Competence of the International Criminal Tribunal for Rwanda

Author:	Alex Obote-Odora LLB (Makerere); LLM, LLD (Stockholm) Legal Advisor, International Criminal Tribunal for Rwanda
Subjects:	International humanitarian law (Other articles) International law (Other articles)
Issue:	Volume 6, Number 3 (September 1999)
Category:	Current Developments

Contents

• Introduction
• Ratione Personae, Ratione Materiae and Ratione Temporis Jurisdiction of the ICTR
• Criminal Provisions: Articles 2 through 4 of the ICTR Statute
• Genocide
• Crimes against Humanity
• Serious violations
• Non bis in idem
• Conclusion
• Notes

Links for this article

• ICTR http://www.ictr.org/
• UN Security Council Resolutions http://www.un.org/Docs/scres/
• ICTY http://www.un.org/icty
• Additional Protocol II, Geneva Conventions http://www.icrc.org/IHL.nsf/CONVFULL?openview
• UNOMUR http://www.un.org/Depts/DPKO/Missions/unomur.htm
• Convention on the Prevention & Punishment of the Crime of Genocide http://www.preventgenocide.org/law/gencon/english.htm
• Control Council Law No 10 http://www.law.wits.ac.za/humanrts/instree/ccno10.htm
• Lawyers Committee for Human Rights http://www.lchr.org/home.htm

Introduction

1. The International Criminal Tribunal for Rwanda (ICTR) was established by the United Nations Security Council by resolution 955 of 8 November 1994. After careful review of many official reports which indicated that systematic, widespread and flagrant violations of international humanitarian law had been committed in Rwanda, the Security Council concluded that the situation in Rwanda constituted a threat to international peace and security within the meaning of Chapter VII of the United Nations Charter.[1] Determined to put an end to such violations, and convinced that the prosecution of persons responsible would contribute to the process of national reconciliation, restoration and maintenance of peace and security in Rwanda, the Security Council, acting under the said Chapter VII, established the ICTR.

2. Resolution 955 charges all States with a duty to co-operate fully with the ICTR and its organs in accordance with its Statute and to take any measure necessary under their domestic law to implement the provisions of the Statute, including compliance with requests for assistance or orders issued by the ICTR.[2]

3. By resolution 978 of 27 February 1995, the Security Council urged States to arrest and detain, in accordance with their national law and relevant standard of international law, pending prosecution by the ICTR or by the appropriate national authorities, persons found within their territory against whom there is sufficient evidence that they were responsible for acts within the jurisdiction of the ICTR.

4. The ICTR is governed by its Statute, annexed to the Security Council Resolution 95[5] and by its Rules of Procedure and Evidence adopted by the Judges of the Tribunal on 5 July 1995 and as subsequently amended. The two Trial Chambers (now three chambers) and the Appeals Chamber of the ICTR are composed of eleven Judges in all, three sitting in each Trial Chamber and five in Appeals Chamber.[3] The Judges are elected by the United Nations General Assembly and represent, in accordance with Article 12(3)(c) of the Statute, the principal legal systems of the world. The Statute stipulates that the members of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) shall also serve as members of the Appeals Chamber for ICTR.[4]

5. Under the Statute, the ICTR has the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens for genocide and other such violations committed in the territory of neighbouring States, between 1 January and 31 December 1994.5

6. According to Articles 2 to 4 of the Statute relating to its ratione materiae jurisdiction, the ICTR has the power to prosecute persons who committed genocide as defined in Article 2 of the Statute, persons responsible for crimes against humanity as defined in Article 3 and persons responsible for serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 and of Additional Protocol II thereto of 8 June 1977, a crime defined in Article 4 of the Statute.

7. The Statute stipulates that the Prosecutor, who acts as a separate organ of the ICTR, is responsible for the investigation and prosecution of the perpetrators of such violations. Upon determining that a prima facie case exists to proceed against a suspect, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged. Thereafter, the Prosecutor shall transmit the indictment to a Trial Judge for review and, if need be, confirmation.[6] Under the Statute, the Prosecutor of the Tribunal of the ICTY also serves as the Prosecutor of the ICTR.[7] However, the two Tribunals maintain separate Offices of the Prosecutor and Deputy Prosecutors.[8] The Prosecutor of the ICTR is assisted by a team of investigators, trial attorneys and senior trial attorneys, who are based in Kigali, Rwanda. These officials travel to Arusha whenever they are expected to plead a case before the ICTR.

8. Given the non-international character of the conflict in Rwanda, the Security Council specified in Resolution 955 that the occurance of gross violations of international humanitarian law whether during internal or international conflicts would constitute a basis for criminal prosecution. Under the circumstances, the Security Council elected to use a wider approach concerning the choice of applicable law, in contrast with the International Criminal Tribunal for the former Yugoslavia (ICTY). In doing so, the Security Council incorporated within its jurisdiction ratio materiae, international instruments that were not considered to be part of customary international law. Article 4 of the Rwanda Statute includes violations of Additional Protocol II which are not universally recognized as part of customary international law and criminalises for the first time Article 3 common to the four 1949 Geneva Conventions.

9. Second, the jurisdiction of the ICTR is dependent on a person's individual conduct. Accordingly, a person's membership with a particular group or organization will not bring him or her within the jurisdiction of the ICTR. Individual criminal responsibility includes those who participated in the planning, preparation or execution of serious violations of international humanitarian law.

10. Third, the ICTR and national courts exercise parallel jurisdictions, but the ICTR has primacy over national courts. The rule of non bis in idem should safeguard individuals from being brought to trial in both courts for the same crime. If and when the ICTR assumes jurisdiction, it should then take into account that the individual has already been convicted in national court.

