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Applying the Death Penalty to Crimes of Genocide

Published online by Cambridge University Press:  27 February 2017

Jens David Ohlin
Jens David Ohlin*
Affiliation:
Columbia: University, 2002; JD, Columbia Law School, 2005
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After the Rwandan genocide of 1994, the United Nations Security Council moved quickly to establish an international tribunal to indict the architects of the slaughter. Whether motivated by a sincere desire for international justice or a self-serving desire to assuage international guilt for the lack of significant military intervention, one thing is clear: the Security Council began a program that, when coupled with its establishment of the International Criminal Tribunal for the Former Yugoslavia, represented the most significant return to international criminal justice since the Allied prosecution of German war criminals at Nuremberg. But so much had changed since 1951. Whereas the Nuremberg Tribunal imposed death sentences for the most culpable instigators of the Holocaust, there would be no death sentences for the architects of the Hutu genocidal campaign against the Tutsi. Over the course of forty years, there was a sea shift in attitudes about the legality of the death penalty. When the Allies announced their decision to apply the death penalty at Nuremberg, few objected or suggested that executions would violate international human rights law. Indeed, Churchill was initially suspicious of the plan for a war crimes tribunal, having assumed that what remained of the Nazi leadership would simply be executed on the battlefield. As the proceedings unfolded, there were isolated calls for leniency and clemency, and even complaints of victors’ justice, but certainly no suggestion that executions violated international law as such.

Type
Research Article
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American Journal of International Law , Volume 99 , Issue 4 , October 2005 , pp. 747 - 777
Copyright
Copyright © American Society of International Law 2005

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References

1 See UN Doc. S/PV.3453, at 14 (1994) (comments in the Security Council of Rwandan representative Manzi Bakuramutsa, complaining that “the international community, which had troops in Rwanda and could have saved hundreds of thousands of human lives by, for example, establishing humanitarian safe zones, decided instead to withdraw its troops from Rwanda and to abandon the victims to their butchers”); id. at 15 (arguing that “the establishment of so ineffective an international tribunal would only appease the conscience of the international community rather than respond to the expectations of the Rwandese people and of the victims of genocide in particular”).

2 See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 UNTS 279 [hereinafter Prosecution Agreement].

3 See generally Taylor, Telford, The Anatomy of the Nuremberg Trials (1992).Google Scholar After the initial round of indictments and prosecutions before the international tribunal in 1945 and 1946, headed by Justice Robert Jackson, the Americans continued a second round of prosecutions under the prosecutorial direction of Taylor until 1951.

4 Charter of the International Military Tribunal, annex to Prosecution Agreement, supra note 2, Art. 27; see also Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Control Council for Germany, Official Gazette, Jan. 31, 1946, at 50, Art. 11(3).

5 See William, A. Schabas, The Abolition of The Death Penalty In International Law 2 (3d ed. 2002)Google Scholar (“Fifty-five years after the Nuremberg trials, the international community has now ruled out the possibility of capital punishment in prosecutions for war crimes and crimes against humanity.”).

6 Those who did object did so on humanitarian and moral grounds, not on the basis of international law. When Uruguay initially objected to the death penalty’s use at Nuremberg, it was accused of harboring Nazi sympathies. Schabas, supra note 5, at 1 (citing UN Doc. A/C.3/SR.811, para. 28 (1957) (statement of representative of Uruguay)). The philosopher Martin Buber objected to the execution of Adolf Eichmann by the Israelis on religious and political grounds. Arendt, Hannah, Eichmann in Jerusalem 251 (1963).Google Scholar

7 Maguire, Peter, Law and War: an American Story 90 (2001).Google Scholar Of course, Churchill was eventually persuaded by the intellectual and political advantages of submitting the war crimes question to the rule of law. It would not only provide a public airing of Nazi atrocities, but also highlight the difference between fascist and democratic attitudes about the rule of law. Id. at 91.

8 On leniency, see, for example, James, M. Diehl, U.S. Policy Toward German Veterans, 1945-1950, in American Policy and the Reconstruction of West Germany, 1945-1955, at 353, 366 (Jeffry, M. Diefendorf, Frohn, Axel, & Hermann-Josef, Rupieper eds., 1993)Google Scholar (noting the prevailing sentiment that “[t]he officers of the German armed forces . . . had not been political and had no decision-making powers”).

Despite having been given substantial prison sentences ranging from 10 or 20 years to life sentences, the vast majority of the war criminals were released in the early and mid-1950s after having received executive clemencies. Thomas, Alan Schwartz, Die Begnadigung deutscher Kriegsverbrecher: John J. McCloy und die Häftlinge von Landsberg, 38 Vierteljahrshefte für Zeitgeschichte 375, 406–14 (1990).Google Scholar

On victors’justice, see, for example, Thomas Alan, Schwartz, John J. McCloy and the Landsberg Cases, in American Policy and The Reconstruction of West Germany, supra, at 433, 437Google Scholar [hereinafter Schwartz, Landsberg Coses] (noting that the clemencies “faithfully reflected popular sentiment in West Germany, where resentment at notions of collective guilt mixed with a form of psychological denial to reduce support for war-crimes trials”). But see Meron, Theodor, From Nuremberg to The Hague, in War Crimes Law Comes of Age 198, 198 (1998)Google Scholar (arguing that the fact “[t]hat victors sat in judgment did not corrupt the essential fairness of the proceedings”).

The idea of capital punishment for war crimes has a long tradition, going back at least as far as Lieber, if not further. U.S. War Department, General Orders No. 100, Apr. 24, 1863, Art. 12 [hereinafter Lieber Code] (providing that “sentences of death shall be executed only with the approval of the chief executive, provided the urgency of the case does not require a speedier execution, and then only with the approval of the chief commander”), Art. 44 (providing for death penalty for rape).

9 See Schabas, supra note 5, at 3 (noting that prohibition of the death penalty will become a universal norm of international law “in the foreseeable future”).

10 UN Doc. S/PV.3453, supra note 1, at 16; see also 1 Morris, Virginia & Michael, P. Scharf, The International Criminal Tribunal for Rwanda 71-72 (1998)Google Scholar (describing delays in UN Security Council vote while Rwandan objections were considered).

11 Although the death penalty was authorized under Rwandan law, the last execution occurred in 1982, and a United Nations report had listed Rwanda among “de facto” abolitionist states after a series of presidential commutations in 1992. Report of the Secretary-General, Capital Punishment and Implementation of the Safeguards Guaranteeing the Protection of the Rights of Those Facing the Death Penalty, UN Doc. E/1995/ 78; Morris & Scharf, supra note 10, at 581; see also William, A. Schabas, African Perspectives on Abolition of the Death Penalty, in The International Sourcebook on Capital Punishment 30, 33 (William, A. Schabas ed., 1997)Google Scholar [hereinafter Schabas, African Perspectives].

12 Indeed, several defendants convicted of genocide in Rwanda were eventually executed. Twenty-two of them were executed in cities across Rwanda on April 24, 1998. Mark, A. Drumbl, Rule of Law Amid Lawlessness: Counseling the Accused in Rwanda’s Domestic Genocide Trials, 29 Colum. Hum. Rts. L. Rev. 545, 549 n.12 (1998)Google Scholar (noting that thirty thousand spectators crowded into a soccer stadium to witness the public execution of four criminals convicted of genocide); James, C. McKinley Jr., As Crowds Vent Their Rage, Rwanda Publicly Executes 22, N.Y. Times, Apr. 25, 1998, at A1.Google Scholar

13 UN Doc. S/PV.3453, supra note 1, at 16 (Rwandan representative criticizing this disparity). The following sentences have been handed down by the ICTR: Jean-Paul Akayesu, Juvénal Kajelijeli, Jean Kambanda, Jean de Dieu Kamuhanda, Clément Kayishema, Mikaeli Muhimana, Alfred Musema, Ferdinand Nahimana, Emmanuel Ndindabahizi, Hassan Ngeze, Eliezer Niyitegeka, and Georges Rutaganda received life; Emmanuel Bagambiki and Andre Ntagerura were released; Ignace Bagilishema was acquitted; and Jean Bosco Barayagwiza received 35 years, Sylvestre Gacumbitsi 30 years, Samuel Imanishimwe 27 years, Gérard Ntakirutimana, Obed Ruzindana, and Laurent Semanza 25 years, Omar Serushago 15 years, Georges Ruggiu 12 years, Elizaphan Ntakirutimana 10 years, and Vincent Rutaganira 6 years. Kajelijeli’s life sentence was reduced to 45 years on appeal. See International Criminal Tribunal for Rwanda, ICTR Detainees—Status on 16 August 2005, available at <http://www.ictr.org/ENGLISH/factsheets/detainee.htm>>Google Scholar.

14 See, e.g., Schabas, supra note 5, at 19 (predicting elevation of the prohibition to a customary norm “in the not too distant future”).

15 See, e.g., The Death Penalty in America: Current Controversies (Hugo, Adam Bedau ed., 1997)Google Scholar; Paternoster, Raymond, Capital Punishment in America 271 (1991)Google Scholar.

