Annual Meeting of EAC Chief Justices: 7th and 8th December, 2009 Nairobi – Kenya
An Overview of the work of International Criminal Tribunal for Rwanda
- Introduction
This short paper provides an overview of the work of the International Criminal Tribunal for Rwanda (ICTR). It identifies some of the law, Rules of Procedure and Evidence and the practice of the ICTR that may be beneficial to the courts of the member States of the East African Community. The examples are not exhaustive.
The ICTR was established in 1994 following the tragic events in Rwanda that year.[1] The sole purpose of the ICTR is the prosecution of persons responsible for genocide and other serious violations of International Humanitarian Law (IHL) committed in the territory of Rwanda and Rwanda citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994. Thus, the ICTR is not intended to prosecute all persons who committed genocide and IHL. The Prosecutor, exercising his discretion, based on agreed criteria, selected only a few persons considered most responsible for prosecution. Rwanda, through, among others, its courts and Gacaca proceedings, addressed the question of impunity gap by investigating and prosecuting those not indicted by the ICTR.
Secondly, the temporal jurisdiction of the ICTR is limited unlike that of Rwanda which has no limitation.[2] Therefore, unlike Rwanda courts, the ICTR prosecution is limited to crimes committed only in 1994. Thirdly, the ICTR enjoys primacy over the national courts of all States. Rwanda, and other national jurisdictions, on the other, enjoy concurrent jurisdiction with the ICTR.[3]
The ICTR, as indicated above, is mandated to prosecute only international crimes, namely: genocide, crimes against the humanity and war crimes.[4] Since its inception, the ICTR has completed the cases of 39 accused; with 8 acquittals; 9 are currently before the appeals Chamber; 12 are on trial before Trial Chambers; 15 are awaiting judgement; 2 are awaiting the commencement of trial and 11 accused are still at large. Further, 2 accused are transferred to France and 2 indictments were withdrawn.[5]
- An Overview of the work of ICTR
- The Structure of the ICTR:
The ICTR has three organs, namely, the Chamber, the Prosecutor and the Registry.[6] The relationships between the three organs are complex and very different from that of the executive, legislature and judiciary at the national level. First, the Chamber is the judicial organ of the Tribunal. The court of first instance is the Trial Chamber. It comprises permanent and ad litem judges elected by the General Assembly on the recommendation of member States of the United Nations. The President of the Tribunal is elected by the judges from among the permanent members.[7]
While in some respect the role of the President of the ICTR is similar to that of the Chief Justice in a national jurisdiction, there are major differences on the election and removal of the ICTR President from that of a Chief Justice in a national jurisdiction. For example, the President of the ICTR is elected by judges for a two-year period subject to re-election for one more term. Chief Justices from national jurisdictions on the other hand, once appointed continue to serve until retirement, resignation, or removal on the recommendation of a Tribunal appointed under the Statute for that specific purpose.
All Trial Chamber judges are based in Arusha. Each Trial Chamber comprises three judges. In other words, the Statute does not provide for a single judge to sit on any case. Other than this exception, the Trial Chamber conducts cases as a single judge would, in a national jurisdiction.
The Appeals Chamber is the appellate division of the Tribunal and is based at The Hague. However, the Appeals Chamber sits at Arusha when hearing cases from the ICTR or when delivering judgements. The same Appeals Chamber also sits as the court of appeal for the ICTY when disposing of cases from that Tribunal. Thus, while ICTR and ICTY share the same Appeals Chamber, in effect there are two Appeals Chambers: one for the ICTR and the other ICTY but with the same set of judges.
The Chambers’ support staffs are recruited by the Registrar who is the head of the Registry and a represents the UN Secretary General.
The Prosecutor, on the other hand, is appointed by the Security Council on the nomination of the Secretary General. The Prosecutor is appointed for a four-year period and is eligible for re-appointment. The members of staff of the Office of the Prosecutor are appointed by the Secretary General on the recommendation of the Prosecutor.[8] The Secretary General has delegated this responsibility to the Registrar who is his special representative at the ICTR.
