Genocide on Trial: Normative Effects of the Rwanda Tribunal’s Jurisprudence


The last fifteen years witnessed significant development in international criminal law. This progress was possible because of the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) jurisprudence. The paper evaluates the normative impact or effects of the ICTR jurisprudence on international criminal law. Where relevant, the ICTY jurisprudence is referred to because both the ICTY and ICTR share the same Appeals Chamber.

Since its first judgement in Akayesu in 1998,[1]  the ICTR has developed a rich jurisprudence covering aspects of substantive, procedural and evidentiary law in international criminal law. Some of the decisions and judgements reached by the ICTR provide important interpretation and elaboration of different aspects of international criminal law, while others raise controversies. There are a number of publications that outline important decisions and judgements of the ICTR.[2]

There are, as well, some important decisions and judgements of the ICTR which need further clarification. The ambiguity results primarily from the fact that judges of the ICTR are not always unanimous in reaching a decision on some or all issues in a given case.  Arguably, dissenting opinions by some of the ICTR Appeals Chamber Judges tend to highlight critical issues that require further research and reflection. To that extent, while some of the issues examined in dissenting opinions remain unresolved, it also provides opportunity for law reform and other scholarly discourse. Overall, while absence of unanimity by judges raises challenges, nonetheless it also creates some room for the possibility of remedying some questionable legal positions in the future, and thus may lead to the improvement of international criminal jurisprudence.

The current trend in international criminal law suggests that the normative effects of the ICTR jurisprudence are positive. Many national jurisdictions have cited the ICTR jurisprudence, with approval, in their respective courts.[3] However, there are limitations to the use or reliance on ICTR jurisprudence by national courts or other international criminal courts and tribunals. I will therefore commence by examining limitations to the application of the ICTR jurisprudence by national and international courts or tribunals.

The paper is arranged as follows:  Part II discusses the possible limitation of the ICTR jurisprudence. The paper acknowledges the positive contribution of the ICTR jurisprudence in the development of international criminal and humanitarian law. Nevertheless, the paper submits that where judgements are arrived at by a majority of the bench, and there are persuasive dissenting opinions, national courts or international courts/tribunals should carefully reflect on it before adopting that decision or judgement.[4] I will examine two judgements to illustrate the point. The first case relates to commission as a mode of liability and the second to the use of post-indictment communications to cure defective indictments.

Part III examines the normative effects of the ICTR jurisprudence. It reviews prosecutions conducted by national courts for international crimes committed in Rwanda. The judgements of courts of Belgium, Canada and the United Kingdom are reviewed for illustrative purposes, and are not exhaustive. Part IV is the concluding reflection. I submit that the normative effects of the jurisprudence of the ICTR are positive. However, to make a determinative conclusion, a longer time-span is needed for effective evaluation of the normative effects of the ICTR jurisprudence. Fifteen years is a very short period to assess the impact of precedents and evaluate its influence on the law of States that adopt or rely on ICTR jurisprudence in their domestic courts. It is, however, possible to assess recent trends of the development of international criminal law based on, among other sources, the ICTR jurisprudence.


Due to circumstances under which the ICTR was established, it is only reasonable that its normative impacts are limited. First, fifteen years is a very short period to evaluate the impact of jurisprudence, whether on national or international criminal courts. Law is a slow process and it takes many years to properly evaluate the impact of any jurisprudence and not only of the ICTR. Second, the temporal jurisdiction of the ICTR is severely limited. Prosecution of perpetrators is limited to persons who committed serious violations of international humanitarian law between 1 January and 31 December 1994. Acts or omission committed before January 1994 and after December 1994 are inadmissible for the purposes of proving guilt or innocence of the accused. The admission of such evidence is limited to providing context and background.

To that extent, acts or omission underpinning indictments on which judgements are made, are limited and uniquely relevant to Rwanda and covers only twelve months. Third, increasingly a number of important judgements of the ICTR tend to have persuasive dissenting opinion. These dissenting opinions appear to erode the forcefulness of the majority judgements. The concern here is not whether the judgement is right or wrong. Rather, whether when a bench of five judges deliver a judgement, two of whom dissent, to what extent should other courts, national or international, rely on a precedent which suggests uncertainty on the status of the law?  Fourth, under Rules 115 and 120 of the Rules of Procedure and Evidence, a convict who is serving, or has served, his sentence may apply for a review of his case if he meets the threshold stipulated in the Rules. If the review is dismissed, he can still apply for a reconsideration of his case. If the review is successful, the decision may be revised or set aside and a new one filed.  In the process of review or reconsideration the Appeals Chamber is at liberty to review substantive, procedural and evidentiary law which may fundamentally affect its earlier ‘final’ Appeals judgement. The impact of the review process is to undermine the principle of finality of proceedings. Trials at the ICTR will therefore never reach at a point which it can be stated with certainty that the ‘final’ judgement of the Appeals Chamber in a given case has been delivered.[5] This in turn impacts on other national and international criminal courts if there are uncertainties on whether the ‘final’ judgements of the ICTR Appeals Chamber are indeed final and may not be revised after a review or reconsideration. Fifth, the ICTR is due to close in the next two or three years.  It is extremely rare, if at all, that national courts close.  While the extent to which ICTR Completion Strategy will impact on the ICTR jurisprudence is, in the short term, uncertain, it is possible that it may have a negative impact, in the long term, as courts will focus on meeting the completion strategy dateline.[6] To that extent, evaluating normative effects of the ICTR jurisprudence at this stage, is provisional and may be correctly described as ‘work-in-progress.’

I will examine, for illustrative purposes, two judgements reached by the majority of the judges but with persuasive dissenting opinions from Judge Güney and Judge Schomburg in each of the case considered.[7] I will note the possible normative effects of ICTR jurisprudence on national and international criminal courts in cases where there are persuasive dissenting opinions from one or two judges out of a bench of five judges. The concluding reflection underscores the challenges of evaluating normative effects of judgements reached by the majority as opposed to a unanimous one.


One of the most significant developments in the prosecution of international crimes, from the Prosecutor’s perspective, is the evolution of the concept of ‘committing’ as a mode of liability under Article 6(1) of the ICTR Statute.[8] The ICTR Appeals Chamber in the Gacumbitsi Appeal Chamber judgement broadened the scope of the definition of “committed”. The Appeals Chamber achieved this feat by introducing a more flexible approach to the interpretation of what may constitute direct participation in the actus reus of a crime.

Under Article 6 (1) of the ICTR Statute, a person who has “committed” any of the crimes enumerated in Articles 2 to 4 of the Statute attracts individual criminal responsibility for the crime, and is subject to judgment and penalty, as provided for in Articles 22 and 23 of the Statute.   Similarly, Article 6 (3) holds a superior criminally responsible for “acts…committed by a subordinate”, if the pre-conditions for responsibility required by the provision are fulfilled.[9]

The word “committed” or “committing” occurs elsewhere in the ICTR Statute as well.  Under Article 2 (1), the jurisdiction of the Tribunal extends to persons “committing genocide…or any of the other acts enumerated in paragraph 2(3) of the Statute.”  Article 2 (2) defines genocide, by listing specific acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”  Article 3 provides for the prosecution of enumerated crimes, as crimes against humanity, “when committed as part of a widespread or systematic attack against any civilian population” on the discriminatory grounds identified in the provision.  Article 4 encompasses the prosecution of persons “committing or ordering to be committed” serious violations, which include those listed in the Article, of the provisions of the Geneva Conventions and Additional Protocol II thereto, pertaining to internal armed conflicts, or threats “to commit” any of the listed acts.

