Main achievements of the ICTR

Journal of International Criminal Justice

Volumn 3, Issue 4, 2005, Pages 920-943

  Møse, Erik ^a  

^a ICTR ^*  (United States)

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EID: 26444480275     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqi068     Document Type: Article

References (70)

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.
12. See below, 2.B.
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.
17. See above, 2.A.
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).
20. See below, 3.C.
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.
23. See below, 3.
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.
26. SC Res. 1482, 19 May 2003.
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.
32. See above, 2.
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 Karadžić and Ratko Mladić 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).
43. 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).
44. Also acquittals of genocide contributes to the development of case law.
45. 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.
46. Judgment and Sentence, Kambanda (ICTR 97-23-S), Trial Chamber I, 4 September 1998.
47. See, e.g. Judgment, Rutaganda (ICTR-96-3-A), Appeals Chamber, 26 May 2003, §584.
48. Akayesu (1998), Musema (2000), Semanza (2003) and Muhimana (2005).
49. Judgment, Nahimana et al. (ICTR-99-52-T), Trial Chamber I, 3 December 2003.
50. 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.
51. 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.
52. 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.
53. SC Res. 955, 8 November 1994, seventh and ninth preambular paragraphs.
54. 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.
55. The Centre's name in Kinyarwanda is Umusanzu mu Bwiyunge (Contribution to Reconciliation).
56. 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.
57. Statement to the Security Council by the Rwandan Representative on 8 November 1994.
58. Statement of 18 December 2002 by the President of the Security Council (S/PRST/2002/39).
59. 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.
60. 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;
61. see also R. Zacklin, 'The Failings of Ad Hoc International Tribunals', 2 Journal of International Criminal Justice (2004) 541-545.
62. D. Scheffer, 'Three Memories from the Year of Origin, 1993', 2 Journal of International Criminal Justice (2004) 353-354.
63. E.g. R. Goldstone, 'A View from the Prosecution', ibid., 380-384, at 381;
64. L.C. Vohrah, 'Some Insights into the Early Years', ibid., 388-395, at 392-393;
65. A. Cassese, 'The ICTY: A Living and Vital Reality', ibid., 585-597, at 586-588.
66. 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.
67. 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).
68. 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).
69. 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)).
70. 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.