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Genocidal Conflict in Rwanda and the ICTR

Published online by Cambridge University Press:  21 May 2009

Daniel D. Ntanda Nsereko
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The Republic of Rwanda is part of the African Great Lakes Region. The region straddles the east-central part of Africa. A chain of lakes is found in the region, ranging from Lakes Victoria, Albert, Edward, Kivu and Tanganyika; hence the name African Great Lakes Region. It covers the countries of Burundi, the Democratic Republic of the Congo, Kenya, Rwanda, Tanzania and Uganda. The region's relief is moderate and influenced by tectonic and volcanic activity. Parts of the region are heavily forested, as is the case with the Congo-basin, while the others in the east are grassland savannahs. The volcanic soil in parts of the region makes it ideal for agriculture and therefore conducive to human habitation. Indeed parts of the region, particularly Burundi and Rwanda, have high population densities and a concomitant problem of land shortage. Besides the rich arable soil the countries of this region are also well endowed with a variety of precious mineral resources, such as gold, diamonds, uranium, copper, emeralds and cobalt.

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Articles
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Netherlands International Law Review , Volume 48 , Issue 1 , May 2001 , pp. 31 - 65
Copyright
Copyright © T.M.C. Asser Press 2001

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References

2. See Uganda and Human Rights: Report of the International Commission of Jurists to the United Nations (Geneva 1977); ‘The Human Rights Situation in Uganda: Written Statement Submitted by Amnesty International, a Non-Governmental Organization in Category II in Consultative Status’, UN Doc. E/CN.4/NGO/193; Amnesty International, Human Rights Violations in Uganda (London 1982); Y. Lule, Human Rights Violations in Uganda Under Obote (Pasadena, California, Munger Africana Library, California Institute of Technology 1982).

3. Lemarchand, R., Burundi: Ethnic Conflict and Genocide (Cambridge, Woodrow Wilson Center Press and Cambridge University Press 1994).Google Scholar

4. Adelman, H. and Suhrke, A., The Path of Genocide: the Rwanda Crisis from Uganda to Zaire (New Brunswick, Transaction Publishers 1999);Google ScholarPrunier, G., The Rwanda Crisis: History of a Genocide (London, Hurst and Company 1997);Google ScholarBlock, R., ‘The Tragedy of Rwanda’, The New York Review 20 October 1994.Google Scholar

5. See Human Rights Watch, Civilian Killings and Impunity (New York 1997).Google Scholar

6. Louis, W.M. Roger, Ruanda-Burundi; 1884–1919 (Oxford, Clarendon Press 1963) p. 112Google Scholar. For similar descriptions showing the Tutsi as a superior people to the Bantu agriculturists see Prunier, op. cit. n. 4, at pp. 5–9.

7. See n. 4 supra.

8. Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96–4-T, para. 90.

9. On the subject of a people's right to return to their homeland, see Nsereko, D.D. Ntanda, ‘The Right to Return Home’, 21 The Indian Journal of International Law (1981) p. 335.Google Scholar

10. A minister of the Seventh-Day Adventist Church, Pastor Eliphaphan Ntakirutimana is one of the church leaders to be indicted by the Tribunal. He was transferred to the Tribunal from the USA on 26 March 2000. For a journalist's impression of the events in Rwanda as they involved some church leaders, see Gourevitch, P., We Wish to Inform You that Tomorrow We Will be Killed With Our Families (New York, Farrar Straus and Giroux 1999).Google Scholar

11. See Crossette, B., ‘Why Washington and the World Largely Failed to Act to Head Off the Blood Bath’, New York Times 25 March 1998, p. A14.Google Scholar

12. Rwanda's anger was shown several years later when government officials organised a reception for UN Secretary General Koffi Anan and deliberately stayed away from it in order to embarrass Anan. At the time of the genocide Anan was an official of the UN responsible for peace keeping.

13. UN Doc. S/1994/1125.

14. UN Doc. S/Res/955,1994.

15. ICTR-96–15-T of 19 June 1997.

16. See UN Doc. S/1994/1157.

17. UN Doc. S/1994/1125.

18. France et al., v. Goering et al., (1946) 23 IMT 1, [1946] Ann. Dig. 202 at 221.

19. ICTR-97–32–1. He pleaded guilty to the indictment.

20. Art. 5.

21. Art. 2.

22. Art. 3.

23. Art. 4.

24. See for example McDonald, G.K. and Swaak-Goldman, O., eds., Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts (The Hague, Kluwer Law International 2000).Google Scholar

25. Art. 8(1).

26. Art. 8(2).

27. ICTR-96–13-T.

28. Prosecutor v. Tadic, Case No. IT-94–1-AR 72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.

29. Rule 15(C) of the Rules of Procedure and Evidence.

30. Rule 15(B).

31. See for example the following cases: Prosecutor v. Gratien Kabiligi, ICTR-97–34-T, decision of 4 November 1999, seeking to disqualify Judge Sekule; Prosecutor v. Juvenal Kajelijeli, ICTR-98–44-I, decision of 7 December, seeking to disqualify Judge Kama and Judge Sekule; Prosecutor v. Matthieu Ngirumpatse, ICTR-98–44-I, decision of 18 November 1999, seeking to disqualify Judge Kama and Judge Sekule; and Prosecutor v. Eduardo Karemera, ICTR-98–44-I, decision of 17 November 1999, seeking to disqualify Judge Kama and Sekule on the ground that they had previously participated in one of the proceedings in the case.