Similar language is encountered in the relevant provisions of the ICTY Statute, notably in the provisions for individual criminal responsibility contained in Articles 7 (1) and 7 (3).[10]  The 1998 Statute of the International Criminal Court (ICC) provides for the punishment of a “person who commits a crime within the jurisdiction of the Court” as stipulated in Article 25 of the ICC Statute, pertaining to individual criminal responsibility, and Article 30, dealing with the mental element of crimes.

The concept of “committed” in Article 6 (1) of the ICTR Statute has been generally held to encompass the direct and physical perpetration of the crime by the offender himself.  It also encompasses joint criminal enterprise, as a mode of commission of a crime. The ICTY Appeals Chamber, in Tadic, recognized that the concept of “committed” “covers first and foremost the physical perpetration of a crime by the offender himself, or the culpable omission of an act that was mandated by a rule of criminal law.”  The Chamber accepted as well that commission of a crime might also occur “through participation in the realisation of a common design or purpose.”[11]

The ICTR Appeals Chamber, with respect to the scope of the term “committed” in Article 6 (1) of the ICTR Statute, specifically adopted the Tadic definition above, pertaining to Article 7 (1) of the ICTY Statute, in Kayishema and Ruzindana, and went on to observe: “Thus, any finding of direct commission requires the direct personal or physical participation of the accused in the actual acts which constitute a crime under the Statute, together with the requisite knowledge.”[12] The Chamber declined to provide any further detailed definition of what constitutes individual responsibility for the element of committing under Article 6 (1).

Trial Chambers at both ICTY and ICTR have adopted and applied the Tadic definition of “committed” in subsequent cases.[13]  In order to establish that the accused committed a crime, the Prosecution is required to prove that the accused participated directly and physically in the actual acts that constitute the material elements of the crime, with the necessary intention.[14]  There can be several perpetrators of the same crime, so long as the conduct of each one of them fulfils the requisite elements of the definition of the crime.[15]

In the case of Ntakirutimana, the Trial Chamber focused on proof that the accused himself physically committed genocide by killing and causing harm to Tutsi refugees. On appeal, the Appeals Chamber held that the Trial Chamber erred by failing to go on “to consider whether the acts of assistance it found to be established also constituted a basis for a conviction of genocide either as a co-perpetrator or as an aider and abettor.”[16]  The Appeals Chamber ultimately found that the respondent should have been convicted of aiding and abetting genocide, as well as of committing genocide.[17]  However, the Appeals Chamber did not examine further what conduct, beyond direct personal participation in the physical killing or inflicting of bodily harm upon the victims, might come within the definition of “committed” under Article 6 (1), with respect to genocide.

The Gacumbitsi Appeal Chamber addressed this issue and went further than the Ntakirutimana Appeals Chamber. The Gacumbitsi Appeal Chamber   adopted a flexible approach to what direct and physical perpetration might entail.  The Appeals Chamber went beyond what it was prepared to do in Kayishema and Ruzindana, and provided a further definition of what conduct can come within the scope of committing, as a mode of liability under Article 6 (1).  The Gacumbitsi Appeals Chamber held that, in the context of genocide, direct and physical perpetration need not mean physical killingOther acts can constitute direct participation in the actus reus of the crime.[18]   This was a radical interpretation of ‘committing’ from earlier ICTY and ICTR jurisprudence.

The facts of the case in Gacumbitsi were examined by the Appeals Chamber in the context of alleged defects in indictment.  Gacumbitsi was convicted of committing genocide.  He was proved to have killed a man, by the name of Murefu, in April 1994 at Nyarubuye Parish, in Rusumo Commune, Kibungo prefecture.  The Prosecution had not mentioned Murefu’s name in the indictment.  A majority of the Appeals Chamber (3-2) found that the indictment was defective in this respect.[19]  Having found that the burden, in the particular circumstances of this case, rested on the Prosecution to establish that the appellant had suffered no material prejudice to his ability to defend himself, a differently constituted majority of the bench (3-2) held that the defect in pleading had been cured by the provision of timely, clear, and consistent information by the Prosecution to the defence, in relation to the killing of Murefu.[20]  The Appeals Chamber then went a step further and considered whether Gacumbitsi was correctly convicted of ‘committing’ genocide.

At this point a comment is necessary. Because the information provided by the Prosecutor was materially different from the allegation pleaded in the indictment, the Chamber ought to have considered first, whether the defect was so grave that the Prosecutor could only cure it by seeking leave to amend the indictment; or whether the defect could not be cured by post-indictment communication and not a formal amendment.  The Appeals Chamber side-stepped the issue of formal amendment and proceeded to discuss whether the defect was cured by post-indictment communication.

The two dissenting judges, however, correctly re-stated the law on amendment of indictment when they opined that the defect could not be cured by the provision of timely, clear and consistent information by the Prosecution to the defence, in relation to the killing of Murefu.[21] What was required was a formal amendment of the indictment by leave of the Chamber.

In reaching the conclusion on whether Gacumbitsi should be convicted of committing genocide, a differently composed majority of the Appeals Chamber (4-1) held that, even if the killing of Murefu were to be set aside, the Trial Chamber’s conclusion that the appellant committed genocide would still be valid, a finding reached by the Appeals Chamber entirely on its own.[22]  This finding was based, not on the killing of Murefu, but on other acts of the appellant, done with the requisite intention, beyond his own direct physical participation in the killing of Tutsi refugees.  The Appeals Chamber reasoned, as follows:

…The Trial Chamber convicted the Appellant of “ordering” and “instigating” genocide on the basis of findings of fact detailing certain conduct that, in the view of the Appeals Chamber, should be characterized not just as “ordering” and “instigating”, but also as “committing” genocide.

As the Trial Chamber observed, the term “committed” in Article 6 (1) of the Statute has been held to refer “generally to the direct and physical perpetration of the crime by the offender himself.”  In the context of genocide, however, “direct and physical perpetration” need not mean physical killing; other acts can constitute direct participation in the actus reus of the crime.  Here, the accused was physically present at the scene of the Nyarubuye Parish massacre, which he “directed” and “played a leading role in conducting and, especially, supervising.”  It was he who personally directed the Tutsi and Hutu refugees to separate—and that action, which is not adequately described by any other mode of Article 6 (1) liability, was as much an integral part of the genocide as were the killings which it enabled.  Moreover, these findings of fact were based on allegations that were without question clearly pleaded in the indictment.