16 See, e.g., Minow, Martha, Between Vengeance and Forgiveness (1998)Google Scholar; Steven, R. Ratner & Jason, S. Abrams, Accountability for Human Rights Atrocities In International Law (2001)Google Scholar; Robertson, Geoffrey, Crimes Against Humanity; The Struggle for Global Justice (2000)Google Scholar; The Specter of Genocide: Mass Murder in Historical Perspective (Gellately, Robert & Kiernan, Ben eds., 2003).CrossRefGoogle Scholar

17 Schabas deals with genocide briefly in his comprehensive treatment of the death penalty. Schabas, supra note 5, at 241-50. He offers a more complete treatment in War Crimes, Crimes Against Humanity and the Death Penalty, 60 Alb. L. Rev. 733 (1997)Google Scholar [hereinafter Schabas, War Crimes]. See also Amnesty International, The Death Penalty in Wartime: Arguments for Abolition (AI Index ACT 50/01/94, 1994)Google Scholar; Leon Shaskolsky, Sheleff, Ultimate Penalties: Capital Punishment, Life Imprisonment, Physical Torture 198, 217 (1987)Google Scholar (arguing that international law may allow executions for genocide).

18 See L. Chamblee, Elizabeth, Post-War Iraq: Prosecuting Saddam Hussein, 7 Cal. Crim. L. Rev. 1 (2004)Google Scholar; Fisher, Ian, Face-to-Face and Toe-to-Toe with Iraq’s Former Leader, N.Y. Times, July 2, 2004, at A1 Google Scholar (noting that the Iraqi government, after the return of sovereignty, overturned the Coalition Provisional Authority’s temporary ban on capital punishment).

19 President George W. Bush stated publicly during an ABC News interview that Saddam Hussein should receive the “ultimate penalty” for his crimes. Other U.S. officials, including Sen. Joseph Lieberman, ruled out referring Hussein’s case to the International Criminal Court and suggested instead that the United States shop around for a jurisdiction that could impose the death penalty. Cohen, Richard, Let Saddam Live, Wash. Post, Dec. 18, 2003, at A35.Google Scholar

20 The U.S. government announced its intention to pursue a policy of military tribunals for Qaeda terrorists. Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001). Although the International Criminal Court could theoretically exercise jurisdiction over Osama bin Laden if he is captured, the ICC would first have to obtain him physically in order to hold a trial. Rome Statute of the International Criminal Court, July 17, 1998, Arts. 12-14, 2187 UNTS 3 [hereinafter Rome Statute]. This is an unlikely prospect.

21 Cf. Minow, supra note 16, at 1-5 (describing the twentieth century as one “marked by human slaughter and torture”).

22 See Schabas, supra note 5, passim (arguing that death penalty violates an internationally recognized right to life); see also Bentele, Ursula, Back to an International Perspective on the Death Penalty as a Cruel Punishment: The Example of South Africa, 73 Tul. L. Rev. 251, 254 (1998)Google Scholar (arguing that death penalty violates emerging standards of international decency); Fitzpatrick, Joan & Miller, Alice, International Standards on the Death Penalty: Shifting Discourse, 19 Brook. J. Int’l L. 273 (1993)Google Scholar; McKee, Michelle, Note, Tinkering with the Machinery of Death: Understanding Why the United States’ Use of the Death Penalty Violates Customary International Law, 6 Buff. Hum. Rts. L. Rev. 153 (2000)Google Scholar; cf. William, A. Schabas, International Law and Abolition of the Death Penalty, 55 Wash. & Lee L. Rev. 797, 799 (1998)Google Scholar (admitting that customary international law does not yet prohibit the death penalty but that the goal is near).

23 See, e.g., Restatement (Third) of The Foreign Relations Law of The United States §702 cmt./(1987) [hereinafter Restatement].

24 International Covenant on Civil and Political Rights, Dec. 16,1966, Art. 6(1), 999 UNTS 171 (restricting death penalty to the “most serious crimes”), Art. 6(4) (enshrining right to seek pardon or commutation of a death sentence), Art. 6(5) (prohibiting executions of juveniles and pregnant women), Art. 6(6) (stating that “[n]othing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State party to the present Covenant”) [hereinafter ICCPR].

25 Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, Dec. 15,1989,1642 UNTS 414 [hereinafter Second Optional Protocol] (noting that “all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life”). Although 54 states had ratified or acceded to the Optional Protocol as of Sept. 12, 2005, several of them made reservations pursuant to Article 2, which explicitly contemplates reservations for use of the death penalty “in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.” Spain, Malta, Azerbaijan, Cyprus, and Greece all invoked this article at one time.

26 As of September 12, 2005, the following states had ratified or acceded to the Second Optional Protocol; Australia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Cape Verde, Colombia, Costa Rica, Croatia, Cyprus, the Czech Republic, Denmark, Djibouti, Ecuador, Estonia, Finland, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Mozambique, Namibia, Nepal, the Netherlands, New Zealand, Norway, Panama, Paraguay, Portugal, Romania, San Marino, Serbia and Montenegro, the Seychelles, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, the Former Yugoslav Republic of Macedonia, Timor-Leste, Turkmenistan, the United Kingdom, Uruguay, and Venezuela.

27 The list of Caribbean retentionist states includes Antigua and Barbuda, the Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, St. Christopher and Nevis, St. Lucia, St. Vincent and the Grenadines, and Trinidad and Tobago. See Julian, B. Knowles, Capital Punishment in the Commonwealth Caribbean: Colonial Inheritance, Colonial Remedy ? in Capital Punishment: Strategies for Abolition 282, 282 (Hodkinson, Peter & William, A. Schabas eds., 2004)Google Scholar. Although several of the Caribbean countries have repealed mandatory capital punishment for capital offenses, there appears to be little movement toward total abolition. See id. at 284-85.

28 This conclusion is subject, of course, to issues of persistent objector status. However, even persistent objector status would be insufficient to relieve the retentionist states of their obligation if the prohibition were not only customary, but also peremptory and nonderogable, i.e., jus cogens.

29 See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, 96, para. 179 (June 27).

30 We will not directly tackle the question of the death penalty’s general permissibility under international law, because it need not be answered to settle the question at hand. A reader who denies the existence of the legal norm altogether will have no difficulty agreeing that the death penalty could be applied to crimes of genocide. It is only those lawyers who believe that the international legal norm does exist who must be convinced that crimes of genocide fall outside the scope of the norm.

31 See Schabas, supra note 5, at 19.

32 This type of analysis is surprisingly absent from the current literature. Perhaps there are two reasons. Those scholars who champion abolition as a future customary norm are inclined to view it as absolute, and so are disinclined to inquire whether it will apply in cases of genocide. On the other hand, scholars who question the existence of a customary norm have no reason to analyze its scope because they deny its existence tout court. Consequently, the question remains underexplored. One exception is Sheleff, supra note 17, at 216-17 (arguing that the death penalty may be justified for genocide and that the issue is an open one under international law).

33 See International Law Association, Committee on Formation of Customary (General) International Law, Statement of Principles Applicable to the Formation of General Customary International Law, at 31 (2000) [hereinafter ILA, Customary International Law] (noting that the subjective element is not necessary for establishing a customary norm, although it would be a sufficient condition). Thirlway, H. W. A., International Customary Law and Codification 47 (1972)Google Scholar, takes note of the disagreement among scholars on the necessity of showing opinio juris:

The precise definition of the opinio juris, the psychological element in the formation of custom, the philosophers’ stone which transmutes the inert mass of accumulated usage into the gold of binding legal rules, has probably caused more academic controversy than all the actual contested claims made by States on the basis of alleged custom, put together.

34 See Bos, Maarten, A Methodology of International Law 234 (1984)Google Scholar (noting that practice must achieve “virtual uniformity”); Henkin, Louis, International Law: Politics and Values 29 (1995)Google Scholar (noting that customary law is easy to define but difficult to apply). Henkin responds to these difficulties by dividing customary international law into four distinct categories: constitutional law, basic law, established customary law, and contemporary customary law. Id. at 31. A customary prohibition against the death penalty would fall into the final category, because it represents a recent attempt to “generate” new international law and bind states that refuse to adopt the Optional Protocol. Id. at 37. This method of generating new law is “perhaps functionally satisfactory if not conceptually pure.” Id. at 38. See also North Sea Continental Shelf Cases (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3, 41 (Feb. 20).

35 See infra notes 63-67 and corresponding text.

36 The number of states that have prosecuted crimes of genocide is small, and the number that have done so without the death penalty is even smaller. See text at notes 63-64 infra.

37 International prosecutions, insofar as they are international, do not fall within the confines of state practice. See infra notes 60-62 and corresponding text.

38 See infra notes 100-09 and corresponding text.

39 See Schachter, Oscar, International Law in Theory and Practice 338 (1991)Google Scholar (arguing that the traditional evidence of state practice and opinio juris is absent in the case of human rights norms, so recourse must be made “mainly” to “international forums where human rights issues are actually discussed, debated and sometimes resolved by general consensus”). Schachter lists the traditional evidence for a customary norm as claims by states against each other. Id. at 336. Since states rarely file official diplomatic protests against another state’s treatment of its own citizens, establishing human rights norms as customary norms may require broadening the inquiry to include “pronouncements by national leaders, legislative enactments, judicial opinions, and scholarly studies.” Id. at 338.

40 Restatement, supra note 23, §102, cmt. i (arguing that international agreements are distinct from customary law but may be evidence of state practice when states sign them out of legal obligation). International agreements may also codify customary law, id., although there is no evidence that the international agreements prohibiting the death penalty were codifying preexisting custom. One might argue that they codified existing custom among the agreeing states. If so, however, the result would be particular customary law, not general customary law.

