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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


VI. End Notes

1. See Letter Dated 1 October 1994 From the Secretary-General Addressed to the President of the Security Council, U.N. SCOR, pare. 43, U.N. Doc. S/1994/1125 (1994) [hereinafter Secretary-General Letter ]. See generally GERALD PRUNIER, THE RWANDA CRISIS 261-65 (1995).

2. See PRUNIER, supra note 1, at 243.

3. See Report on the Situation of Human Rights in Rwanda Submitted By Mr. R DegniSegui, Special Rapporteur of the Commission on Human Rights, Under Paragraph 20 of Commission Resolution E/CN.4/5-3/1 of 25 May 1994, U.N. ESCOR, 51st Sess., Agenda Item 12, pare. 28, U.N. Doc.E/CN.4/1995/7 [hereinafter Degni-Segui Report ].

4. See Secretary-General Letter, supra note 1, pares. 44-45.

5. See id.

6. See Degni-Segui Report, supra note 3, para. 49.

7. See id. para. 26.

8. See PRUNIER, supra note 1, at 26-27.

9. See id. at 48-54.

10. See id. at 61-64.

11. See id. at 93.

12. See Accord de Paix, Aug. 4, 1993, Loi Fondamentale, 1 Codes Et Lois Du Rwanda 5 (1995), Universite Nationale du Rwanda Faculte de Droit (Fr.).

13. See id. at 7, art. 4, and at 8-18 (Protocole sur le Partage du Pouvoir); see also AFRICAN RIGHTS, RWANDA: DEATH, DESPAIR AND DEFIANCE 35-36 (rev. ed. 1995) [hereinafter AFRICAN RIGHTS].

14. See AFRICAN RIGHTS, supra note 13, at 36.

15. See Secretary-General Letter, supra note 1, pare. 42.

16. For a detailed description of these events, see AFRICAN RIGHTS, supra note 13, at 17798.

17. See S.C. Res. 872, U.N. SCOR, 48th Sess., 3288th mtg. pare. 2, U.N. Doc. S/RES/872 (1993)

18. See S.C. Res. 912, U.N. SCOR, 49th Sess., 336th mtg., U.N. Doc. 8/RES/912 (1994); see also AFRICAN RIGHTS, supra note 13, at 1117.

19. See African RIGHTS, supra note 13, at 1062.

20. See James C McKinley Jr., 76,000 Still in Jail in Rwanda Awaiting Trial in '94 Slayings, N.Y. TIMES, June 24, 1996, at A1.

21. See Statement Dated 28 September 1994 on the Question of Refugees and Security in Rwanda, U.N. SCOR, 49th Sess., Annex, at 2, U.N. Doc. 8/1994/1115 (1994) [hereinafter Refugees Statement].


23. See Secretary-General Letter, supra note 1, at 43.


25. See id.

26. See AFRICAN RIGHTS, supra note 13, at 854.

27. See COUNTRY REPORTS, supra note 24, at 212.


29. See id.

30. See id. at 2, para. 11.

31. See id. at 2, para. 12; AFRICAN RIGHTS, supra note 13, at 1171.

32. The Security Council established the International Criminal Tribunal for the former Yugoslavia in Security Council Resolution 827. S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/Res/827 (1993).

33. See Refugees Statement, supra note 21, at 4.

34. For an analysis of the politics of establishing the ICTR, see Payam Akhavan, The International Criminal Tribunal For Rwanda. The Politics and Pragmatics of Punishment, 90 AM. J. INT'L L. 501 (1996).

35. See U.N. SCOR, 49th Sess., 3453d mtg., U.N. Doc. S/PV.3453, at 14-15 (1994).

36. Id.

37. See S.C. Res. 955, U.N. SCOR, 3453d mtg., Annex, art. 6, U.N. Doc. S/RES/955 (1994) ("A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present Statute, shall be individually responsible for the crime.") [hereinafter Statute of the ICTR].

38. See Interview with Judge Honore Rakotomanana, Deputy Prosecutor, ICTR, in Kigali, Rwanda (Oct. 8, 1996) (on file with author).

