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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).
Genocide as prosecuted by the ICTR and Gacaca Courts in Rwanda 225 inevitable. 11 In addition, impunity might also lead to victims to seek revenge and therefore ultimately undermine peace. 12 5 Jurisdiction Since the ICTR and gacaca courts are ad hoc tribunals, their statutes and or laws set conditions related to the scope of prosecution namely, competence ratione loci, competence ratione personae, competence ratione temporis, and competence ratione materiae. Each is discussed below. 5.1 Comptence ratione loci (territorial limitation) and competence ratione personae The ICTR has jurisdiction over crimes committed by Rwandans in the territory of Rwanda and in the territory of neighboring states, as well as crimes committed by non-Rwandan citizens in Rwanda. 13 It is worth noting that the ICTR statute has extended its jurisdiction to neigbouring countries because it was anticipated that genocide and other serious violations of international humanitarian law may have been committed by Rwandans in neighbouring countries. However, the ICTR has neither indicted not prosecuted any individual for committing these crimes in Rwanda’s neighbouring countries. Gacaca courts have jurisdiction over genocide and crimes against humanity committed on Rwandan soil by Rwandans and foreigners residing in Rwanda. An example is Father Guy Theunis, a foreigner indicted by the gacaca courts who later was transferred to Belgium. He was therefore never prosecuted in Rwanda. 14 5.2 Competence ratione temporis (temporal jurisdiction) Although the international community and Rwanda agree on the period covered in the case of genocide, there is disagreement on the period covered for war crimes and crimes against humanity. The ICTR Statute sets the period between January 1994 and December 1994. On 1 October 1990 a civil war broke out in Rwanda between government forces and the Rwanda Patriotic Front and a peace accord was signed only in 1993. 11 A Neier War crimes: Brutality, genocide, terror, and the struggle for justice (1998) 212. 12 BH Weston & SP Marks (eds) The Future of international human rights (1999) 281. 13 So far the ICTR has only tried one foreigner for genocide, George Ruggiu, a Belgian journalist who was working for RTLM (a privately-owned radio service notorious for hate speech which contributed to the genocide in Rwanda). 14 See ‘Priest faces Rwanda genocide trial’ http://www.theage.com.au/news/world/priestfaces-rwanda-genocide-trial/2005/09/12/1126377255807.html (accessed 29 March 2010); ‘Belgian courts urged to exonerate Guy Theunis’ http://www.ifex.org/rwanda/ 2005/11/24/belgian_courts_urged_to_exonerate/ (accessed 29 March 2010).
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Prosecuting International Crimes in
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1 2 TABLE OF CONTENTS FOREWORD ix C
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6 7 8 6 Relevance of the jurisprude
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12 13 14 4 Conclusion 246 PART IV:
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FOREWORD I write this foreword with
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CONTRIBUTORS Benson Olugbuo is a So
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1 INTRODUCTION Chacha Murungu* & Ja
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Introduction 3 The commission of in
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Introduction 5 Apart from internati
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Introduction 7 resort. The conclusi
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PART I: GENERAL ISSUES IN THE PROSE
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12 Chapter 1 oblige states to prose
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14 Chapter 1 3 The obligation to pr
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16 Chapter 1 perpetrators of these
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18 Chapter 1 namely, national, ethn
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20 Chapter 1 the International Crim
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22 Chapter 1 amnesties for serious
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24 Chapter 1 payment of compensatio
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26 Chapter 1 punish international c
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28 Chapter 1 notorious violations o
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30 Chapter 1 in the case of the cou
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CHAPTER 2 1 Introduction IMMUNITY O
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Immunity of state officials and pro
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PART II: INTERNATIONAL COURTS AND P
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64 Chapter 3 evidentiary areas of i
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66 Chapter 3 pioneering effort in a
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68 Chapter 3 particular group, the
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70 Chapter 3 Indisputably, the abse
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72 Chapter 3 The Akayesu judgment,
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74 Chapter 3 particularly in light
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76 Chapter 3 for the destruction of
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78 Chapter 3 being of persons, in p
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80 Chapter 3 conflict - the ‘war
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82 Chapter 3 Chamber had itself fou
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84 Chapter 3 found in the first pla
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86 Chapter 3 of the Statute than
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88 Chapter 3 The majority’s appro
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90 Chapter 3 duties as a superior e
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92 Chapter 3 present at the trial,
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94 Chapter 3 international crimes.
