[1] See Report of the Secretary General of the United Nations, UN Doc.A/50/1, (1995)
[2] Article 28 of the Statute of the ICTR annexed to SC Res 955(1995)
[3] Id.Article 11
[4] Id.Article 12(2)
[5] Id.Article 1
[6] Id.Article 15
[7] Id. Article 15(3)
[8] Id. Article 15(3)
[9] For further discussion on this point, see, Theodor Meron, "International Criminalization of Internal Atrocities" 8
[9] AJIL (1995) 554-577
[10] While at the time it was easy to conclude that the war was over - a decision based on the defeat of the Habyrimana government -, in retrospect, one wonders whether it was correct for the Security Council to conclude that the war had indeed ended, when armed conflict between the parties, and violation of the laws of war, continued long after the war had formally "ended".
[11] Supra Report of the Secretary General, UN.Doc.A/50/1, at 115(1995)
[12] The Report of the Secretary General, UN Doc.S/25704 (1993) was prepared in response to paragraph 2 of the Security Council Resolution 808(1993). The Secretary General explained article by article the issues involved and the reasoning for the text proposed.
[13] See Rapporteurs (Corell-Turk- Thune), The Proposal for an International War Crimes Tribunal for the Former Yugoslavia, a report submitted by Sweden on behalf of the Chairman-in-charge of the participating states in the Conference on Security and Co-operation in Europe (CSCA) under the Moscow Human Dimension Mechanism to Bosnia-Herzegovina and Croatia, 9 February 1993.
[14] See Roy S Lee "The Rwanda Tribunal" Leiden Journal of International Law 9: 37-61 (1996) at p.39
[15] For example, see Universal Declaration of Human Rights, U.N.Doc.A/80(1948) Article 11(2); International Covenant on Civil and Political Rights, article 15(1), U.N.Doc.A/6316 (1966) 999 U.N.T.S. 172,177.6 I.L.M.368,373. Francis Allen, "The Erosion of Legality in American Criminal Justice: Some latter-day Adventures of the Nulla Poena Principle" 29 Arizona Law Review (1987) 385; M.Cherif Bassiouni & Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia Transnational Publishers, Inc. New York (1996) pp.281-291.
[16] Id. M.Cherif Bassiouni & Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia, p.298
[17] Commenting specifically on the competence of the ICTY, Morris and Scharf states: "The term serious violations could also be interpreted as a qualitative limitation on the competence of the International Tribunal to address only 'the most serious war crimes, those committed on a mass and systematic scale, causing particular revulsion and calling for an international response'" see Virgina Morris & Michael P. Scharf, An Insider's Guide To The International Criminal Tribunal For The Former Yugoslavia (1994) p.59-60
[18] Note that the interpretation that "serious" limits the jurisdiction to commanders and leaders is less sustainable. It requires a complex interpretation and a tortured reading of the plain meaning of the Article's language. Nothing in the Report of the Secretary General support this interpretation. Had the Council intended such a result, they would likely have followed the Charter of the International Military Tribunal in restricting its jurisdiction to "major" criminals. See Article 6 of the IMT Charter limited jurisdiction of the IMT to "the trial and punishment of the major war criminals of the European Axis" Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (London Agreement), 8 August 1945, 82 U.N.T.S. 279,282
[19] Annex to the Report of the Secretary General; UN Doc. S/25704 of 3 May 1993; approved by Security Council resolution 827, adopted on 25 May 1993
[20] For background information see Gerard Prunier, The Rwanda Crisis 1959-1994 C Hurst, London (1995); R.Lemarchand Rwanda and Burundi, Pall Mall Press, London (1970); Jacques J Maquet, The Premise of Inequality in Rwanda Oxford University Press (1961)
[21] Versi Anver, "Rwanda's Killing Field" New Africa, June 1994; Francois Misser, "Who Killed the Presidents?" New Africa June 1994; Chris Atim, "Why Rwanda?" West Africa 27 June-3 July 1994; Keesing's Record of World Events, (1994-1995) Fergal Keane, Season of Blood: A Rwandan Journey, Viking (1995).