11. In examining the competence of the ICTR, I focus on the issues raised above. In part one, I examine Articles 1, 5 and 7. The articles constitute the statute's complete treatment of ratione materiae, including territorial jurisdiction (Articles 1 and 7), ratione personae (Articles 1 and 5), and ratione temporis (articles 1 and 7). In part three I examine the temporal and territorial jurisdiction of the ICTR, the non bis in idem rule and its impact on persons prosecuted by the Rwanda national court. I then submit that the competence of the ICTR falls short of the Council's intended objective of providing the ICTR with the means of promoting national reconciliation between the two ethnic groups while at the same time eradicating impunity.

12. It may be recalled that the objective of the Security Council in establishing the ICTR is premised on the ground that the prosecution of persons responsible for such violations would contribute to the process of national reconciliation and to the restoration and maintenance of peace and security among the Hutu and Tutsi ethnic communities in Rwanda. For these objectives to be achieved, the competence of the ICTR must encompass the time-frame of the armed conflict, and simultaneously, prosecute violations that occurred during the entire course of the war, and not merely some periods of the conflict. I will demonstrate that violations of international humanitarian law did not start on 1 January of 1994, and end on 31 December 1994, as suggested by Article 1 of the ICTR. On the contrary, violations of international humanitarian law commenced on or before I October 1990 when the armed conflict started. Serious violations of humanitarian law continued thereafter.

13. Before examining relevant provisions of the Rwanda and Yugoslavia Statutes, first, I make a general observation. Although the ICTR was modelled on the ICTY, important differences exist between the two tribunals. Moreover, the ICTR faces different issues. The focus of the ICTY is the prosecution of persons responsible for serious violations of international humanitarian law, and the Security Council treated the war in the territory of the former Yugoslavia as an on-going armed conflict.[9] The focus of the ICTY is therefore on war crimes and crimes against humanity. In the Rwanda case, the armed conflicts concerned were internal, and were formally over by the time the ICTR was established.[10] Acts of genocide are the main crimes for the ICTR. War crimes and other violations of international humanitarian law are only incidental.[11]

14. Second, although both tribunals were created pursuant to Chapter VII of the UN Charter, slightly different processes were followed. The ICTY was created in a two-stage process. First, the Security Council adopted Resolution 808(1993) and then, after studying the report of the Secretary General,[12] adopted Resolution 827(1993) establishing the tribunal. Major work in the adoption of the Yugoslavia Statute therefore came from the Secretary General and the staff of the Office of Legal Affairs.[13] In the Rwanda case, the Security Council created the ICTR and adopted its Statute in one step. Its draft resolution was prepared and negotiated by New Zealand and the United States, on behalf of the Security Council,using the ICTY as a model.[14]

15. The Rwanda Statute has no explanatory note, and its legislative history is confined to statements made by states at the Security Council meeting when it was adopted. The experience gained in establishing the ICTY was utilised to facilitate the work of the ICTR.

16. Temporal and territorial jurisdiction differs between the two tribunals. According to Article 1 of the ICTR Statute:

    "The International Tribunal for Rwanda shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and the Rwandan citizens responsible for such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, in accordance with the provisions of the present Statute"(Emphasis added).

17. It is important to note that Article 1 encompasses five elements. First, it establishes the criminal nature of the ICTR. Second, it provides for the ratione personae, namely, the criminal prosecution of individuals rather than organisations or other entities. Third, it provides for ratione materiae of the ICTR as "serious violations of international law" and refers to the Statute's substantive provisions (Articles 2 through 4) as providing applicable law. Fourth, it defines the territorial jurisdiction of the ICTR as being "the territory of Rwanda.....and the territory of neighbouring States" without further specificity. However, Article 7 clarifies this term as "including its [Rwanda's] land surface and airspace as well as the territory of neighbouring States".

18. The criminal nature of the ICTR reaffirms the need to adhere to the "principle of legality" in the prosecution and punishment of individual offenders. Principles of legality are reflected in the maxims nulla poena sine lege (no punishment without the law) and nullum crimen sine lege (no crime without law). Their purposes are to provide notice of the requirements of the law and the consequences of its violations. Thus, they protect individuals from abuse of power leading to loss of life, liberty, or property, and also protect against government inhibition of social, political and economic rights. Contemporary legal practice suggests that the principle of legality has been integrated in the concept of fundamental human rights in criminal justice.[15]

19. Article 1 modifies the applicable law by stating that only "serious" violations of international humanitarian law are within the subject matter jurisdiction of the ICTR. This modification is open to several differing interpretations. First, the term "serious" may describe the quality of the offences within the jurisdiction of the ICTR. Thus, it would exclude offences and other violations of international humanitarian law that are not "serious".[16]

20. The term "serious" in this context, may be viewed as a quality that is at least coextensive with applicable law found in Articles 2 through 4 of the Statute and may include other violations of international criminal law. Second, the term "serious" may have been intended to exclude violations of customary international law that were not specifically identified in the Statute, particularly norms of humanitarian law that usually apply in international conflicts only, but may also be construed as applying in non-international conflicts. Third, the Council may have intended "serious" to limit individual criminal responsibility to leaders and commanders, who, by virtue of their positions, may be said to have committed "serious" violations of international humanitarian law.[17]

