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The Trials of
Concurrent Jurisdiction:

The Case of Rwanda

By Madeline H. Morris


I. Introduction

II. The Context of Genocide

III. Justice in the Wake of Genocide
  A. The ICTR
  B. National Justice

IV. The Trials of Concurrent Jurisdiction

V. Conclusion

VI. End Notes


IV. The Trials of
Concurrent Jurisdiction

The administration of justice in post-genocide Rwanda is rendered particularly complex by the fact that concurrent jurisdiction for the genocide-related crimes is actively exercised by two different entities, the government of Rwanda and the ICTR.73 This concurrent jurisdiction has exposed certain difficult issues which will likely recur in future contexts in which similar structures of actively shared jurisdiction are undertaken.74

Concurrent jurisdiction raises complex questions regarding cooperation in investigations and sharing of evidence. Obvious advantages in efficiency and effectiveness are to be gained by close national and international cooperation in investigations and evidence-gathering. But difficulties concerning confidentiality of evidence, witness protection, due process standards, and the need to avoid any appearance of partiality of the international tribunal
75 raise delicate questions which have yet to be systematically addressed. Discussion of these matters has been ongoing between the ICTR and the government of Rwanda.76

An area which has been of particular concern in the exercise of concurrent jurisdiction is the distribution of defendants between the national and international fora. The question of appropriate distribution of defendants has been the cause of uncertainty and, at times, of tension between national governments and the ICTR. On more than one occasion, the ICTR and the government of Rwanda have sought to obtain custody of the same suspect.
77 In one case, not only the ICTR and the Rwandan government, but also the Belgian government were engaged in efforts to gain custody of the same suspects who were being held in Cameroon.78

It is worth noting that, while many speculated that these conflicts over custody were illusory--because no country would be willing to transfer a suspect to Rwanda--that speculation has proven false. At least one defendant has already been transferred to Rwanda (by Ethiopia),
79 and other countries have expressed a willingness in principle to do the same.

The tensions between the Rwandan government and the ICTR over distribution of defendants have resulted in part from a lack of communication over time and also in part from a more fundamental conflict of interests or, at least, of agendas. When the ICTR was established, the Rwandan government had not yet decided upon an approach to national prosecutions. The approach ultimately adopted relies heavily on plea agreements, as discussed above. That plea-agreement program turned out to be somewhat incompatible with the operation of an international tribunal that views its mandate as prosecuting the top-level leaders of the genocide.

The reasons for this incompatibility are easy to understand. The leniency in sentencing that goes with plea agreements can easily create a perception that impunity has prevailed--unless at least the leaders are fully prosecuted and punished. If, however, the leaders are taken to an International Tribunal, and there receive more favorable treatment than they would in the national courts, then this leaves a gap in the national justice picture. This more favorable treatment enjoyed by defendants at the International Tribunal includes escaping the death penalty (which may be imposed by Rwandan courts but not by the ICTR),
81 likely being imprisoned in more favorable conditions than those in Rwandan prisons,82 and being guaranteed various due process safeguards including appointed defense counsel, among other factors.83 If the leaders are away receiving "international justice" which is perceived as lenient, and the followers are at home getting "bargains" in the national justice system, then no one is punished fully and severely, relative to national standards, for the horrors that were committed. A perception may thus be created, especially among the survivor population, that the plea agreement program is really a program of impunity. One can readily see, then, why trying at least some Category-One defendants in domestic courts would be important to Rwanda.

This problem became apparent over time. After the ICTR had been in place for many months, and when ICTR personnel thought that the Tribunal was finally showing results and deserved to be congratulated, the Tribunal, instead, was incurring the wrath of the Rwandans each time it pursued a leader to be prosecuted.
84 ICTR personnel and supporters found this wrath especially difficult to accept since Rwanda had not managed actually to begin any trials, of leaders or otherwise.85 The Rwandans, in reply, noted that the ICTR had been no swifter, and had also tried no one so far.86 This friction was caused at least in part by the fact that the parties had not communicated regarding policies to govern the distribution of defendants in light of the national justice program as it evolved. But the friction also reflects what may be a more fundamental conflict between a national and an international jurisdiction each of which aspires to prosecute leaders.

On the authority of the UN Security Council Resolution that brought the ICTR into being, the ICTR enjoys primacy of jurisdiction.
87 This means that, where the ICTR and a national body each have a legal basis for jurisdiction over a given case, the ICTR is entitled--but not obliged--to exercise jurisdiction to the exclusion of the national body.88 But the criteria to be employed in deciding whether to exercise jurisdiction in any particular case have yet to be articulated by the ICTR.89 Certainly, no articulation of principles for the distribution of defendants has been reflected in any form of agreement or memorandum of understanding between the ICTR and the government of Rwanda.90 Conflicts over exercise of jurisdiction that have arisen to date have been resolved on an ad hoc basis.91

A more satisfactory basis for consistent decision making regarding the distribution of defendants will have to rest upon a careful analysis of the purposes of the ICTR and of its concurrent jurisdiction with national courts. This analytic process still remains to be completed.

