29 Apr Should Genocide Be a Bargaining Chip?
The ICTR and Rwanda are quarreling again — this time over the ICTR’s willingness to drop genocide charges in order to convince defendants to plead guilty. Last week the ICTR entered into such a plea bargain with Paul Bisengimana, who admitted to murder and extermination as crimes against humanity in connection with the massacre of nearly 1,000 Tutsis who had sought refuge in a church. Rwanda disagrees with the terms of the plea bargain:
When the judgment of Paul Bisengimana took the same turn last week, Aloys Mutabingwa, Rwanda’s special representative at the ICTR did not mince his words.
“Agreeing to abandon the charge of genocide while plea-bargaining is highly detrimental”, said Mutabingwa in a press release. “It could be construed as a new approach to negate genocide that undoubtedly occurred in Rwanda in 1994”.
The ICTR’s position is that it only uses genocide as a bargaining chip when it believes that the charge will be difficult to prove — and that a plea bargain doesn’t mean genocide didn’t occur:
When the issue was raised by the BBC, the deputy prosecutor of the ICTR, Christopher Bongani Majola said that the interpretation was not valid. “Accepting a guilty plea to a crime other than genocide does not mean or simply imply that genocide did n ot take place in Rwanda in 1994”, he said.
“There would therefore be no basis for alleging that the acceptance of a guilty plea other than genocide signifies a new approach on the part of the OTP (Office of the Prosecutor) and the ICTR to negate the genocide”, said the lawyer from South Africa.
The office of the prosecutor explained that the charges of genocide are only abandoned when- after examining all legal means available- it becomes clear that “it would be difficult to prove beyond a reasonable doubt the role that the particular accused person played in the perpetration of the genocide”.
The ICTR, I think, has the better of this argument. Even if dropping a genocide charge somehow implies that genocide didn’t occur — and I don’t believe it does — failing to convict a defendant on that charge would be even more symbolically damaging. Moreover, an acquittal is always possible in a genocide case, given how difficult it is to prove that the defendant specifically intended “to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” (Michael Scharf has an excellent discussion of the intent requirement in the context of Saddam’s massacre of the Kurds here.)
Plea bargaining is a delicate art. If a charge is very strong, it makes no sense to bargain it away. And if a charge is very weak, the defendant won’t feel threatened enough to plead guilty to lesser charges. The key is to know when a charge falls into the middle category: strong enough to scare the defendant into plea bargaining, but weak enough that a conviction is not guaranteed. That’s a difficult and highly subjective determination to make — and unless Rwanda can point to a specific case in which the ICTR dropped a genocide charge that was clearly too strong to use as a bargaining chip, I’m inclined to give the Tribunal the benefit of the doubt.
UPDATE: I’ve made clear in the post that Bisengimana pleaded guilty to murder and extermination as crimes against humanity in exchange for avoiding the genocide charge. Thanks to Patrick O’Donnell for pointing out the mistake.
Would not the charge of ‘crime(s) against humanity’ (as part of customary law) been preferable insofar as it does not seem to include a notion of discriminatory intent? That is to say, ‘random and indiscriminate violence against a civilian population could constitute a crime against humanity’ (Rene Provost, International Human Rights and Humanitarian Law, 2002; cf. Statute of the ICC, Art. 7). William A. Schabas explains: ‘[T]he perpetrator must have “knowledge of the attack.” this amounts to a form of specific intent, although one that is less demanding than the specific intent required by the definition of genocide. [….] [A]ccording to the Elements of Crimes, this does not require “that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization”‘(An Introduction to the International Criminal Court, 2nd ed., 2004, p. 45). As Schabas elsewhere notes, the ‘special intent’ requirement in the case of genocide is included in lieu of an untenable precise numerical threshold of real victims, hence ‘what is important is not the actual number of victims, rather that the perpetrator intended to destroy a large number of members of the group.’ At the same… Read more »
typos corrected:
“knowledge of the attack,”
‘a sorites paradox of sorts’
I found a discussion relevant to the above at the website for the Cambodian Genocide Group
http://www.cambodiangenocide.org/chambers.htm
by Aubrey Ardema in an introduction to the Extraordinary Chambers of Cambodia (EC):
‘Crimes against humanity (CAH) are any of the following acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecution on political, racial, and religious grounds; and other inhuman acts. This international crime is likely to take center stage in proceedings before the EC. First, arguably a CAH is the easiest international crime for a Prosecutor to secure a conviction. Second, the broader concept of CAH is to encompass crimes that are widespread or systematic. Based on the facts of the situation in Cambodia from 1975 to 1979, CAH may best legally explain what happened. The intent requirement is not as narrowly defined as that found in genocide.’
😉
I’m surprised that the prosecution is engaging in plea bargains at all.
My understanding of international tribunals lead me to believe that the point was through public examination and trial, to inform the public of in this case Rwanda that those who committed said crimes will be tried. Plea bargaining at all is a shortcut at best, better used with heavy dockets to reduce caseloads. I don’t know whether the ICTR docket is heavy.
But it seems to me that the process of public healing from the scars of 1994 would be better served by full trials on the merits without shortcuts. If insufficient evidence exists to convict on certain charges, then of that the public is made aware by the trial – not jail cell deals with prosecutors. I think Rwandans are entitled to full trials on all charges.