[22] Keesing's Record of World Events, 39 (1993):1 p.39257
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] A series of peace talks were held (see Keesing's Record of World Events, 39 (1993)) in the town of Kinihira on 10-30 May; another in June collapsing on 24 June; then in 16 July until the Peace Accord was signed in August 1993.
[29] Id. Keesing's Record of World Events 39(1993)
[30] Keesing's Record of World Events Vol.41, No.7/8 (1995) p.40634
[31] Id.
[32] Keesing's Record of World Events Vol.41 No.4 (1995) p.40486
[33] Id.
[34] Id.
[35] Keesing's Record of World Events Vol.41 No.5 (1995) p.40534
[36] Id.
[37] Id. Vol. 41 No.6 (1995) p.40583
[38] Id.
[39] Pierre Sob, "The Dynamics of the ICTR: Perspective on Achieving Effective Human Rights Protection" Nordic Journal of International Law 67(1998)139-163, at 147
[40] Id. Vol 41 No.9 (1995) p.40713
[41] Id.
[42] Vol. 41 No.11 (1995) at p.40811
[43] Vol.42 No.2 (1996) at p.40941
[44] Vol.43 No.6 (1997) at p.41669
[45] Id.
[46] Vol.43 No.12 (1997) at p.41947
[47] Id.
[48] Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 U.N.T.S. 277, 280
[49] See Reservation to the Convention on Genocide Case (Advisory Opinion) 1951 ICJ Reports 15
[50] The Prosecutor versus Jean Kambanda Case no. ICTR 97-23-S. The presence or absence of objective, tangible evidence of intent may be inferred from circumstantial evidence, such as particular objective patterns of conduct and pamphlets and media reports inciting the people against a particular group or labelling that group an enemy of the state. The veracity of these evidence can then be tested through rigorous cross-examination. A guilty plea cannot produce these safeguards. See also Barry M Schiller, "Life in a Symbolic Universe:Comments on the Genocide Convention and International Law" 9 Southwestern University Law Review 47 (1977) 9
[51] However, Article 2 of the ICTR Statute must be interpreted broadly in view of the evolution of general principles of law and opinion juris since 1945. Current international criminal law suggests that : (a) Policy makers and others at any level of decision making must have the requisite specific intent to "destroy in whole or in part" the protected group by means described in the Article; and (b) those who execute the policy must intend to commit the acts enumerated in the Article, and also have intent, knowledge, or reasonable belief that they are acting in furtherance of the policy to "destroy in whole or in part the protected group." See Regina v. Finta [1994]1 SCR 701 (Can.)
[52] Charter of the International Military Tribunal at Nuremberg, 82 U.N.T.S 284(1951)
[53] Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo, Article 5(c), 19 January 1946, T.I.A.S. No.1589, 4 Bevans 20; Charter dated 19 Jan.1946
[54] See Principles of International Law Recognised in the Charter of the Nuremberg Tribunal and in the Judgement of the Tribunal: Report of the International Law Commission on the Work of its Second Session, U.N.Doc.A/1316(1950). The Report, however, has no binding legal authority in itself. The ILC report may, nevertheless, be viewed as evidence of customary international law
[55] UN Doc.S/RES/827(1993)
[56] See Report of the Secretary General, UN Doc.S/25074, para.48; and statement of the United States in the Security Council, UN Doc.S/PV.3217, at 11, 16, and 45 (1993). When the Yugoslav Statute was adopted, the United States, France and Russia expressed their understanding that Article 5 applied to widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.
[57] Reading the records of the debate in the Security Council, one can only conclude that the Security Council assumed the existence of widespread and systematic attack. See also Theodor Meron, "International Criminalization of Internal Atrocities" supra, p.5
[58] Supra, Theodor Meron, "International Criminalization of Internal Artocities" at 566
[59] The crime of "slavery and the slave trade in all their forms" originally contained in Article 4(2) was excluded. Presumably the Security Council considered such crimes to be irrelevant in the Rwanda situation.