Identifying the appropriate criteria for distribution of defendants between national and international fora is tricky within any one context. The issues are further complicated when one recognizes the need to articulate underlying principles and guidelines that will serve across contexts--in Bosnia or in Croatia as well as in Rwanda and, very likely, in future instances as well.

In anticipation of such future instances, a statute for a permanent International Criminal Court is currently under consideration by the United Nations. That draft statute to some extent averts potential conflicts over defendants by giving deference to national-level prosecutions under most circumstances.
92 But those provisions giving deference to national courts would not apply where the International Criminal Court's jurisdiction had been invoked by the Security Council, as can occur under the Draft Statute.93 In such instances, the same difficulties regarding distribution of defendants as have arisen in Rwanda would be likely to recur.

The Draft Statute for a permanent International Criminal Court does not directly address whether an International Criminal Court's role would be especially tied to trying leadership-level defendants. Article 35 of that Draft Statute provides that the International Criminal Court may decide "that a case before it is inadmissible on the ground that the crime in question . . . is not of such gravity to justify further action by the Court."
94 One might imagine that such a provision, if adopted, would form the basis for an admissibility challenge by a defendant (such as Dusko Tadic, the first defendant tried at The Hague) who was not in a leadership position in the overall criminal enterprise. Such a challenge would be based on the proposition that "gravity" includes within its meaning the notion of leadership or other special responsibility. The claim, in other words, would be that it is not the role of an International Criminal Court to try "small fry."

Whether the role of an international criminal tribunal (ICTR, ICTY or ICC) should be specially tied to the prosecution of leaders depends, obviously, on what the purpose of that international criminal tribunal is. Some have suggested that a primary purpose of an international tribunal is to supplement or substitute for national courts where national justice systems are overwhelmed or incapacitated.
95 This function of an international criminal tribunal carries no implications for the best distribution of defendants other than that the international tribunal should do that which best assists or complements national efforts. Others have suggested that an international criminal tribunal should exercise jurisdiction only when there is "little prospect of fair trial under national criminal jurisdiction."96 Once again, this conception of the purpose of an international criminal court suggests no general principle regarding the distribution of defendants on the basis of leadership.

Clearly, the rationale for a regime of "stratified-concurrent jurisdiction," in which the international tribunal prosecutes (or strives to prosecute) the leaders, leaving to national governments the rest of the defendants, cannot rest on a view of international tribunals as supplements or substitutes for reluctant, ineffective, or incapacitated national courts. Having an international tribunal try a few top-level defendants while leaving the staggering bulk of the caseload to the national courts would not necessarily be a sensible strategy if the goal were to provide a stand-in or supplement for an incapacitated or unwilling national judicial system. (In the Rwandan context, for instance, application of the stratified-concurrent jurisdiction model results in the ICTR trying a tiny fraction of the defendants while leaving 90,000-plus cases to Rwandan national courts.)
97 Rather, massive assistance to the national system or, taking the opposite tack, provision of an international court designed to handle the bulk of the cases would be a more appropriate strategy if the goal were to respond to incapacity or recalcitrance in a national system.

A different rationale which is sometimes offered to support a regime of stratified-concurrent jurisdiction is based on the need for deterrence. The argument here is that ensuring strong deterrents against leading and organizing mass crimes is of surpassing importance because, without leaders, the mass crimes would not occur. Be that as it may,
98 this argument actually is not relevant to the question of the distribution of defendants between national and international fora. Few would deny that it is important for deterrent (and other) purposes to prosecute the leaders of crimes of mass violence. But the question is whether those leaders should be tried in national or international fore. Presumably deterrence can be accomplished through trial and punishment in either forum. So the deterrence argument in the end tells us little about which forum should exercise jurisdiction over the leaders.

Some may argue that, while in theory deterrence can be accomplished through trial at the national or the international level, in practice leaders typically will have fled from their countries before they can be prosecuted by national authorities. Moreover, those "leaders-in-exile" often will have the resources and influence to find refuge in countries that will shield them from the reach of their own national prosecutorial authorities. In such cases where national judicial authorities cannot obtain extradition of suspects,
99 an international criminal tribunal may well have more success in gaining custody of prospective defendants. Therefore, the argument concludes, if effective deterrence is to be achieved at the leadership level, it will have to rest on the realistic threat of prosecution before an international tribunal.