21. As a legal matter, the term "serious" is at best ambiguous and at worst unhelpful and subjective. If "serious" is read as referring to offences that are widespread, systematic and committed pursuant to state policy, it merely restates the requirements already found in the Statute's Articles on crimes against humanity and genocide. Regardless of these problems, the term "serious" implies a limitation on the subject matter jurisdiction of the ICTR. However, the term does not limit the ICTR with regard to the substantive offences in the Statute. The violations of Articles 2 through 4 have the quality of being "serious" violations of international humanitarian law. Thus, "serious" and the applicable law should be viewed as coexistence.[18]

22. On the other hand, Article 1 of the ICTY, an earlier Statute, adopted by the Security Council on 25 May of 1993[19] provides that:

    "The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute."(Emphasis added)

23. The language adopted by the Council in the ICTY Statute is more appropriate. Although Article 1 does not specify the starting date of the ICTY's ratione temporis, Article 8 identifies 1 January 1991 as the date on which the Tribunal's jurisdiction begins. Thus, the ICTY cannot prosecute violations in the territory of former Yugoslavia prior to that date. The ICTY therefore, has the competence to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia from 1 January 1991 without limitation period thereafter. This is significant because Article 1 of the Yugoslavia Statute takes care of crimes that were planned or incited during the course of the war but were committed after the formal end of the war.

24. In the case of Rwanda, the planning or incitement of the crimes of genocide, for example, would exclude acts that were carried out prior to 1 January 1993, and crimes that were committed after 31 January 1994, even if the planning, conspiracy and incitement were carried out between 1 January and 31 December 1994. The limitation of the competence of the ICTR to prosecution of persons who committed serious violations of international humanitarian law between 1 January to 31 December 1994 is the subject of this paper.

    Ratione Personae, Ratione Materiae and Ratione Temporis Jurisdiction of the ICTR

25. Rwanda is a small and poor country in the Great Lakes region of Central Africa. During colonial rule, Rwanda was first governed by Germany, from 1897 to 1917, and then later, by Belgium, when the League of Nations mandated Belgium to administer Rwanda, until political independence.[20]

26. Conflict between the Hutu and Tutsi ethnic groups during the colonial period, and to the beginning of the armed conflicts in October of 1990, is extensively covered elsewhere.[21]

27. On 1 October 1990, an armed attack was launched from Uganda by the Rwanda Patriotic Army (RPA), the military wing of the Rwanda Patriotic Front (RPF). The defeat of the Rwanda government was prevented by the French military intervention in support of the government. A stalemate developed between the government and the RPF/RPA. Political negotiations followed and in 1992 a form of understanding was arrived at between the RPF/RPA and the government. But it was not until 9 January 1993 that a power-sharing agreement was signed at Arusha in Tanzania between government and rebel RPF/RPA delegates.[22] The National Republican Movement for Democracy and Development (MRNDD) chaired by President Habyrimana immediately rejected the agreement.[23]

28. On 10 February, RPF/RPA formally abandoned peace talks and launched a new offensive in violation of the cease-fire established in July 1992.[24]

29. In two days of war, the RPF/RPA doubled the territory under its control. The RPF/RPA success was of grave concern to the Habyrimana government which as a result, requested French military support. In response, a company of French troops arrived in Rwanda to reinforce the French troops stationed in the country since 1990. On 20 February, a further 250 French troops joined those already in Rwanda.[25]

30. The RPF/RPA leadership accused France of intervening, on the government side, in the internal conflict of Rwanda. However, the French Foreign Ministry insisted that the troops had been deployed solely to protect French nationals, thought to number about 400.[26] The Rwanda government accused RPF/RPA of getting military support from Uganda government. The Rwanda government raised the matter of Uganda's alleged involvement at the United Nations. On 22 June, the Security Council unanimously adopted resolution 846(1993) establishing the United Nations Observer Mission Uganda-Rwanda (UNOMUR). The purpose of the resolution was to monitor the Uganda-Rwanda border and verify that no military assistance was reaching RPF/RPA. The 100-strong mission was deployed on the Uganda side of the border for an initial six month.[27]

31. While the peace talk was going on, armed conflict continued simultaneously. However, a peace accord to end the rebellion launched in October 1990 by the RPF/RPA was, surpassingly, arrived at and signed on August 4, 1993 at Arusha in Tanzania despite continued armed conflict.[28]

32. On 5 January 1994 President Habyrimana was sworn in as President for a 22-month transitional period, with multi-party elections scheduled for October 1995. However, the ceremony was boycotted by the Republican Democratic Movement (RDM), Social Democratic Party (SDP) and the Christian Democratic Party(CDP). As a result of the boycott, President Habyrimana postponed the inauguration of the broad-based transitional government and National Assembly. On 11 January the RPF/RPA accused the President of violating the peace agreement and indicated that should he persist in doing so, the RPF/RPA would have "no alternative than that of resuming armed conflict."[29]

33. As political wrangling between the RPF/RPA and the government escalated, resulting in more delays in the implementation of the peace agreement, President Habyrimana was killed in a plane crush on 6 April 1994 before any of the transitional institutions provided for in the Arusha Peace Accord was put in place. The government blamed the RPF/RPA for the death of President Habyrimana. The RPF/RPA denied any responsibility. Instead, the RPF/RPA accused the Hutu extremists in the army for having killed President Habyrimana. With both parties blaming each other, armed conflict resumed, resulting in crimes that were committed during the period between 1 January and 31 December 1994.