39. See Statute of the ICTR, supra note 37, art. 2(3)(c).).

40. This point is not, however, entirely uncontroversial. Common law systems generally provide for liability for incitement regardless of whether that incitement led to commission of the crime incited, while civil law systems generally require for liability that the incitement was successful. The travaux práparatoire of the Genocide Convention leave this issue open, allowing "the legislators of each country to decide, in accordance with its own laws on incitement, whether incitement to commit genocide had to be successful in order to be punishable." U.N. GAOR, 49th Sess., 84th mtg., U.N. Doc. A149/PV.84, at 220-221 (1994). Final determination of whether an incitement conviction before the ICTR will require proof that the incitement actually led to acts of genocide must await a judicial ruling. See generally Akhavan, supra note 34.

41. The case of Leon Mugasera exemplifies the effects of this limitation. Mugasera is known to have made public speeches in 1992 that presumably would constitute incitement to genocide. But that incitement would be excluded from the temporal jurisdiction of the ICTR. Any ICTR prosecution of Mugasera would therefore have to rest on a theory of complicity before the fact which would require proof of a sufficient nexus between the 1992 speeches and the 1994 acts of genocide to constitute complicity, and would also require a favorable judicial interpretation of Article 6 of the ICTR Statute. See discussion supra note 37 and accompanying text.

42 See U.N. Doc. S/PV.3453, supra note 35, at 15.

43. See Statute of the ICTR, supra note 37, art. 12(2), 12(3)(d).

44. See id. art. 15(3).

45. See Interviews with ICTY/R Personnel in The Hague, The Netherlands (Jan. 28, 1997) (on file with author).

46. See, e.g., Stephen Buckley, Arusha Tribunal Employees Say Difficulties Worsened By Racial Tensions, WASH. POST, Jan. 29, 1997, at A15 (stating that ICTR personnel believed Deputy Prosecutor Rakotomanana lacked leadership skills); Interviews with ICTY/R Personnel, academics, and Political Officials, in Rwanda (1996) (names withheld) (on file with author).

47. See U.N. Doc. S/PV.3453, supra note 35, at 16.

48. See Statute of the ICTR, supra note 37, art. 23(1).

49. See Republic of Rwanda Decret-Loi No. 21/77, Code Penal art. 26., 1 Codes et Lois du Rwanda 391 (1995), Universite Nationale du Rwanda Faculte de Droit (Fr.).

50. U.N. Doc. S/PV.3453, supra note 35, at 16.

51. The Rwandan delegation to the Security Council also voiced certain other objections to the ICTR Statute. These can be found at id. at 14-16.

52. See Discussions with Rwandan Officials, in Geneva, Switzerland (June 19-21, 1996) (names withheld) (on file with author); Discussions with Rwandan Officials in Cape Town, South Africa (Jan. 20-26, 1997) (names withheld) (notes on file with author).

53. See U.N. Doc. S/PV.3453, supra note 35, at 16.

54. See Richard D. Lyons, U.N. Approves Tribunal on Rwandan Atrocities, N.Y. TIMES, Nov. 9, 1994, at A12.

55. See Conversation with Simeon Rwagasore, Procureur General Before the Supreme Court of Rwanda, in Cape Town, South Africa (Jan. 22, 1997) (on file with author).

56. Organization of Prosecutions for Offenses Constituting the Crime of Genocide or Crimes Against Humanity Committed Since I October 1990, Organic Law No. 08/96 (August 30, 1996), in OFFICIAL JOURNAL OF THE REPUBLIC OF RWANDA (Sept. 1, 1996) [hereinafter Genocide Law].

57. See id. art. 2.

58. See id. art. 14.

59. See id. arts. 5, 15, 16.

60. See id. art. 6.

61. See id .arts. 15, 16.

62. See id. Thus, the death penalty is excluded even for those Category Two perpetrators convicted at trial. See id. This exclusion of the death penalty constitutes a reduction from the severity of sentence that could ordinarily be imposed under the Rwandan penal code, which provides capital punishment for murder. This reduction reflects a policy decision regarding the undesirability, for the society generally and for national reconciliation and security, of undertaking the execution of literally thousands of perpetrators. See Notes of Madeline Morris from Legislative Drafting Sessions, in Kigali, Rwanda (Nov. 1995-July 1996) (on file with author).