Re: ICTR, Genocide and Plea Bargaining Should we separate a conceptual argument here from a procedural one? The conceptual argument– which happens also to be a moral argument– is that genocide should never be relativized or qualified. Here, the ICTR’s critics seem to be saying that no one should be allowed to limit the moral and imperative significance of the term “genocide” and all that is understood by this. However, If we accepted this, then genocide could not be cognizable as a legal claim or recognized as a crime in any legal system. It seems realtively uncontroversial from a jurisprudential point of view that the definition of a crime, even the “ultimate crime” requires its delimitation. This is not a general “impossibility” thesis, as posed in Thomas Sowell’s critique of “cosmic justice” or Jacques Derrida’s somewhat messianic “justice-to-come” that there are some crimes that exceed redress, or that the pursuit of perfect justice will be socially costly and dangerous. Instead, from a the more mundane point of view of criminal justice, all criminal charges– insofar as they must fit a generally applicable legal system– will fail to achieve perfect closure in particular cases. This brings me to the procedural argument,… Read more »
Vik,
Re: the ‘third kind of argument’–such concerns would seem to come more properly under the purview of Truth Commissions, Restorative Justice, and Peacebuilding, all phenomena that in principle are compatible with, and perhaps complementary to, the pursuit of criminal justice, and information about which is found in the Transitional Justice Forum link on the left. I’m no expert on such things, but I found these books provide a nice introduction:
Elster, Jon. Closing the Books: Transitional Justice in Historical Perspective. (Cambridge, UK: Cambridge University Press, 2004).
Hayner, Priscilla B. Unspeakable Truths: Facing the Challenge of Truth Commissions (New York: Routledge, 2002)
Rotberg, Robert I. and Dennis Thompson, eds. Truth v. Justice: The Morality of Truth Commissions (Princeton, NJ: Princeton University Press, 2000).
Strang, Heather and John Braithwaite, eds. Restorative Justice and Civil Society (Cambridge, UK: Cambridge University Press, 2001).
Excellent bibliographies are found at the aforementioned site. And Helena Cobban (blessed with much experience and insight on these topics) has a book coming out in the fall on this subject as well.
All the best,
Patrick
I agree with Tom Rii, in that the point of trials on this scale is to make the facts public.
I always think that main the point of this kind of trial is not to convict the defendant, but is to ensure the world knows of exactly what went on. I am not for a second saying a conviction is not a good idea, and obviously in this case as a practical matter it must seem like a good idea to bargain. However, if they plead guilty, then there is no adducing of evidence. I think that is exactly what is needed. Get people in the dock and leave them there for as long as it takes to bring evidence of the totality of their crimes.
In this vein, I have advocated the trial of Saddam include just about every charge they can find. They are going to execute him anyway, so why not take the opportunity to make public, in detail, exactly what he supposedly did.
The caveat, of course, is where the victims’ relatives etc don’t want this kind of public disclosure. In this case, though, it seems best to me to make sure all possible evidence is brought.
Prof. O’Donnell and all, Thanks for the reading list. I think in this context the Rotberg book points out the tension at stake. (I also believe there was a conference recently convened by Elster on the topic for the upcoming NOMOS). I am turning to a project on victim’s rights and international criminal justice in the next couple of years revisiting a couple of articles I wrote half a dozen years ago that I ever really connected to each other until now. The first (unpublished) was a paper on the role of women’s caucus of NGOs during the drafting stage of the ICC statute. The second (citation above) was an article on the victims’ rights movement in the US and its bifurcation in the death penalty debate along the lines of families who promote “vengeance” and those who promote “mercy” as routes to subjective “closure.” The connection between these topics was not completely clear to me until I was in a colloquium discussion with Prof. George Fletcher of Columbia University, who places the proper genealogy of the ICC not in the legacy of Nuremberg, but instead in the “anti-impunity” movements in Latin America over the past couple of decades. In… Read more »
Dear Vik, While I’m probably old enough to be your father, my lowly academic status as an adjunct instructor at a community college leaves me preferring you address me as ‘Patrick.’ And I hope I speak for others in saying I find your vivid interest and obvious enthusiasm here infectious, and thus look forward to reading whatever you may write on the above topics. Incidentally, and related to your unpublished paper above, you might want to look at a recent work edited by Tullio Treves, et al.: Civil Society, International Courts and Compliance Bodies (The Hague: T.M.C. Asser Press, 2005), as virtually all of the essays treat the role of INGOs vis-a-vis international law rules (incl. so-called soft law) in the domains of human rights, environmental law, and international criminal law (and a belated review of which should appear in Law and Politics Book Review anon). Although the following is not about international law, the aforementioned is fruitfully read alongside the volume edited by Robert O’Brien, et al.: Contesting Global Governance: Multilateral Economic Institutions and Global Social Movements (Cambridge, UK: Cambridge Univ. Press, 2000), if only by way of getting a handle on the rather amorphous and intractable phenomenon (no… Read more »
Patrick and all,
Yes. it does seem like the “civil society” discourse is important here.
and Patrick, forgive my proclivity to address everyone as “Prof”– probably inculcated by the “European” atmosphere at NYU. Also, I’m relatively new to the informality of blogging. Though I might note that from a psychological point of view, there is none so “lowly” as a doctoral student being whipped around by the teaching market, and none who feel so “old” as a guy three weeks away from the dreaded thirtieth birthday. 🙂 Thanks. I’m happy to have discovered this lively and engaging forum.
Vik