34. In summary, there is conclusive evidence that armed conflict between rebel RPF/RPA and Rwanda government commenced on 1 October 1990 and not on 1 January 1994. There is also proof that both parties signed a cease-fire agreement on 9 January 1993 but resumed fighting on 10 February 1993. A second agreement was signed on 4 August 1993; but the agreement was again breached and armed conflict resumed on 6 April 1994 leading to the final defeat of the Rwanda government. It is submitted that the armed conflict in Rwanda started on 1 October 1990. It is therefore reasonable to conclude that the proper date for the competence of the ICTR is 1 October 1990. The proper phrase in Article 1 of the Rwanda Statute, in my submission, should read: since 1 October 1990. Second, there is also evidence of foreign involvement in the internal affairs of Rwanda, particularly of France and Uganda. It therefore makes legal sense for the competence of the ICTR to encompass criminal prosecution of foreign nationals who were in breach of the laws of war during and after the armed conflict in Rwanda.

35. After 31 December 1994 armed conflict continued notwithstanding changes in legal status of the parties to armed conflict. Former rebels, the RPF/RPA became the government. The defeated government troops became rebels.

36. Since January 1995, the most common form of violation of international humanitarian law is death of detained suspects while in government custody. For example, there are many instances of severe overcrowding in Rwanda's Prison in which 47,000 people were being held. This overcrowding has resulted in exceptionally high death toll among inmates.[30] At Gitarama prison alone, designed for 400 inmates but holding over 7,000 detainees, approximately 1,000 people have died since September 1994.[31]

37. A second form of violation of international humanitarian law is the targetting of refugees and unarmed civilians. Between 5,000 and 10,000 refugees from Kibeho refugee camp near Gikongoro were killed on 22 April 1995 by the RPA.[32] While the actual numbers of refugees killed are disputed, relief workers operating in the area put the figure at 8,000 refugees.[33] However, on 24 April President Bizimungu said the government believed 300 people had been killed.[34]

38. After considerable pressure from the international community, the Rwanda government agreed for an independent international commission of inquiry to look into the Kibeho massacre. The Commission of Inquiry completed its work on 19 May 1995. The report concluded that the massacre was neither "a planned action by the Rwanda authorities to kill a certain group of people" nor was it "an accident that could not have been prevented."[35] The report established that:

    "unarmed refugees had been subjected to arbitrary deprivation of life and [to] serious bodily harm in violation of human rights by the Rwanda Patriotic Army and the armed members of the Interhamwe and other extremist militia sheltering in the camp."[36]

39. All parties were not satisfied with the report. Maj. Gen. Paul Kagame, the Vice-President and Minister of Defence accused the international community of fleeing the country at the height of the massacres and, on their return, of attaching greater importance to human rights violations by the new army than to punishing those responsible for the genocide in 1994.[37] Moderate Hutus allied to a predominantly Tutsi dominated government accused the government of deliberately killing Hutu civilians.[38]

40. Under the circumstances, the better alternative would have been to request the Prosecutor of the ICTR to investigate the massacre at Kibeho with a view to possible criminal prosecution. However, under Article 1 of the Statute, the Prosecutor has no such authority.

41. Pierre Sob's submission that

    "In broadening the territorial jurisdiction of the ICTR beyond the boundary of Rwanda, the Security Council had hoped to bring into jurisdiction the refugee camps in Zaire [Democratic Republic of the Congo] and other neighbouring states, where gross and systematic violations of humanitarian law are alleged to have occurred in connection with the conflict,"[39]

    is therefore inaccurate. Sob's submission is not supported by law and fact. In law, Article 1 of the Rwanda Statute limits prosecution to crimes committed between 1 January and 31 December 1994. On the facts, crimes committed in refugee camps in Zaire in particular, and gross and systematic violations of humanitarian law in other neighbouring countries, were committed, and continue to be committed, after 31 December 1994. The crimes do not fall within the jurisdiction of the ICTR. If the Security Council's intention is, as suggested by Sob, to cover offences committed after 31 December 1994 and thereby bring the perpetrators within the jurisdiction of the ICTR, then the wording of Article 1 should have been since 1 January 1994, or more appropriately, since 1 October 1990.

42. Counter-insurgency operation is another area where violation of international humanitarian law is extensively carried out. For example, more than 100 people were killed on 11 September 1995 in a single incident in Kanama, a village near the Congolese border. The victims were Hutu civilians, killed in a revenge attack by RPA soldiers who had gone on rampage after Interahamwe members ambushed an army unit.[40]

43. On 13 September, Maj. Gen. Kagame, after visiting the site of the massacre said: "some elements in the RPA had overreacted."[41] This explanation is unsatisfactory. The better alternative is for the Prosecutor of the ICTR to conduct an independent and impartial investigation. However, as stated before, the Prosecutor has no such mandate.

44. In another revenge attack, the RPA launched an assault on an Island in Lake Kivu on November 5-6 when, according to Rwanda Defence Ministry, more than 141 "rebels" were killed. Relief workers put the figure much higher.[42]

45. In 1996, the French newspaper Libération of February 27 reported that more than 100,000 Hutus had been killed by the RPA since April 1994. The paper reported that Tutsi soldiers had gone on rampage, killing those they had held responsible for the genocide in April-July 1994.[43] In a separate document, the officials of the United Nations Department of Humanitarian Affairs on 3 June 1997 expressed concern at the increase in inter-communal violence, with 3[44] ethnically motivated killings recorded in Rwanda in a six-week period in mid-May.44 The United Nations officials blamed RPA, and other "state agents" for 162 of the death, including those of 137 civilians killed in one day in Ruhengeri, a predominantly Hutu area in the North.[45]

