The International Criminal Tribunal for Rwanda (ICTR)

The International Criminal Tribunal for Rwanda (ICTR) was established by the United Nations Security Council to prosecute individuals responsible for genocide, crimes against humanity and serious violations of international humanitarian law committed in Rwanda during 1994. The Tribunal is located in Arusha, Tanzania.

Why is the Tribunal needed?

A potent and tragic combination of political instability and longstanding inter-ethnic rivalry plunged Rwanda into unprecedented violence in 1994. Between 500,000 and 1 million Tutsis and moderate Hutus were killed during the genocidal campaign, the majority within a three month period. At the time, neither the UN nor any other international coalition intervened. After the violence, many of the perpetrators fled Rwanda and scattered within the region and around the world. Rwanda’s infrastructure, ruined by war, was not able to administer justice in respect of the wide-scale atrocities. It was hoped that the international community, acting through the UN Security Council, could end the impunity and contribute to the process of reconciliation by establishing an international judicial mechanism as part of its efforts to restore international peace and security.

How was the Tribunal established?

An international outcry followed the violence. Prior to the massacres of 1994, the Security Council had already determined that the situation in Rwanda posed a threat to international peace and security. In July 1994, partially in response to a request for assistance from the Rwandan government, the Security Council passed Resolution 935 requesting the Secretary General to form a commission of experts to report on the violence. The commission concluded that there was ample evidence to indicate that both sides had committed international crimes, including genocide and violations of international humanitarian law, but that the majority had been committed by Hutus against the Tutsis. Following this report, the UN set about drafting a statute for a proposed Rwandan criminal tribunal. In many ways, the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) served as a model and, not surprisingly, their statutes have many features in common. At the conclusion of the drafting process, on November 8, 1994, the Security Council, acting under Chapter VII of the UN Charter, passed Resolution 955 establishing the ICTR. The Resolution included the Tribunal’s Statute as an annex.

What is the extent of the Tribunal’s jurisdiction?

The ICTR can prosecute individuals (not governments or organizations) for “serious violations of international humanitarian law”, namely, genocide (Article 2), crimes against humanity (Article 3) and violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (Article 4). The Tribunal’s jurisdiction is limited to crimes committed on the territory of Rwanda, by nationals of any state, between January 1, 2025 and December 31, 1994. However, there is one exception in excess of this limited jurisdiction - Rwandan nationals may be prosecuted for crimes committed in the territory of neighbouring states.

The ICTR has concurrent but primary jurisdiction over other courts (Article 8). This means that domestic courts can try Rwandans for their crimes but that the Tribunal has the power to stay other proceedings and order that the accused be transferred to it for prosecution. Once an individual has been tried by the Tribunal, that individual cannot be tried again on the same charges by national courts (Article 9). However, where individuals have been tried in domestic courts, they may be tried again by the ICTR if the domestic trial did not meet the requisite standards of impartiality and independence, or where the charges did not correspond to the crimes within the Tribunal’s jurisdiction (for example, a domestic prosecution for multiple counts of assault rather than war crimes).

Securing the presence of an accused before the Tribunal is a necessary but difficult process - the Tribunal’s Statute does not permit trials in absentia. Once an indictment is finalized, an arrest warrant is issued but, in the absence of an “international police force”, the ICTR is dependent on international cooperation for the apprehension and transfer of accused persons. If an accused is found guilty and sentenced, the sentence can be served in countries that have made such arrangements with the ICTR. Mali, Benin and Swaziland have entered into agreements for this purpose.

There has been much criticism about the Tribunal’s ability to process all the cases falling within its jurisdiction. By October 2002, fewer than 70 suspects had been arrested and only 11 trials had been completed. The strain has, on occasion, compromised the ability of the ICTR to guarantee due process. In one case, the Appeals Chamber was forced to order the release of a detained suspect because he had not been informed of the charges against him, was not promptly transferred from detention in Cameroon, and had not been brought before the Tribunal within the required period. However, criticism of the parallel domestic judicial process in Rwanda has been heavier. Over 120,000 people are in custody awaiting trial. On current estimates, it could take well over 100 years to process them all. Despite recent efforts and the commitment of resources to the “Gacaca Courts”, concerns about delay, detention conditions and due process abound.