The Registrar is appointed by the Secretary General after consultation with the President. The Registrar shall serve a four-year term subject to re-appointment.[9] The Registry is responsible for the administration and servicing of the Tribunal. The members of staff of the Registry are appointed by the Secretary General on the recommendation of the Registrar. Thus, the Registry .provides support services to both the Chamber and the Prosecution.
The three principals, namely, the President, the Prosecutor and the Registrar comprise the ICTR body known as Coordinating Council. Under the umbrella of the Coordinating Council, the three principals address management issues and other practical matters necessary for the efficient running of the Tribunal. The Council does not discuss judicial matters, prosecutorial discretion or the Prosecutor’s case theories.
The exclusion of Defence Counsel in the ICTR Statute as an organ of the Tribunal and its subsequent non- representation on the Coordinating Council is a subject of criticisms from Defence Counsel and some Human Rights Organizations.
- The judicial process:
The ICTR, as a judicial body, is unique in some interesting ways. First, under Article 14 of the Statute, the Judges are empowered to adopt, for the purpose of proceedings before the Tribunal, the Rules of Procedure and Evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters of the Tribunal with such changes as they deem fit. Based on this provision, the Judges creatively adopted rules by selecting the rules they considered to constitute best practices from civil and common law systems. The Rules Committee, chaired by a Judge includes representation from the OTP and the Defence. The OTP is represented on the Rules Committee by the Chief of Appeals and Legal Advisory Division (ALAD) and the Chief of Prosecution (CoP). The Defence elect one of the registered Defence Counsels with the ICTR to represent their interests.
Rwanda, however, has a civil law jurisdiction. But since 1994, Rwanda legal system has gradually moved towards a hybrid of civil and common law Rules of Procedure and Evidence, similar to that of the ICTR. Collaboration between the Rwandan Bar, its Judiciary and the ICTR in continuing legal education has facilitated a better understanding of the ‘hybrid’ legal process currently used at the ICTR and the Rwanda legal system.
Both the Prosecution and Defence have common and civil law lawyers on their respective teams. To demonstrate the usefulness of the ‘hybrid’ Rules adopted by the Judges, I will, for the purpose of illustration only, use one example, that is, Rule 89(C) of the Rules.
For a Common law lawyer, perhaps one of the most significant innovations was the adoption of Rule 89(C). It provides: “A Chamber may admit any relevant evidence which it deems to have probative value.” In one stroke, all the rules relating to hearsay evidence, in a common law jurisdiction, are swept away. Thus, any hearsay, whether from a third, fourth or whatever party or source, once considered relevant by a Trial Chamber, that material is admissible. It took sometime for common law lawyers to recognize that their continued objection to the admissibility of hearsay evidence was an exercise in futility.
Rule 89(C) makes sense only when examined and understood in the context of the role of an Investigating Judge and the conduct of trials in a civil law jurisdiction. Under civil law all material that the Prosecutor relies on in a case is provided to the judge long before the actual trial commences. Thus, if the witness testifies at his trial to a material fact that is different from that which he had made in his earlier statement, the judge may require the witness to explain the contradiction since the Judge has a copy of the original statement. In practice, Rule 89(C) puts a judge in a much better position to assess the reliability and credibility of a witness based on all available evidence.
- Beyond the ICTR:
The ICTR is scheduled to conclude all trials at first instance by 2010 and appeals by 2013. There will however, remain other activities that the Tribunal, in whatever form it will be permitted by the Security Council to exist, needs to address after its formal closer. For example, applications for the review of final judgements and reconsideration of decisions will continue to be filed by convicts and the Prosecutor will need to respond; motions for variation of witness protection orders etc shall continue to be filed by national prosecution authorities who will need these witnesses to testify in the cases they will be prosecuting in their respective national jurisdictions.
