Journal of International Criminal Justice Advance Access originally published online on August 19, 2005
Journal of International Criminal Justice 2005 3(4):920-943; doi:10.1093/jicj/mqi068
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III. Appraising the Role of the ICTR |
Main Achievements of the ICTR
* President (since 2003) and Vice-President (1999–2003) of the ICTR. [mose{at}un.org]
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Abstract |
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 Top Abstract 1. IntroductionNotes2. The Mandates3. Lessons Learnt4. Other Achievements5. Final Observations |
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Since trials began in 1997, the International Criminal Tribunal for Rwanda (ICTR) has conducted cases involving 50 accused, involving a prime minister and several ministers, prefects, bourgmestres and other leaders, who would otherwise not have been brought to justice. Judgments have been rendered in respect of 25 accused, with three acquittals. During the first mandate (1995–1999), the Tribunal delivered ground-breaking judgments concerning genocide, such as Akayesu and Kambanda. In the second mandate (1999–2003), the judicial output doubled and included the Media judgment. Halfway into the third mandate (2003–2007), trials involving 25 accused are ongoing. The ICTR is an efficient judicial institution which has conducted fair trials, created important jurisprudence, and made a significant contribution to the development of international criminal justice.
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1. Introduction |
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TopAbstract1. IntroductionNotes2. The Mandates3. Lessons Learnt4. Other Achievements5. Final Observations |
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The Security Council's decision to set up the International Criminal Tribunal for Rwanda (ICTR or the Tribunal) was made in November 1994, 18 months after the adoption of the resolution establishing the International Criminal Tribunal for the Former Yugoslavia (ICTY).1 However, work in Arusha started much later. The six ICTR Judges were elected by the General Assembly in May 1995, the first accused arrived in May 1996 and the first trial started in January 1997.
Since then, the Tribunal has completed or is conducting cases involving 50 accused. Of these, trials involving 25 detainees are ongoing and are expected to be finalized between 2005 and 2007. New trials will commence in 2005, as soon as Trial Chamber capacity allows.
An ultimate appraisal of the Tribunal's work can only be made once all cases have been completed.2 While assessments of outside observers may have the advantage of a certain distance from the day-to-day activities in Arusha, an insider's view at the present stage may nevertheless provide some first-hand knowledge of the Tribunal's development from its inception to a fully fledged judicial institution and its experience so far. Below is an overview of the Tribunal's development, followed by reflections on the lessons learnt, other achievements and final observations.
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2. The Mandates |
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TopAbstract1. IntroductionNotes2. The Mandates3. Lessons Learnt4. Other Achievements5. Final Observations |
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According to Article 12bis (3) ICTRSt., Tribunal Judges shall be elected by the General Assembly for a term of four years. It has become usual to refer to these four-year periods as the ‘mandates’ of the Tribunal. The first mandate started on 25 May 1995, the date when the Judges were elected, followed by the second mandate from May 1999, etc. At present, the Tribunal is about halfway through its third mandate.
A. First Mandate (1995–1999): A Difficult Beginning
The main challenge during the first mandate was to create a functional judicial institution under very difficult conditions. The decision to locate the seat of the Tribunal in Arusha had been made by the Security Council in February 1995, based on the Secretary-General's recommendation earlier that month. Other alternative locations, in particular Kigali and Nairobi, were considered but rejected. There was a severe shortage of premises in Kigali that could accommodate the ICTR and properly serve its needs. It was also felt that the appearance of justice and fairness, in particular complete impartiality and objectivity, required that trial proceedings be held in a neutral country. In this connection, the Secretary-General considered that there were serious security risks in bringing the leaders of the previous regime into Rwanda. The Kenyan government ultimately decided that it would not be in a position to provide a seat for the Tribunal in Nairobi, whereas the Tanzanian government made an offer to accommodate the Tribunal in the Arusha International Conference Centre (AICC).3
In June 1995, one month after their election, the Judges held their first plenary session in The Hague. The ICTR did not yet have any premises in Arusha. During this meeting, they adopted the Rules of Procedure and Evidence (the Rules).4 They also elected the President and Vice-President.5 The Judges were not regarded as having officially taken office until 19 June 1996, one year later. It was only from September 1996 that they were allowed by the UN Headquarters to take up residence in Arusha. Until then, they shuttled between their home countries and Arusha, in order to review indictments for confirmation, issue warrants of arrest, etc.
The general infrastructure in Arusha was quite rudimentary in 1995.6 There were few tarmac roads, very unstable electricity and water supplies, and austere living conditions. Telephone and fax lines were few and unreliable. Computers and office equipment were not readily available in Arusha and had to be imported from abroad, resulting in delays. As of September 1995, the Tribunal had no courtrooms, offices, prison, legal officers or secretaries. The Registry started its activities in hotel rooms. The Tribunal could only move into a small section of its headquarters in the AICC in November 1995, one year after the Security Council decided to set up the ICTR. Many stories could be told about this pioneering period.7
Building courtrooms in premises previously used for office space was not an easy task. During the construction period, pre-trial hearings were held in conference rooms.8 The first two courtrooms were not ready until 1997. The Akayesu trial started on 9 January 1997, followed by other trials in March (Rutaganda) and April (Kayishema and Ruzindana) 1997. As there was only one courtroom available from the outset, it was shared between the two Chambers hearing these three cases. The third courtroom was finished in late 1998. In 1996, the UN Detention Facility (UNDF) was completed and then provided accommodation for six detainees.
The ICTY Prosecutor assumed his function as the common Prosecutor of both Tribunals and carried out his dual functions from The Hague.9 He made several visits to Rwanda and the neighbouring states in order to establish the necessary cooperation with authorities there. In March 1995, the Secretary-General appointed a Deputy Prosecutor, whose main task was to build up the Prosecutor's office in Kigali and oversee the day-to-day business there. The recruitment of staff in Kigali was a long and complex process. As of August 1996, fewer than a dozen staff members were on board in Kigali, many being personnel seconded by their respective governments. In spite of this situation, quite a few indictments were confirmed. A new common Prosecutor of the two Tribunals took up her functions in the last quarter of 1996.10
In March 1998, the Prosecutor requested the confirmation of a joint indictment in respect of 29 persons. The confirming Judge dismissed the request. An appeal against the decision was dismissed by the Appeals Chamber.11 Consequently, the prosecution had to change its strategy.12
Experience showed that it was very difficult to establish an operational administration in Arusha and Kigali.13 In spite of these difficulties, the Tribunal rendered six judgments involving seven accused during the first mandate, mostly single-accused cases. The last trial in that mandate (Musema) was completed in only 39 trial days, with judgment rendered within a year.14
B. Second Mandate (1999–2003): Doubling of Judicial Output
In the second mandate, the number of accused who had their cases completed doubled to 14.15 In addition, Chambers started two trials involving 10 accused. The productivity of the Registry continued to improve.16
Following the 1998 decision to dismiss the indictment of 29 persons,17 the Prosecutor now sought trials involving a more limited number of accused who allegedly participated in the same criminal transaction, such as the use of public media, or alleged crimes in certain geographical areas of Rwanda.18 As a result, the picture emerged at the beginning of the second mandate that, in addition to single-accused cases, the Tribunal was to hear seven multi-accused cases, each including high-ranking persons accused of being leaders during the 1994 events: Butare (six accused); Cyangugu (three); Military I (four); Military II (four); Media (three); Government I (four); and Government II (four).