The Appeals Chamber is persuaded that in the circumstances of this case, the modes of liability used by the Trial Chamber to categorize this conduct—“ordering” and “instigating”—do not, taken alone, fully capture the Appellant’s criminal responsibility.  The Appellant did not simply “order” or “plan” the genocide from a distance and leave it to others to ensure that his orders and plans were carried out; nor did he merely “instigate” the killings.  Rather, he was present at the crime scene to supervise and direct the massacre, and participated in it actively by separating the Tutsi refugees so that they could be killed.  The Appeals Chamber finds by majority, Judge Güney dissenting, that this constitutes “committing” genocide.[23]

Thus, the current jurisprudence, based on the majority opinion, is that an accused may be proved to have committed a crime, within the meaning of Article 6 (1), if his or her direct participation in the actus reus of the crime involves a supervisory role exercised at the crime scene itself, undertaken with the requisite intent, or if it involves some action performed by the accused at the scene of the crime, with the requisite intent, that is as integral to the physical perpetration of the acts constituting the material elements of the crime as the very acts performed by the direct physical perpetrators themselves.  In other words, the accused may commit a crime, by acting through the instrumentality of others, at the scene of the crime. He needs not physically commit the crime.

The problem for the Prosecutor then is how should commission through the instrumentality of others be pleaded in the indictment?  The Appeals Chamber sidestepped the issue when it held that even if the killing of Murefu were to be set aside, the Trial Chamber’s conclusion that the appellant committed genocide would still be valid.  Arguably, it may be sufficient, as a matter of pleading, to allege that the accused committed the crime, under Article 6 (1), and to plead material facts in the indictment that make it plain that the Prosecution is alleging that the accused acted through the instrumentality of others.  Such an approach would appear to find support in the Appeal Chamber judgement (majority view) in Gacumbitsi, discussed above, where the Appeals Chamber was prepared, on the basis of facts clearly pleaded in the indictment and found by the Trial Chamber, to characterize the appellant’s conduct in a way that was different from the conclusions reached by the Trial Chamber.  This was so, even though the point was never specifically argued at the hearing of the appeal.  In his dissenting opinion, Judge Güney raised concerns about whether the appellant had ever been put on notice that he risked conviction on the basis found by the majority. Judge Güney’s dissenting view is significant because the majority did not address the issue whether (a) the defect in indictment should have been cured through amendment after seeking leave of the Chamber or (b) whether the Appellant was provided with a clear, consistent and timely post-indictment communication.

Overall, where the allegation is that the accused physically perpetrated the crime himself, then the requirement is for the Prosecutor to plead the material facts as specifically as possible, including, where feasible, the identity of the victims, the time and place of the events, and the means by which the acts were committed.  The same level of detail may not be required, notably with respect to the identity of the victims, in relation to the perpetration of a crime, such as genocide or extermination, on a mass scale.[24]  Depending on the circumstances, the latter approach may apply in the case of commission by acts other than direct physical perpetration; but it will always be advisable to plead the material facts as specifically as possible, in order to avoid misleading the accused, with respect to the theory of liability being advanced by the Prosecution.

Over the dissent of Judge Güney, the ICTR Appeals Chamber in Gacumbitsi has arguably expanded the scope of what had until then constituted the confines of “committed”, as a mode of liability under Article 6 (1), by interpreting the requirement of direct physical participation flexibly.  In Kayishema and Ruzindana, the Appeals Chamber had earlier left the door open to providing further detail to the definition of “committed”.  This, the Chamber has now done in Gacumbitsi.

Under the “new” definition of “committed”, the Prosecution must still prove that the accused was directly involved, in some significant way, in the acts that constitute the actus reus of the crime, and to have had the requisite mens rea at the relevant time.  How this direct participation is accomplished may depend on the crime.  The requirements respecting the commission of genocide or extermination as a crime against humanity may not be identical to those necessary to prove commission of direct and public incitement to commit genocide, for example; but it will be necessary to show some close involvement with the physical perpetration.

In sum, this is a fundament shift in judicial thinking and provides the Prosecutor with greater opportunity for adducing sufficient evidence to convict persons who do not physically commit the crimes. However, Judge Güney‘s dissent is persuasive and hopefully the Appeals Chamber will revisit the point in future. Criminal prosecutions require specificity and clarity. If the Appeals Chamber allows flexibility in the interpretation and evaluation of modes of liability, it becomes only a matter of time before such approach begins to infringe on fair trial rights. Caution is therefore warranted in application of such cases in national or other international jurisdictions.


An indictment is the primary document the Prosecutor relies on in conducting criminal prosecutions. An indictment is required to provide, with specificity, allegations indicating the crimes with which the accused is charged.[25]  The Ntakirutimana Appeals Chamber in elaborating on Articles 17(4), 20(2) and 20 (4) (a)-(b) of the ICTR Statute and Rule 47(C) of the ICTR Rules of Procedure and Evidence (the Rules)[26] opined that there is “an obligation on the part of the Prosecutor to state the material facts underpinning the charges in the indictment, but not the evidence by which such material facts are to be proven.”[27] Further, while recognizing that an indictment is the primary charging instrument, the ICTR jurisprudence has held that in exceptional situations, if an indictment fails to meet the test of specificity, such defect may be cured through the Prosecutor’s consistent, clear and timely post-indictment communications to the accused such as pre-trial brief, disclosure of witness statements and other documents.[28]

The main issue for consideration before the Appeals Chamber in the Muhimana case[29] was whether there is a limit to the Prosecutor’s right to cure a defective indictment through post-indictment communications. In the Muhimana indictment, the Prosecutor alleged that towards the end of May 1994 at Nyakiyabo hill, in the Bisesero area, the Accused ordered an Interahamwe (named Gisambo) to kill an individual named Mukamera. However, in his pre-trial brief supported by a witness statement attached to the brief, the Prosecutor modified this information and alleged that Muhimana physically murdered the victim in mid-May 1994 on another hill, in the Bisesero area. The Trial Chamber was satisfied with the evidence adduced and convicted the Accused for the murder of Mukamera.

On appeal, Muhimana impugned his conviction by the Trial Chamber for this murder, alleging that the indictment was defective because it did not give him proper notice of the time and place of the murder, or his role in it. The Accused further challenged the variance between the indictment and the post-indictment communications. Furthermore, the Accused challenged the Trial Chamber’s finding that during trial, he did not object to the variance between the indictment and the post-indictment communications. According to the Trial Chamber, the Accused had challenged lack of notice in the indictment in relation to the time and place of the alleged murder, and not as to the nature of his role in that matter.