63. See Genocide Law, supra note 56, arts. 15,16.

64. See id. art. 14(d).

65. See Notes of Madeline Morris, supra note 62.

66. See id.

67. See Genocide Law, supra note 56, art. 6(b).

68. See Notes of Madeline Morris, supra note 62.

69. See Genocide Law, supra note 56, art. 6(c).

70. See Notes of Madeline Morris, supra note 62.

71. See id.

72. See Conversation with Faustin Ntezilyayo, Rwandan Minister of Justice, in Cape Town, South Africa (Jan. 20,1997) (on file with author).

On 3 January 1997, two Category-One defendants were sentenced to death after a brief trial in which the defendants appeared without counsel. See Rwanda to Execute 2 Hutu; First Verdict on '94 Killings, N.Y. TIMES, Jan. 4,1997, at 6.

It has been clear for many months that there is no provision for defense counsel for many of the thousands of indigent defendants in Rwanda. Various national aid agencies, U.N. organizations, and non-governmental organizations (NGOs) have for months discussed making some provision for a defense bar for the Rwandan national trials. See Discussion with Marthe Mukamurenzi, then-Minister of Justice of Rwanda, in Rwanda (March, 1996) (on file with author). The Rwandan Ministry of Justice has repeatedly expressed its interest in such arrangements. See id. But such arrangements have yet to be made. Now, as the first death sentences have been pronounced in Rwanda on defendants who were without legal representation, human rights NGOs and U.N. and various national officials have come forward to deplore the indeed deplorable fact that capital defendants are being tried without counsel. See, e.g., Rwanda to Execute 2 Hutu, First Verdict on '94 Killings, supra, Telephone Conversations with U.N. and NGO Personnel, in Athens, Georgia (Jan. 4-14,1997) (names withheld) (on file with author). The NGO Avocats Sans Frontières has begun provision of some defense counsel but not at a level approaching that required to address the needs of 90,000 prisoners. The Rwandan government's position is that it would welcome the provision of defense counsel by U.N. or national agencies or NGOs, but that it cannot provide defense counsel at Rwandan governmental expense and will not postpone prosecutions awaiting provision of a defense bar by some party in the indefinite future. See Conversation with Faustin Ntezilyayo, supra.

73. See Statute of the ICTR, supra note 37, art. 8(1).

74. Concurrent jurisdiction exists also in the context of the ICTY. See Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, U.N. SCOR, 48th Sess., Annex, art. 9(1), U.N. Doc. S/25704 (1993). As domestic prosecutions in the former Yugoslavia proceed, we may see the reiteration of these issues in that very different context.

75. In addition to the issue of the ICTR's impartiality generally, there is also the question of impartiality regarding claims against members of the current Rwandan regime. The jurisdiction of the ICTR includes any crimes against humanity committed in Rwanda in 1994. Statute of the ICTR, supra note 37, art. 8(1). The Tribunal's impartiality must therefore include objective assessment of allegations that crimes against humanity were committed by members of the RPA during the 1994 war. The ICTR Prosecutor has stated that, if any such allegations were substantiated, the ICTR would investigate but that, to date, no evidence has been presented to support such allegations. See Richard Goldstone, Prosecutor, ICTR, Address at the Justice in Cataclysm Conference, Brussels, Belgium (July 21, 1996) (on file with the Duke Journal of Comparative & International Law). Were the Rwandan government and the ICTR to be closely allied in prosecutorial pursuits, then the ICTR's objectivity in evaluating claims against RPA members could be called into question.

