Inalienable from the right to live is the elimination of genocide, which is the policy, aimed at total or partial extermination of a certain ethnic, national, racial or religious group. In view of this the Convention on the Prevention and Punishment of the Crime of Genocide was adopted in 1948.

Rwanda constitutes a vivid example of pursuing the policy of genocide. In April 1994 the tensions between the major ethnic groups of Hutu and Tutsi developed into horrendous acts of violence resulting in 800 thousand deaths. About 2 million people made their escape to the adjacent Tanzania, Uganda and Congo (According to another records, out of 8 million citizens only three remained in Rwanda, others either massacred or fleeing, the number of victims totalling 1 to 1,5 million). The UN Security Council reacted by the Resolution №955 (1994), establishing in the city of Arusha, Tanzania the International Criminal Tribunal for Rwanda (ICTR), which was to prosecute those responsible for the genocide and other grave international humanitarian law violations.

The jurisdiction of the Tribunal is limited to the events in Rwanda and the actions of Rwandan citizens in the adjacent countries, as well as the actions of other countries’ citizens in Rwanda throughout 1994. The Statute of the Tribunal lays down 3 categories of crimes:

• genocide,
• crimes against humanity,
• breaches of art. 3 of the 1949 Geneva Convention and its second Additional Protocol (which comprises the norms, applicable during an internal armed conflict).

International Courts have always been convened in cases of emergency as a response to the crimes of extreme gravity, necessitating a prompt reaction as per the sanctions against the people, committing the crimes and responsible for them. Despite the fact, both the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia have slightly deviated from the tendency, investigating the cases of secondary offenders as well.

The Statute of the International Criminal Tribunal for Rwanda does not state that only the “major criminals” are cognizable to it. Neither the Security Council Resolution nor the report of UN Secretary General bears any reference to any such limitation. Still, it is not clear how the Tribunal of 11 judges manages to separately examine the cases (as well as the appeals) of tens of thousands people, engaged in Rwandan crimes. The Tribunal is capable of trying a limited number of people, others will be adjudged in national courts, which, according to art. 8 of ICTR Statute, enjoy concurrent jurisdiction. Though such limitations are not mentioned anywhere, their necessity is obvious. Another problem immediately arises in this connection – the one of “singling out” the would-be accused. How can one avoid a debate on who in each particular case should or should not be considered a major criminal? But the very concept of a “major criminal” is indefinable in principle. That’s why the fact that the Statute does not limit the Court’s jurisdiction to “major criminals” exclusively, allows for it absolute freedom to assess the expediency of persecuting a certain person. The Statute vests such authority with the Prosecutor and to a smaller extent with the Judge, who affirms the damning verdict.

Correspondingly, the people to be persecuted by the International Criminal Tribunal are chosen on the basis of a mere expediency criterion. This approach corresponds to the principle of criminal persecution expediency, which is the foundation of all national legal systems. Expediency criterion is not rooted in a legal norm, which means that decisions ICTR adopts in the abovementioned sphere can be appealed against. International juridical bodies’ activity is extremely slow while their functioning is rather costly. For this reason questions arise of their role, of the national and international bodies’ jurisdiction over grave international humanitarian law violations and over the work on the prevention of such violations, which can be placed under the jurisdiction of national courts.

Thus, the relationship between the Tribunal and the national courts on criminal cases is settled in the Statute of the Tribunal as the priority of the former and the concurrent jurisdiction of the latter. According to art. 8 of the Statute, “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”. The jurisdiction of an international tribunal is prior to that of national courts. The status of an international tribunal makes it possible for them any time to demand of national courts ceasing their investigation: in such cases an action brought to court by national judges is suspended and the case is directed to the international tribunal. This primacy is reflected by the fact that when an international tribunal has already passed a verdict, national courts can not initiate a trial on the same action. In the Statute of the Tribunal this rule is referred to the non bis in idem principle. And, vica versa, national courts are entitled to prosecuting the people, who committed crimes and fall under the jurisdiction of the Tribunal for Rwanda, if the latter does not state its primacy. The rulings of national courts, however, do not make it impossible for the tribunal to put the criminals on trial. 

Some analysts regard that statement of national courts’ concurrent jurisdiction in art. 8 of the Statute of the Tribunal for Rwanda: “The International Tribunal for Rwanda and national courts shall have concurrent jurisdiction to prosecute persons...” suffices to vest in the national courts of all the UN member-states the jurisdiction to persecute the criminals. Still, this stance appears to be utterly controversial, for the abovementioned passage is too generic. Actually, in order to define and provide for the jurisdiction of national courts over the administration of justice, one needs not only to word the underlying provisions, but also to single out the bodies in the judicial machinery of every state, which are to exercise the corresponding authority. It is also evident that such particulars are not within the exclusive jurisdiction of the UN Security Council Resolution. 