A brief review of the ICTR jurisprudence on curing defective indictments, prior to the Muhimana Appeals Chamber judgement, informs us that the failure of the Accused to object at trial, as to the variances between the indictment and post-indictment communications at the time when the relevant evidence was adduced (as for example a failure to object to defects in the indictment) was not relevant as an admission as to the truthfulness of the post-indictment communication. Instead, such failure is relevant in determining whether or not the accused should be allowed to raise the objections based on lack of notice for the very first time long after the relevant evidence was adduced (e.g., during closing arguments or during appeal). The underlying doctrine is that of waiver, that is, whether the Accused waived his right to object. However, whether or not an accused raised an objection, that point is crucial in determining whether the Accused bears the burden of demonstrating that he was prejudiced by the defects in the indictment, or whether the Prosecutor bears the burden of demonstrating that the Accused was not prejudiced. In addressing the issue, the Appeals Chamber explained in Niyitegeka judgement as follows:

A party should not be permitted to refrain from making an objection to a matter which was apparent during the course of trial, and to raise it only in the event of an adverse finding against that party. Failure to object in the Trial Chamber will usually result in Appeals Chamber disregarding the arguments on the ground of waiver. In the case of objections based on lack of notice, the Defence must challenge the admissibility of evidence of material facts not pleaded in the indictment by interposing a specific objection at the time the evidence is introduced. The Defence may also choose to file a timely motion to strike the evidence or to seek an adjournment to conduct further investigations in order to respond to the unpleaded allegations.[30]

Nevertheless, the Niyitegeka Appeal Chamber judgement underscores the importance of an accused’s right to be informed of the charges against him and the possibility of serious prejudice to the accused if material facts crucial to the Prosecution are communicated for the first time at trial. The jurisprudence thus stresses that the waiver doctrine does not extinguish the right of an accused to raise the objection at a later stage. The Niyitegeka Appeals Judgement emphasises that the

“Waiver doctrine should not entirely foreclose an accused from raising an indictment defect for the first time on appeal. Where in such circumstances, there is a resulting defect in the indictment; an accused person who fails to object at trial has the burden of proving on appeal that his ability to prepare his case was materially impaired. Where, however, the accused objected at trial, the burden is on the Prosecution to prove on appeal that the accused’s ability to prepare his defence was not materially impaired. All of this is of course subject to the inherent jurisdiction of the Appeals Chamber to do justice in this case.”[31]

In applying the Niyitegeka precedent in the Muhimana case, the Appeals Chamber, by majority (Judge Schomburg partially dissenting) held that the indictment was defective, because:

Where an accused is alleged to have personally committed a crime, the indictment must specify the criminal acts physically committed by the accused. An indictment lacking this precision is defective; however the defect may be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charge.[32]

The majority view concluded that the indictment failed to allege the correct time and location of the murder, and that Muhimana had physically committed the crime. The Appeals Chamber, also by a majority, held that the defect was not cured because the post indictment communication did not “simply add greater detail in the consistent manner with a more general allegation pleaded in the indictment. Rather [it] modifies the time, location, and physical perpetrator, matters that were already specifically pleaded in the indictment, albeit in a materially different manner.”[33]

On careful analysis of the judgement, it is clear that the issue for determination before the Appeals Chamber was whether Accused’s ability to prepare his case was materially impaired by the information provided in the pre-trial brief including the attached witness statement, and therefore whether the defects in the indictment was cured by timely, clear and consistent information. This issue was not directly addressed by the majority view. However, in the dissenting opinion, Judge Schomburg correctly addressed the point when he opined that the Accused in this case suffered no prejudice as he was informed of the charges and the possibility to defend himself against a slightly varied charge.  The point is significant because even if it is proved that there was a defect in an indictment, if the Accused suffered no prejudice, it would follow that his ability to effectively defend himself at trial was not impaired.

Second, the majority view appears to neglect the context in which the crime of genocide was committed. The situation in Rwanda is very complex. First, the majority of Prosecution witnesses who are also victims, on average, suffer from post traumatic disorder due to the very depraved manner in which the crime of genocide was perpetrated in Rwanda in 1994. This state of mind impacts negatively on their memory and view of the world.[34] Second, many Prosecution witnesses are peasants and under-educated or uneducated. During the genocide – those 100 days of mass killings – the witnesses spent most of the time running from one place to another; seeking refuge and spending several days without food, water or shelter.  They were disoriented and lost track of time; and many had difficulties remembering which places they passed through when fleeing from the Interahamwe or members of the Rwanda Armed Forces (FAR). It is this traumatized individuals that the Prosecutor relies on their statements, in whatever form, to prosecute the perpetrators.[35]

Significantly, in Rwanda, because of the character of the genocide and the context in which the crime was committed, most witnesses are accomplices. And, it is the evidence of these accomplices, some of whom are detainees or convicts serving long sentences that the Prosecutor relies on in drafting indictments and eventually prosecuting the perpetrators. It is therefore not surprising that there are inconsistencies between prior statements and testimony of witnesses in court.

Accomplice witnesses, who are associates in guilt or partners in crime with the Accused, may have motives or incentives to implicate Accused in order to gain some benefit in regard to their own cases or sentence.[36] The ICTR jurisprudence has established that accomplice evidence is neither inadmissible, nor unreliable per se, especially when an accomplice is thoroughly cross-examined.[37] However, when weighing the probative value of such evidence, a Chamber is bound to carefully consider the totality of the circumstances in which it was tendered and, when necessary, must approach the evidence with caution in order to ensure a fair trial and guard against the exercise of a possible underlying motive on the part of the witness.[38] As a corollary, a Chamber should at least briefly explain why it accepted the evidence of a witness who may have had motives or incentives to implicate the accused; in this way, a Chamber demonstrates its cautious assessment of this evidence.[39]

Arguably, what was referred to as the Prosecutor’s “modification of the allegation that Muhimana physically murdered the victim in Mid-May 1994” as opposed to the allegation that “Muhimana ordered an Interahamwe (called Gisambo) was an amendment of the indictment and not a curing of a defect by post-indictment communication.  Having not addressed the issue whether the Prosecutor ought to have sought leave from the Trial Chamber to amend the indictment, the Appeals Chamber proceeded to consider whether the Prosecutor’s notice in the pre-trial brief, and during closing arguments were sufficient to cure the defects. It is in that context, that it can be argued that it appears the Appeals Chamber majority judgement took an exceptionally strict view of the law by failing to consider the context in which the crime of genocide was committed in Rwanda. On the other hand, in his partially dissenting opinion, Judge Schomburg demonstrated insightful understanding of Rwanda when he opined:

[i]t is unrealistic to believe that the Prosecution is not confronted with changing evidence throughout the whole course of the proceedings. It would be incredible or, at the very least, surprising if the factual basis of an indictment remained unchanged after the finalization of investigations. Even in cases where trial proceedings are already ongoing, it has to be and is possible to add fresh information to the case. As it is at the same time still important to keep the accused informed about the charges against him, it is a generally accepted principle in criminal law, both in the Anglo-Saxon and Romano-Germanic influenced jurisdictions, that such additional information can also be given by an indication that the factual basis and/or the legal assessment might be varied.[40]

Judge Schomburg further underscored the point that modification of the information or the introduction of new facts must be balanced with other factors, including the need to find the truth and respect the fundamental rights of the accused to be able to prepare his defence.[41] As Judge Schomburg opined, the Accused in this case suffered no prejudice as he was informed of the charges and the possibility to defend himself against a slightly varied charge.[42] Judge Schomburg thus concluded that it is unjustified to acquit an accused under these circumstances, and that the Appeals Chamber should have used the opportunity presented in this case to clarify the jurisprudence.[43] The argument is persuasive.