41 For an action to count as state practice, it must be performed by a competent organ of the state. Bos, supra note 34, at 234 (noting that this requirement includes organs “designated by a State’s constitution,” and possibly “customary rules created by the practice of low-ranking officials”).

42 ICCPR, supra note 24, Art. 6(2).

43 Human Rights Committee, General Comment No. 6, The Right to Life, UN Doc. HRI/GEN/1, at 5, para. 6 (1982).

44 American Convention on Human Rights, Nov. 22, 1969, Art. 4(2), OAS TS No. 36, 1144 UNTS 123 (entered into force July 18, 1978). The United States has not ratified the American Convention. Twenty-five countries have ratified the Convention, which was followed by the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, June 8,1990, OAS TS No. 73, 29ILM 1447 (1990) [hereinafter American Protocol]. However, even this Protocol anticipates that some states might reserve the right to use the death penalty for serious war crimes. Id., Art. 2(1).

Arab Charter on Human Rights, Sept. 15, 1994, Art. 10, 18 Hum. Rts. L.J. 151 (1997), available at <http://wwwl.umn.edu/humanrights>>Google Scholar. The Charter has not entered into force because only one state has ratified it.

45 Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, Apr. 28, 1983, Arts. 1, 2, Europ. TS No. 114 (entered into force Mar. 1, 1985). For the Convention, Nov. 4, 1950, see Europ. TS No. 5, 213 UNTS 221 [hereinafter ECHR].

46 See, e.g., Kaunda v. President, 2004 (10) BCLR 1009, para. 98 (CC) (S. Afr.), reprinted in 44 ILM 173 (2005) (stating that capital punishment “is still not impermissible under international law” (Chaskalson, CJ)); State v. Makwanyane, 1995 (6) BCLR 665, paras. 36, 94 (CC) (S. Afr.), 1995 Saclr Lexis 218 (noting that “capital punishment is not prohibited by public international law” and that “proportionality is an ingredient to be taken into account” and “many countries . .. still retain the death penalty as a sentencing option for such cases [murder]” (Chaskalson, J.)); see also United States v. Burns, 1 S.C.R. 283 (2001) (holding that extradition from Canada to a state where the death penalty might be imposed is unconstitutional save for exceptional cases), discussed in William, A. Schabas, Indirect Abolition: Capital Punishment’s Role in Extradition Law and Practice, 25 Loy. L. A. Int’l & Comp. L. Rev. 581, 599 (2003).Google Scholar

47 See, e.g., Const. Art. Ill, sec. 19 (Phil.), discussed in Ariane, M. Schreiber, Note, States That Kill: Discretion and the Death Penalty—A Worldwide Perspective, 29 Cornell Int’l L.J. 263, 272–73 (1996).Google Scholar

48 These states included, as of May 24, 2005, Albania, Argentina, Bolivia, Brazil, Chile, the Cook Islands, El Salvador, Fiji, Israel, Latvia, and Peru. Amnesty International, Abolitionist and Retentionist Countries, at <http://web.amnesty.org/pages/deathpenalty-countries-eng>.

49 See Christy, A. Short, Note, The Abolition of the Death Penalty: Does “Abolition” Really Mean What You Think It Means? 6 Ind.J. Global Legal Stud. 721, 750–51 (1999)Google Scholar (arguing that the death penalty does not violate customary international law because, inter alia, many states have abolished it for ordinary crimes but still reserve the right to use it in extreme cases or wartime).

50 Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of the Death Penalty in All Circumstances, opened for signature May 3, 2002, Europ. TS No. 187, 41 ILM 515 (2002) (entered into force Jan. 7, 2003).

51 These states included as of September 13, 2005, Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Norway, Poland, Portugal, Romania, San Marino, Serbia and Montenegro, Slovakia, Slovenia, Spain, Sweden, Switzerland, the Former Yugoslav Republic of Macedonia, Turkey, Ukraine, and the United Kingdom.

52 See infra notes 67-68 and corresponding text for a discussion of the doctrine of “specially affected” states.

53 José, E. Alvarez, Crimes of States/Crimes of Hate: Lessons from Rwanda, 24 Yale J. Int’l L. 365, 408 n.215 (1999).Google Scholar

54 See id. (citing Destexhe, Alain, Rwanda and Genocide in the Twentieth Century 21–35 (1995)Google Scholar (arguing that the Holocaust, Rwanda, and Yugoslavia represent the only three cases of full genocide during the century)). On the Rwandan genocide, see generally Gourevitch, Philip, We Wish To Inform You That Tomorrow We Will Be Killed with our Families (1998)Google Scholar; Christopher, C. Taylor, Sacrifice as Terror: The Rwandan Genocide of 1994 (1999).Google Scholar

55 On the ICTY and ICTR, see, for example, text at notes 92-99 infra.

56 Act No. 9, Special Court Agreement, reprinted in 133 Sierra Leone Gazette, No. 22, Apr. 25, 2002, Supp. at 2. On the Special Court’s development, see Elizabeth, M. Evenson, Note, Truth and Justice in Sierra Leone: Coordination Between Commission and Court, 104 Colum. L. Rev. 730, 738 (2004).Google Scholar

57 Stephanie, H. Bald, Note, Searching for a Lost Childhood: Will the Special Court of Sierra Leone Find Justice for Its Children’? 18 Am. U. Int’l L. Rev. 537, 560 (2002).Google Scholar

58 Id. at 569-70 (noting that the funding structure was the “only politically viable option”); id. at 571 (noting that “[b]y allowing other states to make voluntary contributions, the Special Court’s independence may be jeopardized by significant contributions from donor states”); see also Agreement on the Establishment of a Special Court for Sierra Leone, Jan. 16, 2002, UN-Sierra Leone, Art. 6, available at <http://www.sc-sl.org/scsl-agreement.html>.

59 Indeed, Sierra Leone retains the death penalty under its domestic law, producing the same paradoxical result as in Rwanda, where the worst offenders are eligible for lower punishments because they are tried at the international tribunal. Bruce, M. MacKay, A View from the Trenches: The Special Court for Sierra Leone—The First Year, 35 Case W. Res. J. Int’l L. 273, 279 (2003).Google Scholar

60 See ILA, Customary International Law, supra note 33, at 18 (“Although international courts and tribunals ultimately derive their authority from States, it is not appropriate to regard their decisions as a form of State practice.”).

61 See infra notes 90-93 and corresponding text.

62 This is not to say, of course, that the decisions of the ad hoc tribunals are not relevant precedents for international criminal law. In handing down their decisions, the tribunals interpret major elements of international criminal law, and these interpretations are persuasive authority that guides future interpreters of international law. But the precedential value of these decisions ought to be kept separate from their value as indicators of state practice for the purposes of customary international law.

63 On Rwanda, see infra notes 122-36 and corresponding text.

In 1946 the Yugoslavs prosecuted Draža Milhailović and others for genocide. Several defendants were sentenced to death and executed. In 1986 the Yugoslavs sentenced Andrija Artuković to death, although he died in prison before the sentence could be carried out. Schabas, War Crimes, supra note 17, at 762.

On Israel, see Arendt, supra note 6, passim (discussing Eichmann’s prosecution and eventual execution for genocide).

On Switzerland, see Niyonteze v. Public Prosecutor (Trib. militaire de cassation, Apr. 27, 2001), available at <http://www.vbs.admin.ch/internet/OA/d/urteile.htm>. A Swiss court exercised universal jurisdiction in hearing a case against a former mayor accused of ordering the massacre of Tutsi and moderate Hutu in his village. He was convicted and sentenced to life in prison, although an appellate court subsequently reduced the sentence to fourteen years. See generally Reydams, Luc, Case Report: Niyonteze v. Public Prosecutor, in 96 AJIL 231 (2002).CrossRefGoogle Scholar

On Iraq, see text at notes 139-40. 64

64 The exception was Switzerland. Canada, an abolitionist state, recently charged Desire Munyaneza with genocide in connection with attacks against Tutsi at the National University of Rwanda.

65 See Bos, supra note 34, at 231 (discussing the condition that a sufficient number of states must engage in the state practice for the norm to become customary law); Thirlway, supra note 33, at 100. See generally Anthony, D’Amato, The Concept of Custom In International Law (1971).Google Scholar

66 See BOS, supra note 34, at 233 (citing the ICJ’s North Sea Continental Shelf Cases (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3, 41 (Feb. 20)); Thirlway, supra note 33, at 100.

67 North Sea Continental Shelf Cases, 1969 ICJ Rep. at 43; see also BOS, supra note 34, at 233.

68 ILA, Customary International Law, supra note 33, at 26. What matters most for state practice in our analysis is how states faced with genocide have responded, not how states claim they might respond in a hypothetical example.

69 See Alvarez, supra note 53, at 408 n.215 (pointing out that in no case “has the international community required a nation [to forgo the death penalty] by binding Security Council order, and those nations that have chosen a more merciful route have therefore done so based on their own calculation of what would work best for national reconciliation”) .

70 See supra note 12 and corresponding text.

71 See Yin, Tung, Disposable Deontology: The Death Penalty and Nuclear Deterrence, 55 Ala. L. Rev. 111, 111–12 (2003)Google Scholar (discussing scenarios where bin Laden is captured and is subject to capital punishment by the U.S. government).