[60] According to Theodor Meron, it is true that neither common Article 3 nor additional Protocol II says anything about penalties. However, those provisions of the Geneva Conventions whose violation constitute grave breaches also say nothing about penalties, and they incontestably establish a basis for the perpetrators' individual criminal responsibility, and even for universal jurisdiction. The Geneva Conventions define offences but leave it to the contracting states to determine penal sanctions. Persons prosecuted for violations of the Geneva Conventions cannot argue that they are being subjected to retroactive penal sanctions if the penalties do not exceed those previously established by their national states." (Emphasis added) See supra, Theodor Meron, "International Criminalization of Internal Atrocities" at 566
[61] The ILC's discussion on the principle of legality (nullum crimen sine lege) in the Draft Statute for an International Criminal Court (Article 39) is illuminating. With regard to crimes under general international law (Article 20(a)-(d) of the statute), Article 39 requires that accused not be held guilty unless the act or omission in question constituted a crime under international law at the time it was committed. See Report of the International Law Commission on the Work of its forty-sixth session, UN GAOR, 49th Sess., Supp.No.10, at 112-13, UN Doc.A/49/10 (1994). With regard to treaty crimes (Articles 20(e)), Article 39(b) requires that the treaty in question must be applicable to the conduct of the accused under the appropriate national law of the state party to the treaty. Ibid., at 113-14. Nowhere do these provisions suggest the prosecution before an international tribunal for crimes under a treaty that does not contain provisions on universal jurisdiction clashes with the prohibition of retroactive penal measures.
[62] Besides,those acts are also prohibited by the criminal law of Rwanda, albeit in different terms. See also, Theodor Meron "International Criminalization of Internal Atrocities", supra, at 566
[63] This scheme is much like the scheme proposed by the ILC in its draft statute for an international criminal court. See Report of the International Law Commission of its Forty-Sixth Session, 2 May - 22 July 1994, U.N. GAOR, 49th Sess.Supp.No.U.N.Doc.A/49/10
[64] There are essentially two reasons: (1) to allow national jurisdiction to function, if they are willing and capable of doing so because they would be better suited to do so, and that would minimise costs to the United Nations; and (2) to allow, eventually, national prosecutions to have a role in the context of national reconciliation between the ethnic communities.See Lawyers Committee for Human Rights, Prosecuting War Crimes in the Former Yugoslavia - The International Tribunal, National Courts and Concurrent Jurisdiction: A Guide To Applicable International Law, National Legislation and its Relation to International Human Rights Standards iv (May 1995). Though written for Former Yugoslavia, the material is relevant since the articles commented upon are identical.
[65] Id.
[66] Unlike the IMT, the Security Council did not intend the ICTR to exercise exclusive jurisdiction. Moreover, the IMT's authority was derived from a treaty between the victorious Allied Powers that exercised sovereignty over German territory after Germany's unconditional surrender. With respect to violations of international humanitarian law committed in Rwanda, national criminal courts can exercise concurrent jurisdiction unless the exceptions identified in the Statute are met.
[67] Supra, M.Cherif Bassiouni & Peter Manikas The Law of the International Criminal Tribunal for the Former Yugoslavia, at 319
[68] Id.
[69] Note, however, that non bis in idem under Fundamental Freedoms applies as between the member states. Furthermore, legal systems differ as to when jeopardy attaches. Constitutional and treaty provisions do not go into such specificity. It should be noted that some approaches to double jeopardy are limited to non-applicability of double punishment, but do not exclude repeated prosecutions. See M.Cherif Bassiouni, "Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions" 3 Duke Journal of Comparative & International Law (1993) at 288-89
[70] Vol.43 No.5 (1997) at p.41622
[71] Id.
[72] Id.
[73] Id.
[74] Vol.43 No.1(1997) at p.41431. The two were later executed.
[75]
Id.
[76] See Robert E.Conot, Justice At Nuremberg, First Caroll & Graf Publishers (1984) p.14