Prosecuting International Crimes in Africa - PULP - University of ...

The contribution of the International Criminal Tribunal for Rwanda 93
In the Ngeze case, 125 the accused’s fitness to stand trial was the subject of
evaluation. In ordering the evaluation of his fitness, the Chamber
contributed to the development of international law by identifying the
factors which are relevant, namely: (a) his ability to stand trial and his
capacity to participate meaningfully in the said trial; (b) his mental
capacity to communicate with his defence counsel in a comprehensive
manner and his ability to instruct counsel with regard to his defence; and
(c) the prognosis and proposed treatment, if any. Subsequent judgments,
including that of Strugar by the ICTY’s Appeals Chamber, have endorsed
the above criteria, and applied it to complex situations. 126
10 Concluding remarks
Since its inception, the ICTR has made a remarkable contribution to the
evolution of international law relating to genocide, crimes against
humanity and war crimes. In particular, during the early part of its life, the
ICTR confronted and addressed vast areas of legal doctrine that had not
been explored before. Overall, the ICTR has proceeded prudently and
innovatively. The rate of innovation is slowing down as the tribunal is
nearing the end of its work.
Many of its latest judgments are characterised by the application of
established jurisprudence to differing and sometimes novel and complex
factual situations. Nevertheless, even during the current stage of its life, the
ICTR continues to address interesting and significant issues. Moreover, in
order to solidify the gains realised since its inception, the ICTR needs to be
pragmatic in its application of the jurisprudence to differing and complex
factual situations.
It may be argued that in recent cases the ICTR has not drawn on and
applied some of its innovations to effectively prosecute and punish
124 to be capable of making a proper defence, to challenge witnesses and to understand the
details of the evidence. As shown below, the ICTR and ICTY, set a somewhat flexible
threshold (closely similar to that set by the ECHR), underscoring that the accused need
not be capable of understanding every point of law or evidential detail – the standard is
that of meaningful participation which allows the exercise of his fair trial rights;
capacity to testify and capacity to instruct counsel. According to the ECHR, fitness to
stand trial presupposes the accused (a) has a broad understanding of the nature of the
trial process and of what is at stake for him or her, including the significance of any
penalty which may be imposed; (b) is able to understand the general thrust of what is
said in court; (c) is able to follow what is said by the prosecution witnesses and, if
represented, to explain to his own lawyer his version of events, point out any statements
with which he disagrees and make them aware of any facts which should be put
forward in his defence. SC v The United Kingdom 60958/00 para 29 ECHR 2004-IV; see
generally Prosecutor v Strugar paras 46-49.
125 Prosecutor v Nahimana et al (Case ICTR-99-52-T) Decision on Motion by the Defence in
Accordance with Rule 74 bis 20 February 2001 (confidential, but cited in Prosecutor v
Strugar para 45 and fn 120 thereof).
126 Prosecutor v Strugar para 45.