72 See supra note 18 and corresponding text.

73 Compare Schabas, supra note 5, passim, with Alvarez, supra note 53, at 408 n.215.

74 In other words, a relative lack of state practice may be compensated for by a robust showing of the subjective element. ILA, Customary International Law, supra note 33, at 40.

75 Id. at 36 (“Some conduct is too ambiguous to be treated, without more, as constituting a precedent capable of contributing to the formation of a customary rule. In such cases, the conduct will only count if there is positive evidence that the State or States concerned intended, understood or accepted that a customary rule could result from, or lay behind, the conduct in question.”).

76 For a general discussion of sentencing at the ICC, see Daniel, B. Pickard, Proposed Sentencing Guidelines for the International Criminal Court, 20 Loy. L.A. Int’l & Comp. L.J. 123 (1997).Google Scholar

77 Rome Statute, supra note 20, pmbl. (recognizing that “millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity” and proclaiming that “the most serious crimes of concern to the international community as a whole must not go unpunished”).

78 Id., Art. 6 (defining genocide as the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group by killing, causing serious bodily or mental harm, deliberately inflicting conditions calculated to bring about physical destruction, imposing measures to prevent births, and transferring children to another group).

79 Representatives from Japan, Kenya, Algeria—even the U.S. representative—all spoke out in favor of excluding the death penalty. Schabas, War Crimes, supra note 17, at 748-49. These representatives to the International Law Commission expressed a view held by other countries not represented in that particular forum.

80 For example, the Jordanian member, Awn Al-Khasawneh, said that it “would be premature for the Commission, which was called upon to legislate for a world that did not agree on the question of the death penalty, to adopt a clear-cut opinion on the question instead of giving the States concerned discretionary power.” Id. at 746 (quoting [ 1991 ] 1 Y.B. Int’l L. Comm’n 47, UN Doc. A/CN.4/SER.A/1991). The severity of the crimes involved in cases before the proposed international criminal court was clearly driving part of the argument. Al-Khasawneh noted that discretion for individual states was appropriate in grave cases and said that “it would be sufficient to indicate the gravity of the crimes in question in the Code and to include a general provision stating that those crimes would be punished by a penalty that was in keeping with their degree of gravity.” Indeed, he also noted that Protocol No. 6 to the ECHR allowed for the use of the death penalty “in respect of acts committed in time of war or of imminent threat of war.” Id. The representative of Greece also made reference to this provision. Id. at 747. So it seems clear that at least some states were cognizant of the fact that the permissibility of the death penalty in times of war or cases of war crimes was a distinct issue in international law from general abolition in domestic cases. Indeed, the issue of the gravity of the crime was in the forefront of these discussions, as is evidenced by the Russian delegate’s comments that countries might not want to extradite individuals guilty of genocide if they knew that the permanent international tribunal could not impose the death penalty. Id. (quoting Juri G. Barsegov).

81 Rolf Einar, Fife, Penalties, in The International Criminal Court: The Making of The Rome Statute 319, 335 (Roy, S. Lee ed., 1999).Google Scholar

82 Report of the Working Group on Penalties, UN Doc. A/CONF. 183/C. 1/WGP/L. 14/Add.3/Rev. l, in 3 United Nations Diplomatic Conference of Plenipotentiaries on The Establishment of an International Criminal Court, Official Records 315, 315 n.l, 317, UN Doc. A/CONF.183/13 (Vol. Ill) (1998) [hereinafter Official Records] (recommending that the president of the conference formally state that “not including the death penalty in the Statute . . . . [shall not] be considered as influencing, in the development of customary international law or in any other way, the legality of penalties imposed by national systems for serious crimes”). But see Schabas, supra note 5, at 258 (arguing that exclusion of death penalty from the Rome Statute “is a significant benchmark in an unquestionable trend towards universal abolition of capital punishment,” even though retentionist countries claim that the death penalty’s exclusion from the Rome Statute is a neutral factor).

83 See Chairman’s Working Paper, UN Doc. A/CONF. 183/C. 1 /WGP/L.3/Rev. 1, in Official Records, supra note 82, at 314, 314 n.191 (concluding as regards the death penalty that “[s]tates have the primary responsibility for prosecuting and punishing individuals for crimes falling under the subject-matter jurisdiction of the Court. In accordance with the principle of complementarity between the Court and national jurisdictions, the Court would clearly have no say on national practices in this field.” See also Report of the Working Group on Penalties, supra note 82, at 317 (reiterating that national justice systems have primary responsibility for “investigating, prosecuting and punishing individuals” for crimes under the jurisdiction of the ICC). These views are mirrored in the Rome Statute, supra note 20, Art. 80, Non-Prejudice to National Application of Penalties and National Laws.

84 Schabas, supra note 5, at 255 (reporting U.S. representative’s comment that the ICC would encourage national jurisdictions to punish offenders under national laws and penalties, including the death penalty). The U.S. support for the compromise was therefore not evidence of opinio juris, but rather “a sincere effort to assist the . . . search for a workable solution.” Id.

85 Cf. Nora, V. Demleitner, The Death Penalty in the United States: Following the European Lead? 81 Or. L. Rev. 131, 144 (2002)Google Scholar (arguing that U.S. silence over sentencing provisions at the ad hoc tribunals could be interpreted as “acquiescence to the international abolitionist movement”). But see Chairman’s Working Paper, supra note 83, at 314 n.191 (noting strong desire among even retentionist countries to achieve balanced compromise).

86 Fife, supra note 81, at 326, 331.

87 See, e.g., Adrian, T. Delmont, Note, The International Criminal Court: The United States Should Ratify the Home Statute Despite Its Objections, 27J. Legis. 335, 345 (2001)Google Scholar (concluding that although there is widespread support for the Rome Statute, it is insufficient opinio juris to bind nonparty states through customary international law).

88 See, e.g., ILA, Customary International Law, supra note 33, at 36.

89 Although Rwandan courts were still handing down capital sentences for grave crimes in the years preceding the genocide, the government had not carried out these sentences and was effectively in a period of de facto moratorium. See supra note 11.

90 See Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, UN Doc. S/25704, at 28 (1993), reprinted in 32 ILM 1159 (1993) (recommending that the ICTY not be empowered to impose the death penalty).

91 See UN Doc. S/PV.3453, supra note 1, at 16. U.S. secretary of state Madeleine Albright was quoted as saying that although the United States agreed with Rwanda, “it was simply not possible to meet those concerns and still maintain broad support in the Council.” Morris & Scharf, supra note 10, at 583.

92 Statute of the International Criminal Tribunal for Rwanda, SC Res. 955, annex, pmbl. (Nov. 8, 1994), reprinted in S3 ILM 1602 (1994) (noting that the Statute was passed pursuant to the Security Council’s Chapter VII powers); Statute of the International Criminal Tribunal for the Former Yugoslavia, SC Res. 827, annex, pmbl. (May 25,1993), reprinted in 32 ILM 1203 (1993) (same); see also Prosecutor v. Tadic, Decision on Jurisdiction, No. IT-94-1 (Aug. 10, 1995) (upholding tribunal’s jurisdiction on the basis,of Security Council’s Chapter VII authority to maintain international peace and security).

93 If the Security Council were to do so, it would arguably make the death penalty illegal under international law. See Alvarez, supra note 53, at 408 n.215 (noting that Rwanda’s use of the death penalty was consistent with international law because no binding Security Council resolution outlawed it).

94 See ILA, Customary International Law, supra note 33, at 36.

95 China, in Amnesty International, Report 2003, available at <http://web.amnesty.org/report2003/indexeng> (documenting at least 1921 death sentences and 1060 executions in 2002, though estimating that the true number may be higher).

96 ILA, Customary International Law, supra note 33, at 21 (noting that “‘[i]nternal’ uniformity means that each State whose behaviour is being considered should have acted in the same way on virtually all of the occasions on which it engaged in the practice in question”).

97 See Morris & Scharf, supra note 10, at 583.

98 See text at notes 63-69 supra for a discussion of domestic prosecutions for genocide.

99 See, e.g., BOS, supra note 34, at 237-41 (discussing cases where ICJ found no evidence of opinio juris in state practice due to, inter alia, geopolitical considerations).

100 For a discussion of abolition, see generally Beyond Repair?: America’s Death Penalty (Stephen, P. Garvey ed., 2003)Google Scholar; The Death Penalty in America (Hugo Adam, Bedau ed., 3d ed. 1982)Google Scholar; Pain, Death, and the Law (Sarat, Austin ed., 2001)CrossRefGoogle Scholar. See also Gorecki, Jan, Capital Punishment 87–97 (1983)Google Scholar (discussing abolition trend in the twentieth century and tracing the movement to Jefferson and Livingston’s concerns about executing innocent prisoners).

101 See Jeffrey, L. Kirchmeier, Another Place Beyond Here: The Death Penalty Moratorium Movement in the United States, 73 U. Colo. L. Rev. 1, 3–4 (2002)Google Scholar (attributing the U.S. abolitionist movement to the following five factors: (1) publication of Dead Man Walking, (2) criticism of the capital punishment judicial process by Blackmun and other judges; (3) bar association resolution calling for a moratorium; (4) technological innovations for determining innocence of death row inmates; and (5) Illinois moratorium in 2000). None of these factors involve or apply to genocide, crimes against humanity, or war crimes.

