OVERVIEW OF THE STATUTE OF THE ICTR

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1 The views expressed herein are personal and do not necessarily reflect the views of the ICTR or the UN. 2 The Statute of the ICTR is reprinted on p 42 of this volume. 3 The general view at the time was that, if the UN had been unable to stop the killings, it had at least to bring the perpetrators of the atrocities to justice. Secretary-General Boutros Boutros-Ghali declared to the Security Council: "The international community at the very least must ensure that those individuals responsible for unleashing and instigating this cataclysm are brought to justice". Cited in Morris & Scharf The International Criminal Tribunal for Rwanda 61. 4 The Security Council has the authority to act under Chapter VII of the UN Charter only if, among other requirements, it has determined "the existence of any threat to the peace, breach of the peace, or act of aggression" under art 39 of the UN Charter. Art 41 of the Charter empowers the Security Council to "decide what measures not involving the use of armed force are to be employed to give effect to its decisions .... On this issue, see the Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction rendered by the ICTY Appeals Chamber on 2 October 1995, in Tadic (Case No IT-94-1-AR72). The Appeals Chamber, after having noted that "the establishment of such a tribunal was never contemplated by the framers of the Charter as one of the measures to be taken under Chapter VII" (para 32), found nevertheless that "the establishment of the International Tribunal falls squarely within the powers of the Security Council under Art 41 (para 36). 5 On 25 May 1994, the UN Commission on Human Rights appointed Mr Rene Degni-Segui as the Special Rapporteur for Rwanda and gave him the mandate to "compile systematically information on possible violations of human rights in Rwanda" (See Report of the Commission on Human Rights on its Third Special Session, UN Doc E/1994/24/Add.2). 6 On 1 July 1994, by its Resolution 935, the Security Council established a Commission of Experts for Rwanda (UN Doc S/RES/935(1994)). On this occasion, the United Kingdom declared: "This resolution sends a clear message to those responsible for grave violations of international humanitarian law, or acts of genocide, that they will be held individually responsible for those acts" (UN Doc S/PV.3400(1994), 49th Session, 3400th meeting, at 8). 7 Preliminary Report of the Independent Commission of Experts established in accordance with Security Council Resolution 935 (1 994), at para 149, UN Doc S/1994/1125 (1994).

8 According to a statement of New Zealand, "there was a feeling among the delegations that there was a need for a separate legal identity to show that Rwanda was not second-class." (UN Doc S/PV.3453119941, 49th Session, 3453th meeting, at 5). 9 Art 1. 10 Art 12(3). " Art 15(3). ' 2 Art 16. '3 Art 12(2). '° Art 15(3). 15 Art 14. 16 Convention on the Prevention and Punishment of the Crime of Genocide, General Assembly Resolution 260(111), 9 December 1948. 17 While the English version of art 3 of the ICTR Statute provides that the crime should have been committed "as part of a widespread or systematic attack" (emphasis added), the French version reads : "une attaque g6n6ralis6e et syst6matique". It should however be noted that customary international law requires only that the attack be either widespread or systematic. As noted by the ICTY Trial Chamber in its judgment in Tadic, "Despite this seeming inconsistency the prevailing opinion was for alternative requirements ..." (Opinion and Judgment, 7 May 1997, Case No IT-94-1-T, para 647). 18 Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993) on the Statute of the ICTY (UN Doc S/25704 (1993), para 47). As indicated by the ICTY Appeals Chamber in its "Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction" in Tadic, "the obsolescence of the nexus requirement is evidenced by international conventions regarding genocide and apartheid, both of which prohibit particular types of crimes against humanity regardless of any connection to armed conflict" (Case No IT- 94-1-AR72, 2 October 1995, para 140). '9 Secretary-General's Report of 13 February 1995 on practical arrangements for the effective functioning of the ICTR (UN Doc S/1995/134, para 11).

z° At para 12. 21 Decision of the Appeals Chamber of the ICTY on the "Defence Motion for Interlocutory Appeal on Jurisdiction", in Tadic, 2 October 1995, UN ICTY Doc, paras 116 and 134. Zz The Statute of the ICTR does not define the age from which the individual responsibility of a person could be engaged, nor has this been addressed in the Rules of Procedure and Evidence. z3 This does not preclude the prosecution of individuals belonging to such entities or even heading them. Moreover, the ICTR prosecutor can also request the joinder of accused or the joinder of indictments. This is provided for in the Rules of Procedure and Evidence, which offer the possibility of trying individuals who may have acted together within the same entity. Rule 48 of the ICTR Rules of Procedure and Evidence states that : "Persons accused of the same or different crimes committed in the course of the same transaction may be jointly charged and tried". In assessing whether the prosecutor's request for joinder is well-founded, the Chamber takes in consideration rule 49, which stipulates that: "Two or more crimes may be joined in one indictment if the series of acts committed together form the same transaction, and the said crimes were committed by the same accused". These Rules have been used extensively by the ICTR prosecutor to request joint trials of several accused around "the same criminal transaction." 24 The temporal limitation of the ICTR jurisdiction calls for two comments. The first one is that it is yet another example of a compromise identified by the Security Council after the government of Rwanda had voiced concern over the original proposal to the effect that the starting date for the ICTR's temporal jurisdiction should be 7 April 1994. Rwanda submitted that the starting date should be October 1990, to cover the first atrocities committed and the preparatory acts leading to the 1994 events. Furthermore, Rwanda indicated that the ICTR's jurisdiction should stop at 15 July 1994 rather than 31 December 1994, to "avoid equating the genocide that took place between April and June of that year with the reported reprisal killings of the Hutus by the [Rwandan Patriotic Front] forces later the same year"; Morris & Scharf The lnternational Criminal Tribunal for Rwanda 69. The second comment concerns the question still pending of whether or not the Chambers would consider admissible as evidence facts which occurred before 1 January 1994 and that the prosecutor would tender as evidence of a crime of conspiracy to commit genocide for the genocide which took place in 1994.

z5 Art 7 of the Statute. zs An example of a non-Rwandan falling under the jurisdiction of the ICTR for crimes allegedly committed in Rwanda in 1994 is Georges Ruggiu, a Belgian citizen who was a journalist in Rwanda with the Radio-TElevision Libre des Mille Collines. 27 Art 8111. 28 In the Report of ihe Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993J on the Statute of the lCTY (UN Doc S/25704 (1993)), at para 64, it is stated that: "In establishing an international tribunal for the prosecution of persons responsible for serious violations committed in the territory of the former Yugoslavia, it was not the intention of the Security Council to preclude or prevent the exercise of jurisdiction by national courts with respect to such acts. Indeed national courts should be encouraged to exercise their jurisdiction in accordance with their relevant national laws and procedures." zs Art 8(2). 30 Art 9(1). 31 Art 9(2)(a) and (b) of the ICTR Statute.

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