76. See Discussions with Rwandan Officials and ICTR Personnel (1995-1997) (names withheld) (on file with author).

77. See Philip Gourevitch, Justice in Exile, N.Y. TIMES, June 24, 1996, at A15.

78. See Chris Tomlinson, Tug of War Over Rwanda Suspect, INDEP., Mar. 13, 1996, at 10; Matthew Bigg, U.N. Rwanda Genocide Tribunal Adjourns, REUTERS WORLD SERV., Jan. 9, 1997.

79. See Paul Cullen, Trial Opens of Man Said to be Ringleader of Genocide, IRISH TIMES, Jan. 15, 1997, at 12.

80. Numerous statements indicate that personnel composing the ICTR (as well as the ICTY) do view the Tribunals' mandates as prosecution of the top-level leaders. Richard Goldstone states, for example, that "I still remain unpersuaded that there would be any advantage were the ICTR, as a policy, to pursue the 'small fish'." Letter from Richard Goldstone, Prosecutor, ICTY/R 1993-96, to Madeline Morris (Dec. 22, 1996) (on file with author). My conversations with ICTY/R personnel consistently indicate that there is a presumption within the Tribunals that their role is to try top-level leaders. The view expressed recurrently is that the trials of lower-level perpetrators (e.g. Tadic, tried before the ICTY, or Akayesu, before the ICTR) are to be viewed either as second-best outcomes necessitated by the lack of higher-level defendants in custody or as "building-block cases" that will lead to prosecutions of "higher-ups."

81. See Republic of Rwanda Decret-Loi No. 21/77, supra note 49; Statute of the ICTR, supra note 37, art. 23(1).

82. A prison sentence imposed by the ICTR may be served in Rwanda or in any other State that has "indicated to the Security Council their willingness to accept convicted persons, as designated by the International Tribunal for Rwanda." Statute of the ICTR, supra note 37, art. 26.

83. Compare Statute of the ICTR, supra, note 37, with Genocide Law, supra note 56.

84. See Discussions with Rwandan Officials and ICTR Personnel, supra note 76.

85. See id.

86. See id.

87. See Statute of the ICTR, supra note 37, an. 9(2).

88. See id.

89. See Discussions with Rwandan Officials and ICTR Personnel, supra note 76.

90. See Conversations with Faustin Ntezilyayo, supra note 72, and with Louise Arbour, Prosecutor, ICTY/R, in The Hague, The Netherlands (Jan. 28, 1997) (on file with author).

91. For example, discussion ensued between the ICTR Prosecutor and the government of Rwanda in the spring of 1996 regarding the disposition of twelve suspects who had been arrested in Cameroon. In those discussions, the ICTR Prosecutor insisted upon the ICTR pursuing prosecution of three of those individuals, citing the leadership positions of those suspects as a critical criterion making it essential that the ICTR exercise its primacy of jurisdiction in those cases. See Conversation with Richard Goldstone, ICTR Prosecutor, Nov. 1993-96, in Johannesburg, South Africa (Jan. 17, 1997) (on file with author). Some high officials of the Rwandan government understood those discussions also to have included a commitment by the ICTR Prosecutor to the effect that, in the future, the ICTR would not pursue prosecution of suspects whom the government of Rwanda had already begun pursuing. Telephone Conversation with Rwandan governmental official, in Brussels, Belgium (July 23, 1996) (name withheld) (notes on file with author). The ICTR Prosecutor, however, did not understand those discussions to have included any such commitment. See Richard Goldstone Conversation, supra.