102 Id. at 21 (noting that “[i]n some ways, the current movement is not an ‘anti-death penalty’ movement.... The modern movement is primarily concerned about certain aspects of the process of imposing the death penalty, not necessarily about the morality of killing convicted murderers.”). Much of the scholarly literature urging abolition discusses murder, but rarely mentions genocide or war crimes. See, e.g., Jeffrey, H. Reiman, Justice, Civilization, and the Death Penalty: Answering van den Haag, 14 Phil. & Pub. Aff. 115 (1985)Google Scholar (arguing that although the death penalty is justified by a retributive theory of punishment, it should nonetheless be abolished in the interest of the continued civilization of society).

103 See, e.g., Toni, M. Fine, Comment, Moratorium 2000: An International Dialogue Toward a Ban on Capital Punishment, 30 Colum. Hum. Rts. L. Rev. 421, 434 (1999).Google Scholar

104 See, e.g., Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989), reprinted in 28ILM 1063 (1989); Richard, B. Lillich, The Soering Case, 85 AJIL 128 (1991)Google Scholar.

105 The prosecution of Saddam Hussein might have raised these issues had he been apprehended outside Iraq.

106 Although Amnesty International argued that the death penalty per se violated the European Convention, Soering’s attorneys did not even advance the claim, nor did the Court so conclude. The Court held that the “death row phenomenon” was an inhuman and degrading punishment that violated the Convention. Soering, 161 Eur. Ct. H.R. (ser. A), para. 105.

107 Soering predated Protocol No. 13 and its absolute abolitionism. See text at notes 50-52 supra on the limited impact of Protocol No. 13 on this state practice analysis.

108 See, e.g., United States v. Bums, 1 S.C.R. 283 (2001) (Can.) (extradition to United States without assurances that death penalty will not be applied violates Canadian Charter of Rights and Freedoms). Although the Court made reference to Canada’s commitment to the global movement toward abolition, the Court’s result was based on the Charter of Rights. Also, the Court noted that extradition to face the death penalty might be permissible in “exceptional circumstances,” thus leaving open the possibility that it might be allowed for severe crimes such as genocide. See also Venezia v. Ministero di Grazia e Giustizia, Corte cost., 27 giugno 1996, n.223, Race. uff. corte cost. 1996, 61, reprinted in 79 Rivista di Diritto Internazionale 815 (1996) (extradition violates Italian Constitution even where state officials receive assurances about death penalty); Andrea Bianchi, Case Report: Venezia v. Ministero di Grazia e Giustizia, in 91 AJIL 727 (1997).

109 A domestic constitutional provision might establish opinio juris if it could be shown that the provision was adopted from a perceived duty under international law to abolish the death penalty. But in most cases the constitutional language prohibits cruel punishment generally, not the death penalty specifically.

110 See Schwartz, Landsberg Cases, supra note 8, at 436-37 (noting that “[w]ith the exception of the small Communist Party and a few Social Democrats, German political leaders were united in their call for a reassessment of the Nuremberg verdicts, an end to executions, and greater leniency toward those convicted”).

111 The death penalty was abolished in the Grundgesetz in 1949. Grundgesetz [Constitution] Art. 102.

112 Schabas, supra note 5, at 240 (noting the uncertainty of whether the newly formed German Constitution could legally supersede Control Council Law No. 10); Thomas Alan, Schwartz, America’s Germany: John J. Mccloy and the Federal Republic of Germany 168 (1991).Google Scholar

113 See Schabas, War Crimes, supra note 17, at 741. But see Kristi Tumminello, Prinzo, Note, The United States—”Capital” of the World: An Analysis of Why the United States Practices Capital Punishment While the International Trend Is Towards Its Abolition, 24 Brook. J. Int’l L. 855, 887 (1999)Google Scholar (noting that two-thirds of the German population favored retaining the death penalty when it was abolished).

114 Cf. Schabas, supra note 5, at 238-39 (discussing role of Nazi use of death penalty in spurring Germany’s abolitionist movement). Schabas presents this evidence as support for his argument that the death penalty violates customary international law. Id.

115 See Schabas, War Crimes, supra note 17, at 740 (noting that the Nazi judges were convicted of implementing the “Night and Fog” decree, which called for the use of capital punishment to intimidate the population in general and the family of the criminal). Ironically, the Nazi judges themselves were spared the death penalty by the Nuremberg Tribunal. See United States v. Alstotter [The Judges Trial], 14 Ann. Dig. 278 (U.S. Military Comm’n 1948) (finding Nazi judges guilty for enforcing arbitrary Nazi policies). Nazi judges argued, in their defense, that they had attempted to mitigate the harshness of Nazi rule. Although many defendants were executed arbitrarily, the judges maintained that many more would have died had the judiciary abstained.

116 See, e.g., Diane, F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2540 (1991)Google Scholar (arguing that both customary and conventional international law impose duties to prosecute atrocities and bring perpetrators to justice).

117 See, e.g., ICCPR, supra note 24, Art. 6 (recognizing the inherent right to life); Second Optional Protocol, supra note 25, pmbl. (noting that “all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life”); Schabas, supra note 5, at 7 (discussing the right to life enshrined in the UN Charter and the lack of an explicit list of exceptions in the Charter).

118 Consider, for example, the following argument in Schabas’s discussion of the South African case State v. Makwanyane:

Justice Ismael Mahomed examined the other issues encompassed by the right to life, including abortion and euthanasia. He said it is unnecessary to resolve these matters, and that for the purposes of the case before the court, the issue should be to determine whether the right to life includes a right “not to be deliberately killed by the State, through a systematically planned act of execution sanctioned by the State as a mode of punishment and performed by an executioner remunerated for this purpose from public funds?” This readily distinguishes the question of capital punishment from other forms of state-sanctioned homicide, “for example the right of a person in life-threatening circumstances to take the life of the aggressor in self-defence or even the acts of the State, in confronting an insurrection or in the course of War.”

Schabas, African Perspectives, supra note 11, at 43 (footnotes omitted). The problem identified by this argument is that you cannot assume the very premise that you seek to demonstrate, i.e., a universal right to life without exception. As the examples in the second part of the argument demonstrate, the whole battle must be fought around the exceptions. Almost no one accepts a universal right to life in the literal sense of that expression.

119 For a defense of the theoretical point that criminals forfeit some of their moral rights, see Kershnar, Stephen, Desert, Retribution, and Torture 125 (2001).Google Scholar

120 See id.; Minow, supra note 16, at 20; McKinley, supra note 12, at Al (quoting Rwandans who believed that the architects of the genocide ought to die: “They killed and they have to be killed.”).

121 These arguments are rare.

122 See Gourevitch, supra note 54, at 23 (commenting that “the quiet orders of Hutu Power” combined with the machete had “made the neutron bomb obsolete”).

123 Id. at 22-24 (noting that Hutu from all walks of life participated in the killing); see also Roméo, Dallaire (with Beardsley, Brent) , Shake Hands with the Devil: The Failure of Humanity in Rwanda 462 (2003)Google Scholar (describing the killing, by machete, of Tutsi children in front of their parents).

124 Gourevitch, supra note 54, at 22 (discussing the role that fear and obedience play in Rwandan culture); Dallaire, supra note 123, at 430 (describing the systematic use of rape during the genocide).

125 See, e.g., Prosecutor v. Nahimana, Barayagwiza, Ngeze, Judgment and Sentence, No. ICTR-99-52-T (Dec. 3, 2003) (finding media executives guilty of, inter alia, direct and public incitement to genocide). Nahimana and Ngeze were sentenced to life in prison, while Barayagwiza received a 35-year sentence because his rights had been violated. Id., Summary, at 29-31, available at <http://www.ictr.org>. Nahimana and Barayagwiza were founding members of a media company whose radio stations broadcast Hutu extremist propaganda and directed attacks against Tutsi civilians. Ngeze owned and operated an extremist Hutu newspaper that, in the words of the court, “poisoned the minds of. . . readers, and by words and deeds caused the death of thousands of innocent civilians.” Id. at 30; see also Gourevitch, supra note 54, at 95 (describing the genocide as “the product of order, authoritarianism, decades of modern political theorizing and indoctrination, and one of the most meticulously administered states in history”).

126 Gourevitch, supra note 54, at 252 (describing the difficulty of bringing the perpetrators to justice because so many were in exile).

127 Even the Rwandan law authorizing prosecution of genocide and the death penalty made explicit reference to the need to achieve reconciliation and made reference to “the adoption of specially adapted measures to satisfy the need for justice of the people of Rwanda.” Organic Law No. 08/96, Aug. 30,1996, Organization of Prosecutions for Offences Constituting the Crime of Genocide or Crimes Against Humanity Committed Since 1 October 1990, reprinted in 2 Morris & Scharf, supra note 10, at 369-70.

128 See Commission on Human Rights, Report on the Situation of Human Rights in Rwanda, UN Doc. E/CN.4/ 1997/61, at 4-5 (noting that” [g]enocide and other crimes against humanity committed in Rwanda since April 1994 will continue to be of concern to the international community for some time”); UN Doc. S/PV.3453, supra note 1, at 14 (arguing that “it is impossible to build a state of law and arrive at true national reconciliation if we do not eradicate the culture of impunity which has characterized our society since 1959”); Akhavan, Payam, The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment, 90 AJIL 501, 505 (1996)Google Scholar (noting that the tribunal was established under the Security Council’s Chapter VII powers and that “punishment of past human rights abuses was viewed as an essential element of postconflict peace building in a society destroyed by division and strife”).