The main challenge at the beginning of the second mandate was to start these trials. One particular problem was a very high number of pre-trial motions from both the prosecution and the defence, resulting notably from the amended indictments. Consequently, the first task for the nine Judges was to dispose of these motions in order to move the cases to the trial stage.19 This was facilitated through a Rule change in June 1999, which allowed the Chambers to decide motions based on written submissions.20
Having reduced the number of motions, many other hurdles nevertheless remained. The prosecution was not prepared for trial in all cases. There were problems with disclosure of witness statements and other documents to the defence, as well as a need to translate thousands of pages into the two official languages of the Tribunal. Lack of staff in the Language Section slowed down the process, in spite of tremendous efforts from the translators. And when the prosecution was ready, the defence teams frequently were not, for instance because they needed more time to carry out investigations. Sometimes, the accused (who were all indigent) insisted on the need to change counsel due to a breakdown of communication with their counsel, or refused to select three names from the list of Defence Counsel, as required by the Registry. A period of reasonable notice was required to enable counsel to finalize engagements already entered into in their home countries before starting the trials in Arusha.
Two multi-accused trials commenced in 2000 (Media and Cyangugu) and two in 2001 (Military I and Butare). Four single-accused trials started between 1999 and 2001. The Judges were anxious to bring as many cases as possible to the trial stage in order to avoid unnecessary pre-trial litigation. Therefore, the three Trial Chambers conducted trials on a twin-track basis.21 Almost all Judges sat in one multi-accused trial and at least one single-accused case. The purpose of this system was to use the inevitable breaks which occurred during one trial to ensure progress in another case. It also allowed the prosecution and the defence to prepare for the next stage of the proceedings while the other case was being heard. The strategy resulted in the production of a considerable number of judgments. But it also showed that twin-tracking may be cumbersome where the multi-accused case heard by the Chamber was particularly voluminous and complex. In the second half of the mandate, the Tribunal also, to some extent, used the so-called ‘shift system’, sitting in morning and afternoon sessions.22 Many other measures were adopted to increase the Tribunal's productivity.23
C. Third Mandate (2003–2007): Results So Far
As of May 2005, halfway into the Tribunal's third mandate, 25 persons have received judgment in the first instance. Trials of another 25 detainees are ongoing and are expected to be finalized by May 2007. So far, four single-accused judgments have been rendered in the third mandate and another is expected soon.24 There is every reason to believe that the number of persons having their cases completed in the course of the third mandate will be much higher than in the second mandate. At present, 16 accused are awaiting trial at the UNDF. Trials involving these detainees will commence as soon as Trial Chamber capacity allows.
At the beginning of the third mandate, one priority was to complete the two ongoing multi-accused trials, Butare and Military I. A complicating factor was the result of the elections in the General Assembly.25 One of the Judges sitting in the Butare case was not re-elected and the Security Council declined to extend his mandate.26 The Trial Chamber decided to continue the case with a substitute Judge under the newly amended Rule 15bis of the Rules.27 In Military I, the situation was even more complicated, as one of the Judges had not been re-elected and another decided to resign. The trial had to be transferred to another Chamber. After the resolution of these problems, the Military I and Butare trials proceeded smoothly and the prosecution closed its case in October and November 2004, respectively.
Another priority was to start new trials. The beginning of the second mandate had shown the need to plan the commencement of new trials well in advance of the following mandate. Meetings were therefore held during the last year of the second mandate in a newly established ‘New Trial Committee’, composed of representatives of Chambers, the prosecution and the Registry, to ensure an early start of trials in the third mandate. As a consequence, two single-accused trials (Gacumbitsi and Ndindabahizi) commenced in July and September 2003. Judgments in these cases were delivered in less than 11 months after the commencement of trial. The two cases previously referred to as the Government cases, each involving four accused, commenced in November 2003. Consequently, the Tribunal commenced four trials involving 10 accused during the second half of 2003. This was facilitated by the arrival of the first four ad litem Judges, following the election in June 2003 of a pool of 18 such Judges.
In August 2003, the Security Council decided that both Tribunals shall complete all investigations by 2004, all trials by 2008 and all appeals by 2010. The Council also established a separate Prosecutor for the ICTR.28 The Tribunal had already, in a budgetary context, submitted its first Completion Strategy to UN Headquarters in July 2003. Updated versions of the document are provided to the Security Council at regular intervals.29
Three further single accused trials (Muhimana, Simba and Seromba) started in March, August and September 2004, respectively. The commencement, in September 2004, of the Military II trial meant that the seventh and last multi-accused case had reached the trial stage. The arrival of an additional five ad litem Judges made it possible to start these trials, as well as the Muvunyi case, since February 2005.30 The remaining trials until the end of 2008 will be single-accused cases.
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3. Lessons Learnt |
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TopAbstract1. IntroductionNotes2. The Mandates3. Lessons Learnt4. Other Achievements5. Final Observations |
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When the Security Council set up the two ad hoc Tribunals, it embarked upon uncharted waters. They were the first international criminal tribunals post-Nuremberg, and the first tribunals ever to be set up by a resolution under Chapter VII of the Charter. Obviously, there would be a need to gain experience in order to deal with issues that were unforeseen or not fully appreciated— issues that would unfold only through the often costly process of trial and error.31
In addition, the ICTR faced problems not encountered by its sister Tribunal in The Hague. Both the headquarters in Arusha and the investigation unit in Kigali were set up and had to function in towns with very limited infrastructure, and in an area where there had never been any international court. In spite of these challenges, the Tribunal has managed to build up a judicial institution which is fully operational. Evidence of this is found not only in the high-tech courtrooms and the convoy of vehicles transporting between 10 and 20 detainees to and from the proceedings almost every day, but also from the statistics. After the completion of cases involving seven accused during the first mandate, the number doubled to another 14 accused in the second. It is expected to be much higher during the third mandate.32
Before describing the learning experience of the Tribunal further, it is important to bear in mind some specific characteristics of international criminal proceedings when compared to criminal cases at the national level. The trials conducted before the ad hoc Tribunals are legally and factually very complex. There is a considerable volume of documents required in trying alleged architects of such atrocities, including high-ranking members of government. The documents are all subject to disclosure and must be translated for legal teams and the accused. Translation may be required of thousands of pages into at least one official language of the Tribunal. The number of witnesses is often considerable, and interpretation of all testimony is required in three languages. Witnesses have often to be extracted from a difficult environment, afforded considerable protection before and after testimony and sometimes relocated. The staff and counsel involved in cases come from different cultures and traditions, and effective communication requires new skills and extra efforts. Defence Counsel have to leave their other casework for considerable periods to spend time working at the ICTR in Arusha, usually away from their practices.
Faced with such challenges, the Tribunal has improved its working methods. Details would exhaust the reader but some of these measures should be mentioned here.
A. Insufficient Number of Judges
The Statutes of both Tribunals provided for six Judges in two Trial Chambers. Not unexpectedly, this soon proved insufficient, in particular because of the high number of accused and the time needed to conduct the voluminous trials. In 1997, the President of the ICTR, soon followed by the ICTY, approached the Security Council with a request for a third Trial Chamber. The Security Council granted these requests and consequently established one additional Trial Chamber for each of the Tribunals.33
In 2000, a report prepared by the ICTY proposed the introduction of ad litem Judges, who would be made available to serve in the Trial Chambers when needed. The purpose of this initiative was to increase the Tribunal's judicial capacity. In November 2000, the Security Council established a pool of ad litem Judges in the ICTY. In the same resolution, it also enlarged the membership of the common Appeals Chamber by two Judges. This reform was intended to ease the workload of the Appeals Chamber. It would also ensure that the ICTR was represented with two Judges in the common Appeals Chamber, which was not envisaged under the original Statutes.34
Following a similar request for ad litem Judges by the ICTR, the Security Council in August 2002 allowed for the creation of a pool of 18 ad litem Judges.35 They were elected by the General Assembly on 25 June 2003. The resolution only allowed for four ad litem Judges to take office at any one time. Pursuant to two requests in September 2003 from the ICTR, the Security Council in October decided to increase the number from four to nine, and it also conferred on the ad litem Judges the competence to adjudicate over pre-trial matters.36 The arrival of the ad litem Judges made it possible to start four new trials and to continue the Butare trial, and subsequently to commence another two trials.
B. A Separate Prosecutor
The Statutes of the two Tribunals first provided for a common Prosecutor. This had the advantage of ensuring a uniform prosecutorial policy for the ICTR and the ICTY. In August 2003, the Security Council decided to establish a separate Prosecutor for the ICTR. It was thought important to divide the comprehensive work performed by the Prosecutor as the two Tribunals entered into the crucial period of implementing their Completion Strategy.37
C. Amendments and Improvements
In addition to these statutory reforms, the Tribunal has, in order to increase its efficiency, amended its Rules and improved its working methods during all stages of the proceedings. Only some of these measures can be described here.
From 1998, the ICTR Trial Chambers began organizing pre-trial and pre-defence conferences, in conformity with Rules 73bis and 73ter, respectively. The Chamber may require a list of witnesses, a summary of the intended content and length of the testimony of each witness, a statement of agreed facts and law, a statement of contested facts and law, and a list of exhibits. On this basis, the Chamber can order that the number of witnesses be reduced and the length of the testimonies be shortened.
In the first mandate, all motions, irrespective of their significance, were heard orally. This meant requesting Defence Counsel from many parts of the world to come to Arusha, finding a suitable time for everyone involved, ensuring the availability of a courtroom, etc. In 1999, Rule 73 was amended to allow motions under that provision to be considered on the basis of written submissions only, thereby avoiding a hearing and the need to summon the parties to the seat of the Tribunal. Another innovation adopted in 1999 was to allow some motions to be decided by a single Judge rather than by the full Bench. The introduction of written submissions greatly improved the efficiency of Chambers, reduced the number of outstanding motions and reduced the Tribunal's costs.
In 2000, the Judges introduced deadlines for some motions and a general time limit for responding to motions. Questions pertaining to the form of the indictment may be raised in one motion only. A filtering process by three Judges was introduced at the appeal level. An explicit provision was adopted to allow a Chamber to impose sanctions against counsel who brings motions which, in the opinion of the Chamber, are frivolous or an abuse of process. Such sanctions may include non-payment, in whole or in part, of fees associated with the motion and/or costs thereof. It has been used in some cases.
From 2000, Judges are no longer disqualified from participating in a trial if they have confirmed the indictment against an accused in that trial. It had become apparent that the disqualification clause in the Rules impeded the efficient organization of trials and that it was not really necessary in the interests of justice.
One factor contributing to a reduced number of trial days included the difficulty of obtaining the appearance of witnesses from Rwanda, or their falling ill upon their arrival in Arusha. In order to reduce this problem, the Judges now expect counsel to have a substitute witness available in case the witness who is scheduled to testify fails to appear or falls ill. Another problem has been that counsel for the prosecution and the defence frequently request additional time for the preparation of cross-examination in situations where unexpected evidence emerges or is tendered without proper prior notice. In order to avoid such delays, Chambers have required so-called ‘will-say’ statements when counsel discovers that a witness may provide new information during the testimony. This reduces the element of surprise and consequent requests for adjournments.
Because of the time needed to complete trials before the Tribunals, there is a greater risk than in national proceedings of persons involved in the proceedings falling ill. If a case is not completed by the end of the Judges’ four-year mandate, the fact that a Judge is not re-elected may also pose problems. In 2001, the Rules were amended to allow for short absences of up to five working days. According to a subsequent amendment, a Chamber may continue the trial in the eventuality of a Judge being ill and in the event of the death or resignation of a Judge or where he or she is not re-elected. In such situations, Rule 15bis now allows cases to continue with a substitute Judge, provided that certain conditions are fulfilled. The insistence by the Tribunal in practice on having two Defence Counsel and, in the event of illness or absence of one counsel, requiring the remaining counsel to continue has also reduced the number of interruptions of trials.
A large number of witnesses testify in the Kinyarwanda language. Originally, there were no Kinyarwanda interpreters in the UN system and there was a need to train interpreters. This presented problems, as some English and French words could not be translated into Kinyarwanda and vice versa. A related problem during the first and beginning of the second mandate was the need to hear the entire answer to a question from the witness in Kinyarwanda before interpreting it into French and then English, which are the two official languages of the Tribunal. This system of consecutive interpretation between Kinyarwanda and the other languages was very time-consuming. During the second mandate, simultaneous interpretation from and into Kinyarwanda became possible due to further training and was gradually introduced in all three Chambers. This has saved considerable time in the courtroom.
A Working Group has found ways to speed up translation of documents, thereby reducing delays in judicial proceedings. Techniques have been developed to reduce the volume of documents that require translation. However, it is still necessary to establish priorities. This is not an easy task when the translation services work for the Appeals Chamber, the three Trial Chambers, the prosecution, the defence and the Registry. In practice, solutions are found after consultation but some delays are unavoidable due to a lack of staff.
Another innovation was the establishment in 2003 of the Trial Committee. It is composed of representatives of Chambers, the Registry and the prosecution. Its task is to identify and contribute to the resolution of problems that may slow down the proceedings, such as lack of disclosure, translation, availability of counsel, etc. The Committee is also in contact with the various defence teams. Its work has facilitated the trial-readiness of many cases.
The prosecution has improved its practice in connection with requests for confirmation of indictments. The present policy is to ensure that the case is ready for trial, in the sense that all approved identified investigations are completed, a draft pre-trial brief is prepared (together with draft exhibits and witness lists), and that disclosure searches (as of the date of confirmation) are completed.
Last but not least, a fourth courtroom was inaugurated on 1 March 2005. It was constructed in record time—only four weeks—and has been used for trials from the day of its inauguration. This will ensure that more cases can be heard in full-day sessions and thus will increase the judicial output of the Tribunal. The fourth courtroom is an important element in the Tribunal's Completion Strategy. Its construction and running costs were funded through voluntary contributions from two governments and not by the Tribunal's general budget.
D. Reduced Trial Time
Following the adoption of these and other measures to avoid delays, the time spent in the courtroom has been reduced. The average length of trial per accused has been 62 trial days. Cases completed recently reflect a substantially lower number of trial days per accused (Ntakirutimana: 30 trial days; Niyitegeka: 35 trial days; Gacumbitsi: 32 trial days; Ndindabahizi: 27 trial days; and Muhimana: 34 trial days). It is expected that this trend will continue in respect of single-accused trials. The period required for judgment writing has also been reduced. Multi-accused trials will continue to require longer periods, during both the trial and judgment writing phases.
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4. Other Achievements |
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TopAbstract1. IntroductionNotes2. The Mandates3. Lessons Learnt4. Other Achievements5. Final Observations |
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A. Accountability for Leaders
From the outset, the Prosecutor has concentrated on those individuals who are alleged to have been in positions of leadership in Rwanda in 1994 and bear the gravest responsibility for the crimes committed. This policy has been maintained over the years and has since become an explicit part of the Completion Strategy, as expressed in Res. 1503 (2003) for both Tribunals. From an early date, alleged leaders of the 1994 events were arrested, in particular in Nairobi in July 1997 (Operation NAKI) and as a consequence of cooperation with several West African countries in 1998 (Operation Kiwest).
The Tribunal's focus on leadership is illustrated by the fact that the 25 persons who have received judgments so far include one prime minister, four government ministers, two prefects, five bourgmestres, as well as media and military leaders. The 25 persons currently on trial include seven ministers, one parliamentarian, two prefects, two bourgmestres, and 10 military leaders. There are also members of the clergy on the ICTR list of convicts and indictees.38
Most of the more than 60 accused persons, who fled Rwanda in 1994, would probably not have been brought to justice had it not been for the Tribunal's investigations, insistence upon their arrest and subsequent requests for transfer to Arusha. Many states are reluctant to initiate investigations and institute criminal proceedings at their own expense against individuals who may have committed crimes in other countries. Extradition to other countries is also a cumbersome process, assuming that a request is made at all. The fact that the accused will receive a fair trial by an independent Tribunal has facilitated and, in many instances, probably been a condition of transfer to Arusha. Moreover, unlike the situation in some countries, the accused will not face capital punishment in the event that they are convicted, as the most severe sentence the two Tribunals may impose is life sentence.
There can be no doubt that the Tribunal's proceedings relating to persons in very high positions have sent a strong signal to the world, including the African continent, that impunity will not be accepted by the international community.
Fourteen accused are still at large, partly due to a lack of cooperation from certain states and partly because of difficulties in tracking some indictees.39 Furthermore, 16 suspects at large have been under investigation resulting in indictments against eight persons. It is uncertain how many of these 22 persons will actually be brought to Arusha: some of them may be dead, whereas others may never be found. In view of the 2008 deadline for the completion of trials, it is clear that the Tribunal cannot hear cases involving all these persons, should they be found. According to the ICTR Completion Strategy, the Prosecutor will request that some persons be transferred to national jurisdictions. No such request has yet been made. It will be for the Chambers to decide whether the conditions for transfer are met in conformity with Rule 11bis.40 The Prosecutor has also transferred files for national prosecution. This is not a matter of transferring persons under Rule 11bis but of prosecutorial cooperation between international and national authorities in relation to the files of persons who have neither been arrested nor indicted by the Tribunal.41
B. Fair Trial by an Impartial Tribunal
The right of the accused to a fair trial and an impartial Tribunal is guaranteed in Article 20 ICTRSt. The Tribunal has insisted that all trials shall be conducted in accordance with international standards of justice. In fact, one of the reasons why some cases may be time-consuming is to dispel any doubt as to whether all international standards of justice are complied with. By conducting proceedings which are beyond reproach, the Tribunal has set an important precedent and has contributed to the development of the international rule of law.
The Tribunal has been criticized for delays in bringing detainees to trial as well as during the trial stage. Some of this criticism may have been justified but it is important to recall the reasons why proceedings are time-consuming and the measures adopted to address them. Furthermore, when, on rare occasions, the right of an accused has been violated, the Tribunal has not hesitated to acknowledge both the fact that violations have occurred and the right of the accused to a remedy.42
It should also be remembered that trials in the Tribunal may have a number of objectives, some not readily comparable to those found in domestic criminal courts. Besides efficiently prosecuting a person for having allegedly committed a given crime, another aim of the trial may be to contribute to establishing a historical record. This may require more time and effort than would be necessary simply to complete the case.
During the proceedings, the Judges have adopted a relatively liberal attitude with regard to evidence that may be considered admissible, even if it does not fall squarely within the charges brought against the accused. This allows both sides to convey their version of the events in Rwanda.
All persons convicted by the Tribunal so far are Hutu, and all accused in Arusha also belong to this group. It is often argued that this may give an impression of one-sidedness and ‘victor's justice’. However, the ICTR Statute is generally formulated and Res. 1503 refers to ‘investigations of the Rwandan Patriotic Army’ (RPF). The Prosecutor has taken account of the mandate of the ICTR, as emphasized by the Resolution, so as to investigate reports of violations by the RPF. He is currently evaluating the evidence against such persons.
An important task for the Tribunal is to provide justice and fairness in relation to victims and witnesses. This is discussed below.
C. Creating Jurisprudence
All ICTR judgments rendered so far have included the issue of genocide. The ICTR case law provides abundant interpretative material on the legal nature and factual realities of this crime.43 The Akayesu judgment was the first in which an international Tribunal was called upon to interpret the definition of genocide as contained in the Genocide Convention.44 It has been followed by a number of other ICTR judgments. Although genocide also forms part of the ICTY Statute's subject-matter jurisdiction, the relatively fewer indictments for genocide in The Hague means that the Arusha jurisprudence is a very important source for both the definition of this most serious offence, and the elucidation of the legal ingredients of this so-called ‘crime of crimes’.
The ICTR was the first international Tribunal after Nuremberg to hand down a judgment against a Head of Government. The international media have rightly stressed the significance of the trial of the former Yugoslav President Slobodan Milo
evi
after his transfer to The Hague on 28 June 2001. The general public is perhaps less aware that, about three years earlier, the Prime Minister of Rwanda during the relevant period, Jean Kambanda, had been convicted for genocide. This judgment reaffirmed the principle, embodied in the Statutes of both ad hoc Tribunals, that no individual enjoys impunity for such crimes on account of their official position.45 The Kambanda case was also the first judgment where a Head of Government pleaded guilty to genocide. More generally, it was one of the earliest sentences to be meted out by the ad hoc Tribunals following a plea of guilty.
In addition to the various forms of criminal responsibility for genocide, the ICTR case law contains convictions and acquittals of crimes against humanity, in particular extermination. It is noteworthy that, unlike its sister Tribunal, there have seldom been convictions of violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (referred to in Article 4 ICTRSt.).46
The Akayesu judgment was also groundbreaking for its affirmation of rape as an international crime. Apart from elucidating the elements of this offence, this judgment and its successors are notable for their finding that rape may form part of the actus reus of genocide. It has nevertheless been argued that the Tribunal should focus more on sexual violence-related crimes, as these were very widespread in 1994. As of May 2005, the Tribunal had prosecuted rape and sexual crimes in respect of five out of the 25 accused in completed cases.47 The prosecution has stated that this is a prioritized area. Of the 25 accused currently on trial, 19 are charged with rape and sexual violence.
The ICTR has developed a further legacy of the post-Second World War case law. The so-called Media case is the first contemporary judgment to examine the role of the media in the context of mass criminality and international humanitarian law.48 This important case, which is now on appeal, addresses the boundary between the right guaranteed under international law to freedom of expression and incitement to serious international crimes. It was the first pronouncement on these questions by an international tribunal since the conviction of Julius Streicher at Nuremberg.49
The ICTR's case law, which applied its Article 6(3) within a conflict which was both internal and with important non-military components, cemented an important clarification within the doctrine of command responsibility, namely its application to the civilian leadership. In terms of direct modes of criminal participation too, the ICTR case law is significant regarding the difficult delineation between collective or mass criminality and individual criminal responsibility.
In addition to its judgments, the Tribunal has handed down more than 1,500 written decisions. The number of oral rulings given by the Bench in the courtroom is also considerable. These written and oral decisions form an important part of the Tribunal's jurisprudence and clarify a wealth of mainly procedural issues arising under the Statute and the Rules.
This leads to an important point. When the Tribunal commenced its judicial activities, there was little international jurisprudence available. Guidance as to the interpretation of the Statute and the Rules could be found in case law from the Nuremberg and Tokyo tribunals, human rights bodies and the limited jurisprudence developed by the ICTY since its establishment. Solutions in national legal systems also provided inspiration. Subsequently, an abundance of substantive and procedural law has emerged at the ICTR. Although not bound to do so, the ICTY and ICTR Chambers often rely on another's case law. Lawyers appearing before the Tribunal now know that there is a weight of opinion, more or less developed, on most important questions arising during a trial. The corpus of procedural and substantive law developed by the Tribunal and the ICTY constitutes a basis for subsequent trials in international and hybrid tribunals, including the International Criminal Court (ICC) and the Sierra Leone and Cambodia tribunals.
Four additional issues may be of interest, even if they are less directly linked to the jurisprudence proper. First, the work of the Tribunal has confirmed that the fact that Judges come from different legal systems does not create problems in the interpretation and application of international criminal law. In particular, the differences between common law and civil law play a very limited role in everyday life of the Tribunal. Secondly, experience has shown the desirability of Judges in the Trial Chambers possessing criminal trial experience at the national level. Thirdly, in view of the arduous and stressful tasks facing the Judges, it is important that states nominate only persons that are in good health.50 Fourthly, the Tribunal now has perhaps the highest portion of female Judges of any international court.51
D. Victims and Witnesses
The witnesses before the Tribunal live in all parts of the world. Most prosecution witnesses come from Rwanda, whereas many defence witnesses have taken up residence in other countries. Once a Chamber decides that witnesses shall be subject to protection, this task falls on the Witness and Victims Support Section (WVSS) within the Registry. It also provides witnesses with necessary assistance.
Since the first trial started in 1997, the WVSS has ensured the availability of about 1,200 witnesses from 38 countries. It establishes initial contact with the witnesses after their names and addresses have been provided by the prosecution or the defence, confirms their availability to testify, assesses their specific needs, ensures that travel documents are issued, provides escort from their place of residence to Arusha and places them in safe houses or other accommodation when they have arrived. While witnesses are in Arusha, the WWVS ensures their security, familiarizes them with court procedures, provides psychological and medical support, buys clothes for those who need it in order to appear in court and transports them to and from court. After the trial, the witnesses are returned to their place of residence and provided with security. Specific measures are adopted in respect of witnesses who have expressed serious security concerns.
From time to time, ICTR prosecution and defence witnesses claim to have been subjected to threats and intimidation. There have even been a couple of reports concerning killings of potential or previous witnesses. Such allegations are always investigated by the Tribunal. So far, no causal link has been established between the potential or actual testimony of a witness and his or her death.
Very many witnesses were also victims during the 1994 events. A special project for psychological and medical support for witnesses and potential witnesses, funded by the ICTR Trust Fund, was launched in 2000. Its purpose is to provide technical support to the WVSS for the physical and psychological rehabilitation of witnesses, including rape victims. The ICTR Medical Clinic in Kigali employs a psychologist, gynecologist, nurse-psychologist, and laboratory technician. The Clinic's many activities include treatment for HIV/AIDS. Experience shows that psychological counselling has reduced the trauma for witnesses in connection with their testimony, which again has reduced the occurrence of delays during trial.
This brief summary of an important but not well known part of the Tribunal's work illustrates the weight given to the protection of and assistance to victims and witnesses. It is an important task of the Tribunal to ensure that the witnesses for both sides are treated with dignity. In the courtroom, the Chambers endeavour to ensure the necessary balance between cross-examinations required to test the evidence of witnesses and the need to protect them against harassment.
E. Reconciliation
When the Tribunal was set up, the Security Council stated that the prosecution of persons responsible for serious violations of international humanitarian law would ‘contribute to the process of national reconciliation’.52 It is clear that reconciliation cannot be enforced from outside but must emerge from within the country concerned. This said, it is certainly an aim of the Tribunal to contribute to the process of reconciliation in Rwanda. In order to do so, it is important that the activities of the Tribunal are known by Rwandans.
The judicial proceedings at the Tribunal represent the core element in the process of reconciliation. By conducting fair trials, listening to the parties, establishing the facts and applying the law in an impartial manner, the Tribunal decides on the individual guilt or innocence of the accused in respect of each of the charges against them. Whenever a judgment is delivered, an oral summary is given by the presiding Judge, interpreted into the two official languages of the Tribunal as well as Kinyarwanda and transmitted directly into Rwanda. It is also reasonable to believe that guilty pleas, combined with expressions of remorse, contribute to reconciliation. So far, four persons have pleaded guilty at the ICTR. This is a much lower number than at the ICTY.53 More generally, the judgments provide a broader picture of the events in 1994 and the period preceding them, even if it cannot be expected that the Tribunal provides a full, comprehensive historical record.
Admittedly, the Tribunal would have been more visible in Rwanda had its seat been in Kigali and if the judicial proceedings had taken place there. For reasons of efficiency, security and impartiality, this was not considered possible in the 1990s and it is not a viable option to move the Tribunal now. So far, it has not been possible to hold trials or part of them in Rwanda. On some occasions, Chambers have carried out in loco visits in Rwanda or taken depositions there. The challenge is therefore to convey information about the proceedings in Arusha to the Rwandan population. It is not an easy task for an international institution to accomplish this, particularly where the population is largely rural and where the illiteracy rate may be considerable.
The Tribunal's Registry has established an Outreach Programme designed to reach all sectors of the Rwandan society and, further, the world at large. The programme started in the Tribunal's first mandate and now includes a wide range of measures. Of particular significance here is the ICTR Information Centre in Kigali, which was inaugurated in September 2000.54 It receives around 100 visitors daily, from all walks of life. The Centre has a library with information material, including video archives of the judicial proceedings, films and internet access. It organizes press conferences, briefings, computer-assisted legal research training and seminars for journalists. About 100 institutions in Rwanda receive ICTR public information documents through the Centre. Awareness-raising workshops are held outside Kigali. More generally, senior Tribunal representatives, in particular the Prosecutor, visit Rwanda to explain the work of the ICTR. This includes meetings with victim organizations. In Arusha, seminars have been organized for Rwandan journalists, representatives of the judiciary and human rights organizations. Special fellowships are awarded to Rwandan students.
The impact of these and future measures should be assessed closer to the end of the Tribunal's mandate and, in the last resort, by Rwandans themselves. The point in this context is simply that the Tribunal is trying, within the resources available and despite numerous constraints, to contribute to the process of reconciliation.55
F. Relationship with Rwanda
Although Rwanda requested an international tribunal, it voted against the establishment of the ICTR at the Security Council. Rwanda felt that the temporal jurisdiction of the Tribunal was inadequate, the composition and structure of the Tribunal inappropriate and ineffective, its subject-matter included crimes which ought to be tried by the national courts and the Tribunal's seat should be in Kigali. Rwanda opposed the possibility of convicted persons serving their sentences outside its territory and the reality that convicted persons could not be sentenced to capital punishment.56
Subsequently, the relationship between Rwanda and the Tribunal has fluctuated. Rwanda has generally cooperated with the ICTR. However, during a brief period in 2002, Rwanda declined all applications made by the Tribunal for the issuance of travel documents for witnesses, resulting in the loss of approximately 21 trial days. This led to the Security Council issuing a statement through its President. It recalled the mandatory obligation of all states, including Rwanda, to cooperate fully with the ICTR and stressed the duties of states to comply with requests for arrest, detention and transfer of indictees, to make available witnesses to the Tribunal and to assist the ICTR with ongoing investigations.57 Since then, there has been a steady flow of witnesses from Rwanda and cooperation has improved. Subsequent ICTR reports to the Security Council and the General Assembly have stated that Rwanda has cooperated with the Tribunal.58
Since 1999, Rwanda has had a special representative in Arusha who is following the activities of the Tribunal. His presence has facilitated communication between Kigali and Arusha in matters such as the transfer of witnesses and production of documents to the parties.
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5. Final Observations |
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TopAbstract1. IntroductionNotes2. The Mandates3. Lessons Learnt4. Other Achievements5. Final Observations |
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Like its sister Tribunal in The Hague, the ICTR forms part of the United Nations. This raises several issues.59 First, the Tribunal's legitimacy may be questioned, as the organization was not able to prevent the atrocities in 1994. It is sometimes argued that the ad hoc Tribunals were established more as acts of political contrition following failures to swiftly confront the situations in the former Yugoslavia and Rwanda rather than as part of a deliberate policy promoting international justice. On the other hand, some of those involved in the drafting process have insisted that those framing international policy in the Balkans made no express linkage between the policy failures occurring during the wars and the need to address the commission of serious violations of international humanitarian law in their aftermath.60
In relation to the ICTR, it appears undisputable that the motives in establishing the Tribunal comprised a deep revulsion over the overwhelming scale of atrocities committed in Rwanda and a conviction that impunity for such crimes was no longer tolerable. There were strong incentives to act, and to do so fast. It is highly regrettable that the United Nations and its Member States did not prevent the genocide. It has later been established that more should have been done. But a failure of the organization in 1994 cannot be held against the Tribunal.
Secondly, the ad hoc Tribunals have been criticized for their lack of accountability. One aspect of this criticism is the creation of the tri-partite structure of the Tribunals. The Registry is part of the UN Secretariat, whereas the Chambers and the Prosecutor are independent.
The combination of a UN administrative structure and an international judicial body has both strengths and weaknesses. On the one hand, it made it possible for the newly established Tribunal to draw on the experience and regulatory structure of the United Nations. On the other hand, it complicated the coordination of the activities of the Tribunal and, at times, resulted in problems. In particular, the Registry's double task as part of the UN Secretariat while, at the same time, serving the two other branches of the Tribunal presented challenges. The ICTY has had similar experiences.61
A criticism of the two Tribunals based on their tri-partite structure should not overlook that this was a consequence of the decision to establish them by a Security Council resolution and still ensure judicial and prosecutorial independence. There was a need to find working methods which ensured sufficient consultation, cooperation and coordination between the three branches without jeopardizing their respective responsibilities. It was also important to focus on judicial productivity, which is the core activity of the Tribunal. The ICTR gradually succeeded in this task, for instance through regular meetings between the heads of the three branches. An important formalization and strengthening of this working method was the establishment in 2003 of the Co-ordination Council in pursuance of Rule 23bis of the Rules.
A related argument is that it has been difficult for the principal organs of the United Nations, including the Tribunals’ parent organ, the Security Council, to hold any of its organs strictly accountable. Any such criticism should, of course, not overlook the specific characteristics of a court or a Prosecutor, with their need to be independent. The Security Council has rightly avoided intervening in the day-to-day functioning of the Tribunals. This said, the presentation under Res. 1534 (2004) of bi-annual reports by the Presidents and Prosecutors of the ICTR and the ICTY has ensured a dialogue with the Security Council about the conclusion of their respective mandates, without jeopardizing the judicial independence of the two Tribunals.
Thirdly, the ad hoc Tribunals are frequently criticized as being unduly costly, representing more than 10 per cent of the total annual UN regular budget. This criticism is often combined with allegations of unnecessary bureaucracy and inefficiency.
It is no secret that there has been, at least in periods, a certain Tribunal fatigue in some capitals. This may also be a consequence of the general financial malaise afflicting the United Nations as a whole. It is notable that tribunals such as the Special Court for Sierra Leone, established instead through voluntary contributions, have also struggled.62 It is nevertheless important to take such criticism seriously.
Without in any way pretending that there has been no error or inefficiency in the history of the ICTR, it cannot reasonably be argued that the Tribunal is presently inefficient. The unavoidable reality is that the investigation and prosecution of international crimes, including genocide, cannot be accomplished without the creation of a comprehensive international infrastructure. The total number of posts includes staff across a diverse range of functions, including field staff, translators, security personnel, lawyers, investigators and administrators. Investigations are frequently carried out in states with minimal, or compromised, infrastructures. The cases prosecuted are some of the most complicated imaginable, frequently involving multiple defendants and crimes of enormous magnitude and scale. Trying complex cases of this nature would be time-consuming and expensive for any legal system.63
An assessment of the costliness of the Tribunal depends on the figures chosen as a basis for comparison and will therefore easily be subjective.64 Furthermore, while the budgets of the Tribunals are considerable, they are dwarfed by the costs of both armed conflict itself, and its aftermath.65 Moreover, it is important to bear in mind that the Tribunal cannot be evaluated in financial terms alone. The test should also focus on the Tribunal's positive contribution to the development of international criminal law, humanitarian law and human rights law; the arrest of more than 60 persons with a view to determining their guilt or innocence; the fact that a high number of accused in positions of leadership have been held accountable, thereby contributing to the eradication of impunity and refuting those who deny that atrocities ever occurred; the conduct of judicial proceedings in conformity with the highest standards of international due process, including fully honouring the rights of the accused; and the impact of such proceedings at the national level.66
Finally, until the beginning of the 1990s, there were no international criminal tribunals. The last decade has witnessed a proliferation of such courts. The Tribunals clearly had an impact on the establishment of the ICC, as well as on its Statute and Rules. The principle of individual criminal responsibility for everyone, including leaders, has been firmly established. Accountability has replaced impunity in principle, if not yet in practice. New professional groups of international Judges, Prosecutors, Defence Counsel and administrators have experience that did not exist 10 years ago. The ICTR has played an important role in this process. The final appraisal can only be made upon the completion of its work. But the Tribunal has already made a significant contribution to the development of international criminal justice.
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Notes |
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TopAbstract1. IntroductionNotes2. The Mandates3. Lessons Learnt4. Other Achievements5. Final Observations |
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1 SC Res. 808, 5 May 1993, and SC Res. 955, 8 November 1994, respectively.
2 See Completion Strategy of the International Criminal Tribunal for Rwanda, May 2005 (S/2005/336), which contains estimates relating to the workload.
3 SC Res. 977, 22 February 1995, and Secretary-General's Report of 13 February 1995 (S/1995/134).
4 The ICTY adopted its Rules on 11 February 1994. They had already been amended five times by the time the ICTR Judges adopted their Rules, which were almost identical.
5 The six ICTR Judges elected by General Assembly decision 49/324 were Laity Kama, Senegal (President); Yakov A. Ostrovsky, Russia (Vice-President); Lennart Aspegren, Sweden; Tafazzal H. Khan, Pakistan; Navanethem Pillay, South Africa; and William H. Sekule, Tanzania (listed in order of precedence after the first plenary from 26 to 30 June 1995).