46. On 5-7 December 1997 Mary Robinson, the United Nations High Commissioner for human rights, paid a fact finding visit to Rwanda. A press release issued on her departure criticised the Rwanda government for the "absence of a committed policy of reconciliation and ....a number of very serious human rights violations."[46] Abuses cited by Robinson included arbitrary arrests, prolonged detentions and serious overcrowding in prisons.[47]

47. These examples, though illustrative and not exhaustive, provide compelling evidence for the Security Council to review resolution 995 (1995) with a view to amending Articles 1 and 7 of the Rwanda Statute. The amendment would take into account crimes that have been, and continue to be, committed, since 1 January 1995

    Criminal Provisions: Articles 2 through 4 of the ICTR Statute

    Genocide

48. Article 2 of the Statute mirror Article II of the 19[48] Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention).48 The Genocide Convention confirms that, the crime of genocide, whether committed in time of peace or in time of war, is a crime under international law for which individuals shall be tried and punished. The Convention is today considered part of customary International law.[49] The relevant provision of the Genocide Convention is reproduced in Article 2 of the Statute.

49. Genocide is a crime that is committed pursuant to a policy developed by the authorities of a state or a state-like entity. Such an entity has the capacity for marshalling the powers and resources of the State or the state-like entity in question to carry out the prohibited conduct. A policy of genocide is not specified as an element of the offence in the Genocide Convention nor in Article 2 of the Statute.

50. The issue of a policy of genocide raises troubling question: should genocide be limited to acts of state or extended to state-like entities? It seems crimes of genocide become international crimes only because of the complicity of governments when they fail to prevent and punish the crime on the national level. On the other hand, the crime of genocide must be committed, encouraged, or tolerated by heads of state or by those who lawfully or factually exercised governmental authority. What then are the responsibilities of leaders of rebel groups who are neither "heads of state, heads of governments, senior government officials" nor recognised entities under international law capable of acting like sovereign states, but still control state-like entities and commit international crimes? It is submitted that, under the definition of genocide, there is no legal basis for holding a guerrilla leader criminally responsible. However, he may be prosecuted for other crimes, but not for genocide.

51. A second issue is that of intent. The acts specified in the Genocide Convention must be

    "Committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group, as such"

52. It is the element of intent to destroy a designated group in whole or in part, which makes crimes of mass murder and crimes against humanity qualify as genocide. For a crime to be genocide within the meaning of the Genocide Convention, the crimes against a number of individuals must be directed at them in their collectively or at them in their collective character or capacity. This can be deduced from the words "as such" stated in Articles II of the Genocide Convention and 2 of the Rwanda Statute respectively.

53. "Specific intent" is similar to dolus as used in the criminal justice systems of continental Europe and the Roman law concepts. Dolus refers to the intention to inflict harm, coupled with the foreseeable consequences of the intended crime. On the other hand, continental legal concept of culpa is equivalent to the common law's general intent because it is based on reckless conduct.

54. It is dolus that must be established, requiring a showing that the accused either specifically sought to produce a particular result or knew that his conduct was part of an overall plan or practice designed to "eliminate in whole or in part" a certain group of people. It is this element of specific intent which distinguishes genocide from crimes against humanity, war crimes, and common crimes. Evidence of specific "intent to destroy, in whole or in part" a protected group may be difficult to obtain. This is one good reason why the ICTR ought to have proceeded with a full trial, at least on the count of genocide, in the case of Kambanda.[50]

55. Moreover, accuser's intent, or state of mind, at the time of performing the act is different from his motives. The latter are the ultimate purposes or goals sought to be accomplished by such conduct and they are irrelevant. Intent must be related to the material element of the offence. Under most national criminal laws, the intent to kill, for example, is different for the crime of genocide than for murder. In the case of genocide, the perpetrator must kill with the specific intent to further a plan to "exterminate in whole or in part" a protected group. This distinction is significant because the Genocide Convention was not conceived as a legal instrument against mass killing. It is essentially directed against decision makers.[51]

56. Article 2 (3) of the Rwanda Statute is similar to Article III of the Genocide Convention. Paragraph 3 lists punishable acts as being:
    (a) Genocide;
    (b) Conspiracy to commit genocide;
    (c) Direct and public incitement to commit genocide;
    (d) Attempt to commit genocide;
    (e) Complicity in genocide.

57. The above enumeration indicates how far the crime of genocide needs to have been advanced before it becomes punishable. It is this requirement that is relevant in the choice of dates determining the competence of the ICTR. For example, in cases that relate to crimes of genocide, an attempt to commit that crime will suffice. Article 2(3) of the Statute describes what kind of involvement in actual genocide may result in penal responsibility under the Genocide Convention. Thus, individual criminal responsibility extends to those involved in incitement, conspiracy and attempt, as well as individuals actually executing the specific acts prohibited by the Genocide Convention and the Rwanda Statute. Convincing reasons can be advanced to show that foreign nationals, particularly those from France and Uganda, were involved in some illegal activities that led to the commission of the crime of genocide in Rwanda, before, during and after the armed conflict.

58. Political mastermind or propaganda people are no less responsible than the individual who performs the actual crime. There is, therefore, justifiable legal basis for criminal responsibility of individuals who engage in or are part of the various aspects of genocide. It is then possible that crimes that were committed in Rwanda between 1 January and 31 December 1994, the conspiracy to commit, and the direct or public incitement to commit those crimes, were carried out before 1 January 1994, and by foreign and Rwandese nationals. In other words, on or soon after 1 October 1990, punishable acts enumerated in Article 2(3) were committed. Secondly, crimes that were, and are now being committed, that is, after 31 December 1994, include punishable acts enumerated in Article 2(3). Some of these criminal acts were carried out between 1 January and 31 December 1994, although the commission of some of the crimes were not completed until after 31 December 1994.

