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

222 Chapter 10
The convention goes further by enumerating acts which shall be
punishable under article 3:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
The definition of genocide under article 2 of the Statute of the International
Criminal Tribunal for Rwanda (ICTR) is identical to the definition
provided under the Genocide Convention. Though a legal basis exists to
empower the gacaca courts to rule on cases related to genocide as it is
discussed subsequently in this chapter, it is surprising that the gacaca law
does not have any provision defining the crime of genocide.
3 Legal basis for the prosecution of genocide in
ICTR and gacaca courts in Rwanda
Pursuant to Chapter VII of the United Nations (UN) Charter, the UN
Security Council created the ICTR by Resolution 955 of 8 November
1994. The ICTR was created because the Security Council was of the view
that the violation of international humanitarian law constituted a threat to
international peace and security. Though Rwanda had ratified the
Genocide Convention and the Geneva Conventions, it did not have any
legislation to deal with genocide, war crimes and crimes against humanity.
Rwanda therefore enacted the Organic Law 08/96 of 30 August, 1996, on
the Organization of Prosecutions for Offences constituting the Crime of
Genocide or Crimes against Humanity committed since 1 October 1990.
Article 1 of the Organic Law provided:
The purpose of this organic law is the organization of criminal proceedings
against persons who are accused of having since 1 October 1990, committed
acts set out and sanctioned under the Penal Code and which constitute:
(a) either the crime of genocide or crimes against humanity as defined in the
Convention on the Prevention and Punishment of the Crime of Genocide of 9
December 1948, in the Geneva Convention relative to the Protection of
Civilian Persons in Time of War of 12 August 1949 and its additional
protocols, as well as in the Convention on the Non-Applicability of Statutory
Limitations to War Crimes and Crimes Against Humanity of 26 November
1968, the three of which were ratified by Rwanda; or
(b) Offences set out in the Penal Code which the Public Prosecution
Department alleges or the defendant admits were committed in connection
with the events surrounding the genocide and crimes against humanity.