Putting the 1994 events in Rwanda in context, it is questionable whether the Appeals Chamber strict approach, as adopted by the majority in the instant case, is always appropriate in prosecuting international crimes before national courts. The Rwanda context – where the crimes were committed fifteen years ago – suggests that this may not necessarily be the correct approach. First, most of the Prosecution witnesses are peasants and do not own or wear watches to know or recall the exact or proximate time when the alleged crimes were committed. They do, however, in a general context, remember where the crimes were committed and who were the perpetrators and the victims. Thus, the concept of time is always a live issue at trial and on appeal. Secondly, as a result of sever trauma, the witnesses suffer from memory loss. In some cases, during examination-in-chief by the Prosecution or cross-examination by the Defence, the Witness remembers gradually – bits of relevant information. Some of this remembered information may be corroborated by other witnesses. It thus appears that the Chamber took a rather strict approach mainly because, unlike in other cases, where post-indictment communications ‘modified’ matters already specifically pleaded in the indictment, in the instance case, the information altered the alleged facts originally pleaded in the indictment. This according to the Chamber was prejudicial to the accused.[44]

Arguably, the most critical test should be whether or not the modification was communicated to the accused in a clear, consistent and timely manner, and that the Accused’s right to prepare his defence was not materially impaired. Further, the Appeals Chamber should have taken  account of whether the post indictment communication in the instant case, or the manner in which the case unfolded, amounted to what may be described as the unpredictable and impermissible moulding of the case as it progressed, thus prejudicing the Accused. Dr Mugwanya, correctly, argues that it is questionable whether in the instant case the Accused suffered any prejudice, given that he presented a defence to the allegation as contained in the post-indictment communication, and only complained at the end of the trial (i.e., in his closing brief) and did not make a contemporaneous objection when the Prosecution witness AW testified that it was the Accused that had physically perpetrated the murder.[45]

Judge Schomburg dissent raises an interesting enquiry on the determination of the normative effects of the ICTR jurisprudence where the dissenting opinion, arguably, is more persuasive than the majority view. To what extend would a judgement falling under this category of cases positively impact on national and international courts or tribunal?  It is recommended that such decisions are adopted by national and other international courts or tribunals with abundance of caution and on a case-by-case basis.

The Gacumbitsi and Muhimana Appeals Chamber judgements also raise questions whether it is the Accused, or genocide that is on trial. The prosecution of perpetrators for the crime of genocide before the ICTR has increasingly become so technical, that in some cases, an accused is acquitted, not because the Prosecutor failed to prove his case beyond a reasonable doubt, but because the Trial Chamber made a grave error of law. The Appeals Chamber in Zigiranyirazo Appeals Chamber judgement at paragraph 75 opined:[46]

In reversing Zigiranyirazo’s convictions for genocide and extermination as a crime against humanity, the Appeals Chamber again underscores the seriousness of the Trial Chamber’s errors.  The crimes Zigiranyirazo was accused of were very grave, meriting the most careful of analyses.  Instead, the Trial Judgement misstated the principles of law governing the distribution of the burden of proof with regard to alibi and seriously erred in its handling of the evidence.  Zigiranyirazo’s resulting convictions relating to Kesho Hill and the Kiyovu Roadblock violated the most basic and fundamental principles of justice.  In these circumstances, the Appeals Chamber had no choice but to reverse Zigiranyirazo’s convictions.

In the paragraph cited above, the Appeals Chamber underscores the serious nature of the Trial Chamber’s errors; it highlights the Trial Chamber’s inability to apply basic legal principles; and states that Zigiranyirazo was not afforded the most basic hallmarks of a fair trial.  However, the Appeals Chamber’s statement that it “had no choice” in the circumstances but to reverse Zigiranyirazo’s convictions is not legally correct – at least not without some basic reasoning as to why it had no other choice “in these circumstances”.

According to Article 24 (2) of the ICTR Statute, the Appeals Chamber has the power to “affirm, reverse or revise the decisions taken by the Trial Chambers.”[47]  Pursuant to Rule 118 (C) of the Rules, the Appeals Chamber may order that the accused be retried before the Trial Chamber “[i]n appropriate circumstances.”[48]

The Tribunal’s founding documents do not provide any further assistance in terms of what might constitute “appropriate circumstances” for the purposes of ordering a retrial, though Rule 118 (C) was relied upon by the Muvunyi Appeals Chamber in ordering him to be retried for direct and public incitement to commit genocide.  Muvunyi’s retrial was ordered on one specific count of the indictment against him, based on a speech he gave at the Gikore Trade Centre, and limited to that specific allegations.[49] In his retrial, Muvunyi was convicted and sentenced to 15 years imprisonment.[50]

By failing to order a re-trial for crimes against the Accused, the Appeals Chamber was apparently satisfied in limiting its judgement to a discussion of a technical nature and the conduct of the Trial Chamber. It was not concerned with effective prosecution of a person alleged to have committed the gravest of crimes.  The Accused, Protias Zigiranyirazo, was a native of Giciye commune, Gisenyi Préfecture, Rwanda. He was the brother-in-law of the late former President of Rwanda, Juvenal Habyarimana. Zigiranyirazo became a Member of Parliament in 1969. In 1973, he was appointed Préfet of Kibuye and then served as Préfet of Ruhengeri from 1974 until 1989. After his resignation, he studied in Canada and returned to Rwanda in 1993 to work as a businessman.

The Trial Chamber convicted Zigiranyirazo for committing genocide (Count 2) and extermination as a crime against humanity (Count 4) by participating in a joint criminal enterprise to kill Tutsis at Kesho Hill in Gisenyi Préfecture on 8 April 1994, where assailants attacked and killed between 800 and 1,500 Tutsi refugees.[51] In addition, it convicted him pursuant to Article 6 (1) of the Statute for aiding and abetting genocide (Count 2) at the Kiyovu Roadblock in Kigali, where between 10 and 20 persons were killed.[52]  At first instance, Zigiranyirazo was sentenced to a total effective term of imprisonment of 20 years.[53]

It is also significant that the Zigiranyirazo Appeals Chamber judgement was unanimous, with no dissenting opinion. The Appeals Chamber did not distinguish the Zigiranyirazo judgement from Muvunyi, both being Appeals Chamber judgement. Significantly, the Appeals Chamber did not provide a reasoned opinion. The Zigiranyirazo Appeals Chamber judgement provides additional challenges in evaluating the normative effects of ICTR jurisprudence on national and other international tribunals or courts.


Having observed some of the limitations and challenges of the ICTR jurisprudence, it is noteworthy that within the past fifteen years, the ICTR has delivered some ground breaking judgements which have had some noticeable impact. This preliminary conclusion is premised on the fact that there are national jurisdictions which have favourably referred to ICTR jurisprudence in their respective courts

It is also relevant to note that the Roundtable on Cooperation between the International Criminal Tribunal and National Prosecuting Authorities was held on 26-28 November 2008, at Arusha, Tanzania.[54] One of the papers presented was “The Challenges of National Prosecutions for International Crimes” by Joseph Rikhof of Canada. The other panellists were Judge Phillip Meire of Belgium and John Lucas of the Netherlands. The discussion focused on the use of ICTR jurisprudence in the prosecution of international crimes before national courts.[55]  Other issues discussed included cooperation between the ICTR office of the Prosecutor (OTP) and National Prosecuting Authorities, the sharing of information, jurisprudence and witness protection.

In the last five years in particular, the ICTR has extended assistance to many States in respect of, among others, witness statements, access to OTP database and updated ICTR jurisprudence. These States include Rwanda, Finland, Sweden, Norway, the Netherlands, the United Kingdom, Belgium, Canada, New Zealand, France and the United States. The staffs of the National Prosecuting Authorities regularly visit the offices of the ICTR Prosecutor at Arusha and Kigali in the course of their work through State cooperation with the Rwanda Tribunal as stipulated in Article 28 of the ICTR Statute.

