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The International Criminal Tribunal for Rwanda: Are all issues addressed? How does it compare to South Africa's Truth and Reconciliation Commission? Nos. 316–321

Published online by Cambridge University Press:  13 January 2010

Gerhard Erasmus  and
Nadine Fourie
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Extract

The response of the international community to the massacres and genocide in Rwanda was at times “reluctant” and “inadequate”. This can partly be explained by the amount of human and material resources that would have been required to restore peace and address the more fundamental issues of the failure of the State itself. The Rwandan experience does, however, also raise serious questions about the adequacy of international and regional structures responsible for maintaining and restoring peace.

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. 705 - 715
Copyright
Copyright © International Committee of the Red Cross 1997

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Footnotes

*

Professor Gerhard Erasmus and Nadine Fourie are both at the Department of Public Law of the University of Stellenbosch, South Africa.

References

1 In a report to the Security Council, the Secretary-General wrote that the international community's delayed reaction to the genocide “demonstrated graphically its extreme inadequacy to respond with prompt and decisive action to humanitarian crises entwined with armed conflict”. In his opinion, the entire system needed to be reviewed to strengthen its capacity to react. The United Nations and the situation in Rwanda, UN reference paper of 04 1995. p. 13.Google Scholar

2 According to estimates of the situation in late 1994, of a total population of approximately 7 million, as many as 500,000 Rwandans had been killed, 3 million had been internally displaced and over 2 million had fled to neighbouring countries. Ibid., p. 17.

3 Security Council Resolution 955 (1994), 8 November 1994, which established the ICTR.

4 After the adoption of Security Council Resolution 918 in 1994.

5 Security Council Resolution 935 (1994).

6 Security Council Resolution 955 (1994).

7 Articles 1 and 7 of the Statute of the International Criminal Tribunal for Rwanda (hereafter “the Statute”).

8 Article 8( 1) of the Statute.

9 Article 8(2) of the Statute.

10 Article 9 of the Statute provides that the non bis in idem rule applies strictly in the case of a person already tried before an international tribunal. There are some exceptions to the rule with regard to a person previously tried before a national court — e.g. where a person was not tried diligently or where a national trial was not impartial or independent.

11 Article 26 of the Statute.

12 From a statement by a Belgian barrister who was appointed to defend some of the accused and who has subsequently resigned.

13 Under Article 23 of the Statute, the International Tribunal can only impose sentences of imprisonment.

14 Viljoen, F. “The role of the law in post-traumatised societies: Addressing gross human rights violations in Rwanda”, De lure, 1997, p. 25.Google Scholar

15 The Nuremberg Tribunal was established under the London Agreement of 8 August 1945 to try war crimes committed during the Second World War.

16 Postamble of the Constitution, Act 200 of 1993.

17 AZAPO and Others v The President of the Republic of South Africa, 1996(8) BCLR 1015 (CC) 1020 at para 2 per Mahomed J: “It was wisely appreciated by those involved in the preceding negotiations that the task of building such a new democratic order was a very difficult task because of the previous history and the deep emotions and indefensible inequities it had generated; and that this could not be achieved without a firm and generous commitment to reconciliation and national unity. It was realised that much of the unjust consequences of the past could never be fully reversed. It might be necessary in crucial areas to close the book on that past.”

18 See section 3(1) of the Promotion of National Unity and Reconciliation Act, 34 of 1995 (hereafter “the Act”). The report will, apart from providing a comprehensive account of the activities and the findings of the Commission, also contain recommendations on the prevention of future violations of human rights.

19 Sections 3(1)b and 16 to 22 of the Act provide for the functioning of the Amnesty Committee.

20 AZAPO. supra (note 17), p. 1028 Google Scholar, para 17: “Without that incentive there is nothing to encourage such persons to make the disclosures and to reveal the truth which persons in the position of the applicant so desperately desire. With that incentive, what might unfold are objectives fundamental to the ethos of a new political order.”

21 Chapter 3 of the Act.

22 Chapter 5 of the Act.

23 See Du Preez and Another v Truth and Reconciliation Commission 1997(4)BCLR 531 (A), Niewoudt v Truth and Reconciliation Commission 1997(2) SA10 (SECLD).

24 AZAPO v The President of the RSA, supra (note 17).