After the discussions on the Cameroon arrestees, Froduard Karamira became the object of a brief "tug of war" between the ICTR and the government of Rwanda. Karamira is believed to have been among the leaders of the Rwandan genocide. See Cullen, supra note 79.) Karamira was in the course of being deported from India to Rwanda, at the request of the government of Rwanda, when he attempted to leave the airport during a transit stopover in Addis Ababa, Ethiopia. At that point, the ICTR requested that the government of Ethiopia detain Karamira on behalf of the ICTR. See Conversation with Rwandan Minister of Foreign Affairs, in Geneva, Switzerland (June 19, 1996). As it happened, several days later a number of Rwandan cabinet ministers and the ICTR Prosecutor were in Geneva for a donor round table. At the request of the Rwandan Minister of Justice, she and the ICTR Prosecutor (and several other parties) met to discuss the Karamira matter. The Minister of Justice pointed out the importance to the Rwandan justice system that Karamira be tried in Rwanda, and also pointed to the extensive efforts that Rwanda had already invested in gaining custody of Karamira. See Notes of Madeline Morris from Meeting with Minister of Justice and ICTR Prosecutor, in Geneva, Switzerland (June 20, 1996) (on file with author). The ICTR Prosecutor stated that he had not been aware that Karamira had been detained at the instance of the Rwandan government. In light of that information, he stated, he would reconsider his request to the Ethiopian government. See id. Several hours after that meeting, the ICTR Prosecutor informed the Ethiopian government that he was withdrawing his request for the detention of Karamira until the earlier request of the Rwandan government had been acted upon. See Conversation with Richard Goldstone, supra. Karamira was subsequently deported from Ethiopia to Rwanda. He recently stood trial and was sentenced to death in Rwandan national courts. See Death Sentence in Genocide, N.Y. TIMES, Feb. 15,1997, at 6.

92. See Report of the International Law Commission on the Work of its Forty-Sixth Session: Draft Statute for an International Criminal Court U.N. GAOR. 49th Sess., Agenda Item 140, art. 35, U.N. Doc. A1491355 (1994).

93. See id. art. 23.

94. Id. art. 35.

95. See, e.g., Statute of the ICTR, supra note 37, pmbl.

96. Timothy L.H. McCormack & Gerry 1. Simpson, A New International Criminal Law Regime?, 42 NETHERLANDS INT'L L. REV. 177, 180 (1995). There is no evidence to suggest that such a principle underlies the scheme of concurrent jurisdiction in effect in Rwanda. Rather, what is envisioned there is the concurrent and active operation of two legitimate jurisdictions.

97. This outcome is particularly ironic in light of the fact that the Security Council Resolution establishing the ICTR lists among the purposes for creating the Tribunal "a need for international cooperation to strengthen the courts and judicial system of Rwanda, having regard in particular to the necessity for those courts to deal with large numbers of suspects." Statute of the ICTR, supra note 37, pmbl.

98. The proposition that the most effective deterrent effect can be achieved by deterring potential leaders of mass crimes is, in fact, a debatable one. Perhaps leaders tend to be more zealous, more driven, less reticent and, hence, less deferrable than others. If so, then focusing deterrence efforts primarily on the leaders may not be the most effective strategy.

99. In addition to possible political obstacles to extradition, the extradition and civil rights laws of certain countries may virtually preclude extradition to some countries, particularly where, as in Rwanda, defendants may be subject to capital punishment. Countries refusing to extradite might or might not proceed with prosecutions, under universal jurisdiction, in their own courts.

100. See supra note 91.

101. See Discussions with Rwandan Officials and ICTR Personnel, supra note 76.

102. This is not to overlook the possibility that there might be political or policy reasons for focusing international prosecutorial efforts on leaders in some contexts. The point, rather, is that there does not appear to be a compelling argument for an overarching or axiomatic policy of stratified-concurrent jurisdiction.

103. See supra note 81.

104. See supra note 82.

105. See supra note 83.

106. See Jeffrey L. Bleich, Cooperation with National Systems, 13 NOUVELLES ETUDES PENALES 245, 254 (1997).

107. See, e.g., Discussions of the Ad Hoc Committee on the Establishment of an International Criminal Court, U.N. GAOR, 50th Sess., U.N. Doc. A/AC. 244/L.2-L.3 (1995).

108. To require that the purposes of an international tribunal be clearly articulated and suitably implemented in each instance is not to favor ad hocism nor to suggest that no underlying principles should be applied across contexts. Rather, what is suggested is the recognition of consistent principles (e.g., deference to national courts, if they have adequate capacity and impartiality to render meaningful prosecutions) the application of which will be, by their very nature. necessarily context-specific.

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