Journal of International Criminal Justice Advance Access originally published online on August 12, 2005
Journal of International Criminal Justice 2005 3(4):977-988; doi:10.1093/jicj/mqi067
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III. Appraising the Role of the ICTR |
The ICTR Ten Years On
Back to the Nuremberg Paradigm?
* Department of Political Science, University of Notre Dame; currently Visiting Professor at the Law Faculty of the Katholieke Universiteit Leuven (KUL). I am grateful to Professor Jan Wouters of the KUL for the invitation to teach and research at my Alma Mater. [Reydams.1{at}nd.edu]
Since his appointment in 2003, the Prosecutor of the International Criminal Tribunal for Rwanda (ICTR) remains silent on the issue of prosecuting officials of the victorious Rwandan Patriotic Front (RPF). There is certainly no lack of credible reports about massive violations of human rights and international humanitarian law by the RPF both in Rwanda and in neighbouring countries, in 1994 and thereafter. The Prosecutor and the UN Security Council, despite lip service to the contrary, seem less than eager to confront the government in Kigali. It is therefore to be feared that prosecutorial practice at the ICTR will follow the Nuremberg paradigm. This one-sided policy may, however, have far-reaching consequences.
1 See I. Orozco, ‘Dealing with Symmetrical Barbarism: A Challenge for the Human Rights Movement (the Colombian Case)’, paper presented at the Conference on ‘Curbing Human Rights Violations by Non-State Armed Groups’, organized by the Armed Groups Project of the Center of International Relations, Liu Institute for Global Issues, University of British Columbia, Vancouver, BC, with the support of the Rockefeller Foundation, 14–15 November 2003 (on file with the author).
2 The RPA was the armed wing of the RPF. After the victory in 1994 over the Hutu-dominated government forces, it became the national army of Rwanda.
3 See the announcement of 23 June 2004 of the Chief Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, that his office will investigate grave crimes allegedly committed on the territory of the Democratic Republic of Congo (DRC) since 1 July 2002, available at the ICC website: http://www.icc-cpi.int (visited 15 June 2005). The International Court of Justice in The Hague is also involved. On 28 May 2002, the DRC filed an application instituting proceedings against Rwanda in respect of a dispute over ‘massive, serious and flagrant violations of human rights and of international humanitarian law’ allegedly resulting ‘from acts of armed aggression perpetrated by Rwanda on the territory of the Democratic Republic of the Congo in ... violation of the sovereignty and territorial integrity [of the latter], as guaranteed by the United Nations and OAU Charters’. See Armed Activities on the Territory of the Congo Armed. New Application: 2002 (Democratic Republic of the Congo v. Rwanda), available online at: http://www.icj-cij.org (visited 15 June 2005).
5 ‘Prosecutorial Discretion and International Criminal Justice’, 3 Journal of International Criminal Justice (2005) 145.
6 ‘The OTP–ICTR: Ongoing Challenges of Completion’, 1 November 2004, available online at the ICC website: http://www.icc-cpi.int (visited 15 June 2005).
7 Just before leaving the ICTR in September 2003, Del Ponte gave an interview to Hirondelle, an Arusha-based news agency that monitors the ICTR. Hirondelle: ‘If you had been asked to choose between both tribunals [ICTY or ICTR], which one would it have been?’ Del Ponte: ‘When I was told [by Mr Annan] that each Tribunal would have its own prosecutor, I personally requested whether I could choose. I believe I would have opted for the ICTR because I still remain with one challenge—Special Investigations. Unfortunately, I was not given the luxury of choosing.’ Interview posted on 16 September 2003 on Hirondelle's website: http://www.hirondelle.org/arusha.nsf (visited 15 June 2005).
8 ICTR Press Release of 13 December 2000, ICTR/INFO-9–2–254.EN, available online at: http://www.ictr.org/ENGLISH/PRESSREL/2000/254.htm (visited 15 June 2005).
9 See the interview, supra note 7. Hirondelle: ‘How far are the investigations into alleged abuses committed by members of the current Rwandan army?’ Del Ponte: ‘Naturally those investigations are confidential. All I can tell you is that they are still going on and that they are taking place outside Rwanda because we have not been allowed to conduct them within the country. The non-cooperation by the Rwanda government makes it very difficult.’
10 Ibid. Hirondelle: ‘Concerning your being dropped from the ICTR, you declared that you had been a victim of pressure from the Rwandan government. What did you mean by that?’ Del Ponte: ‘I do not feel like a "victim" and I would not talk of "being dropped". My mandate was simply not renewed. But it is true that politics played a big role. Rwanda demanded my resignation several times. It is clear that it all started when we embarked on these Special Investigations. Therefore, yes, pressure from Rwanda contributed to the non-renewal of my mandate.’
11 SC Res. 808 (1993), 
9 and SC Res. 955 (1994), 7. Emphasis is added.
