The purpose of this Article is not to answer the question of whether the death penalty is an appropriate punishment for genocide. One could safely argue that there is an emerging norm in international law against the death penalty, but individual countries have maintained their right to use the death penalty and continue to do so in code and in practice. This Article, using Rwanda as a case study, evaluates the real outcomes of such discrepancies in punishment at the domestic and international level, and the ability of both approaches to bring justice to the victims of genocide. Both domestic and international statutes articulate similar goals in prosecuting the perpetrators of genocide—eradicating a culture of impunity, and restoring law and order. This Article argues that the existence of conflicts over the propriety of the death penalty and the resulting punishment discrepancies provide continued opportunities for development of domestic and international responses to genocide.

Part I summarizes the events in Rwanda that led to the establishment of the Tribunal and discusses the resulting statutes of the International Criminal Tribunal for Rwanda and the domestic criminal statues of Rwanda. This section also discusses the additional legal and political issues that have arisen from the discrepancy in punishment regimes. Part II offers two case studies to illustrate the types of actors and the extent of participation in the genocide tried under each regime. This section also outlines the goals of punishment articulated in each statute and how well these case studies reflect those goals. Part III questions the appropriateness of death as punishment for individual participation in international crimes. On the one hand, a majority of nations have moved toward the abolition of the death penalty; however, under Rwandan domestic laws, the death penalty remains a codified and utilized component of the penal code. There is sufficient political will in the international community to bar its use in international tribunals, but abolition has not yet reached the level of international norm. At the core of international law is a necessity for consensus, which promotes higher levels of compliance. Since Nuremberg, there is consensus that genocide is a crime, but the appropriate form of punishment is highly contested. There is also discussion of the employment of pre-colonial methods of adjudication as a way of expediting trials and providing real opportunities for reconciliation on the ground in Rwanda. The Article concludes with a discussion of the prospects for resolution of the punishment paradox in genocide prosecution created by opposing policies on punishment in domestic and international law. The resolution of this paradox may be too late to prevent the negative political consequences of differences in punishment in the Rwandan genocide, but the looming presence of genocide and possible tribunals in other parts of Africa, most specifically in the Sudan, continues to make analysis of this tension between international and domestic law on the death penalty important. The final section outlines concrete lessons that both the international community and domestic authorities can learn from the adjudication of the Rwandan genocide and apply to other prosecutions of participants in genocide.

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Notes/Citation Information

Emory International Law Review, Vol. 21, No. 2 (2007), pp. 563-600



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