There is an on-going discussion on the form of residual mechanism the ICTR should adopt. Residual mechanism is intended to address these issues because courts once established, do not often close. The idea of a court winding down is therefore unique and rare. The ICTR is faced with the problem of closure. However, the fact that the ICTR is closing is not necessarily a bad thing. There are opportunities that the East African Community can benefit from. Rule 11 bis proceedings provide such opportunity.
Under Rule 11 bis of the Rules of Procedure and Evidence (the Rules), if an indictment is confirmed, whether or not the accused is in the custody of the Tribunal, the President may designate a Trial Chamber which shall determine whether the case should be referred to the authorities of the State: (i) in whose territory the crime was committed; or (ii) in which the accused was arrested; or having jurisdiction and being willing and adequately prepared to accept such a case, so that those authorities should forthwith refer the case to the appropriate court for trial within that State. In determining whether to refer the cases, the Trial Chamber shall satisfy itself that the accused will receive a fair trial in the courts of the State concerned and that the death penalty will not be imposed or carried out.
Rwanda is a country in whose territory the crime of genocide and other serious violations of IHL were committed. Having satisfied himself that Rwanda meets the requirements of Rule 11 bis, the Prosecutor applied, consecutively, for transfer of five cases to Rwanda. However, while the applications for the transfer of the cases to Rwanda were denied by the Trial and Appeals Chambers, because of these applications, Rwanda has significantly improved its judicial system.
In conducting law reforms for the purpose of complying with conditions stipulated under Rule 11 bis, Rwanda abolished the death penalty as punishment for international and national crimes; built new prisons and upgraded the facilities of existing ones to meet minimum international standards; adopted laws domesticating international crimes and minimum international standard for fair trials; established witness protection services and collaborated with the ICTR on capacity building issues through continuing legal educations for the lawyers and judicial officers. Currently Rwanda is the only country in the East African Community to have abolished the death penalty. The process of Rule 11 bis has therefore facilitated law reform in Rwanda and has had a positive impact on the Rwandan judiciary.
Currently, the ICTR and the ICTY are in discussion with the Security Council in an attempt to identify a place where the ICTR archives shall be deposited and preserved. A number of options are floated. There is a proposition that the archives be located in New York, The Hague or Nairobi. Some have suggested Addis Ababa, the headquarters of the African Union. On the other hand, Rwanda has offered to provide a place for the safe keeping of the archives.
Rwanda has a strong case. It is a fact that the material that comprise the archives relate to the 1994 genocide. And these crimes were committed in Rwanda, by Rwandans and against the Rwandan people. Rwanda is therefore, based on these grounds, the logical place for the safe keeping of these materials for posterity.
I do not know whether the East African community has taken a position on the question of archives. However, the debate currently being conducted by the Security Council Working Group on archives provides an opportunity for the East African Community to position itself as a place where the ICTR archives could be deposited and preserved. A common position for the keeping of archives in East Africa will greatly benefit the region. The ICTR jurisprudence – decisions and judgements – expert reports, trial transcripts, etc., are of invaluable benefits to judges, lawyers, academics, students, as well as victims and witnesses. In the final analysis, the primary beneficiary of the archives is the Rwandan people. It is only logical that any decision on archives ought to take into account the best interest of Rwanda.
At Arusha, there are both human and material resources. The closure of the Tribunal would make these resources available. Establishment of an Institute of International Humanitarian Law in East Africa, preferably at Arusha, would be a fitting tribute to the Rwanda victims of genocide. The members of staff of the ICTR who are citizens of East Africa are already available. Some of the current and former employees of the Tribunal who are citizens of East Africa may be available to offer their expertise in the filed of international criminal law and international humanitarian law.
