We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 13 January 2010
The International Criminal Tribunal for Rwanda was created on 8 November 1994 by the United Nations Security Council, of which it is a subsidiary body. Its task is to help restore and maintain peace and bring about national reconciliation by trying persons allegedly responsible for acts of genocide and other grave breaches of international humanitarian law committed in Rwanda and Rwandan citizens suspected of committing such acts and violations in the territory of neighbouring States between 1 January and 31 December 1994.
Cécile Aptel is a lawyer serving as personal assistant to the President of the International Criminal Tribunal for Rwanda in Arusha. The views expressed in this article are strictly personal.
1 See preamble to the Statute of the International Tribunal for Rwanda (hereinafter referred to as the “Statute”), attached to Security Council resolution 955, 8 November 1994, Doc. S/RES/955 (1994).
2 The judges are: Laïty Kama (Senegal), President, Yakov A. Ostrovsky (Russia). Vice-President, Lennart Aspegren (Sweden), Tafazzal Hossain Khan (Bangladesh). Navanethem Pillay (South Africa) and William Hussein Sekule (Tanzania).
3 Statute, Article 12, paragraph 2. At present these are: Antonio Cassese (Italy). Li Haopei (China), Gabrielle Kirk McDonald (United States of America), Ninian Stephen (Australia) and Lai Chand Vohrah (Malaysia).
4 Statute, Art. 15, para. 3. Prosecutor Louise Arbour (Canada), who succeeded Richard J. Goldstone (South Africa) in October 1996, is assisted, for the Rwanda Tribunal, by Deputy Prosecutor Bernard Muna (Cameroon).
5 Agwu Ukiwe Okali (Nigeria) was appointed Registrar by the United Nations Secretary-General in February 1997 to replace Andronico O. Adede (Kenya).
6 The logistic problems arising from this geographical dispersal are among those which the Rwanda Tribunal has blamed for its administrative difficulties; see Report of the Secretary-General on the Activities of the Office of Internal Oversight Services, Doc. A/51/789 (1997).Google Scholar
7 Letter of 28 September 1994 addressed by Rwanda's Permanent Representative to the United Nations to the President of the Security Council, Doc. S/1994/1 115.
8 Summary record of the 3453rd meeting of the Security Council (8 November 1994), Doc. S/PV.3453.
9 The other five arguments were the following: the scope of the subject-matter jurisdiction conferred on the Tribunal could result in a scattering of its resources, whereas its priority task should be to try persons presumed responsible for the genocide; countries said to have been involved in the events of 1994 should refrain from putting forward their own nationals as candidates for the posts of judges; the problem of terms of imprisonment served outside Rwanda; the fact that those tried and found guilty by the Tribunal would escape capital punishment; and, lastly, the need for the Tribunal to be based on Rwandan territory to enable it to take part in the struggle against impunity. (Ibid.)
10 It is noteworthy that the United Nations Secretary-General stated on 31 May 1994 that: “The delay in reaction by the international community to the genocide in Rwanda has demonstrated graphically its extreme inadequacy to respond urgently with prompt and decisive action to humanitarian crises entwined with armed conflict. (…) We must all recognize that, in this respect, we have failed in our response to the agony of Rwanda, and thus have acquiesced in the continued loss of human lives.” Report of the Secretary-General on the situation in Rwanda, Doc. S/1994/640 (1994), para. 43.
11 In August 1995 less than a dozen people, most of them detached by Member States, were stationed in Kigali. See the first annual report of the International Criminal Tribunal for Rwanda, dated 30 June 1996, Doc. ICTR/3/CRP.3 (UN Doc. A/51/399-S/1996/778).
12 See the decision by the International Tribunal for Rwanda dated 14 August 1997, Case No. ICTR-97-32-DP.
13 See in particular the statement made by the President of the Rwanda Tribunal to the General Assembly during the presentation of the first annual report of the Tribunal, 10 December 1996, Doc. A/51/PV.78, p. 7.
14 Such was the case with the arrest of Colonel Théoneste Bagosora by the Cameroon authorities, on the basis of an international arrest warrant issued by Belgium; a transfer application was then issued, and the Colonel was later charged by the International Tribunal for Rwanda before eventually being transferred to Arusha. See Rwanda Tribunal. Case No. ICTR-96-7-1.
15 For instance, the files on Joseph Kanyabashi and Élie Ndayambaje were investigated by Belgian investigating judges and on Alfred Musema by the investigating judge of a Swiss military court. The Tribunal requested deferral of all three cases. See Rwanda Tribunal, Cases Nos. ICTR-96-8-D, ICTR-96-15-T and ICTR-96-13-D.
16 Article 8, para. 2, of the Statute provides that: “The International Tribunal for Rwanda shall have primacy over the national courts of all States. 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.” The Tribunal has used the deferral procedure four times, in Cases Nos. ICTR-96-2-D, ICTR-96-6-D, ICTR-96-7-D and ICTR-96-5-D.
17 Rule 40 bis of the Tribunal's Rules of Procedure and Evidence, adopted on 29 June 1995 and subsequently amended (Doc. ICTR/3.rev.2 of 6 June 1997). According to that provision, a judge may order the provisional detention of a suspect for a period of 30 days if he considers, first, that there is a reliable and consistent body of material which tends to show that the suspect may have committed a crime over which the Tribunal has jurisdiction, and, second, that provisional detention is a necessary measure to prevent the escape of the suspect, injury to or intimidation of a victim or witness or the destruction of evidence, or is otherwise necessary for the conduct of the investigation. See Harhoff, Frederik, “Consonance or rivalry? Calibrating the efforts to prosecute war crimes in national and international tribunals”, Duke Journal of Comparative & International Law, Vol. 7, No. 2. 1997. pp. 576–578.Google Scholar
18 The Rwandan authorities often appeared to be criticizing the Prosecutor for being too slow, inefficient and failing to concentrate on those chiefly responsible. Their criticism has certainly softened since the arrests made in July 1997. On 23 July 1997, the Office of the President of the Rwandan Republic announced that: “The people of Rwanda (…) hope that the ICTR will maintain this momentum and diligently pursue and prosecute the genocide suspects, wherever they may be, as prescribed by its mandate.”
19 Rwanda Tribunal, Case No. ICTR-96-4-T.
20 Rwanda Tribunal, Case No. ICTR-96-3-T.
21 Rwanda Tribunal, Case No. ICTR-96-1-T.
22 The Security Council decided to consider increasing the number of the Tribunal's trial judges and chambers if necessary (resolution 955, 1994).
23 Ubutabera, independent newsletter on the Rwanda Tribunal, No. 15, Arusha, 7 August 1997. p.1 (French only).
24 Ibid. Rule 48 of the Rules of Procedure and Evidence provides that accused persons may be jointly charged and tried.