Belgium, the first foreign country to prosecute Rwandan citizens accused of genocide received support from the OTP and also extensively referred to ICTR jurisprudence in the course of trials. Since 2001, eight Rwandan citizens have been prosecuted by the Assize Court of Brussels (Cour d’assise) which is composed of professional judges and a jury.  In all the trials, the Belgian prosecutors cooperated very closely with the ICTR-OTP in the conduct of investigations in Rwanda including use of the OTP database on rape and other sexual violence.

The judgements delivered by the Belgian courts, following the civil law tradition, are brief and unanimous, unlike the common law tradition which are generally lengthy and sometimes include dissenting opinion. The accused Rwanda citizens were prosecuted  under the Belgian law on universal jurisdiction : “Loi belge de competence  universelle du 16 juin 1993 relative aux infractions graves aux Conventions de Geneve du 12 aout 1949 et aux Protocoles additionnels du 8 juin 1977”  The above Act concerns Grave Breaches  of International Humanitarian Law.

When the first trial started in May 2001, the Belgian law did not proscribe the crime of genocide but the crimes punishable under the Geneva Convention of 16 June 1993 and Additional Protocols of 8 June 1977. The law was amended in 1999 with the addition of genocide and crimes against humanity to the list of international crimes that Belgium national courts have jurisdiction over.

 The first four Rwandans prosecuted in Belgium were charged with the crimes of murder and assassination under Belgian and Rwandan penal codes and of war crimes (Common Article 3 of the 1949 Geneva Conventions and Article 4(2) (a) of Additional Protocol II of 1977).

The Rwandans prosecuted in Belgium are: Higaniro Alphonse, a former Minister  in the Rwanda Government and Director of a big firm (SORWAL); Ntezimana Vincent,  a Professor at the National University of Rwanda; Consolata Mukangango, a nun in a Convent in Butare where Tutsi refugees were killed by Interahamwe; Julienne Mukabutera also a nun in the same Convent; Etienne Nzabonimana and Samuel Ndashikirwa  both were businessmen from Kibungo prefecture, Major Bernard Ntuyahaga, ex-FAR and Ephrem Nkezabera, a former Treasurer of  the Interahamwe.

The first trial started in 2001. It is commonly known as the “Butare Four”[56] because the four accused were from Butare perfecture. The accused were: Alphonse Higaniro, Vincent Ntezimana, Sister Julienne Mukabutera and Sister Consolata Mukangango.  On 8 June 2003, Alphonse Higaniro was sentenced to 20 years’ imprisonment, Vincent Ntezimana to 12 years’ imprisonment, Sister Consolata Mukangango to 15 years’ imprisonment and sister Julienne Mukabutera to 12 years imprisonment.

The second trial was in 2005. Two businessmen from Kibungo prefecture, Etienne Nzabonimana and Samuel Ndashyikirwa were prosecuted for crimes committed in Kibungo during the Genocide in 1994. They were tried under the same law of 1993 under universal jurisdiction. Etienne Nzabonimana was sentenced to 12 years’ imprisonment and Samuel Ndashyikirwa was sentenced to 10 years’ imprisonment.

The third trial was of former Major Bernard Ntuyahaga of FAR.  He was charged, prosecuted and convicted of murder of ten Belgian United Nations peacekeepers killed in Kigali in April 1994 and the murder of unknown number of Tutsi civilians killed in Kigali town during the genocide in 1994. The judgement was rendered on 5 July 2007 and the accused was sentenced to 20 years’ imprisonment.

The fourth trial was that of Ephrem Nkezabera, the former Treasurer of the Interahamwe. He was sentenced in 2009 to 30years’ imprisonment.  Because he was tried in absentia, the decision of the Assize Court of Brussels was reversed. A retrial is expected late this year 2010.

In all the four Belgian trials, the courts did not only rely on the ICTR jurisprudence, the Belgian Prosecutors and their Investigators also worked very closely with the office of the ICTR Prosecutor. The two Prosecution Offices collaborated in a number of ways, including the sharing of information and jurisprudence before and during the trials.

Canada is another State where its courts have cited, with approval, the ICTR jurisprudence in the course of its trials. In the case of Leon Mugesera v. Canada,[57] the Supreme Court of Canada made favourable references to the jurisprudence of the ICTR.  It, for example, noted at paragraph 126 that:  “Though the decisions of the ICTY and ICTR are not binding upon this Court, the expertise of these Tribunals and the authority in respect of customary international law which they are vested suggest that their findings should not be disregarded lightly by Canadian courts applying domestic legislation, such as sections 7(3.76) 7(3.77) of the Criminal Code which expressly incorporates customary international law.”  After this observation, the court further referred to the relevance of the jurisprudence of the ICTR and thereafter proceeded to cite, with approval, the relevant paragraphs in the cases of Akayesu,[58] Rutaganda,[59] Nahimana et al (Media case),[60]  Ruggiu,[61] and Kayishem.[62]

Further still, in the case of Desire Munyaneza, the Canadian Court referred favourably to the ICTR jurisprudence.  At paragraph 80 it observed that “The genocide that occurred in Rwanda between April 6 and mid-July 1994 is public knowledge.” A fact that was judicially noticed in the Karemera et al.[63] The Canadian court at paragraph 84 noted and adopted the ICTR and ICTY’s definition of serious bodily or mental harm. There are several other references where the Canadian court cited, with approval, the ICTR jurisprudence.[64] In preparation of the cases, and during trials, the Canadian prosecutors continued to share information with the OTP and consult its database.

In the United Kingdom, the ICTR jurisprudence was also cited, with approval, in the case of Brown, Mubyaneza, Nteziryayo, and Ugirashebuja v The Government of Rwanda and the Secretary of State for the Home Department (hereafter ‘Brown Judgement’).[65]  At paragraph 11, the UK court opined: “The Trial Chamber of the International Criminal Tribunal for Rwanda […] has an important place in the arguments before us, and we will explain its provenance and jurisdiction below […] as found in its trial judgment in the case of Akayesu ” The court made further positive references to the jurisprudence of the ICTR in the cases of Munyakazi,[66] Kanyarukiga,[67] Hategikimana,[68] Gatete,[69] Kayishema,[70] and Ruggiu.[71]  The UK prosecutors visited Arusha and Kigali for consultations with the OTP and shared information and jurisprudence.

Based on the practice of these States, it is reasonable to make a provisional conclusion that the normative impact or effects of the ICTR jurisprudence, fifteen years after the establishment of the Rwanda Tribunal, is positive. This impact is expected to increase as more States prosecute perpetrators of international crimes.


The Gacumbitsi and Muhimana Appeals Chamber judgements are just some of the cases that tend to suggest that the prosecution of perpetrators charged with committing genocide has become increasingly technical. The Trial and Appeals Chambers, proportionately spend more time on issues related to defects in indictment than the narratives on whom, when and how the 1994 genocide in Rwanda was planned and efficiently executed in 100 days, killing nearly a million persons. Further the Zigiranyirazo Appeals Chamber judgement suggests that where a Trial Chamber has made a grave error, a re-trial which would guarantee that the correct legal principle is applied, respecting all fair rights trial for the Accused, is not necessarily the way to go. Has the Completion Strategy got anything to do with the Zigiranyirazo Appeals Chamber judgement?