32. ICTR-95–1-T.

33. ICTR-87–19-I.

34. According to Rule 40 bis (H) of the Tribunal's Rules of Procedure ‘the total period of [provisional] detention shall in no case exceed 90 days’.

35. According to Rule 40 bis (J) ‘[a]fter his transfer to the seat of the Tribunal, the suspect, assisted by his counsel, shall be brought, without delay, before the judge who made the order’.

36. R v. Horsefery Road Magistrates Court: Ex Parte Bennett, [1994] 1 AC 42, at p. 62. This case was cited by the Appeals Chamber.

37. Ibid.

38. The Chamber stated thus at para. 112: ‘The Tribunal – an institution whose primary purpose is to ensure that justice is done – must not place its imprimatur on such violations. To allow the Appellant to be tried on the charges for which he was belatedly indicted would be a travesty of justice. Nothing less than the integrity of the Tribunal is at stake in this case. Loss of public confidence in the Tribunal, as a court valuing human rights of all individuals – including those charged with unthinkable crimes – would be among the most serious consequences of allowing the Appellant to stand trial in the face of such violations of his rights. As difficult as this conclusion may be for some to accept, it is the proper role of an independent judiciary to halt this prosecution, so that no further injustice results.’

39. State v. Ebrahim, [1991] 2 S. Afr. L Rep. 553(A). See also State v. December, [1995] S. Afr. Rep. 438. For a reaction to the December decision see J. Dugard, ‘Abduction: Does the Appellate Division Care About International Law?’, 12 SAJHR (1996) p. 324. For the practice and recent jurisprudence of the United States courts see Haymann, P.B. and I.H., Gershengorn, ‘Pursuing Justice, Respecting the Law’, 3 Criminal Law Forum (1991) p. 1.Google Scholar

40. Bell v. D.P.P. of Jamaica, [1985] 2 All ER 585 (PC). This case was also cited by the Appeals Chamber.

41. See for example the Botswana case of State v. Seboni, [1968–70] Bots. L Rep. 153, where the Botswana High Court refused to declare the charges against the accused a nullity on the ground that his constitutional right to trial within a reasonable time were admittedly violated. It referred him to his other remedies such as applying for habeas corpus and to damages. In State v. Makwekwe, [1981] Bots. L Rep., the High Court said inordinate delay to bring the accused to trial must be one of the factors to be considered when determining sentence.

42. See also Rules 120 and 121 of the Rules of Procedure and Evidence.

43. The Appeals Chamber when it made its first decision was constituted as follows: Gabrielle Kirk McDonald (President), Wang Tieya, Mohamed Shabuddeen, Lai Chand Vohrah and Rafael Nieto-Navia. When reviewing that decision Judges McDonald and Tieya did not sit. In their place sat Judges Claude Jorda (new President), and Fausto Pocar.

44. Schabas, W.A., Barayagwiza v. Prosecutor, 94 AJIL (2000) p. 563Google Scholar

45. The Chamber said: ‘In the wholly exceptional circumstances of this case, and in the face of a possible miscarriage of justice, the Chamber construes the condition laid down in Rule 120, that the fact be unknown to the moving party at the time of the proceeding before a Chamber, and not discoverable through the exercise of due diligence, as directory in nature. In adopting this position, the Chamber has regard to the circumstance that the Statute itself does not speak to this point.’

46. <http://www.ictr.org/ENGLISH/decisions/Barayagwiza/separate31032000.htm>.

47. Ibid.

48. Ibid.

49. Ibid.

50. Ibid.

51. In a letter to the Trial Chamber he said: ‘I would like to confirm to you the content of my statement of 23 October 2000, by which I informed you of my decision not to attend the so-called “Media Trial” in the Trial Chamber I to the International Tribunal for Rwanda (ICTR) for the reason stated in that statement. I challenged the ability of the ICTR to render an independent and impartial justice due, notably, to the fact that it is dependent on the dictatorial anti-hutu regime of Kigali to which two of you paid recently a working visit aimed at strengthening relations to the detriment of my right.’ See Decision on Defence Counsel Motion to Withdraw. Found at <http://www.ictr.org/ENGLISH/cases/Barayagwiza/decisions/021100.htm>, para. 12.

52. Ibid., at para. 21.

53. It is noteworthy that in subsequent proceedings when the Trial Chamber asserted its independence it cited Judge Nicto-Navia's separate declaration and not the opinion of the majority. See para. 15 of the Decision on Defence Counsel Motion to Withdraw. (Found at http://www.ictr.org/ENGLISH/cases/barayagwiza/decision/02100/htm).