13 The following persons have served as Prosecutor common to the ICTY and ICTR: Richard Goldstone (1994–1996), Louise Arbour (1996–1999), and Carla Del Ponte (1999–2003). After 2003, Del Ponte stayed on as ICTY Prosecutor.
14 SC Res. 808 (1993), 1, operative part.
15 SC Res. 955 (1994), 1, operative part. Emphasis is added.
16 See extensively J.E. Alvarez, ‘Crimes of States/Crimes of Hate: Lessons from Rwanda’, 24 Yale Journal of International Law (1999) 365, at 397–398.
18 SC Res. 1503 (2003), 28 August 2003, 3.
20 Available online at: http://www.visiontv.ca/RememberRwanda/Report.pdf (visited 15 June 2005).
21 Statement by IPEP members to the media on the release of their report, 7 July 2000, available online at: http://www.theperspective.org/rwanda.html (visited 15 June 2005).
22 See also G. Prunier, The Rwanda Crisis: History of a Genocide (2nd edition, New York: Columbia University Press, 1999), estimating the number of RPF victims in the period 1994 to mid-1995 at around 100,000.
23 Leave None to Tell the Story. Genocide in Rwanda (1999), available online at: http://www.hrw.org/reports/1999/rwanda/Geno1-3-01.htm (visited 15 June 2005).
24 ‘Rwanda: Les violations des droits de l'homme par le FPR/APR. Plaidoyer pour une enquête approfondie’, working paper (co-author: S. Desouter), Institute of Development Policy and Management, University of Antwerp (on file with the author).
25 AI Index: AFR 47/016/1994, 20 October 1994, available online at: http://web.amnesty.org/library/Index/ENGAFR470161994?open&of=ENG-RWA (visited 15 June 2005).
26 ‘The Prosecutor shall initiate investigations ex-officio or on the basis of information obtained from any source, particularly from governments, United Nations organs, intergovernmental and non-governmental organizations. The Prosecutor shall assess the information received or obtained and decide whether there is sufficient basis to proceed’.
27 ‘Upon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute. The indictment shall be transmitted to a judge of the Trial Chamber’. On this provision, see D.D. Ntanda Nsereko, ‘Prosecutorial Discretion before National Courts and International Tribunals’, 3 Journal of International Criminal Justice (2005) 124, at 136, where the author argues that the peremptory language ‘shall prepare an indictment’, suggests a duty, not discretion, on the part of the Prosecutor. I submit that such a strict an interpretation, in a case of mass violence like Rwanda, would lead to an untenable situation.
28 Related issues, such as the withdrawal or amendment of an indictment, are subject to judicial review under Rules of Procedure and Evidence.
29 Compare with the ICC, where the opening of an investigation proprio motu by the Prosecutor must be authorized by the Pre-Trial Chamber (Art. 15 ICCSt.).
30 Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, available online at: http://www.un.org/icty/pressreal/nato061300.htm#IVB1 (visited 15 June 2005).
31 See the interview, supra note 7 (Del Ponte: ‘There is one thing that gives me hope though: the Security Council explicitly mentions those Special Investigations, as we call them. Therefore my successor has a specific mandate to see them through. But that depends on the Rwandan government allowing us to conduct the investigations on their territory’).
32 E.g. S. Edwards, ‘Del Ponte Says UN Caved to Rwandan Pressure’, National Post, 17 September 2003, available online at: http://www.globalpolicy.org/intljustice/tribunals/rwanda/2003/0918ponte.htm (visited 15 June 2005).
38 Supra note 6 (OTP—Office of the Prosecutor).
40 Emphasis is added. See Decision on the Prosecutor's Motion to Withdraw the Indictment, Ntuyahaga (ICTR-98–40-T), 18 March 1999: ‘As to the argument whereby the withdrawal of the indictment would be justified because the objective of the Prosecutor is to shed light on the events that occurred in Rwanda in 1994 and highlighting the complete landscape of the criminal acts perpetrated at the time, and that such objective would not be achieved through the prosecution of a single count indictment the factual elements of which relate solely to the murders of the former Prime Minister and ten UNAMIR Belgian soldiers.’
41 L. Côté, ‘Reflections on the Exercise of Prosecutorial Discretion in International Criminal Law’, 3 Journal of International Criminal Justice (2005) 162–186.
42 Ibid., at 171. Emphasis is added.
46 On 13 June 2005, when this article was being copy-edited, the Prosecutor updated the Security Council on the progress made by his office. He stated: ‘I must point out that the conclusion of investigations and the filing of those indictments relate only to charges of genocide, and do not include the allegations against the Rwandan Patriotic Front. Work continues in respect of those allegations’, S/PV.5199, at 14.
47 On the first trial, see L. Reydams, ‘Belgium's First Application of Universal Jurisdiction: The Butare Four Case’, 1 Journal of International Criminal Justice (2003) 428–436.
48 See L. Reydams, ‘Belgium Reneges on Universality: The 5 August 2003 Act on Grave Breaches of International Humanitarian Law’, 1 Journal of International Criminal Justice (2003) 679–689.