The jurisprudence of the ICTR, notwithstanding the complexities of the reasoning process in reaching decisions and judgements in specific cases, demonstrates positive development of international humanitarian law. There is, however, always room for improvement. Thus, the interpretation and elaboration of the concept of ‘committed’ stipulated in Article 6(1) of the ICTR Statute by the Appeals Chamber was a bold, radical and progressive move notwithstanding the sole Partially Dissenting Opinion of Judge Güney. The dissent by Judge Güney provides legal practitioners and scholars with opportunity to further reflect on the status of the law and look for further openings for improving the law.  The unanimous decision of the Appeals Chamber in Zigiranyirazo should provide an opportunity to reflect on circumstances under which a higher court may order a re-trial. Such precedents should therefore be used with caution by National Prosecuting Authorities since the elements of uncertainty remains.

Similarly, allegations of defects in indictments and whether such defects have been cured by post-indictment communications continue to be a live issue before the Trial and Appeals Chambers. While the majority view in the Muhimana appeals Chamber judgement, may appear to be a very strict application of the law, Judge Schomburg’s dissenting opinion is cautious and provides room for further reflection. The majority view, on the other hand, may be understood in the sense that when an accused is charged with serious crimes such as genocide, it is imperative on the Prosecutor to comply strictly with the law and rules on the drafting of indictment. Holding the Prosecutor to a higher standard gives credence to the notion of fair trials and guarantees the rights of the accused.

The importance, relevance and impact of the ICTR jurisprudence on international criminal law cannot be overstated. Currently, many institutions of higher learning throughout the world offer courses on international criminal and humanitarian law to their students. The ICTR jurisprudence is one of the primary sources of material used for teaching at these institutions. These students are the next generation of international judges, judicial support officials, prosecutors and defence lawyers who will continue to interpret and elaborate on this jurisprudence. Some of these students are future judges and judicial officials in their respective national courts, leaders in governments, Non-Governmental Organizations and teachers of international humanitarian law.

In conclusion, it is noted that it may take many years to develop lasting jurisprudence. Fifteen years is a very short period in the development of legal philosophy. However, there is a great potential for the positive development of international humanitarian law based on, among other sources, the ICTR jurisprudence. Thus, while the signs are positive, this assessment is provisional. It is future judges, prosecutors, defence lawyers and scholars who will be in a better position to evaluate the normative effects of the ICTR jurisprudence and determine whether it can stand the test of time.

*Chief of Appeals and Legal Advisory Division, Office of the Prosecutor, International Criminal Tribunal for Rwanda. Advocate of Uganda’s Courts of Judicature; LLD (Stockholm University), LLM (Stockholm University), LLB (Hons) (Makerere University), Post Graduate Diploma in Legal Practice (Law Development Centre). The views expressed herein are personal.

[1] Jean Paul Akayesu v Prosecutor, Case No. ICTR-96-4-A.

[2] All decisions and judgements of the ICTR Trial and Appeals Chamber are available on the ICTR website: ; See also  Human Rights Watch, Genocide, War Crimes and Crimes Against Humanity: A Digest of the Case Law of the International Criminal Tribunal for Rwanda, (2010).

[3] See infra, Part III of the paper.

[4] I recognize that the ICTR jurisprudence is only persuasive and not binding on national courts. Thus, even if the decisions of the ICTR were unanimous, national courts will still have to reflect carefully on the decisions or judgements of the ICTR, on a case-by-case basis, before applying them. This requirement, to a certain extent, is a further limitation on the application of the ICTR jurisprudence by national courts and other international criminal courts or tribunals.

[5] However, in a case of acquittal, the Prosecutor has only one year within which to apply for a review. If, after one year of the final judgement of the Appeals Chamber the Prosecutor does not apply for a review, the Appeals Chamber judgement may be considered final. Thus, under these circumstances, some ‘finality’ of judgements is definite. See Rule 120(A) on Request for Review.

[6] This is a contentious issue. The judges of the ICTR have on every opportunity stated that they will not be bound by the Completion Strategy in discharging their judicial functions. Yet, there are perceptions, from the Prosecution, Defence, Human Rights organisations, etc, that because of the short time left between now and the closure of the ICTR; with a large caseload and increasingly fewer staffs in Chambers, the rush to conclude trials within the given time-span will affect the quality of judgements which are delivered under the circumstances.

[7] One interesting and persuasive partially dissenting opinion which I will not examine, for reason of space, is that of Judge Mohamed Shahabuddeen in Nahimana, Barayagwiza & Ngeze v Prosecutor, Case No. ICTR-99-52-A, (the Media case), at pp.350-373.

[8] Article 6(1) of the ICTR Statute provides: “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute, shall be individually responsible for the crime.”

[9] Article 6(3) of the ICTR Statute provides: “The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”

[10] See ICTY Statute, Article 2 (Grave breaches of the Geneva Conventions of 1949), Article 4 (Genocide), and Article 5 (Crimes against humanity).  Article 3 (Violations of the laws or customs of war) speaks of the prosecution of “persons violating the laws or customs of war”, but the concept of “committing” such violations obviously applies through Article 7.

[11] Prosecutor v. Tadic, Case No. IT-94-1-A, Judgement, 15 July 1999 (AC), paragraph 188.

[12] The Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-A, Judgment (Reasons), 1 June 2001 (AC), paragraph 187.

[13] See, for example, Prosecutor v. Kunarac et al., Case No. IT-96-23-T & IT-96-23/1-T, Judgement, 22 February 2001 (TC), paragraph 390; The Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgement and Sentence, 15 May 2003, paragraph 383.

[14] Id, Semanza, at paragraph 383.

[15] See Kunarac, supra, note 13, at paragraph 390.

[16] The Prosecutor v. Ntakirutimana and Ntakirutimana, Cases Nos. ICTR-96-10-A and ICTR-96-17-A, Judgement, 13 December 2004 (AC), paragraphs 490-492.

[17] Id, Ntakirutimana, paragraphs 493-509.

[18] Gacumbitsi v. The Prosecutor, Case No. ICTR-2001-64-A, Judgement, 7 July 2006 (AC), paragraph 59.

[19] Id, Gacumbitsi, paragraphs 46-50.

[20] Id, Gacumbitsi, paragraphs 51-58.

[21] Id.

[22] Id, Gacumbitsi, paragraph 59.

[23] Id, Gacumbitsi, paragraphs 59-61.  In his dissent, Judge Güney was not prepared to accept what he perceived to be a departure from the established jurisprudence of the Tribunals and an expansion of the meaning of “committed” in Article 6 (1).  He likened this expansion to the theory of co-perpetration that the Appeals Chamber had rejected in Stakic (i.e., The Prosecutor v. Stakic, Case No. IT-97-24-A, Judgement, 22 March 2006 (AC).  In his view, the actions of the appellant could have been examined through the lens of joint criminal enterprise, the problem being that this form of liability had not been properly pleaded: see the Partially Dissenting Opinion of Judge Güney, paragraphs 2-9.