The archives, which are the work product of the ICTR, are already in Arusha. In principle, there are no urgent or persuasive reasons that justify the removal of these materials from Arusha to another location. The court rooms at Arusha are the most modern. Similarly, the ICTR library at Arusha is excellent. Significantly, the youth, as future leaders of East Africa, will have easy access to these materials as they will not require visas to travel to Arusha to study these documents. Suggesting Arusha as the best place for keeping archives does not in any way undermine Rwanda’s right to offer herself as a place best suited to keep and preserve the archives. It is helpful to provide the Kigali, Nairobi and Arusha options to the Security Council for its consideration.
Based on the practice and precedent of the ICTR, it is possible for the East African Community to re-establish the East African Court of Appeal (EACA). The jurisdiction of the court could then be amended to include cases that involve indictments for international crimes. The EACA has a rich record of jurisprudence and practice. Some of the honourable judges in this room have been part of the EACA either as prosecutors, defences counsels or judicial officers. It would be helpful to appoint a committee of experts to examine and recommend the most suitable process for establishing a court with jurisdiction to hear cases on genocide and other serious violations if international humanitarian law.
- Domestication of ICTR jurisprudence
In the last fifteen years, the ICTR has significantly contributed to the development of international humanitarian law. The law on international crimes, and the Rules of Procedure and Evidence as applied in the prosecution of gender based crimes, particularly rape and other sexual violence is one area where the ICTR has developed very useful jurisprudence. The jurisprudence range from the definition of rape in Akayesu[10], to the protection of victims of rape who are also Prosecution witnesses in the trial of the accused as was demonstrated in Muhimana[11].
With respect to modes of responsibility, the ICTR has developed considerable jurisprudence on superior responsibility.[12] The Trial Chambers have convicted superiors or commanders for crimes committed by their subordinates in circumstances where the Prosecutor proved that the accused knew or had reason to know that the subordinate was about to commit crimes or had committed crimes. Similarly, the Prosecutor has obtained convictions where it was proved that the superior failed to prevent the commission of the crime by a subordinate, or failed to punish the subordinate after the crime was committed.
The Appeals Chamber has generally confirmed the Trial Chambers’ decisions and judgements on the application of this mode of responsibility. This jurisprudence is important and needs to be domesticated particularly when international crimes committed in the Great Lakes Region are captured better by this mode of liability.
I think it would be interesting if the Law Reform Commissions of the five member States of the East African Community pulled their resources and collectively review the ICTR jurisprudence. The exercise would assist in identifying aspects of the ICTR law and jurisprudence that could be domesticated. For example, the Akayesu definition of rape could be translated into a statutory provision and the Penal Codes of the five member States amended to reflect the letter and spirit of the judgement. Gradually, aspects of international crimes, Rules of Procedures and practice could be domesticated in the region. The State of California in the United States of America has already adopted the Akayesu definition of rape in its laws.
- Conclusion
In conclusion, I thank the organizers of this conference. It is a privilege for me to have been given an opportunity to participate. Thank you very much.
* Chief of Appeals and Legal Advisory Division (ALAD), Office of the Prosecutor (OTP), International Criminal Tribunal for Rwanda (ICTR).
[1] S/RES/955(1994) adopted by the Security Council at its 3454th meeting, on 8 November, 1994.
[2] Article 7 of the Statute.
[3] Article 8 of the Statute.
[4] See Articles 2 (genocide); Article 3 (Crimes Against Humanity; and Article 4 (Violations of Article 3 to the Geneva Conventions and Additional Protocol II.
[5] Detailed information including names of the accused is found at http://www.ictr.org/ENGLISH/cases/status.htm
[6] Article 10 of the Statute.
[7] Article 13 of the Statute.
[8] Article 15 of the Statute.
[9] Article 16 of the Statute.
[10] Prosecutor v Jean Paul Akayesu (ICTR-96-4-A)
[11] Prosecutor v Mikael Muhimana (ICTR-95-1B-A)
[12] Article 6(3) of the ICTR 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 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 measures to prevent such acts or to punish the perpetrators thereof.:
