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Rwanda's national criminal courts and the International Tribunal

Published online by Cambridge University Press:  13 January 2010

Olivier Dubois
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Extract

Questions inevitably arise about the concurrent competence and complementary nature of an international tribunal and national courts, and about cooperation between them. Those questions may well apply to any State on earth because, by virtue of the principle of universal competence, many crimes which international tribunals are competent to try may also be tried by any State irrespective of the place where they are committed or the nationality of the perpetrator.

Type
The Rwanda Tribunal: its role in the African context
Information
International Review of the Red Cross (1961 - 1997) , Volume 37 , Special Issue 321: International criminal jurisdiction and international humanitarian law: the Tribunals for the former Yugoslavia and for Rwanda , December 1997 , pp. 717 - 731
Copyright
Copyright © International Committee of the Red Cross 1997

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Footnotes

*

Olivier Dubois graduated in law and criminology at the Catholic University of Louvain (Belgium). He was posted to Kigali from 1994 to 1996 on a technical assistance mission to help reconstruct Rwanda's judicial system. He is at present a legal adviser with the ICRC's Advisory Service on International Humanitarian Law.

References

1 UN Doc. S/1994/1 15 of 29 September 1994. On 6 October 1994 the President of Rwanda said in his address to the UN General Assembly that it was “absolutely urgent that this international tribunal be established”; Official Records of the General Assembly. Forty-ninth Session, Plenary meetings, 21st Meeting, p. 5.

2 Security Council, Forty-ninth Year, 3453rd Meeting, 8 November 1994, S/PV.3453, pp. 14 ff.

3 The international community itself recognized that serious massacres had occurred: Report of 11 August 1993 by the Special Rapporteur on his mission to Rwanda between 8 and 17 April 1993, E/CN.4/1994/7/Add.1.

4 Article 6, para. 1 of the Tribunal's Statute.

5 Akhavan, P., “The International Criminal Tribunal for Rwanda: The politics and pragmatics of punishment”, American Journal of International Law, Vol. 90, 1996, p. 506.CrossRefGoogle Scholar

6 S/PV.3453, p. 15. Ambassador Bakuramutsa stated that Rwanda still believed that the international community's interest in creating the tribunal was a face-saving measure since it had not reacted to save Rwanda from the genocide even though it was present locally. See “1945–1995: Critical Perspectives of the Nuremberg Trials and State Accountability”. Fifth Ernst C. Stieffel Symposium, New York Law School Journal of Human Rights. Vol. 12, 1995, p. 650.Google Scholar

7 Art. 27 of the Tribunal's Statutes and Rules 124 and 125 of the Rules of Procedure and Evidence.

8 Arts. 26 and 312 (premeditated murder) of the Rwandan Penal Code, Decree-Law No. 21/77 of 18 August 1977, Journal officiel tie la République rwandaise, 1 07 1978.Google Scholar

9 Second optional additional protocol to the International Covenant on Civil and Political Rights, aimed at abolishing the death penalty, adopted by the General Assembly in resolution 44/128 of 15 December 1989. On this issue see Schabas, W., The Abolition of the Death Penalty in International Law, 2nd ed., Cambridge University Press, Cambridge, 1997.Google Scholar

10 Report of 13 February 1995 by the Secretary-General pursuant to paragraph 5 of Security Council Resolution 955 (1994), S/1995/134; and Resolution 977 (1995). S/RES/977 of 22 February 1995.

11 Resolution 955, ninth preambular paragraph.

12 Report by the Secretary-General of 13 February 1995, supra, para. 42.

13 Report by the Secretary-General of 12 May 1997 on the Financing of the International Tribunal for Rwanda, A/C.5/51/29/Add. 1, paras. 44 and 45.

14 Choosing Kigali as the seat of the Tribunal would have raised problems for certain defence witnesses living outside Rwanda, because the Rwandan justice system suspected many of them of genocide. The Tribunal would have been obliged to obtain guarantees from Rwanda to the effect that such persons would not be arrested and that their safety would be guaranteed when returning to Rwanda to testify. That would probably have created major tensions between the Tribunal and the Rwandan authorities.

15 Resolution 955, para. 6; Rule 4 of the Rules of Procedure and Evidence.

16 Interview with A. Cassese, Ubutabera (independent newspaper reporting on the Tribunal), No. 9, 9 June 1997, available at http://persoweb.francenet.fr/~intermed.

