Lessons Learnt From Rwanda: The Need for Harmonisation of Penalties Between the ICC and its Member States Samantha Richards MPhil Thesis Student ID: 033365563 Submitted: 30 November 2014 Word count (excluding footnotes): 58,012 Abstract An examination of the International Criminal Court (ICC) and its policy of complementarity in the context of the presumption, that for complementarity to be effective, the national courts will have to undertake the majority of the investigations and prosecutions of extraordinary crimes. This will then be discussed in terms of the current setup whereby national courts are permitted by Article 80 of the Rome Statute 1998, to apply their own penalties when conducting trials at the national level. The analysis serves to highlight that the current situation is not conducive to proportionate or consistent sentencing or penalties, as the death penalty may still be applied by national courts, whilst in accordance with human rights norms, the ICC only has custodial sentences available to its judges. In addition to this the discussion highlights that many national jurisdictions where the crimes take place are in need of capacity building so as to rebuild or to reinforce their legal systems to a level where they are able to seek justice for themselves. This leads into a discussion of the potential for outreach whereby the ICC may also be able to lead by example and take the opportunity to impart their sentencing objectives and procedural norms, in an attempt to facilitate consistent and proportionate justice at both the national and international level, so as to aid the fight to close the impunity gap. The case study of Rwanda will be used to reinforce the hypotheses and to serves a real life example of how involvement in capacity building can also lead to legal reform. Table of Contents Chapter 1: Introductory Chapter 1.1 Background and Study Rationale ………………………………………………………………………….. 1 1.2 The Global Death Penalty Abolition Trend …………………………………………………………….. 6 1.3 Complementarity and Outreach ……………………………………………………………………………. 9 1.4 Proportionality and Consistency ……………………………………………………………………………. 12 1.5 The Rwanda Case Study ………………………………………………………………………………………… 16 Chapter 2: Global Trend Towards Abolition of the Death Penalty 2.1 The Universal Declaration of Human Rights ………………………………………………………….. 22 2.2 The ICCPR and Second Optional Protocol ……………………………………………………………… 25 2.3 From International to European ……………………………………………………………………………. 27 2.4 The American Stance ……………………………………………………………………………………………. 35 2.5 Social and Political Factors ……………………………………………………………………………………. 43 Chapter 3: The Principle of Complementarity 3.1 Drafting of the Rome Statute 1998 ………………………………………………………………………. 50 3.2 How does the Rome Statute Define Complementarity? ……………………………………….. 53 3.3 A New and Evolving Kind of Complementarity ……………………………………………………… 63 3.4 The Implications of Positive Complementarity ……………………………………………………… 65 3.5 The ICC Outreach and Beyond ………………………………………………………………………………. 69 Chapter 4: Proportionality, Penalties and the ICC 4.1 Why is the ICC’s Sentencing Jurisprudence Vague? ………………………………………………… 77 4.2 What is Proportionality and Why is it Important? …………………………………………………… 82 4.3 Just Deserts Theory and Retributivism ……………………………………………………………………. 83 4.4 Utilitarianism an Overview ……………………………………………………………………………………… 92 4.5 Deterrence a Sub-division of Utilitarianism …………………………………………………………….. 95 4.6 Proportionality and Consistency at the ICC …………………………………………………………….. 98 4.7 Plea Bargains and Mitigating Circumstances …………………………………………………………… 104 4.8 The Plasvic Paradox ………………………………………………………………………………………………… 106 4.9 What can the ICC Learn from This? …………………………………………………………………………. 110 Chapter 5: The Rwanda Case Study 5.1 Why Rwanda: Background and Context ………………………………………………………………….. 114 5.2 The World Finally Takes Action and Creates the ICTR ……………………………………………… 117 5.3 Rwanda Objects to the Creation of the ICTR …………………………………………………………… 120 5.4 UN Security Council Resolution 955 ……………………………………………………………………….. 124 5.5 How is the ICTR structured: How well has this Facilitated Prosecutions? ……………….. 127 5.6 Rwandan National Justice ………………………………………………………………………………………. 133 5.7 Rwanda Starts Over ……………………………………………………………………………………………….. 135 5.8 No Crime of Genocide ……………………………………………………………………………………………. 138 5.9 Organic Law No 08/96 of August 30 1994 ………………………………………………………………. 142 5.10 The Gacaca Courts – Giving Justice to the People? ……………………………………………….. 146 5.11 Modern Day Gacaca …………………………………………………………………………………………….. 149 5.12 Gacaca Not without its Flaws ………………………………………………………………………………. 