The jurisdiction of national courts, mentioned in art. 8 of the Statute, is to be comprehended in the very way it is provided by the national legislation, namely, one needs to follow the national law. In accordance with various types of jurisdiction, which are traditionally applied in national legislations (territorial, personal active and passive), the courts of the countries, on the territory of which the crimes were committed (Rwanda and the neighbouring countries provided the offenders were Rwandans), and the countries of victims’ citizenship qualify to investigate into such matters. Certain countries, Rwanda in particular, extensively contributed to preventing crimes, committed in their territory by their own citizens or against them. Some of the crimes falling under the jurisdiction of a tribunal are reached, in accordance with international conventions, by the universal jurisdiction of national courts. According to articles 3f and 4a of the Tribunal for Rwanda Statute, it at least seems to be so for the situation with grave violations of Geneva Conventions, breaching war laws and war usage, as well as torture. But the actual field of action of these conventional rules is mostly dependant on the legislative measures, assumed by the state in order to implement them, for it is not the incorporation of universal jurisdiction principle that is in question, but also the moulding of a concrete mechanism and technical details. Such issues come up as which court holds cognizance and whether it is needed that the accused is present in the territory of the country. Moreover, the methods of introducing universal jurisdiction differ from country to country.

The Prosecutor of the Tribunal for Rwanda engages mostly in the cases of senior officials, who occupied their posts from the very outset of genocide. 1996 saw the first surge of accusations. The suits were brought against the members of Rwandan government (Andre Ntagerura, Eliézer Niyitegeka), high-standing executives (Clement Kayishema, the former Prefect (Governor) of Kibuye) and some of military highest ranks (Colonel Theoneste Bagosora, directeur du cabinet in Rwanda's Ministry of Defence, and Colonel Anatole Nsengiyumva). Among the accused one could find the immediate accomplices, taking up junior positions, such as mayors, including Paul Akayesu, municipal councillors, members of extremist parties, a priest et c. Though taking to court junior officers was aimed at ascertaining the scope of genocide, top officials were persecuted in the first place. The second conviction of the International Tribunal for Rwanda was in September 1998 and concerned the Prime-Minister of the provisional Rwandan government Jean Kambanda.  

Thus, the Tribunal gives primacy to persecuting highest officials, which is utterly logical. According to the International Law Commission, a high official, organising or permitting the commitment of such crimes, heading or inciting them, not only provides funds and the executors in order to commit a crime, but also abuses its power and authority. Correspondingly, they can be considered guilty to a greater extent than their subordinates, who were the immediate executors of the crime. The Tribunal for Rwanda proceeded from these assumptions in its ruling on Kambanda case. 

Four more former Rwandan ministers faced the Tribunal in 2003 on the accusation of preparing to massacre 800 thousand people during the genocide of 1994. It is accepted that these very people took immediate part in controlling the armed groups, which slaughtered Tutsi people. The accused were the former ministers of foreign affairs, trade, state service and health care. The latter was found guilty of spending budget funds to purchase foreign munitions for the armed troops.

Throughout the years of its functioning the Tribunal sanctioned arrests, condemned the accused, passed the decisions both at first instance and as the court of appellate jurisdiction and even court decrees, which constituted significant progress in the development of international humanitarian law. Though, with the view of the substantial character of the work done, one needs to concur that the activity of the Tribunal is far from being over. The Tribunal sentenced only 12 people for the 9 years of its existence. Many accused (about 30 people) are now under arrest waiting for the trial to start. The figures quoted are an eloquent illustration of the huge scope of objectives every international criminal tribunal is to handle. Provided the investigation goes at the current pace, it will take years and even decades to bring them to an end, even if the unlikely provision of arresting no more suspects is observed. It is evident that there is no urgency, for time limitation does not apply to the cases within the jurisdiction of the court. Besides, the UN resolution, prescribing the establishment of the Tribunal, contains no temporal limitations to its activity. But the existent situation brings forth several problems, excessive cost of maintaining the Tribunal among them. In 2002-2003 the ICTR budget amounted to 177,739,400 US dollars. The representatives of more than 80 nationalities hold about 872 posts in Arusha and Kigali. The overall expenses of the tribunal for the 9 years of its subsistence reached 500 million dollars. Moreover, such“longevity” of the Tribunal casts doubt upon the very idea of establishing international judicial institutions in order to investigate into criminal cases.

The unrealistic character of the idea was underlined by UN Secretary General in his report on the grounding of the Tribunal. The problem is not confined to the financial aspect; what is pivotal here is the principle of establishing new international judicial institutions for criminal cases. All these facts give rise to grave concern; especially if one keeps in view that the International Criminal Court is yet to be established, for it is so far premature to expect the required 60 ratifications.

In fact, much more time is required to comprehensively and in a proper way analyse the role and the activity of the Tribunal in the administering of justice, preventing further violation of international humanitarian law, crimes against humanity and the impunity of the criminals, as well as promoting peaceful problems’ resolution in the countries, falling prey to civil wars and ethnic conflicts.

Sources:

http://www.ictr.org  

http://www.icrc.ru/documents/12.pdf

http://www.psdp.ru/docs/news/world/1933.html

http://beljournal.by.ru/1998/5/4.shtml

http://www.humanrightsfirst.org/international_justice/w_context/w_cont_03.htm

http://www.ejil.org/journal/Vol7/No4/art3.pdf

http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList164/B06B4891818C69E8C1256B66005B4D62

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Kirył Kaścian (born in 1982) LLM student at the University of Bremen, Germany; graduated in International Law from International Relations Faculty, Belarusian State University. Legal interests deal with the law of the European Law and legal systems of particular member-states of the European Union within the context of the law of the EU, EMU, and sociology of law.