17 Delmas-Marty, M. (ed.), Procédures pénales d'Europe, PUF, Paris. 1995.Google Scholar

18 Slosser, C., “Changeover in Kinshasa slows trials”, Tribunal, Institute for War and Peace Reporting, No. 9, 06–07 1997, p. 7.Google Scholar

19 Rihaux, A., “Folie meurtrière au pays des mille collines: carnel de notes d'un enquêteur suisse au Rwanda”, Recueil de jurisprudence neuchâtetoise, 1996, p. 29 Google Scholar; Swartenbroekx, M.-A.. “Le Tribunal pénal international pour le Rwanda”, in Dupaquier, J.-F. (ed.), La justice Internationale face au drame rwandais, Karthala, Paris, 1996, p. 107 Google Scholar; Vandermeersch, D., “La loi du 22 mars 1996 relative à la reconnaissance du Tribunal pour l'ex-Yougoslavie et du Tribunal international pour le Rwanda et à la coopération avec ces tribunaux”. Revue de Droit pénal et de Criminologie, 1996, p. 873.Google Scholar

20 Art. 28 of the Statute and Rules 8, 40, 55 and 61 of the Rules of Procedure and Evidence.

21 Art. 8, para. 2 of the Statute.

22 Art. 9, para. 1 of the Statute.

23 In this connection see D. De Beer et al., The organic law of 30 August 1966 on the organization of the prosecution of offences constituting the crime of genocide or crimes against humanity: commentary, Alter Egaux, Kigali, 1997, p. 30, footnote 4.

24 Bassiouni, C., “From Versailles to Rwanda in seventy-five years: The need to establish a permanent international criminal court”, Harvard Human Rights Journal, Vol. 10, 1997, p. 9.Google Scholar

25 Nsanzuwera, F.-X., La magistrature rwandaise dans l'étau du pouvoir exécutif, CLADHO. Kigali, 1993.Google Scholar

26 For this process and its results by the end of 1995, see Réseau de Citoyens/Citizens' Network, Apercus du systeme judiciaire - Rwanda décembre 1995 — Présentation de lacollaboration technique de R.C.N., R.C.N., Kigali, 1996.Google Scholar

27 See Recommendations of the Conference held in Kigali from 1 to 5 November 1995 on “Genocide, Impunity and Accountability”, Presidency of the Republic, Kigali, 1995.Google Scholar

28 Organic Law of 30 August 1996 on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990, Law No. 8/96, Official Gazette of the Republic of Rwanda, 30 08 1996.Google Scholar

29 Rwanda has ratified the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide and the Convention of 26 November 1968 on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. Decree-Law No. 8/75 of 12 February 1975. Journal officiel tie la Republique rwandaise. 1975, pp. 230, 246 ff.Google Scholar

30 de Beer, D., The Prosecutions for Crime of Genocide and Crime against Humanity: Legal Basis, R.C.N.-Rwanda Editor, 1995 Google Scholar; Schabas, W., “Justice, democracy, and impunity in post-genocide Rwanda: Searching for solutions to impossible problems”. Criminal Law Forum, Vol. 7, 1996, p. 535.Google Scholar

31 On this issue, see Beer, D. de, op. cit., p. 21.Google Scholar

32 Organic Law, Art. 2.

33 List published in the Official Gazette of the Rwanda Republic, special issue, 30 November 1996. Those figuring on the list are not there definitively. The Office of the Public Prosecutor and the Tribunal have full powers to place any listed person in another category.

34 The principle of non-retroactivity of penal sanctions prohibits the imposition, by application of the Organic Law, of the death penalty on any person against whom it could not be imposed under the Penal Code.

35 Art. 14 of the Organic Law. Art. 39 of the same law specifies that the Penal Code is applicable unless otherwise provided in the Organic Law. The latter makes no provision for the allowance of mitigating circumstances (Arts. 82–84 of the Penal Code); it must therefore be concluded that the judge may allow them in favour of any person sentenced, including those in Category 1.

36 Arts. 15 and 16 of the Organic Law.

37 Law No. 3/97 of 19 March 1997, Official Gazette of the Republic of Rwanda, 1 08 1997.Google Scholar

38 Rwandan lawyers have to date played only a marginal part in defending those accused in the genocide-related trials. As victims, or relatives or friends of victims, it is quite understandable that they should find it hard to engage in such proceedings. The constitution of the Bar may offer them support within a better-regulated professional and ethical framework.

39 Human Rights Field Operation in Rwanda (ed.), Genocide trials to 30 June 1997 — Status report as of 15 July 1997, Doc. FRFOR/STRPT/52/1/15JULY 1997/E, p. 3.

40 Ibid., p. 4.

41 See, for example, the local press: “Le TPIR a 180 yeux qui ne voient pas”, IMVAHO, No. 1188 of 30 06 1997 Google Scholar; “Je reviens d'Arusha et du TPIR, ce véritable nid de vipères pour le Rwanda”, Rwanda Liberation, No. 24, 05 1997 Google Scholar; “Who is Justice Louise Arbour? A “no” friend to women!”, The Central African Newsline, No. 5, 15 05 1997.Google Scholar

42 Radio Rwanda, news broadcast in Kinyarwanda at 1900 hours on Saturday, 24 May 1997 (transcribed into French for the author).

43 For these arrests, see Ubutabera, 21 and 28 07 1997 Google Scholar, available at http://persoweb.francenet.fr/~intermed.

44 “Rwanda thanks Arusha tribunal, UN, Kenya over genocide arrest”, AFP, 23 07 1997.Google Scholar