154 5.13 Abolition of the Death Penalty: Social Progress or a Slave to Rule 11bis? ……………… 159 5.14 Rule 11bis ……………………………………………………………………………………………………………… 160 5.15 Why did Rwanda Abolish the DeathPenalty? ……………………………… ……………………….. 163 5.16 The Organic Laws of 2007 ……………………………………………………………………………………… 165 5.17 A Dualist System: A Satisfactory Outcome? …………………………………………………………… 170 5.18 Outreach Programmes: Did They Reach Far Enough? ……………………………………………. 173 5.19 The Essence of Outreach ……………………………………………………………………………………….. 177 5.20 The Realisation that Capacity Building is Essential …………………………………………………. 182 5.21 Case Study Conclusion ……………………………………………………………………………………………. 185 Chapter 6: Conclusion 6.1 The Death Penalty Paradox ………………………………………………………………………………………. 192 6.2 Outreach as a Means to Implant the Rule of Law and ICC Sentencing Practices into the National Courts ………………………………………………………………………………………………………………. 193 List of Abbreviations . ACHR – American Convention on Human Rights . CDR – Coalition Pour la Defense de la Rebublique . DRC – Democratic Republic of the Congo . EU – European Union . ECHR – European Convention on Human Rights . ICC – International Criminal Court . ICCPR – International Covenant on civil and Political Rights . ICTR – International Criminal Tribunal for Rwanda . ICTY – International Criminal Tribunal for the former Yugoslavia . IMF – International Monetary Fund . MICT – Mechanism for International Criminal Tribunals . MRND - Mouvement National pour la Revolution . NGO – Non-governmental Organisation . OAS – Organisation of American States . OUA – Organisation of African Unity . NGO – Non-governmental Organisation . RPF – Rwandan Patriotic Front . SOP – Second Optional Protocol to the ICCPR . UNAMIR - United Nations Assistance Mission for Rwanda . UN – United Nations MPhil Thesis Chapter 1: Introductory Chapter 1.1 Background and Study Rationale The International Criminal Court (ICC), upon which this thesis will centre, was created in 1998 by the Rome Statue of the International Criminal Court (Rome Statute 1998)1 which began its work on 1 July 2002, after the statute was ratified by a minimum of sixty States.2 The aim of the court is to take the work of the ‘ad-hoc’ tribunals and courts of Rwanda, former Yugoslavia and Sierra Leone a step further, so as to create the permanent criminal court that was envisaged as early as 1937 by the League of Nations.3 The main objective of the ICC is to try the key perpetrators of the most serious crimes known to man, crimes so shocking that they are considered to breach the concepts of ‘Jus Gentium’4 (law of the people)5 and Human Rights; more specifically the crimes of genocide, war crimes, crimes against humanity and the crime of aggression.6 Whilst these crimes may appear to be crimes that should be dealt with at the national level, because they often occur within a sovereign State boundary,7 they are considered to be crimes of concern to the international community for the following reasons. Firstly, due to being extraordinary in terms of the scale, with the high numbers of people killed, raped, exiled or displaced from their homes, they become global issue rather than State matters, as they pose a threat to ‘… 1 17 July 1998, The Statute of Rome of the International Criminal Court was adopted by 120 States, at the Food and Agriculture Organization of the UN headquarters. Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) UN Doc A/CONF 183/9 2 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) UN Doc A/CONF 183/9, Art 126 states that the court shall come into force on the ‘... 60th day following the date of the deposit of the 60th instrument of ratification ...’ 3 League of Nations Convention for the Creation of an International Criminal Court, League of Nations OJ Special Supplement No 156(1936) LN Doc C.547 (I) M.384 (I) 1937.V (1938) 4 Jus Gentium – A roman concept, taken to mean the law of the people, which is considered to be common to all civilised societies: Geoffrey Robertson Q.C, Crimes Against Humanity: The Struggle for Global Justice (3rd edn, Penguin 2006) 1 5 Elizabeth A Martin (eds), Oxford Dictionary of Law (5th edn, OUP 2003) 274 6 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) UN Doc A/CONF 183/9 Arts 6- 8bis 7 Morten Bergsmo, Olympia Bekou & Annika Jones, ‘Complementarity after Kampala: Capacity Building and the International Criminal Court’s Legal Tools’ (2010) 2 GoJIL 791, 794 1 international peace and security.’8 Because crimes of this nature and magnitude are often deemed a threat to international peace and security because if no action were taken to stamp out the culture of impunity9 that is inherent in crimes of this type, then it is likely that they would cross borders as occurred in Rwanda where the conflicts and violence spilled