6 Arusha has been referred to as ‘the Geneva of Africa’. This comparison is inspired by the numerous international conferences hosted by the town over the years, for instance the negotiations between the Rwandan factions leading to the Arusha Accords (1992) and the Burundi agreement (2000).
7 The first indictment was confirmed in a hotel room (Decision, Kayishema et al. (ICTR-95-I) Review of indictment by Judge Navanethem Pillay, 28 November 1995). The reading of documents in the evenings occasionally took place by candlelight because of regular power cuts. Generators were scarcely available. An illustrative anecdote concerns a Judge who complained to a colleague about the lack of hot water for a couple of days. He retorted that he had not had any water supplies for a week!
8 The first public hearings were held in Arusha on 11 January and 12 March 1996, and related to requests for referral of investigations and proceedings from the national level to the Tribunal. The first two initial appearances took place on 30 May (Rutaganda and Akayesu) and 31 May (Kayishema) 1996.
9 By SC Res. 936, 8 July 1994, Richard J. Goldstone (South Africa) had been appointed as Prosecutor.
10 Louise Arbour (Canada) was appointed by SC Res. 1047, 29 February 1996.
11 Decision, Bagosora and 28 Others (ICTR-98–37-I), Dismissal of Indictment, Judge Tafazzal Hossain Khan, 31 March 1998; Decision, Bagosora and 28 Others, Admissibility of the Prosecutor's Appeal from the Decision of a Confirming Judge Dismissing an Indictment, Appeals Chamber, 8 June 1998. The request included three groups of persons: 11 detainees had already appeared before a Trial Chamber at the pre-trial stage; indictments of five individuals at large had been confirmed; and 13 suspects had not yet had their indictments confirmed.
13 Report of the Secretary-General on the Activities of the Office of Internal Oversight Services, A/51/789, dated 6 February 1997. The Office of Internal Oversight Service (‘OIOS’) concluded that there were serious operational deficiencies in the operation of the Tribunal. In the Registry, not a single administrative area functioned effectively. The Office of the Prosecutor in Kigali had administrative, leadership and operational problems. On 26 February 1997, the Secretary-General appointed Agwu U. Okali (Nigeria) as Registrar. He replaced Adronico O. Adede (Kenya). The Deputy Prosecutor was replaced in March 1997.
14 The judgments rendered during the first mandate were Akayesu (2 September 1998); Kambanda (4 September 1998); Serushago (5 February 1999); Kayishema and Ruzindana (21 May 1999); and Musema (27 January 2000). There were two guilty pleas: Kambanda and Serushago.
15 The 14 accused who received judgments during the second mandate were Ruggiu (1 June 2000); Bagilishema (7 June 2001); E. and G. Ntakirutimana (21 February 2003); Semanza (15 May 2003); Niyitegeka (15 May 2003); Kajelijeli (1 December 2003); Nahimana, Ngeze, and Barayagwiza (‘the Media case’, 3 December 2003); Kamuhanda (22 January 2004); Ntagerura, Bagambiki, and Imanishimwe (‘the Cyangugu case’, 25 February 2004). There was one guilty plea (Ruggiu). The most voluminous trial (238 days) was the so-called Media case (Nahimana et al.).
16 From 27 February 2001, Adama Dieng (Senegal) replaced Dr Okali as Registrar of the Tribunal.
18 By SC Res. 1259, 11 August 1999, Carla Del Ponte (Switzerland) was appointed Prosecutor for the two Tribunals.
19 SC Res. 1165, 30 April 1998, established a third Trial Chamber for both Tribunals (see below, 3.A.). The nine Judges elected for the second mandate were (after the June 1999 Plenary) Navanethem Pillay, South-Africa (President); Erik Møse, Norway (Vice-President); Laity Kama, Senegal; Lloyd George Williams, St Kitts and Nevis; Yakov A. Ostrovsky, Russia; William H. Sekule, Tanzania; Mehmet Güney, Turkey; Pavel Dolenc, Slovenia; and Asoka de Z. Gunawardana, Sri Lanka. Judge Kama passed away in May 2001. On 31 May 2001, the Secretary-General appointed Andrésia Vaz, Senegal, in his place. On 24 April 2001, the General Assembly elected Arlette Ramaroson, Madagscar, and Winston Churchill Maqutu, Lesotho, as additional Judges, following the Security Council's decision to increase the number of ICTR Judges to 11 (see below, 3.A.).
21 ‘Twin-tracking’ implies that two trials are heard in consecutive slots, for instance according to the following pattern: Trial A five weeks, trial B five weeks, trial A five weeks, etc. Defence Counsel in trial A will leave Arusha while trial B is heard.
22 The ‘shift-system’ means that one courtroom is used for two cases, heard in morning and afternoon sessions. The shift system operates in a morning shift from, for instance, 8.45 to about 13.00, and an afternoon shift until about 18.30. At times, some of the Judges have been sitting in two different trials on the same day in order to ensure rapid progress.
24 Gacumbitsi (17 June 2004); Ndindabahizi (15 July 2004); Rutaganira (14 March 2005); Muhimana (28 April 2005). The single accused judgment expected soon is Simba. One of these judgments followed a guilty plea (Rutaganira).
25 The 11 ICTR Judges during the first two years of the third mandate were Erik Møse, Norway (President); Andrésia Vaz, Senegal (Vice-President); William H. Sekule, Tanzania; Lloyd George Williams, St Kitts and Nevis; Mehmet Güney, Turkey; Asoka de Z. Gunawardana, Sri Lanka; Arlette Ramaroson, Madagascar; Jai Ram Reddy, Fiji; Sergei Alekseevich Egorov, Russia; Inés Mônica Weinberg de Roca, Argentina; and Khalida Rachid Khan, Pakistan (replacing a Judge who resigned shortly after taking office in May 2003). Judge Williams resigned with effect from 30 March 2004, and Sir Dennis C.M. Byron, St Kitts and Nevis, was appointed by the Secretary-General on 8 April 2004. Judge Gunawardana retired for health reasons by the end of June 2004 and was replaced by Asoka de Silva, Sri Lanka, by the Secretary-General's appointment of 3 August 2004.
27 Decision, Ndayambaje et al. (ICTR-96–8-T), Matter of Proceedings under Rule 15bis (D), Trial Chamber II, 15 July 2003, affirmed by the Appeals Chamber's decision of 24 September 2003.
28 The Security Council adopted three resolutions on 28 August 2003: Res. 1503 contains the deadlines for completion, Res. 1504 establishes a separate ICTR Prosecutor, and Res. 1505 appointed Hassan Bubacar Jallow (Gambia) as Prosecutor.
29 SC Res. 1534, 26 March 2004, provides for six-monthly reports from the Presidents and Prosecutors of the two Tribunals on the implementation of the Completion Strategy.
30 The nine ad litem Judges so far are Solomy Balungi Bossa, Uganda; Flavia Lattanzi, Italy; Lee Gacuiga Muthoga, Kenya; Florence Rita Arrey, Cameroon; Emile Francis Short, Ghana; Karin Hökborg, Sweden; Taghrid Hikmet, Jordan; Seon Ki Park, Republic of Korea; and Gberdao Gustave Kam, Burkina Faso.