129 The total number is roughly 125,000. Mark, A. Drumbl, Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda, 75 N.Y.U. L. Rev. 1221, 1233 (2000)Google Scholar (describing Rwanda’s judicial system).

130 Amnesty International, Rwanda: The Troubled Course of Justice 2 (2000)Google Scholar (enumerating arbitrary arrests, delayed trials, and harsh prison conditions); Mark, A. Drumbl, Rule of Law Amid Lawlessness: Counseling the Accused in Rwanda’s Domestic Genocide Trials, 29 Colum. Hum. Rts. L. Rev. 545, 548 (1998)Google Scholar (noting the “haphazard and erratic” nature of Rwandan prosecutions for genocide); L. Danielle, Tully, Human Rights Compliance and the Gacaca Jurisdictions in Rwanda, 26 B.C. Int’l & Comp. L. Rev. 385, 402 (2003)Google Scholar (noting that the utter devastation of the genocide has made adhering to international fair trial standards “nearly impossible”).

131 See Drumbl, supra note 129, at 1263 (discussing the “ability of gacaca to serve as a conduit for postgenocidal reintegrative shaming”); Tully, supra note 130, at 395-401 (describing gacaca courts as the “last hope” for the Rwandan judicial system’s attempt to deal with the genocide).

132 UN Doc. S/PV.3453, supra note 1, at 16 (Rwandans withdrawing support for the ICTR because of, inter alia, the disparity in sentencing between the Rwandan courts and the proposed tribunal); see also Christina, M. Carroll, An Assessment of the Role and Effectiveness of the International Criminal Tribunal for Rwanda and the Rwandan National justice System in Dealing with the Mass Atrocities of 1994, 18 B.U. Int’l L.J. 163, 177 (2000).Google Scholar

133 GOUREVITCH, supra note 54, at 254-55.

134 See supra note 12.

135 McKinley, supra note 12. Since the public executions in the soccer stadiums, Rwanda has not performed a single execution, although other defendants have received death sentences from Rwandan courts.

136 See, for example, Justice, Rwandan-Style Public Executions May Bring Other Bloodshed, Herald (Glasgow), Apr. 25, 1998, at 16 Google Scholar, an editorial, which states:

From the considered perspective of liberal Western democracy, pumping machine-gun bullets into convicted criminals for up to five minutes, then finishing them off with pistol shots to the head as they twitch on the stakes to which they are bound blindfold, hardly seems a reasonable way to make the point that human life is sacred.

See also McKinley, supra note 12 (noting concerns of human rights activists); Ann, M. Simmons, Rwanda Plans Public Executions for Genocide, L.A. Times, Apr. 23, 1998, at A4 Google Scholar (quoting anonymous UN official on Rwanda’s “lust for vengeance” and its impact on subsequent genocide convictions).

137 While the region continues to be engulfed in ethnic conflict, Rwanda as a whole has remained comparatively stable. See UN Doc. S/PV.3453, supra note 1, at 15 (Rwandan representative stating that “[t]he national reconciliation of the Rwandese can be achieved only if equitable justice is established and if the survivors are assured that what has happened will never happen again”).

138 For a discussion of the unique moral gravity of genocide, see Richard, J. Bernstein, Radical Evil: A Philosophical Investigation (2002).Google Scholar

139 Possible charges against Hussein include his gassing of the Kurds in 1988 and atrocities committed during the Shiite uprising in 1991. However, the Iraqi government has indicated that it may wish to proceed with a more limited prosecution of specific crimes instead of documenting all cases of genocide and crimes against humanity, See John, F. Burns, First Court Case of Hussein Stems from ‘82 Deaths, N.Y. Times, June 6, 2005, at A1.Google Scholar

140 Although the Coalition Provisional Authority suspended the death penalty upon taking control of Iraq, it was immediately reinstated after Iraq regained its sovereignty.

141 See Drumbl, supra note 130, at 635-36 (discussing the role of genocide trials as public catharsis and arguing that “[i]t is even more unfortunate to use these trials as a tool to bully the population in the absence of economic and social reforms”). But for a unique exploration of the advantages of local genocide prosecutions over international fora, see Alvarez, supra note 53, passim. Cf Cassese, Antonio, On the Current Trend Towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law, 9 Eur. J. Int’l L. 2, 7 (1998)Google Scholar (arguing for the primacy of international prosecutions).

142 For a general discussion of proportional punishment, see Ten, C. L., Crime, Guilt, and Punishment 158 (1987)Google Scholar (distinguishing between thick and thin versions of the proportionality principle). Ten’s version of the thick proportionality principle requires that punishments reflect the moral gravity of the offense relative to other offenses, but does not necessitate an appropriate level of punishment in absolute terms. Id. at 159.

143 See, e.g., Mani, Rama, Beyond Retribution: Seeking Justice in the Shadows of War 98 (2002).Google Scholar

144 For a general discussion of theories of punishment, see Matravers, Matt, Justice and Punishment: The Rationale of Coercion (2000)CrossRefGoogle Scholar; Philosophy of Punishment (Robert, M. Baird & Stuart, E. Rosenbaum eds., 1988).Google Scholar

145 This list of theories of punishment is not meant to be exclusive.

146 See Alvarez, supra note 53, at 408-09 (arguing that little attention is paid to the theories of punishment underlying the ad hoc tribunals and that “ [i]nternational lawyers do not appear to be concerned about grounding the ad hoc tribunals’ sentences, including the prohibition on the death penalty, in a coherent moral or philosophical framework”).

147 The theories of punishment discussed in this part are not mutually exclusive. Elements from each may be mutually supporting and might be combined to form novel theories of punishment. Rarely are accounts of punishment entirely retributive, consequentialist, or expressive. Cf. Michael, Jerome & Wechsler, Herbert, A Rationale of the Law of Homicide II, 37 Colum. L. Rev. 1261, 1262 (1937)Google Scholar (suggesting that punishment may simultaneously promote goals of deterrence, incapacitation, and reformation).

148 See, e.g., Sigler, Mary, Contradiction, Coherence, and Guided Discretion in the Supreme Court’s Capital Sentencing Jurisprudence, 40 Am. Crim. L. Rev. 1151, 1158 (2003)Google Scholar (arguing that there is no persuasive evidence for finding a deterrent effect for capital punishment); Passell, Peter, The Deterrent Effect of the Death Penalty: A Statistical Test, 28 Stan. L. Rev. 61 (1975)CrossRefGoogle Scholar (reaching a similar conclusion on the basis of a statistical analysis). But see Ernest van den, Haag, On Deterrence and the Death Penalty, 60 J. Crim. L. & Criminology 141 (1969)Google Scholar (noting that although the deterrent effects of the death penalty are unproven, so too are the deterrent effects of longer prison sentences over shorter ones). It is well beyond the scope of this article to evaluate the evidence with sophistication.

149 For a classic consequentialist justification of punishment on the principle of utility, see generally Bentham, Jeremy, Introduction to the Principles of Morals and Legislation (1789).Google Scholar See also Rawls, John, Two Concepts of Rules, 64 Phil. Rev. 3, 5 (1955)Google Scholar (arguing that punishment as an institution, as opposed to individual acts of punishment, might be justified by utilitarianism). For an innovative example of a consequentialist theory of punishment that is nonutilitarian, see generally Braithwaite, John & Pettit, Philip, Not Just Deserts: A Republican Theory of Criminal Justice 69–71 (1990).Google Scholar

150 See supra notes 53-54 and corresponding text.

151 See, e.g., Berns, Walter, The Morality of Anger, in Philosophy of Punishment, supra note 144, at 85, 86.Google Scholar

152 Subject of course to the constraint that the punishment is not disproportionate to the offense.

153 See generally Hart, H. L. A., Responsibility and Retribution, in Punishment and Responsibility: Essays in The Philosophy of Law 210 (1968)Google Scholar; Nozick, Robert, Philosophical Explanations 370 (1981)Google Scholar (arguing that retributive punishment is “an act of communicative behavior”); Mabbott, J. D., Punishment, 48 Mind (n.s.) 152, 162–63 (1939)Google Scholar (defending retributive theory of punishment because “the infliction of a particular punishment should not be determined by the good that particular punishment will do either to the criminal or to ‘society’“); Michael, S. Moore, The Moral Worth of Retribution, in Responsibility, Character, and the Emotions 179, 180 (Ferdinand David, Schoeman ed., 1987)Google Scholar (arguing that die “moral culpability” of the criminal not only justifies society’s punishment, but in fact gives society a duty to punish). But see Russ, Shafer-Landau, The Failure of Retributivism, 82 Phil. Stud. 289 (1996).Google Scholar

154 See Kant, Immanuel, The Metaphysics of Morals, in Kant: Political Writings 132, 154–55 (Reiss, Hans ed., Cambridge Univ. Press, 2nd ed. 1991)Google Scholar (1797) (concluding that” [j]udicial punishment can never be merely a means of furthering some extraneous good for the criminal himself or for civil society, but must always be imposed on the criminal simply because he has committed a crime”).

155 See, e.g., Moore, supra note 153, at 184 (arguing that moral desert is both a necessary and sufficient condition for punishment).