54. For example, in the case of Kayishema and Ruzindana (Case No. 1CTR-95-I-T) in which the accused were cumulatively charged with genocide, crimes against humanity (extermination) and crimes against humanity (murder) – the charges being based on the same facts – Trial Chamber II found that all the elements necessary to prove the three offences, including the mens rea were the same, and convicted the accused of only genocide under which all the rest were subsumed. Trial Camber I in a subsequent case of Rutaganda (Case No. ICTR-96–3-T) where the issues and the fact situation were identical, convicted the accused of all the counts cumulatively charged, on the ground that each offence was designed to protect different values.

55. IT-95–16-T (14 January 2000).

56. See, for example, Triffterer, O., Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (Baden-Baden, Nomos Verlagsgeselleschaft 1999).Google Scholar

57. See n. 8 supra.

58. Generally see Verdirame, G., ‘The Genocide Definition in the Jurisprudence of the Ad Hoc Tribunals’, 49 ICLQ (2000) p. 578.Google Scholar

59. For a more detailed discussion on this point see Nsereko, D.D. Ntanda, ‘Genocide: A Crime Against Mankind’, in McDonald and Swaak-Goldman, eds., op. cit. n. 24, at p. 126.Google Scholar

60. See paras. 523–524 of the Judgement.

61. See V.N., Dadrian, ‘Genocide as a Problem of National and International Law’, 14 Yale JIL (1989) p. 221; LeBlanc, ‘The Genocide Convention and Political Groups’, 13 Yale JIL (1988) p. 268; F. Chalk, ‘Redefining Genocide’, in G.J. Andreopoulous, ed., Genocide: Conceptual and Historical Dimensions (Philadelphia, University of Pennsylvania Press 1994) pp. 47–63; N. Ruhashyankiko, ‘Study of the Question of the Prevention and Punishment of the Crime of Genocide’, UN Doc. E/CN.A/sub.2/416,4 July 1978, paras. 84–87.Google Scholar

62. Para. 516.

63. Para. 512. The Chamber adopted wholesale this definition from the Nottebohm case, ICJ Rep. (1955) p. 4.

64. See para. 702.

65. Para. 513.

66. See Joshi, R., ‘Genocide in Rwanda: The Root Causes’, 3 East African Journal of Peace and Human Rights (1996) p. 77.Google Scholar

67. See, for example, Block, R., ‘The Tragedy in Rwanda’, New York Review 20 October 1994, p. 3.Google Scholar

68. Because of the difficulties involved in classifying people along racial lines and the additional complication posed by the interplay of culture and language some writers have suggested that the terms ‘ethnical’ and ‘racial’ be used to mean one and the same thing. For an excellent discussion on this point see Ruhashyankiko, supra n. 61.

69. Prosecutor v. Rutaganda, ICTR-96–3-T, para. 51.

70. Judges Laity Kama (presiding), Lennart Aspegren and Navanethaem Pilly.

71. Ibid.

72. Para. 702 of the Judgment.

73. Para. 502.

74. For an extensive discussion of the case see Askin, K.D., ‘Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status’, 93 AJIL (1999) p. 97. The author correctly asserts at p. 100 that ‘the Akayesu judgment resulted in the most progressive case law on gender ever pronounced by an international judicial body’.Google Scholar

75. Para. 706.

76. Para. 732.

77. Ibid.

78. Para. 706.

79. Ibid.

80. Para. 686.

81. Ibid.

82. Para. 687.

83. IT-96–21-T, para. 479.

84. IT-95–17/1-T.

85. Ibid., para. 185.

86. See for example Askin, loc. cit. n. 74.

87. Para. 697.

88. They have since 1995 to date amended the Rules nine times.

89. Rule 6(C) of the Rules of Procedure and Evidence.

90. See the Kabiligi case, ICTR-97–34–1.

91. See Art. 51 of the ICC Statute.

92. Thirteen ministers and a party secretary, ten senior government administrators, four media leaders and four others.

93. Ten commanders.

94. <http://www.ictr.org/ENGLISH/factsheets/detainee.htm>.

95. ICTR-97–23-I.

96. <http://www.ictr.org/ENGLISH/cases/KAMBANDA/judgment/191000.htm>.

97. Ibid., at paras. 104–111.

98. This assertion is borne out by Art. 22 of the ICTR Statute that provides as follows: ‘The Trial Chambers shall pronounce judgments and impose sentences on persons convicted of serious violations of international humanitarian law [emphasis added].’

99. Other pleas of guilty were subsequently recorded in the Serushago case, ICTR-98–39–1, and in the Ruggiu case, ICTR-97–32–1.

100. The Prosecutor Mme Carla Del Ponte revealed at a press conference recently that her Office was ‘actively’ investigating some RPF soldiers who were alleged to have committed crimes within the Tribunal's jurisdiction. See ICTR/INFO-9–2–254-EN.

101. French Judge Bruguere is currently investigating the matter. Ibid.