    Crimes against Humanity

59. Crimes against humanity are defined in Article 3 of the Rwanda Statute. It is a progressive codification of Article 6 (c) of the IMT Charter.[52] Article 5 (c) of the International Military Tribunal for the Far East (IMTFE), adopted a year after the IMT, differs from Article 6(c) of the IMT. Article 5(c) of the IMTFE states:

    "Crimes against Humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed before or during the war, or persecution on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organisers, instigators and accomplices participating in the formation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in the execution of such plan."[53]

60. Control Council Law No.10, the law applied by the Allied occupation forces[United States, United Kingdom, USSR and France] after Germany's surrender, contains yet another definition of crimes against humanity. Article II(c) of Control Council Law No.10 provides:

    "Crimes against Humanity: Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecution on political, racial, or religious grounds whether or not in violation of the domestic laws of the country perpetrated."

61. Article 5 of the Yugoslavia Statute, modelled on Article 6(c) of the IMT Charter provides:

    "Crimes against humanity: murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions on political, racial and religious grounds, other inhumane acts.

62. Article 5 of the Yugoslavia Statute needs several clarifications. The first is to include rape as a specifically listed type of crime constituting a crime against humanity. Rape, under Article 6(c) of the IMT and 5(i) of Control Council Law No.10 fell within the meaning of "other inhumane acts". Article 5(g) of the Yugoslavia Statute does not alter, but clarify the law. The second clarification is the removal of the "war connection" required by Article 6(c)of the IMT Charter between acts constituting crimes against humanity and the initiation and waging of an aggressive war in Article 6(a) and war crimes in Article 6(c). Similarly, Article II(c) of Control Council Law No.10 removed the "war connection." Control Council Law No.10, however, was applicable only in occupied Germany. The connection between crimes against humanity and an aggressive war was also severed in the 1950 Report of the ILC, which restated the Nuremberg Principles.[54] Third, Article 5 does not require a policy of "persecution." The definition states that specific acts must be "directed against a given segment of the civilian population. Finally, not only does Article 5 remove the jurisdictional requirement of connection to aggressive war, it also expands the application of crimes against humanity through the inclusion of the terms "any civilian population".

63. The definition contained in Article 3 of the Rwanda Statute is far more demanding than that of the Nuremberg Charter, Control Council Law No.10 and the Yugoslavia Statute. The language of Article 6(c) of the IMT Charter followed in Article 5 of the Yugoslavia Statute does not make reference to the phrase: "committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds".

64. Proof of the above phrase is now mandatory under the Rwanda Statute. In other words, under the Rwanda Statute, the alleged crimes against humanity must meet the stringent test of "widespread or systematic attack", and a manifest motivation (that is, on national, political, ethnic, racial or religious grounds).

65. Under Article 3 of the Rwanda Statute, the burden of proof placed on the prosecution, or, the threshold in general, is very high. Thus, a specific definition of what constitutes "widespread" or "systematic" is probably required. Consequently, the question of the types of acts that are "widespread" or "systematic", falling within the ambit of Article 3, must be addressed.

66. Arising from the above observation, a question may be posed: Why did the Security Council provide different levels of proof for crimes committed in Rwanda (higher threshold), and for former Yugoslavia (lower threshold)?

67. During the discussion on the Rwanda Statute, it was explained that these additions were to reflect the interpretative statements made by some states at the adoption of Security Council Resolution 827[55] and the commentary of the Secretary General to Article 5 of the Yugoslavia Statute.[56] By adding expressly these requirements in the Rwanda Statute, the Security Council made the burden of proof for crimes against humanity higher, and therefore, more difficult to meet.[57]

68. Since crimes against humanity, under the Rwanda Statute, unlike under the Yugoslavia Statute, has no nexus to war, it follows that it is necessary to prosecute persons who continue to commit such crimes after the formal end of the armed conflict. Logically therefore, the competence of the ICTR should extend beyond 31 December 1994.

    Serious violations

69. Article 4 of the Rwanda Statute refers to violations of common Article 3 of the 1949 Geneva Conventions and of Additional Protocol II thereto of June 1977. Common Article 3 and Protocol II impose important prohibitions on the behaviour of participants in non-international armed conflicts, be they governments, other authorities and groups, or individuals. However, some commentators have argued that while these proscribed acts are considered non-grave rather than grave breaches (as in the four 1949 Geneva Conventions), the thrust of the distinction only concerns questions of discretionary versus obligatory prosecution or extradition, and for some commentators, universal jurisdiction, but not criminality.[58]

70. Because of the different positions taken by legal scholars, there are three points in Article 4 of the Rwanda Statute that need to be emphasised. First, Article 4 restricts the competence of the ICTR to internal conflicts committed between 1 January and 31 December 1994. This is in stark contrast to the provisions in the Yugoslavia Statute that include international and internal armed conflicts, and does not put limitation to the time-frame of the ICTY. Second, the list of crimes mentioned in Article 4 (a) to (h) are lifted directly from common Article 3, and Article 4(2) of the Protocol II.[59] The list of crimes in the two legal instruments are meant to be illustrative, not exhaustive, as indicated by the phrase "shall include, but shall not be limited to". Consequently, other violations contained in Protocol II also come under the jurisdiction of the ICTR. Third, Common Article 3 and Protocol II provide no penal provision.[60] Thus, there are no institutional mechanism for prosecuting those in breach.