[24] For the most recent discussion of such issues by the ICTR Appeals Chamber, see Gacumbitsi, at paragraphs 49-50 of the Appeal Judgement.  In Ntakirutimana, paragraph 521, the Appeals Chamber held that a precise identification of “certain named or described persons” was not an element of the crime of extermination; it is sufficient to establish that mass killing occurred.  This approach should affect the level of specificity of pleading.  However, where the allegation is that the accused committed genocide, as was the case in Gacumbitsi, the majority of the Appeals Chamber appears to be of the view that failure to identify a specific victim, whose identity is in fact known, leads to a defect in the indictment.  Recognizing that the focus of the crime of genocide is not on the individual, but on the targeted group, Judge Schomburg dissented forcefully on this point: see, in Gacumbitsi, the Separate Opinion of Judge Schomburg on the Criminal Responsibility of the Appellant for Committing Genocide, paragraph 9.

[25] Obote Odora, A,  “Drafting of Indictment for the International Criminal Tribunal for Rwanda” Criminal Law Forum 12: 335-358 (2001).

[26] The ICTR Statute and the Rules of Procedure and Evidence is available on the ICTR website:

[27] Ntakirutimana v Prosecutor, Case No. Ictr-96-10-A, para.25.

[28] Id, Ntakirutimana Appeals Chamber Judgement, at para.27.

[29] Id, Muhimana v Prosecutor, Case No. ICTR-95-1B-A.

[30] Niyitegeka v Prosecutor, Case No. ICTR-96-14-A, Appeals Chamber, para.190.

[31] Id, Niyitegeka Appeals Chamber, para 200.

[32] Muhimana v Prosecutor, Case. No. ICTR-95-1B-A, Appeals Chamber Judgement, para.217.

[33] Id, Muhimana Appeals Chamber Judgement, para.224.

[34] Arguably, on the basis of this observation, there is a risk in accepting the evidence of such witnesses. Trial Chamber judges must therefore caution themselves accordingly, hence the importance of Appeals Chamber judges giving deference to findings of Trial Chamber judges on matters of credibility and reliability of witnesses because they had the advantage of assessing the demeanour of these witnesses in the course of trial.

[35] While this observation  may open the argument that the majority may have been right and the dissenting opinion wrong, and that the witnesses may have high potential to accuse the wrong person, what I seek to emphasise is that the Trial Chamber judges who watched the witness as s/he testified and was cross-examined, assessed the demeanour of the witness, is in a better position to evaluate the witness than the Appeals Chamber judgements who did not and yet reversed the findings of the Trial Chamber while the dissenting Judge gave deference to the Trial Chamber.

[36] Niyitegeka Appeals Chamber, para.98.

[37] Id.

[38] Muvunyi v Prosecutor, Case No. ICTR-00-55A-A, para.128.

[39] Prosecutor v Krajisnik, Case No.IT-00-39-A, para.146.

[40] Muhimana v Prosecutor (supra, note 29) Appeals Chamber Judgement. Partly dissenting opinion of Judge Schomburg on the interpretation of the right to be informed, para.7-8.

[41] Id, Judge Schomburg partially dissenting opinion, para.12-16.

[42] Id., para.14-15.

[43] Id, para.14-16.

[44] See also Mugwanya, G.W, “Recent Trends in International Criminal Law: Perspectives from the U.N. International Criminal Tribunal for Rwanda” Northwestern University Journal of International Human Rights, Spring 2008, Vol.6, Issue 3, p.451.

[45] Id, p.451.

[46] Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Judgement, 16 November 2009 (“Appeal Judgement”); Prosecutor v. Protais Zigiranyirazo, Case No. ICTR-01-73-T, Judgement, 18 December 2008 (“Trial Judgement”).

[47] Statute of the Tribunal, Article 24 (2).

[48] Rules of Procedure and Evidence, Rule 118 (C).

[49] Muvunyi Appeal Judgement, para. 171.  Muvunyi’s other grounds of appeal (1-7; 9-11; and 13) were also granted and his convictions reversed for: genocide (Count 1), direct and public incitement to commit genocide (Count 3) (based on a speech he gave at Gikonko in Mugusa commune), and other inhumane acts as a crime against humanity (Count 5).

[50] Prosecutor v Tharcisse Muvunyi, Case No. ICTR-00-55A-T.

[51] Id, paras. 330, 410, 427, 436, 439, 447.

[52] Id, paras. 251, 426, 427, 447.

[53] Id, paras. 468-472.

[54] See ICTR website: and click Events. All papers presented at the Forum and list of participants are available.

[55] Id.

[56] See also Reydams, L, “Belgium’s First Application of Universal Jurisdiction: the Butare Four Case” Journal of International Criminal Justice I (2003), 428-436.

[57] Leon Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40

[58] Prosecutor v Akayesu, Case No. ICTR-96-4, TC, at paras. 84, 133,134, 140, 143, 155

[59] Prosecutor v Rutaganda, Case No. ICTR-96-3, TC, at para 135

[60] Prosecutor v Nahimana et al, Case No. ICTR-96-11, TC at paras 144, 146 and 147.

[61] Prosecutor v Ruggiu, Case No. ICTR-97-32, TC,  at para, 147, 173

[62] Prosecutor v Kayishema, Case No. ICTR-95-I, TC, at para. 154, 155, 156.

[63] Desire Munyaneza, v Her Majesty The Queen, 2009 QCCS 2201; No. 500-73-002500-052.

[64] See, Prosecutor v Akayesu, Case No. ICTR-96-4, footnote, 6, 11, 12, 33, 36, 37, 40, 41, 42; Prosecutor v Kajelijeli, Case No. ICTR-98-44, footnote 7; Prosecutor v Semanza, Case No. ICTR-97-20, footnote, 14, 15, 21, 31, 35, 39, 44; Prosecutor v Bagilishema, Case No. ICTR-95-I, footnote, 18; Prosecutor v Nyitigeka, Case No. ICTR-96-14, footnote. 27; Prosecutor v Karemera et al, Case No. ICTR-97-24, footnote, 25, 32; and, Prosecutor v Rutaganda, Case No. ICTR-96-3, footnote, 47.

[65] Case No.CO/8862/2008,[EWHC 770 (Admin) (8 April 2009); see also Mark A. Drumbl, “Prosecution of Genocide v. the Fair Trial Principle – Comments on Brown and Others v The Government of Rwanda and the UK Secretary of State for Home Department” Journal of International Criminal Justice (2010) pp.1-21.

[66] Prosecutor v Munyakazi, Case No. ICTR-97-36, at paras: 13, 14, 38, 42

[67]Prosecutor v Kanyarukiga, Case No. ICTR-02-78, at para. 43.

[68]Prosecutor v Hategekimana, Case No. ICTR-00-55, at para.44.

[69] Prosecutor v Gatete, Case No.ICTR-00-61, at para.45.

[70] Prosecutor v Kayishema, Case No. ICTR-95-I, at para.46, 47, 49, 64, 69, 75, 77 to 80, 154 and156.

[71] Prosecutor v Ruggiu, Case No. ICTR-97-32, TC, at para.173.

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