ ​ 56 Thierry Cruvellier, Court of Remorse: Inside the International Criminal Tribunal for Rwanda (Madison, Wis.: ​ ​ University of Wisconsin Press, 2010), 173.

9 relatively unexplored field of international human rights law.