31 This was emphasized in the Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, submitted to the Secretary-General on 11 November 1999 (A/54/634) at 12, 
15: ‘It cannot be overemphasized that establishing a new and unique prosecutorial and judicial institution with the task of implementing a complex and not well defined set of legal norms with respect to extraordinary events in inhospitable environments was inescapably going to involve a lengthy development period ... . No system of international justice embodying standards of fairness, such as those reflected in the creation of ICTY and ICTR would, under the best of circumstances, either be inexpensive or free of the growing pains that inhere in virtually all new organizations’. See also at 81, 264.
33 SC Res. 1165, 30 April 1998, for the ICTR; SC Res. 1166, 13 May 1998, for the ICTY. Already in its Res. 955 (1995), the Security Council had indicated that it would ‘consider increasing the number of judges and Trial Chambers of the International Tribunal if it becomes necessary’. The election of the three new ICTR Judges coincided with the end of term of office of the six Judges who had been elected in 1995, and the election of all nine Judges took place in November 1998. Already, in February 1999, three new Judges took office, the intention being to enable the third Trial Chamber to start work as soon as possible. Unfortunately, this was rendered impossible due to the resignation of one of the Judges in this Chamber.
34 SC Res. 1329, 30 November 2000.
35 SC Res. 1431, 8 August 2002.
36 SC Res. 1512, 27 October 2003.
37 This makes sense but it should be added that Carla Del Ponte devoted a lot of time to the ICTR and visited Arusha and Kigali frequently.
38 Amongst the detainees is the first woman subject to international prosecution for genocide. Pauline Nyiramasuhuko was the Rwandan Minister of Family and Women's Affairs at the relevant time.
39 SC Res. 1503 mentions Radovan Karad
i and Ratko Mladi as persons who have been indicted by the ICTY and who remain at large. It refers also to Félicien Kabuga as an ICTR indictee still at large.
40 According to the Completion Strategy, transfer of cases to Rwanda raises several issues. One involves the death penalty, which has been imposed in genocide cases, though only rarely implemented. There is also the issue of the capacity of the Rwandan judicial system to handle such cases at a time when it faces difficulties in coping with thousands of local cases connected with the genocide.
41 The Prosecutor considers that 40 suspects could be tried in national jurisdictions. He is currently engaged in discussions with some states for this purpose. At a meeting in Kigali on 23 February 2004, he handed over case files involving 15 suspects to the Rwandan authorities for possible trial in that country. The Prosecutor has indicated that more files will follow.
42 See Decision, Barayagwiza (ICTR-97–19-AR72), Appeals Chamber, 31 March 2000, 74 (confirming that the appellant's rights were violated, and that all violations demand a remedy. This remedy was to be given when judgment was rendered by the Trial Chamber, and would include financial compensation in the event the accused is acquitted, or a reduction in sentence in the event of his conviction). See also Decision, Semanza (ICTR-97–20-A), Appeals Chamber, 31 May 2000, 127–128 (finding the Appellant's right to be informed promptly of the charges against him to have been violated and upholding his entitlement to the same remedy as that granted in the Barayagwiza case).
43 Also acquittals of genocide contributes to the development of case law.
44 Judgment, Akayesu (ICTR-96–4-T) Trial Chamber I, 2 September 1998. As the Genocide Convention was adopted only in 1948, the ad hoc Tribunals were stricto sensu the first international bodies to adjudicate the elements of that offence.
45 Judgment and Sentence, Kambanda (ICTR 97–23-S), Trial Chamber I, 4 September 1998.
46 See, e.g. Judgment, Rutaganda (ICTR-96–3-A), Appeals Chamber, 26 May 2003, 584.
47 Akayesu (1998), Musema (2000), Semanza (2003) and Muhimana (2005).
48 Judgment, Nahimana et al. (ICTR-99–52-T), Trial Chamber I, 3 December 2003.
49 Judgment of the International Military Tribunal for the Trial of the German Major War Criminals, Nuremberg, 30th September and 1st October (London: HMSO, Cmd 6964, 1946, Reprinted 1966), at 100–102.
50 The second and third points are also mentioned by the Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, S/2004/616, 23 August 2004, 45.
51 Four of the 11 permanent Judges and five of the nine ad litem Judges are women, giving a total of 45 per cent female representation.
52 SC Res. 955, 8 November 1994, seventh and ninth preambular paragraphs.
53 The four guilty pleas have been entered by Kambanda, Serushago, Ruggiu and Rutaganira. By contrast, in 2004 alone, the ICTY rendered nine sentencing judgments arising from nine guilty pleas; see Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. UN doc A.59/215, S/2004/627, 16 August 2004.
54 The Centre's name in Kinyarwanda is Umusanzu mu Bwiyunge (Contribution to Reconciliation).
55 In addition to the Tribunal's activities, Hirondelle Press Agency, an independent institution with several journalists (including Rwandans), provides daily press coverage about the ICTR from Arusha. Internews, an independent agency, produces films about the ICTR proceedings, the trials before the ordinary courts in Rwanda and gacaca (the grassroot courts in Rwanda) and shows these films in various parts of Rwanda, followed by local discussions amongst Rwandans.
56 Statement to the Security Council by the Rwandan Representative on 8 November 1994.
57 Statement of 18 December 2002 by the President of the Security Council (S/PRST/2002/39).
58 See recent annual ICTR reports as well as bi-annual reports in conformity with SC Res. 1534 (2004). In comparison, see G.K. McDonald, ‘Problems, Obstacles and Achievements of the ICTY’, 2 Journal of International Criminal Justice (2004) 558–571, at 562–565.
59 Some of the issues considered below are discussed in the Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, S/2004/616, 23 August 2004, Chapter XII, in particular 40–42; see also R. Zacklin, ‘The Failings of Ad Hoc International Tribunals’, 2 Journal of International Criminal Justice (2004) 541–545.
60 D. Scheffer, ‘Three Memories from the Year of Origin, 1993’, 2 Journal of International Criminal Justice (2004) 353–354.
61 E.g. R. Goldstone, ‘A View from the Prosecution’, ibid., 380–384, at 381; L.C. Vohrah, ‘Some Insights into the Early Years’, ibid., 388–395, at 392–393; A. Cassese, ‘The ICTY: A Living and Vital Reality’, ibid., 585–597, at 586–588.
62 Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, S/2004/616, 23 August 2004, 43.
63 Just two examples: the Lockerbie trial amounted to total costs of £75m (source: BBC News, 13 March 2002) or USD 140m. And, according to CNN, the US federal government spent approximately USD 60m to prosecute and defend Timothy McVeigh, the perpetrator of a single complex criminal incident (the Oklahoma City bombing).
64 The total amount of the annual budgets of both ad hoc Tribunals is approximately equal to the production costs of the movie Titanic, and about half the value of the bonus paid to its director (source: Wall Street Journal, 26 March 1998).
65 A World Bank study which attempted to assess the human, social and economic costs of Rwanda's genocide estimates that per capita GDP in Rwanda would probably be between 25 and 30% higher today if the conflict had not taken place. About a quarter of the population presently in poverty can be said to be poor as a result of the genocide (see The World Bank, ‘Rwanda: The Impact of Conflict on Growth and Poverty’, Social Development Notes: Conflict Prevention and Reconstruction, No. 18/June 2004, available online at: http://lnweb18.worldbank.org/ESSD/sdvext.nsf/67ByDocName/RwandaTheImpactofConflictonGrowthandPoverty/$FILE/DN18_Web.pdf (visited 3 May 2005)).
66 The formulations are inspired by L.D. Johnson, ‘Ten Years Later: Reflections on the Drafting’, 2 Journal of International Criminal Justice (2004) 368–379, at 378.
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