156 See Kant, supra note 154, at 155 (arguing that only the “law of retribution” can determine the “quality and quantity of punishment” and it must be determined in court); see also Kant, Immanuel, The Philosophy of Law 198 (Hastie, W. trans., 1974)Google Scholar (1887) (arguing that criminal sentences must be proportionate to the “internal wickedness” of the offender). Indeed, Kant marshals this argument in favor of capital punishment, suggesting that in die case of murder, there is “no juridical substitute or surrogate, that can be given or taken for the satisfaction of Justice.” Id. Nozick refers to the program of proportional punishment as “retributive matching punishment.” Nozick, supra note 153, at 371 & n.*.

157 Cf. Bedau, Hugo, Capital Punishment, in Matters of Life and Death 188 (Regan, Tom ed., 2d ed. 1986)Google Scholar (arguing that even the death penalty fails to satisfy the retributive standard and that nothing short of torture would be sufficient) .

158 See supra notes 119-20 and corresponding text.

159 See Mani, supra note 143, at 34.

160 See UN Doc. S/PV.3453, supra note 1, at 16.

161 See, e.g., Shafer-Landau, supra note 153.

162 Id.

163 See, e.g., Finer, Jonathan & Nouri, Naseer, Capital Punishment Returns to Iraq, Wash. Post, May 26, 2005, at A16 Google Scholar (noting criticisms by human rights groups about the use of the death penalty by the new Shiite-led government).

164 Meanwhile, Iraqi citizens applaud the reinstitution of the death penalty and argue that it is the only appropriate punishment for Saddam Hussein’s genocide. Id.

165 See, e.g., Nozick, supra note 153, at 364 (analyzing the Gricean communicative behavior underlying retributive punishment); Feinberg, Joel, The Expressive Theory of Punishment, 49 Monist 397 (1965).CrossRefGoogle Scholar

166 Matravers, supra note 144, at 88 (discussing “the idea that wrongdoing appropriately evokes a response of resentment and an expression of criticism is familiar and convincing”); Nozick, supra note 153, at 370 (arguing that punishment sends the message “this is how wrong what you did was”). The expressive theory of punishment is not necessarily logically distinct from the retributive theory and in some forms can be a variant of it. See, e.g., Hampton, J., The Moral Education Theory of Punishment, 13 Phil. & Pub. Aff. 208, 208 Google Scholar (advocating an expressive theory of retribution).

167 Feinberg, supra note 165, at 397-98.

168 Compare Katharine, K. Baker, Sex, Rape, and Shame, 79 B.U. L. Rev. 663, 706 (1999)Google Scholar (arguing for public shaming as a strategy to fight sexual violence), with Toni, M. Massaro, Shame, Culture, and American Criminal Law, 89 Mich. L. Rev. 1880, 1943 (1991)Google Scholar (arguing against public shaming as an effective penal reform). See also Drumbl, supra note 129, at 1263 (describing shaming model as a method of national reconciliation).

169 However, nothing inherent in the theory precludes support for severe punishments. See Ten, supra note 142, at 42-43.

170 Id. at 50.

171 This would constitute a charitable reading of Rwanda’s public execution of its criminals. See Gourevitch, supra note 54, at 254-55 (questioning whether Rwandan offenses were less extreme than the World War II crimes that were punishable by death); McKinley, supra note 112; Orentlicher, supra note 116 (discussing the obligatory nature of punishment for atrocities under international law).

172 See, e.g., Drumbl, supra note 129, at 1263.

173 See Alvarez, supra note 53, at 409 (asking, “How exactly does the ICTR confer the ‘highest form of justice’ when it fails to permit (and may even help prevent) the execution of someone who has ordered or participated in the death of thousands?” (footnote omitted)).

174 Cf. Schabas, African Perspectives, supra note 11, at 33-35 (arguing that the standard attribution of harsh penalties to African peoples is the result of inaccurate history). According to Schabas, capital punishment was brought to Africa by colonialism and precolonial African tribes rarely executed criminals. Id.

175 Indeed, this was the major reason for Rwandan opposition to the ICTR. The paradoxical discrepancy in sentencing latitude between the domestic courts and the ICTR has been almost universally condemned in the scholarly literature. Admittedly, the condemnation was sometimes followed by a plea for universal abolition of the death penalty. See, e.g., Carroll, supra note 132, at 177 (noting that Rwanda’s concern in this area has not been addressed); see also Alvarez, supra note 53, at 409 n.218.

176 This issue is explored in greater depth in part III infra.

177 See Morris & Scharf, supra note 10,at 584 (noting that international law offers only proportionality as a principle for determining sentences under international criminal law).

178 See, e.g., UN Charter Art. 51 (codifying right to collective self-defense); ICCPR, supra note 24, Art. 12(3) (allowing exceptions only when provided for “by law [and] necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others”).

179 Another way of understanding the centrality of proportionality is to consider cruel and unusual punishment. How would one evaluate this claim without making reference to proportionality? Punishments are usually cruel and unusual when they are completely out of proportion to the offense concerned.

180 The requirement of proportionality in criminal sentencing is codified in Article 67 of the Fourth Geneva Convention (prosecution must be “in accordance with general principles of law, in particular the principle that the penalty shall be proportionate to the offence”). Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 67, 6 UST 3516, 75 UNTS 287. Interestingly, Article 67 does not distinguish between sentences that are too severe and sentences that are too lenient.

181 Two kinds of proportionality are at work here. The first, what we will call offense gravity, involves proportionality between the gravity of the crime and the severity of the sentence. Article 7 of ICCPR, supra note 24, codifies this kind of proportionality, indicating that there should be some sort of intuitive relationship between the crime and the sentence. Severe violations of the moral order call for severe punishment. The second kind of proportionality we will call defendant comparability, the proportionality between various sentences. Punishments of a group of defendants ought to be proportional in the sense that of those accused of the same crime, the more culpable ought to receive the longest sentences. Ideally, the punishments should reflect a moral hierarchy among the perpetrators. These proportionality requirements are difficult to satisfy in international criminal law when the crimes adjudicated by the tribunals are writ large.

182 See UN Doc. S/PV.3453, supra note 1, at 16 (comments by Rwandan representative on necessity of capital punishment) .

183 Id.; see also Mani, supra note 143, at 98 (noting that Rwanda victims “feel that perpetrators are being privileged over victims”).

184 E.g., Ronald, M. Dworkin, Rights as Trumps, in Theories of Rights 153, 153 (Waldron, Jeremy ed., 1984)Google Scholar (stating simply that “[r]ights are best understood as trumps over some background justification for political decisions that states a goal for the community as a whole”).

185 Id. at 166 (describing a rights claim as implying that a decision is wrong because it fails to take into account the damage it might do to a few individuals).

186 See Schabas, supra note 5, at 25-28 (discussing the origins of the right to life in international law).

187 Dworkin, supra note 184, at 166.

188 See, e.g., United Nations Norms and Guidelines in Criminal Justice, UN Doc. A/CONF.87/9, at 3 (1980) [hereinafter Secretariat Working Paper] (discussing exceptions to the right for those who commit crimes against humanity).

189 Universal Declaration of Human Rights, GA Res. 217A (III), Art. 3, UN Doc. A/810, at 71 (1948) (“Everyone has the right to life, liberty and the security of person.”).

190 See Secretariat Working Paper, supra note 188, at 3.

191 See Kershnar, supra note 119, at 125.

192 See Mani, supra note 143, at 85 (noting that “restoring the rule of law will be meaningful only if it is synonymous with justice”).

193 In the United States, the retentionist argument is taken for granted, while in Europe, it is considered so weak that the issue is considered close to settled. The result is a lack of serious development of the retentionist position. But see Schabas, War Crimes, supra note 17, at 752.

194 See infra notes 227-42 and corresponding text.

195 Schabas, supra note 5, at 23 (anchoring argument in the individual’s universal right to life).

196 See UN Doc. S/PV.3453, supra note 1; see also Draft resolution , UN Dep’t of Economic & Social Affairs, Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders at 59, UN Doc. A/CONF.87/14/Rev. l, UN Sales No. E.81.IV.A (1981) (“recognizing the sovereign right of each State to determine its own criminal policy,” although encouraging retentionist states not to extend the death penalty to new categories of offenses).

197 Cf. Berns, supra note 151, at 88 (arguing that a “moral community is not possible without anger and the moral indignation that accompanies it”).

198 See, e.g., Mani, supra note 143, at 6-7 (describing the process of rectificatory justice).

199 See, e.g., Dworkin, supra note 184, at 153.

200 See Schabas, supra note 5, at 6-7.

201 For example, the European Convention on Human Rights frames a human right to life but imposes several limitations on it, most notably that “ [n] o one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” ECHR, supra note 45, Art. 2. The Convention also lists the following exceptions to the right to life: self-defense, effecting a lawful arrest, and quelling riots and insurrections. Id.

202 See Kershnar, supra note 119, at 149-67 (defending harsh punishments, including the death penalty, on the basis of rights forfeiture).

203 The idea of the state as a legal person has a long history in international law, going back at least as far as Vattel. Emmerich De Vattel, The Law of Nations, bk. I, ch. I, §12, at 3 (Joseph Chitty ed., Philadelphia, T. & J. W. Johnson 1853) (1758). The notion also appears prominently in Kant’s philosophy of international law. Kant, supra note 154, at 114.