71. While, so far at least, no defendant has challenged Article 4 of the Rwanda Statute as being contrary to the legal principle prohibiting retroactive, or ex post facto penal measures, the prohibition of retroactive penal measures is a fundamental principle of criminal justice and a customary, even peremptory (jus cogens) norm, of international law that must be observed in all circumstances by national and international tribunals.[61]

72. There are some justifiable reasons for not raising the question of ex post facto before the ICTR. First, serious acts listed in Article 4 of the Rwanda Statute constitute offences under both international law and the national law of Rwanda. Therefore, no reasonable person who has committed such acts, in Rwanda or in neighbouring states, could claim in good faith that he/she did not understand that the acts were prohibited. The principle nullum crimen is designed and intended to protect a person only from being punished for an act that he or she reasonably believed to be lawful when committed. Second, common Article 3 and Additional Protocol II are treaty obligations binding on Rwanda.[62] Challenges to Article 4 based on ex post facto would probably not succeed. That is a possible explanation why it has, so far, not been raised by defendants appearing before the ICTR.

73. Significantly, however, the language of Common Article 3 and Article 4(2) of Protocol II is clearly prohibitory. The language addresses fundamental offences such as murder and torture, offences that are prohibited in all member states of the United Nations. It is because of these, and other reasons identified earlier, that persons who violate Article 4 of the Rwanda Statute, even if the crimes are committed after 31 December 1994, ought to account for their criminal activities. Criminal prosecutions of these categories of persons can positively assist in eradicating impunity in Rwanda and promoting national reconciliation between the Hutu and the Tutsi communities.

    Non bis in idem

74. Articles 8 and 9 of the Rwanda Statute must be read together in order to understand fully the jurisdictional relationship between the ICTR and national courts in Rwanda. Articles 8 and 9 mirror Articles 9 and 10 of the Yugoslavia Statute.

75. Article 8(1) establishes the concurrent jurisdiction of the ICTR and national criminal courts. Article 8(2) in turn provides that "[t]he International Tribunal shall have primacy over national courts." This primacy is left to the determination of the ICTR on grounds which are not included in Article 8, but are found instead in Article 9(2)(a) and (b). Thus, concurrent jurisdiction and the primacy of the ICTR's jurisdiction must be read in conjunction with the provision of Article 9 of the Statute.

76. Article 9(1) and (3) are non bis in idem provisions, prohibiting retrial and multiple punishment for the same offence before two separate sovereignties. Article 9(2) sets forth the exceptions to this general rule. The two exceptions to concurrent jurisdictions are: (1) acts which are "characterised as ordinary crimes" and (2) cases where the "national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted."[63]

77. These exceptions must be seen in context: that the Security Council sought to establish a careful balance between national jurisdiction and the ICTR's jurisdiction. The purpose appears not to establish a Tribunal that would have exclusive jurisdiction.[64]

78. Commenting on Article 9 of the Yugoslavia Statute (identical to Article 8 of the Rwanda Statute), the Lawyers Committee for Human Rights stated:

    "The reasons for allowing concurrent jurisdiction appear to have been both political and practical. In establishing the tribunal, the UN Security Council did not mean to discourage national authorities [in the various states that emerged after the break-up of the former Yugoslavia] from fulfilling their obligation to prosecute war criminals. On the contrary, the intention was to encourage national courts to assume this responsibility. It was, in fact, the failure or almost complete lack of proceedings before national courts [in successor states], despite horrific violations of all standards of humanity and relevant rules of law, that prompted the international community to respond by setting up the International Tribunal."[65]

    The mechanism of that jurisdiction was constricted, therefore, in the hope that national authorities would eventually be willing and able to carry out seriously their primary responsibility for prosecuting war crimes. In practical terms, concurrent jurisdiction is the inevitable result of the circumstances under which the tribunal was established and of the manner in which its jurisdiction was defined.[66]

79. Shared jurisdiction raises issue of double jeopardy. As stated above, Article 9 of the Statute guards against trying individuals twice for the same crime. As a rule, the right to be protected from double jeopardy is designed to prevent the state from repeatedly subjecting a person to prosecution for offences arising out of the same event until the desired results are achieved.

80. The concept of double jeopardy is interpreted differently by different legal systems. In some states an acquittal on the facts is final and gives rise to double jeopardy.[67] In most continental European states, however, the state may appeal an acquittal due to errors of law or question of fact, or both.[68]

81. A conviction may be reversed on appeal and a new trial ordered, or the judgement may be revised without remand for a new trial. Double jeopardy and non bis in idem vary as to their scope and application. Double jeopardy is usually held to apply within a given legal system and not as between different legal systems or separate sovereignties. Non bis in idem is a right that protects the person from repeated prosecution or punishment for the same conduct, irrespective of the prosecuting system.[69]

82. Another important and relevant legal principle is fair trial. When civil/common law distinction between the role of the judge is considered, is he an impartial observer between adversarial team of lawyers or does he have an inquisitorial role? This question has consequences for the appeal determining whether it would simply be a retrial or a re-interpretation of the law.

83. When discussing the various aspects that enhance the prospects for a fair trial, not just the structures should be examined. Situations should be considered on a case by case basis in order to see whether, in retrospect, the trials could be deemed to be fair. Again, when utilizing the term fair to describe a future event, it generally implies that there is an even chance that the outcome is open. In the case of administration of justice, fairness means that the guilty are punished, the victims are compensated and the innocent go unpunished and relatively few mistakes are made. Whether or not this occurs depends on the quality of the actors, not merely the system. It is therefore a legitimate question to ask whether trials conducted by the Rwanda national courts are fair, and meet the minimum standard required under international law.

