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

224 Chapter 10
The law has been amended several times. 5
One could argue that the Statute establishing the ICTR and the law on
gacaca and its subsequent amendment relating to the prosecution of
genocide in Rwanda are ex post facto aimed at indicting and then punishing
the perpetrators of genocide and other international crimes 6 and therefore
retroactive. However, it is worth mentioning that these laws do not violate
the International Covenant on Civil and Political Rights (ICCPR) 7 which
prohibits the retroactive prosecution of acts. The ICCPR provides as
follows in article 15(2):
Nothing in this article shall prejudice the trial and punishment of any person
for any act or commission which, at time when it was committed according to
the general principles of law recognized by the community of nations.
Nevertheless, as far as the right of the accused is concerned, it should
regrettably be noted that the accused does not have a right to legal counsel.
This has been criticised as a violation of the right to a fair trial as
guaranteed by the ICCPR, the African Charter on Human and Peoples’
Rights and, more interestingly, the Constitution of Rwanda. 8
4 Relevance and aims of the prosecution of the
crime of genocide
As far as customary international law is concerned, it should be borne in
mind that genocide as well as war crimes and crimes against humanity
belong to the category of ius cogens, and therefore constitute obligations
which are erga omnes, creating non-derogable duties upon states to
prosecute them. 9
Both the ICTR Statute and the Gacaca law deals with the fight against
impunity and reconciliation in Rwanda. 10 The fight against impunity is
crucial because impunity leads to an acceptance of these crimes as
5
6
Organic Law 16 /2004 of 19/06/2004 Establishing the Organization, Competence and
Functioning of Gacaca Courts Charged with Prosecuting and Trying the Perpetrators
of the Crime of Genocide and other Crimes Against Humanity, Committed between
October 1, 1990 and December 31, 1994, as amended by Organic Law 28/2006 of 27/
06/2006 and amended by Organic Law 10/2007 of 01/03/2007 and (finally) Organic
Law 13/2008 of 19/05/2008.
H Ball Prosecuting war crimes and genocide: The 20th century experience (1999) 49.
7 General Assembly Resolution 2200 A (XXI) of 16 December 1996.
8 Rwanda ratified the ICCPR in 1976 and the African Charter on Human and Peoples’
Rights in 1983. The ICCPR provides in art 14(3)(d) for the right to an accused to have a
legal counsel of his choice, the African Charter in art 7(c ), and the Constitution of
Rwanda in art 18(2).
9
C Than and E Shorts (eds) International criminal law and human rights (2003) 10.
10 Statute of the International Criminal Tribunal for Rwanda; read also FX Nsanzuwera
La Justice rwandaise et les juridictions Gacaca: Le pari du difficile équilibre entre châtiment et
pardon available at http://aircrigeweb.free.fr/ressources/rwanda/RwandaNsanzuwera.
html (accessed 31 March 2010).