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96 Chapter 3 advanced nor argued an
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98 Chapter 4 Unlike the Internation
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100 Chapter 4 years imprisonment wh
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102 Chapter 4 The Prosecutor’s de
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104 Chapter 4 2.3 SCSL and the Trut
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106 Chapter 4 who bear the greatest
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108 Chapter 4 responsibility for in
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110 Chapter 4 population’. 76 The
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112 Chapter 4 2.5.1 Acts of terrori
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114 Chapter 4 and Additional Protoc
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116 Chapter 4 Essentially, there mu
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118 Chapter 4 conscription of child
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120 Chapter 5 The United Nations Se
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122 Chapter 5 There are two main th
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124 Chapter 5 goal of rehabilitatio
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126 Chapter 5 that punitur quia pec
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128 Chapter 5 circumstances of the
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130 Chapter 5 retribution, deterren
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132 Chapter 5 Another argument in t
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134 Chapter 5 children. 111 Those o
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136 Chapter 5 assessed’. 119 In m
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138 Chapter 5 that there were no mi
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140 Chapter 5 Santigie Borbor Kanu
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142 Chapter 5 Chamber found no reas
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144 Chapter 5 has adopted a tone th
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146 Chapter 6 However, with the adv
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148 Chapter 6 2. 1 Africa-ICC relat
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150 Chapter 6 national elections, c
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152 Chapter 6 resolution may be ill
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154 Chapter 6 He has added that his
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156 Chapter 6 out of a desire to av
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158 Chapter 6 (b) US legislation to
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160 Chapter 6 encourage countries o
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CHAPTER 7 1 Introduction THE TRIAL
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The trial of Mengistu and other Der
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Page 197 and 198: CHAPTER 8 1 Introduction THE TRIAL
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Page 211 and 212: 2 Genesis of the conflict Prosecuti
Page 213 and 214: Prosecuting international crimes by
Page 233 and 234: CHAPTER 10 1 Introduction GENOCIDE
Page 235: Genocide as prosecuted by the ICTR
Page 239 and 240: Genocide as prosecuted by the ICTR
Page 241 and 242: Genocide as prosecuted by the ICTR
Page 243: 8 Reparations Genocide as prosecute
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Page 256 and 257: 244 Chapter 11 3.3 Capacity problem
Page 258 and 259: 246 Chapter 11 support us. They did
Page 261 and 262: CHAPTER 12 Benson 1 Introduction PO
Page 263 and 264: Positive complementarity and the fi
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Positive complementarity and the fi
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278 Chapter 13 international crimin
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280 Chapter 13 Africa’s involveme
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282 Chapter 13 countries has tended
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284 Chapter 13 passed domesticating
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286 Chapter 13 crimes within their
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288 Chapter 13 offences. Procedural
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290 Chapter 13 Constitution, 62 thi
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292 Chapter 13 4.1.3 The law regula
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294 Chapter 13 either reciprocal or
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296 Chapter 13 committed to fightin
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298 Chapter 13 The procedure for th
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300 Chapter 13 trial. While the Rom
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302 Chapter 13 Having draft legisla
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CHAPTER 14 Lee 1 Introduction IMPLE
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Implementation of the Rome Statute
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Books SELECTED BIBLIOGRAPHY Allen,
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Selected bibliography 333 Neier A (
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Selected bibliography 335 Chitiyo,
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Selected bibliography 337 Jalloh, C
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Selected bibliography 339 Roht-Arri
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Selected bibliography 341 Report on
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Table of cases 343 Right of Passage
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Table of cases 345 Prosecutor v Vas
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Table of cases 347 Muhimana v Prose
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Table of cases 349 Prosecutor v Rut
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Table of cases 351 and the Governme
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Table of cases 353 Prosecutor v Ses
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Table of cases 355 GAOR, 45th Sess.
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Table of cases 357 R v Bow Street M
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360 Subject index Domestication ...
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362 Subject index S Selective justi
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