204 International instruments often use the language of moral personhood to describe international legal relations. See, e.g., Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625, UN GAOR, 25th Sess., Supp. No. 28, at 121, 124, UN Doc. A/8082 (1970) (states are juridically equal and must respect the personality of other states); OAS Charter, Apr. 30,1948, Art. 9, 2 UST 2394,119 UNTS 3 (equality of the state and its subsequent rights depend “upon the mere fact of its existence as a person under international law”).

205 For a discussion of the controversy, see generally Pettit, Philip, Collective Persons and Powers, 8 Legal Theory 443 (2002).Google Scholar

206 See Dworkin, Ronald, Liberal Community, 77 Cal. L. Rev. 479, 493 (1989)Google Scholar (discussing example of the unified agency of an orchestra); Addis, Adeno, Individualism, Communitarianism, and the Eights of Ethnic Minorities, 67 Notre Dame L. Rev. 615 (1992)Google Scholar (arguing that ethnic rights can only be understood as the right of a group unit of agency). In fact, Addis argues that “it must be accepted that it is not metaphysical nonsense to talk about the rights of groups.” id. at 655; cf. Peter, A. French, Collective and Corporate Responsibility 35 (1984)Google Scholar; Scruton, Roger, Corporate Persons, 63 Aristotelean Soc’y 239, 245–49 (Supp. 1989).Google Scholar

207 See, e.g., Sanford, A. Schane, The Corporation Is a Person: The Language of a Legal Fiction, 61 Tul. L. Rev. 563, 563 (1987)Google Scholar (discussing the history of the concept of corporate personhood in U.S. law); cf. Kathryn, L. Boyd, Collective Rights Adjudication in U.S. Courts: Enforcing Human Rights at the Corporate Level, 1999 Byu. L. Rev. 1139, 1172 (1999).Google Scholar

208 See, e.g., Kymlicka, Will, Multicultural Citizenship 34–35 (1995)Google Scholar (discussing collective rights); Waldron, Jeremy, Taking Group Rights Seriously, in Litigating Rights: Perspectives from Domestic and International Law 203 (Huscroft, Grant & Rishworth, Paul eds., 2002)Google Scholar; Waldron, Jeremy, Minority Cultures and the Cosmopolitan Alternative, 25 U. Mich. J. L. Reform 751, 751 (1992)Google Scholar (discussing the rights of minority cultures without positing the existence of a group agent).

209 For an example of the voluntarist approach, see Wolfke, Karol, The Concept of Customary International Law (1993)Google Scholar; cf. Eduardo Moises, Penalver, The Persistent Problem of Obligation in International Law, 36 Stan. J. Int’l L. 271, 276 (2000)Google Scholar (discussing the source of international law’s obligatory character); Schachter, Oscar, Towards a Theory of International Obligation, 8 Va. J. Int’l L. 311 (1968).Google Scholar Although the voluntarist theory was once dominant, its influence has receded as international lawyers have sought to apply human rights norms to recalcitrant states through customary international law and jus cogens. For a discussion of this transformation, see John, A. Perkins, The Changing Foundations of International Law: From State Consent to State Responsibility, 15 B.U. Int’l L.J. 433, 437–39 (1997).Google Scholar

210 See, e.g., ICCPR, supra note 24, Art. 6; ECHR, supra note 45, Art. 2; Charter of Fundamental Rights of the European Union, Dec. 7, 2000, Art. 2, 2000 O.J. (C 364) 1, 40 ILM 266 (2001); American Convention on Human Rights, supra note 44, Art. 4.

211 On the Optional Protocol, see supra note 25.

212 See Schabas, supra note 5, at 19 (discussing the emergence of a jus cogens norm).

213 Id.

214 Id.

215 For a discussion of jus cogens, see generally Henkin, supra note 34; SChachter, supra note 39, at 340; Jordan, J. Paust, The Reality of Jus Cogens, 7 Conn.J. Int’l L. 81 (1991)Google Scholar. See also Vienna Convention on the Law of Treaties, opened for signature May 23,1969, Art. 53,1155 UNTS 331 (defening jus cogens as “peremptory norms of general international law”); Restatement, supra note 23, §702 (listing nonderogable human rights obligations).

216 See, e.g., Restatement, supra note 23, §702 cmt. n.

217 Schachter, supra note 39, at 70-76; see also Henkin, Louis, The Age of Rights (1990).Google Scholar

218 See, e.g., Henkin, supra note 34, at 38; Meron, Theodor, Human Rights and Humanitarian Norms as Customary Law (1989).Google Scholar

219 See, e.g., supra notes 126-33 and corresponding text.

220 See Chairman’s Working Paper, supra note 83 (discussing international objections to the death penalty).

221 See Restatement, supra note 23, §702 cmt.f (describing capital punishment as an open question still permissible under customary international law).

222 Although the preferred conceptual scheme will be developed in the next section, these are not mutually exclusive strategies. Elements from each one might be combined to ground a convincing analysis of the problem.

223 UN Charter, pmbl. (“to unite our strength to maintain international peace and security”), Art. 1 (purpose of United Nations is to maintain international peace and security), Art. 39 (Security Council duty to “maintain or restore international peace and security”), Art. 42 (authorizing military actions “to maintain or restore international peace and security”), Art. 43 (duty of member states to offer military support for actions necessary to maintain or restore international peace and security), Art. 52 (Charter is consistent with regional arrangements for maintaining international peace and security), Art. 54 (Security Council shall be kept informed of regional actions conducted to maintain international peace and security); see, e.g., Mariano-Florentino, Cuellar, Reflections on Sovereignty and Collective Security, 40 Stan. J. Int’l L. 211, 214 (2004)Google Scholar (evaluating international law’s success in achieving international peace and security).

224 Arguments about the use of force make frequent reference to Security Council authority under the Charter. See, e.g., Schachter, Oscar, In Defense of International Rules on the Use of Force, 53 U. Chi. L. Rev. 113, 128 (1986)Google Scholar (“[T]he failure of self-help and international institutions to provide adequate remedies for breaches of legal rights does not impugn the efficacy of the Charter’s collective machinery. That machinery does not purport to safeguard legal rights: it was meant to ensure peace and security.”); see also Schachter, Oscar, International Law: The Right of States to Use Armed Force, 82 Mich. L. Rev. 1620, 1620–22 (1984)CrossRefGoogle Scholar [hereinafter Schachter, Right of States] (discussing the legal authority of the Security Council).

225 See Schachter, Right of States, supra note 224, at 128 (noting that the international legal order was not designed to vindicate individual legal rights, but to maintain international peace).

226 Id. (noting that “[o]ptional judicial machinery” is available to hear such disputes).

227 See, e.g., Mani, supra note 143, at 53 (asserting that reestablishing rule of law is necessary for achieving international peace in postconflict societies); Chamblee, supra note 18 (noting that Hussein’s trial will promote reconciliation) . For a general discussion of the role of the rule of law in international relations, see Kelsen, Hans, Peace Through Law (1944).Google Scholar

228 Akhavan, Payam, Justice and Reconciliation in the Great Lakes Region of Africa: The Contribution of the International Criminal Tribunal for Rwanda, 7 Duke J. Comp. & Int’l L. 325, 338–39 (1997).Google Scholar

229 Id. at 339; see also Akhavan, Payam, Justice in The Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal, 20 Hum. Rts. Q. 737, 741 (1998).Google Scholar

230 See MANI, supra note 143, at 4 (discussing the connection between restoring justice and international peace and security); Akhavan, supra note 228, at 339 (noting that the “symbolic effect of prosecuting even a limited number of such leaders before an international jurisdiction would have considerable impact on national reconciliation as well as deterrence of such crimes in the future”); Cassese, Antonio, Reflections on International Criminal justice, 61 Mod. L. Rev. 1, 10 (1998)Google Scholar (concluding that the lack of international tribunals will allow hatred and revenge to threaten international peace and security).

231 The ethnic divisions in Iraq cut across state lines and extend into Iran, Turkey, and other neighboring states.

232 Security Council members explicitly stated the goal of restoring international peace and security, as well as national reconciliation. UN Doc. S/PV.3453, supra note 1, at 2-3.

233 Prosecutor v. Tadić, Appeal on Jurisdiction, No. IT-94-1-AR72 (Oct. 2, 1995).

234 See Mani, supra note 143, at 101-02 (evaluating tradeoffs associated with truth commissions and noting that “the popularity and ubiquity of TCs are a cause for concern”).

235 For a general discussion of the commission, see Paul van, Zyl, Dilemmas of Transitional Justice: The Case of South Africa’s Truth and Reconciliation Commission, 52 J. Int’l Aff. 647 (1999)Google Scholar. See also Tutu, Desmond, No Future Without Forgiveness (1999).Google Scholar

236 Tutu, supra note 235; van Zyl, supra note 235.

237 Tutu, supra note 235.

238 Id.

239 Van Zyl, supra note 235.

240 Cassese, supra note 230, at 3 (noting that although the truth-and-reconciliation model was appropriate for South Africa, it would not have worked in Rwanda or Yugoslavia).

241 Id. at 4 (arguing that perpetrators continued to “preach the gospel of ethnic separation” in Yugoslavia and Rwanda).

242 The maxim is attributed to Thorsten Sellin, quoted in Braithwaite & Pettit, supra note 149, at 153-54 (quoting Francis, T. Cullen & Karen, E. Gilbert, Reaffirming Rehabilitation 151 (1982)Google Scholar).