If you were asked to consider what would be a just sentence for someone who organized and implemented the mass murder of several thousand – possibly tens of thousands or hundreds of thousands of individuals, innocent people killed because of their religion, ethnicity, perceived race, or real or imagined political beliefs – and who had command responsibility for these murders, you would probably intuitively and reasonably suggest a life sentence given the gravity of the crimes and their radical undermining of law, morality, social norms, and human rights. Or perhaps you would suggest a life sentence for each murdered victim, which demonstrates the value society and its laws place on the life of each individual. This principle is used in sentencing in some national jurisdictions, such as the United States.
But international criminal tribunals such as the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the United Nations International Residual Mechanism for Criminal Tribunals (Residual Mechanism) that responds to appeals of sentences made by these tribunals— and requests for early release from convicts —often radically undervalue the lives of the innocent in their sentencing.
The sentences given by these tribunals make a mockery of the principle that a sentence should be commensurate with the crimes committed. Much (though not all) of the sentencing of both of these tribunals and the Residual Mechanism transmits the message that the more individuals one murders and maims the less an affront to law, morality, and humanity is the crime. The ICTR and ICTY have sentenced criminals guilty of the organization and implementation of the mass murder of hundreds or thousands of individuals and/or of the incitement to genocide—acts often preceded by torture of extreme brutality and depravity—to shamefully and unconscionably short sentences.
These international tribunals were set up to demonstrate that war crimes, crimes against humanity, and genocide are egregious crimes that shock the conscience of humanity. Their purpose was also to send out the message that said crimes will be punished in accordance with their severity, the danger they pose to respect for human rights and human dignity, as well as to deter such crimes in the future. But the demonstration of the egregious nature of these crimes has largely failed and their deterrence is hardly what has happened in practice.
The sentencing regimes that these tribunals have adopted sent quite the opposite message to international criminals. Moreover, the Residual Mechanism has continued in that ignominious and irresponsible way. Unfortunately, this profound perversion of justice remains scarcely acknowledged or discussed. Their indefensibly light sentencing undermines the moral and legal integrity of international criminal law, international human rights law, and international humanitarian law. Furthermore, the countries that fund and support international criminal tribunals betray the values inherent in their own legal systems by not protesting the structural and systemic moral and legal failures at the heart of sentencing of these tribunals and of the Residual Mechanism.
Amongst other issues, light sentencing and early release of convicted criminals embolden and sustain the vicious misogyny that characterized the massive and savage attacks on women, which were particularly characteristic of the Rwandan genocide against the Tutsi. As such, they are an affront to the rights, dignity, freedom, equality, and security of Rwandan women and of women generally.
The UN Residual Mechanism’s early release of convicted Rwandan genocidaires may inspire potential future mass murderers – especially murderers ranking lower in the hierarchy – to conclude that there is a reasonable chance that if apprehended for crimes against humanity and genocide their punishment will be minimal, and their chance of eventually acquiring freedom fairly high – however much they maim and murder.
Frequently, individuals who benefit from early release show no remorse, are not rehabilitated and have made no effort to repair. Furthermore, they go on to engage in genocide denial, incitement to hatred, and they use their freedom to harass, defame, and torment genocide survivors and those associated with their past victims; in the case of Rwanda, Tutsis. In fact, such early releases granted by the UN Residual Mechanism raise the question of how states such as Rwanda should respond. These early releases pose a direct threat to the rights, welfare, and safety of genocide survivors and potentially to the stability and public safety of Rwanda and the Rwandan people as a whole. These are not abstract, symbolic issues. They are of real import and practical consequence.
As someone who has worked closely with genocide survivors in Rwanda for many years, I learned from survivors that the inadequate sentencing of the ICTR added to their well-founded fears for their safety, exacerbated their trauma, and increased their psychological suffering and sense of acute loneliness and vulnerability. It also severely undermined their – and the broader community’s – faith in the international legal system, which has already betrayed them catastrophically by failing to enforce the 1948 Genocide Convention in their unwillingness to prevent or stop the genocide.
The same is true of the UN Residual Mechanism as it continues to repeat the mistakes of the ICTR. It has already done so in ten cases where it has granted early release without legitimate cause, and without paying due regard to the concerns of genocide survivors. Because the sentencing of the international criminal tribunals has so frequently failed to reflect the gravity of the crimes which they punish, national jurisdictions are likely to increasingly call into question their value, credibility, and integrity, both legally and morally, and rightly so.
This undermining of the authority of international criminal law, and the ensuing potential loss of trust and of cooperation with its tribunals and the Residual Mechanism – which cannot function effectively without such cooperation - will squarely rest with those particular judges (because it is not all of them) whose sentencing and early releases so often have been and remain incommensurable with the crimes committed.
As the 25th anniversary of the Rwandan genocide against the Tutsi takes place in April of this year, it has become apparent that the United Nations, which failed to prevent or stop the Rwandan genocide in 1994 and actually enabled it by withdrawing UN troops, is now shamefully failing Rwandans again. The UN Residual Mechanism continues to neglect to legitimately and substantively deliver justice, and instead delivers impunity for genocide perpetrators and callous indifference to genocide survivors.
Perhaps most noteworthy of the failures of the ICTR and the Residual Mechanism, is how it willfully marginalizes genocide survivors by denying them a right to express their concerns about issues such as sentencing, and in so doing contributes to structural violence against them in the form of increasing their trauma, devaluing their experiences and perspectives, and silencing them before the law. As Theodore Meron, then President of the Residual Mechanism wrote in his decision to grant early release to Aloys Simba, "In regard to the views of victims and other individuals about the impact that Simba's potential early release would have on the victims, I recall that the Statutes, the Rules, and the Practice Direction do not provide for the victims' views on an application for early release, commutation of sentence, or pardon by persons convicted by the ICTR, the ICTY, or the Residual Mechanism."
In this way, the Residual Mechanism and its former President, Theodore Meron, who consistently favored genocidaires in granting them early releases even when they denied their crimes and lacked remorse, have made it clear that international law actively favors genocidaires willfully and cruelly. It does so with staggering moral blindness and equally unconscionable arrogance, and thus contributes to the suffering and violation of the rights and welfare of genocide survivors and the ongoing injustices they face.
About the author
Noam Schimmel is Visiting Associate Professor of Ethics and International Affairs at the Elliott School of International Affairs, George Washington University. He researches in the areas of human rights, development studies, the politics and ethics of human rights law and its application, and global justice. He recently was Research Visitor at the Bonavero Institute of Human Rights, Oxford Faculty of Law, where he researched reparative justice, the human rights of Rwandan genocide survivors, and the human rights responsibilities of NGOs.