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

226 Chapter 10
However, later on in April 1994 hostilities resumed and genocide was
committed. It remains a mystery why the ICTR Statute does not extend the
Tribunal’s jurisdiction to the period starting on 1 October 1990 because
crimes against humanity and war crimes were committed during that time.
The gacaca law covers the period between 1 October 1990 and 31
December 1994. It should be borne in mind that the gacaca law covers both
genocide and crimes against humanity. Since genocide was committed
between April and July 1994, one would conclude that the period between
1 October 1990 until 31 December 1994 covers only crimes against
humanity.
5.3 Competence ratione materiae (subject matter)
The competence ratione materiae of the ICTR and gacaca courts differs.
Pursuant to the its Statute, the ICTR has jurisdiction over genocide, crimes
against humanity and violations of article 3 common to the Geneva
Conventions and Additional Protocol II. On the other hand, the gacaca
courts have jurisdiction over genocide and ‘other crimes against
humanity’. The Rwandan lawmaker has not defined the concept ‘other
crimes against humanity’. In the way it is construed, one could ask whether
the Rwandan lawmaker considered genocide as the only crime against
humanity and then had to add ’other’ crimes against humanity. If this was
the case then he was mistaken because genocide and crimes against
humanity are two different crimes. Although both are international crimes,
they differ mostly on the intent (mens rea) of the individuals who commit
them.
5.4 Concurrent jurisdiction
Since the ICTR and Gacaca courts have jurisdiction over the crime of
genocide, it is worth mentioning that article 8 of the ICTR Statute reads as
follows:
(1) The International Tribunal for Rwanda and national courts shall have
concurrent jurisdiction to prosecute persons for serious violations of
international humanitarian law committed in the territory of Rwanda and
Rwandan citizens for such violations committed in the territory of
neighbouring States, between 1 January 1994 and 31 December 1994.
(2) The International Tribunal for Rwanda shall have primacy over the
national courts of all States. At any stage of the procedure, the International
Tribunal for Rwanda may formally request national courts to defer to its
competence in accordance with the present Statute and the Rules of
Procedure and Evidence of the International Tribunal for Rwanda.
Despite the fact the statute gives the ICTR primacy over the national courts
of all states, Rwanda included, the ICTR has never made use of this article