The judges

The ICTR is composed of 14 judges, nine in the Trial Chamber and five in the Appeal Chamber (Article 11). The Trial Chamber itself is divided into three separate chambers with three judges sitting in each. The Appeals Chamber is located in The Hague as is shared with the International Criminal Tribunal for the former Yugoslavia (Article 12(2)). The judges, who must be of high moral character and suitably qualified, are all elected by the UN General Assembly and no two judges can be of the same nationality (Article 12). The President of the ICTY is elected by all the judges, and each Trial Chamber elects a Presiding Judge (Article 13). On August 14, 2002 the Security Council, in resolution 1431, authorized the creation of a pool of 18 ad litem judges, of whom up to 4 would sit at any one time.

How is the ICTR organized?

Besides the Trial and Appeal Chambers, the ICTR has two other main organs; the Office of the Prosecutor and the Registry.

The Office of the Prosecutor is a separate and independent organ of the Tribunal located in Kigali, Rwanda as well as in Arusha, and is responsible for investigating crimes within the jurisdiction, framing indictments (charges) and prosecuting cases before the Tribunal (Article 15). The Office is headed by the Chief Prosecutor who, like the Appeals Chamber, is shared with the ICTY. The Chief Prosecutor is appointed for a four year term by the Security Council upon nomination by the Secretary General (see Article 16, Statute of the ICTY).

The Registry is responsible for the administration and management of the Tribunal, providing legal and judicial support services to the Trial Chambers and the Prosecutor. The Registry has also taken a lead role in the Tribunal’s approach to witnesses and victims. The Witnesses and Victims Support Section, organized under the auspices of the Registry, provides support to this vulnerable group before, during and after proceedings, including maintaining their anonymity where appropriate and even arranging their relocation if necessary. The Registry also has a role to play in providing defence counsel. While accused persons remain free to retain counsel of their own choosing, where they cannot afford legal representation they may be assigned counsel by the Tribunal. So far, all persons before the Tribunal have claimed to be indigent. In that case, an accused may choose counsel from a list of names maintained by the Registry. Currently, the list comprises approximately 70 legal practitioners (mostly from Europe, America and Africa) who are sufficiently qualified and willing to act as defence counsel.

In total, the Tribunal employs over 700 people from more than 80 nations. It is funded almost exclusively by UN Member States through their assessed and voluntary contributions to the UN. The ICTR is also aided and supported by the work of NGOs. Funding has gradually increased, from US $30 million in 1996 to almost US $80 million in 2000.

Has the Tribunal fulfilled its mandate?

The work of the ICTR is far from complete. As of October 2002, of the 80 persons indicted, 60 were (or had been) in custody and arrest warrants had been issued in respect of another 20 who remained at large. Of the 60 in detention, one had been acquitted, eight had been sentenced, 22 were involved in ongoing proceedings and 29 were in detention awaiting trial. The Tribunal aims to complete its mandate by 2008, and is contemplating transferring some outstanding cases to states that are prepared to try them. This was made possible by the introduction of Rule 11 bis to the Tribunal’s Rules of Procedure and Evidence. Despite concerns over the work that remains incomplete, the Tribunal has had many notable achievements. It has obtained international cooperation for the arrest of suspects and the appearance of witnesses. To date, over 200 prosecution and defence witnesses from Africa, Europe and America have testified. Through more than 500 decisions on motions and points of law, the ICTR has made a significant contribution to the field of international criminal law, most notably in relation to the recognition of rape as genocide, convictions for sexual crimes and outrages against human dignity. Landmark decisions have been handed down including the first ever international conviction for the crime of genocide (the celebrated Akayesu case) and the sentencing of former Prime Minister Jean Kambanda after he pleaded guilty to four counts of genocide and two counts of crimes against humanity. This process is not only significant in holding accountable those who masterminded the genocide, but also makes a contribution to restorative justice, the rights of victims and the worldwide struggle against impunity for international crimes.

The ICTR has also gone some way to addressing the criticism leveled at it. Most of these changes have attempted to enhance due process and judicial efficiency. Procedures have been amended to give the Trial Chamber the discretion to allow an indictment to be changed after the appearance of the accused. The Tribunal has established new rules (rule 46(A), RPE) for dealing with misconduct by defence counsel and prosecutors appearing before the Tribunal. Counsel must now give an undertaking as to their availability and their intention to represent the client for the duration of the proceedings. Judicial flexibility has also been increased by the rotation of judges through the Trial Chambers.

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