Again, while this may at first appear to be a strong argument supporting stratified-concurrent jurisdiction, closer inspection reveals flaws in its logic. If it is possible for an international tribunal but not a national tribunal to gain custody of a suspect who should be prosecuted, then it makes sense for the international tribunal to prosecute that suspect. But that proposition is, in fact, not at all related to whether the suspect in question was a leader. The proposition could apply equally to any suspect, leader or otherwise. Thus, potential problems in obtaining custody, and the fact that those problems may arise disproportionately where leaders are involved, does not constitute a sound argument for a regime of stratified-concurrent jurisdiction. It is true that, if the custody issue tends to arise disproportionately where leaders are involved, then this may result in an international tribunal trying a disproportionate number of leaders. But that would be a result of the politics of custody, not an argument for an international tribunal seeking to prosecute leadership-level defendants pursuant to a stratified-concurrent jurisdiction model for distribution of defendants.

Putting the same point somewhat differently, the issue of which jurisdiction is more likely to be successful in obtaining custody is separate and not logically related to the question: If the country holding a suspect were equally willing to transfer that suspect to the custody of the national or the international forum, which forum then should exercise jurisdiction? Instances in which this was the operative question--where a third-party state was willing to transfer a particular suspect to the international or the national jurisdiction--have already arisen in the Rwandan context.
100 Notwithstanding the ability of the national jurisdiction to gain custody, the argument still was made in those cases that the ICTR should exercise jurisdiction if the suspect was a major leader.101 Obviously, in those cases, the view that the ICTR should try the leaders was not based on relative likelihood of gaining custody. The custody factor thus does not provide a satisfactory explanation of the stratified-concurrent jurisdiction model in theory or in practice.

The rationales for stratified-concurrent jurisdiction considered thus far have failed to withstand careful scrutiny. The final rationale to be considered as a possible basis for stratified-concurrent jurisdiction is essentially a moral proposition: that crimes of a certain magnitude and of a certain nature should be condemned by an international entity, a "voice of humanity."

Even accepting the premise that an essential purpose of an international criminal tribunal is to condemn certain crimes on behalf of all humanity, we still must ask why it is the leaders in those crimes, the architects and not the executors, who should be prosecuted before an international court. Does it manifest more evil to organize, at a distance, the murder of thousands than to torture or kill while looking into the eyes of a pleading victim? No self-evident moral truth that "organizing is worse" can be relied upon to support the pervasive assumption that the role of an international tribunal is to prosecute the leaders.

One might, however, make a related but somewhat different argument for stratified-concurrent jurisdiction based on the international nature of leadership responsibility. The reasoning here would be that those who lead others and who hold the power to create a holocaust have a particular type of duty, similar to a fiduciary duty, which extends beyond national boundaries. A breach of that duty of leadership is a distinctive type of crime, a crime against the world community. Thus, one might reason, an international court's role is to try the leaders because the nature of the leaders' transgressions is global.

But a regime of stratified-concurrent jurisdiction is not satisfactorily supported even by this conception of international responsibility. All crimes of genocide and crimes against humanity, whether committed by leaders or by followers, are international crimes. As such, all of those crimes are defined as being of distinctly international concern.

It may be true that, while the international community has an interest in denouncing international crime committed by persons at all levels, it has a special, added interest based on special international responsibility where the perpetrator is a leader. But this added interest simply does not seem to be of sufficient significance or force to make it the sine qua non of an international tribunal's proper exercise of jurisdiction. The benefits of trying the leaders before an international tribunal are not sufficiently compelling to define the proper distribution of defendants between national and international fora.
102 Rather, those benefits may better be viewed as constituting one consideration among others to be taken into account in balancing the benefits of national and international exercise of jurisdiction.

Given the lack of a compelling categorical argument supporting stratified-concurrent jurisdiction, it is questionable whether a regime of stratified-concurrent jurisdiction rests on a secure foundation in principle. This question would be far less pressing if stratified-concurrent jurisdiction did not have nefarious consequences in practice. Unfortunately, however, as currently exercised, stratified-concurrent jurisdiction creates a number of anomalous consequences and potential obstacles to justice.

First, stratified-concurrent jurisdiction tends in practice to render injustices because trial before an international tribunal will tend, systematically, to be more favorable for defendants than would trial before national courts (leaving aside sham courts established to whitewash defendants). As illustrated in the Rwandan case, the advantages to defendants of being tried in an international rather than a national forum will be several. First, an international court will not have a death penalty, while many national courts (such as those of Rwanda) do.
103 Second, the prisons used for sentences imposed by an international court may often afford better conditions of incarceration than would the prisons of the national courts in question.104 Third, an international tribunal would be expected to guarantee to defendants the utmost in due process, while national courts (especially national courts struggling with post-holocaust resources and an overwhelming caseload) may not.105 And, finally, defendants in national courts will have more reason than defendants tried before an international tribunal to fear bias, in the form of victor's justice or of personal partiality. In sum, there are very substantial advantages, possibly making the difference between life and death, to being prosecuted in the international rather than the national forum.

