Report of Proceedings - International Criminal Tribunal for Rwanda

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Although the confession programme addressed 60,000 cases, this was still a small number in light of the reality that there were over 120,000 detainees and many perpetrators were still at large. There were only 12 specialised Chambers in the Rwanda Tribunal of First Instance to deal with 120,000 detainees. Again, to address the huge numbers, the government decided to provisionally release 40,000 detainees who were either elderly or sick. It was a controversial decision among survivors. However, since there is no statute of limitations on these crimes, the government retains the right to prosecute at a later date. Because of the huge numbers, that classical criminal law system could not address the enormity of the situation in Rwanda. In response, the government decided to look to a traditional means of addressing conflict. Historically, the Rwandan community would have, like any other community conflicts amongst the people and they had their own way of solving the conflict, called Gacaca. Gacaca, meaning, “grass” in Kinyarwanda, is a traditional dispute resolution mechanism. It was modified to meet this bigger challenge. The Rwandan government drafted Gacaca law using categorisation. Those in category 1 went to Gacaca. Elections among “people of integrity,” traditionally called inyanganugayo, were also organised. Those who were elected took part in training programs to prepare for Gacaca. The massive confession programmes also continued. In order to initiate Gacaca countrywide, it was started in phases. Phase 1 was launched on June 19th, 2002. It continued to be set forth in 12 sectors (one in each province). On Nove mber 25th, 2004, the pilot programme was extended to 106 sectors. The pilot program swelled to 600,000 suspects as the numbers of those wanting to confess in Gacaca grew. To address this growth, a category 1 within category 1 crimes was developed. As the process unfolded, amendments were made to the law. For example, the frank nature of the confessions caused problems, especially with regard to rape. In response, people can no longer openly speak about their involvement in sexual violence. By 2006 Gacaca will be fully operational countrywide with a body established to oversee sentencing. Originally a branch of the Supreme Court, Gacaca is now an independent organ. This was established after a process of constitution making that involved wide consultation. In addition to Gacaca, the Rwandan government is trying to institutionalise the rule of law by creating institutions and legal structures such as the new constitution, the Commission of Unity and Reconciliation, solidarity camps, and the Human Rights Commis sion. “Current Issues and Development in International Criminal Justice, “presented by Mr. Luis Moreno Ocampo Mr. Ocampo raised the following question at the onset of his presentation, “How can we harmonise legal standards?” He added that this issue could only be answered by understanding the standards for the court and for the prosecutor. Later in his presentation, he asserted the need for independence and co-operation with regard to these standards. To fulfil its mission, the ICC will have to be flexible and co-operate. It is not a world supreme court. It exists to help countries and local authorities to do their jobs. The ICC is the 30
global test to apply international criminal law. It must be understood that the ICC is working in an environment that embraces State sovereignty. Mr. Ocampo asserted that although independence is obviously critical for the operations of the court, it also poses a very real problem. Prosecutors and investigators must do their jobs in an in an independent way. However, to achieve its goals, the court must simultaneously be interdependent. How to be interdependent inside the standards of the prosecutor, with regard to independence, is a challenge that must be mastered. He outlined the following challenges and ways to achieve success. Complementarity should been perceived as an asset, not a restriction. Hybrids and alternative ways of addressing conflict should be encouraged. For example, a hybrid tribunal for Sierra Leone was in line with the goal of the ICC to not have cases. For the ICC to be without cases would mean that either there is no genocide or that the national systems or the international community has created a solution to the problem. Diplomatic alliances must be established, even while one maintains independence as a prosecutor. It is important to try and co-operate with countries by, for example, getting national referrals. In the ICC, a separate Jurisdiction, complementarity and co-operation have been developed to undertake diplomacy. The division assesses how an institution is working; decides when a country is unable or unwilling to address a situation; learns how the judiciary and police are working; and learns the army is controlling the territory. To successfully be global, international justice must remain small and limited. The ICC helps governments, but does not replace governments. By doing only a few cases, the ICC demonstrates that it is not in charge of everything; thereby making it clear that is not replacing national justice systems. A mission of the ICC is to help States agree to the global justice system. This is a challenge, because it is essentially exporting the idea of a criminal justice system from a national to a global system. However, unlike in the national system, the global system does not have a government because there is no State. This completely changes the criminal justice system. Whereas a national criminal justice system is based on command and control, the global criminal system is based on agreement and co-operation. The ICC will have to look to other courts, again depending on co-operation, in order to learn how to best face this challenge. In a global system, litigation must be focused. Therefore, only those who bear the greatest responsibility should be prosecuted. A system has been developed to address this. It begins with an analysis of only the gravest crimes and then progresses. Then the groups committing the gravest crimes are identified. This is followed by an identification of those who are the most dangerous in these groups. Mr. Ocampo concluded by returning to the need for increased co-operation and exchange of information between international courts to create a global justice system. This is why he proposed a strategy for the ICC that is both very open and flexible. Not only will courts learn from each other’s experiences, but also with an effective exchange of information, courts will 31
Page 1 and 2: Colloquium of Prosecutors of Intern
Page 3 and 4: thereby improving the effectiveness
Page 5 and 6: which has both of these groups in a
Page 7 and 8: Mr. Ocampo concluded by noting the
Page 9 and 10: ing out evidence that supported a c
Page 11 and 12: PARTICIPANT AND AUDIENCE MEMBER QUE
Page 13 and 14: There must be a way to establish so
Page 15 and 16: criteria to determine whom, in the
Page 17 and 18: Mr. Cote also addressed the issue o
Page 19 and 20: VI. Service of Sentence for Interna
Page 21 and 22: One failing of the ICTY has been th
Page 23 and 24: authorisation. He concluded that th
Page 25 and 26: VII. Challenges of the Administrati
Page 27 and 28: Another challenge that may be perce
Page 29: Mr. Ngoga began his presentation by
Page 33 and 34: various women’s organisations, wh
Page 35 and 36: 13. Ms. Binaifer Nowrojee, Lecturer
Page 37: 5. Service of Sentence for Internat

Report of Proceedings - International Criminal Tribunal for Rwanda

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