84. As will be shown shortly, trials conducted by Rwanda national courts fall far short of the standard of fairness. Once this unfairness is recognized, what should the ICTR do? Article 8(2) provides as follows:

    "The International Tribunal for Rwanda shall have primacy over the national courts. At any stage of the procedure, the International Tribunal for Rwanda may formally request national courts to defer to its competence in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal for Rwanda."

    And Article 23 (1) states:

    "The penalty imposed by the Trial Chamber shall be limited to imprisonment......"

85. In the light of current practice of national criminal courts in Rwanda, Articles 8 and 9 do not appear to fully address dangers that accused persons face in Rwanda, inspite of the primary objective of the principle underlying concurrent jurisdiction. Proceedings before Rwanda national criminal courts, unlike proceedings before the ICTR at Arusha in Tanzania, seem to be designed to guarantee conviction and execution of accused persons. Where national criminal courts function, as is the case with the Rwanda national courts, merely to convict and execute accused persons, should the ICTR use its authority under Articles 8 and 9 to intervene?

86. Based on the current practice of Rwanda national courts, there are many instances where intervention by the ICTR could be morally and legally justified. Take for example, trials of a number of persons charged with crime of genocide and crimes against humanity during the 1994 massacres that were held in different national criminal courts during May of 1997 at which all accused persons were sentenced to death. According to the United Nations Department of Humanitarian Affairs, on 16 May, more than 40 people were sentenced to death on genocide-related charges.[70]

87. In Gisenyi, on 6 May, four defendant in a genocide case were sentenced to death.[71] A court at Rushasi near Kigali, on 14 May sentenced a former headmaster to death on similar charges, while a court of appeal at Gikongoro upheld a death sentence against another Hutu man.[72] On 22 May a court at Kibuye Prefecture, in the West of the Country, sentenced three men to death for genocide and other crimes.[73] The speed with which these trials were carried out, coupled with the fact that the accused persons had no legal representation, cast doubt as to whether the trials were fair.

88. A tribunal of three Rwandese judges in the south-eastern town of Kibugu passed death sentences on 3 January against Deogratias Bizimana and Egide Gatanazi, having found both men guilty of committing genocide and crimes against humanity during the 1994 massacres. The condemned men, both of whom are Hutus, had not been represented by lawyers during their trial, and had not been permitted to call witnesses for their defence. They were given 15 days in which to appeal against their sentences, which were otherwise due to be carried out by firing squad.[74] Three other Hutu men were sentenced to death on similar charges on 17 January by a court in southern Butare.[75]

89. On occasions, the Rwanda government justified non-participation of lawyers in the legal proceedings on the ground that many lawyers, including judges, and would be defence lawyers, were killed during the 1994 genocide. The government further argues that it has embarked on crash programme to train judges, magistrates and lawyers who would later conduct some of these trials. It is submitted that, on the contrary, evidence produced and used by the Rwanda government for the absence of lawyers as a result of the genocide is proof that Rwanda is unable to conduct fair and impartial prosecution. Thus, the ICTR should take over the responsibility until such time that there are lawyers in Rwanda that are able and willing to conduct fair and impartial criminal trials.

90. As regards individuals who are awaiting trials, it is estimated that over 90,000 Hutus are awaiting trial in Rwanda Prisons in connection with genocide. Of these, 2,000 face capital charges punishable by death, upon conviction. Many of the accused persons will not be represented by lawyers, nor will they be permitted to call witnesses in their defence.

91. A pattern of abuse of the legal process may be inferred from these examples. While Rwanda's sovereign right to prosecute criminals in its territory is not being questioned, it is nonetheless important that due process must be followed. Criminal trials must also meet the standard of international human rights law. It is not fair that the ICTR, with the competence to prosecute major criminals, with all the extensive legal protection it provides, may only impose life imprisonment as a maximum penalty. On the other hand, Rwanda national courts, prosecutes minor criminals, provides minimum or no legal protection, but convicts and executes at will. If these conditions are not serious enough for the ICTR to intervene, then under what circumstances may the international tribunal protect the rights of those who may be executed for who they are, but not for any criminal wrong doing?

92. It is important to remember that the ICTR has not been established to satisfy the victims only, but to bring justice to all, including the accused. Some may argue, that it amounts to a dereliction of duty for the ICTR to stand by, and watch, minor war criminals being given show trials and promptly executed, for crimes which they might have never committed. Justice Robert Jackson conveyed a strong sentiment on the nature of criminal justice when he observed that:

    "[Y]ou must put no man on trial under the form of judicial proceedings if you are not willing to see him freed if not proved guilty. If you are determined to execute a man in any case, there is no occasion for a trial. The world yields no respect to courts that are merely organised to convict."[76]

93. The current practice of the Rwanda national courts, so far, tend to suggest that it is created merely to convict. Judicial proceedings that are not willing to free an accused person, if not proved guilty, is an extreme form of an abuse of the legal process. The international community must not allow such a criminal justice system to function.

    Conclusion

94. In summary, it is submitted that in the best interest of justice, and in accordance with the Security Council's objective of maintaining international peace and security in the Great Lake Region, facilitating reconciliation between the Hutus and the Tutsi, and eradicating impunity, the Council should amend the Rwanda Statute and mandate the ICTR to prosecute foreign and Rwandse nationals who are in breach of the laws of war with effect from 1 October 1990. Secondly, the ICTR should take interests in what happens inside the Rwanda National Courts.