Anomalously, under the stratified-concurrent jurisdiction model, all of those advantages go to the leaders, those who were at the helm of the holocaust. This surely is an unintended and an unjust outcome. Yet, these "anomalies of inversion," in which the most responsible defendants get the least harsh treatment, are not coincidental; they are a predictable, structural problem that will be recurrent under the stratified-concurrent jurisdiction model, in which the international tribunal tries the leaders and the national courts try the rest.

Anomalies of inversion, however, are not the only obstacles to justice that may be posed by the stratified-concurrent jurisdiction model. In addition, stratified-concurrent jurisdiction may tend to undermine the use of plea agreements, which may be a particularly important tool in the prosecution of mass-scale crimes, as exemplified in the Rwandan case.

Thus, not only is it unclear that the stratified-concurrent jurisdiction model rests on a sound principled basis, but stratified-concurrent jurisdiction in practice also poses significant anomalies of inversion and other obstacles to the administration of justice. For these reasons, it is far from clear that the stratified-concurrent jurisdiction approach should take pride of place among the possible models for the distribution of defendants. Rather, the arguably added value in prosecuting leadership-level perpetrators before an international tribunal may be one factor to be considered and weighed among others relevant to the distribution of defendants.

Not only those issues concerning distribution of defendants, but also the dilemmas that arise more generally from concurrent jurisdiction, are starkly posed in the context of Rwanda. But Rwanda is unlikely to remain unique in this respect. The same problems predictably will arise in future contexts where concurrent jurisdiction is actively exercised. Many of these issues are currently under debate by the U.N. Preparatory Committee on the Establishment of an International Criminal Court. For example, debate is underway as to whether and how an International Court should provide assistance to bona fide national investigations or prosecutions (for example, by facilitating interstate judicial assistance).
106 The broad range of issues concerning the interaction of national and international jurisdictions forms the basis for ongoing debates on "complementarily" between national criminal jurisdictions and a permanent International Criminal Court.107

A threshold requirement for greater coherence in the interaction of national and international jurisdictions is a clear articulation, in each case in which an international tribunal is to be convened, of the needs which that particular tribunal is intended to meet. The purposes for an international tribunal will not be identical across contexts. The needs that are likely to be present in greater or lesser degree, singly or in combination, include: responding to an overwhelmed national justice system; substituting for a national system where the fact or appearance of bias would substantially undermine justice processes (whether because of a lack of will to prosecute, or of a will to prosecute "with a vengeance"); substituting for a national justice system where the national system would be unable to obtain custody of suspects; and/or expressing, through the exercise of international jurisdiction, a universal condemnation of some special feature of the crimes in question such as the special international responsibility of certain perpetrators.

Two important benefits can be gained by articulating the particular needs to be met by convening each particular international tribunal. First, such an articulation will permit confirmation of whether an international tribunal will best serve the goals sought in that particular context. For instance, if the purpose is to respond to a situation where the national system is overwhelmed, then we can analyze whether it is best to provide an international tribunal or to provide assistance to the national system, or some combination of the two. Second, having reference to clearly articulated purposes for convening an international tribunal will allow the operation of that particular tribunal, and especially its interaction with national jurisdictions, to be appropriately tailored to those goals. For example, if the purpose is to substitute for national courts where they cannot obtain custody then, arguably, that international tribunal should defer to the national justice system if that national system can gain custody in a particular case. By contrast, if the purpose is to express universal condemnation of certain crimes, then that international tribunal may wish to exercise jurisdiction even where the national courts could gain custody. Such an instance would require a very careful analysis of how the international interest in "universal condemnation" should be weighed against the national (and international) interest in successful operation of the national justice system if the two should conflict. In sum, it will be essential to the fruitful operation of an international court that its purposes are clearly articulated in each instance and that its operations are appropriately tailored to those purposes in each case.

V. Conclusion: The Future in Rwanda and Beyond

In Rwanda, the performance of the national justice system and that of the ICTR remain to be seen. Two and a half years after the massacres and yet at the very beginning of the trials in either jurisdiction, it is clear that the best form of justice that the ICTR or the national courts will be able to render will be justice delayed. The slow progress of justice in Rwanda points to needs for protocols for prompt international assistance to national justice systems; for permanent bodies, such as an International Criminal Court, that can be put readily into service when warranted; and for clear articulation of the purposes of each international tribunal in order to maximize the effectiveness of both national and international jurisdictions in responding to crimes of mass violence.

Continue to End Notes

* © Copyright 1997 by Madeline H. Morris

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