THE INTERNATIONAL CRIMINAL TRIBUNALFOR RWANDA

THE CREATION OF THE ICTR

Fears of selectivity fed into the decision to create the International Criminal Tribunal
for Rwanda. Given the creation of the ICTY for a European conflict, when genocide clearly
occurred in Africa, it was considered necessary and appropriate to create an analogous
tribunal for crimes committed there.1 The UN and its members, treated the creation of a
tribunal for Rwanda largely as they treated the ICTY, beginning with condemnation, then
setting up a Commission of Experts and, before they reported, deciding to set up an
international tribunal.2 On the evening of 6 April 1994, the plane carrying Juvenal
Habyarimana, the President of Rwanda, and Cyprien Ntaryamira, the President of Burundi,
was shot down over Kigali. The assassinations shattered the fragile peace established by the
Arusha Accords, brokered in the hope of ending the armed conflict between the Rwandan
Patriotic Front and the Rwandan Government.3
During the 100 bloody days that followed, unimaginable violence overtook the country.
Genocide, crimes against humanity and war crimes were perpetrated on a horrific scale,
primarily against Tutsi civilians and moderate Hutus. Soldiers, gendarmes, politicians,
Interahamwe and ordinary citizens were amongst the perpetrators. Between eight-hundred
thousand and one million men, women and children were massacred by Hutu extremists - a
rate of killing four times greater than at the height of the Nazi Holocaust.4
The United Nations Security Council established the International Criminal Tribunal for
Rwanda to "prosecute persons responsible for genocide and other serious violations of
international humanitarian law committed in the territory of Rwanda and neighbouring

1 Payam Akhavan, The International Criminal Tribunal for Rwanda: The Politics and
Pragmatics of Punishment (1996) 90 AJIL P. 501.

2 Security Council Resolutions 935 (1994) (Commission) and 955 (1994) (Court).
3 http://www.unictr.org/en/genocide Information available at Official websit of
ICTR. (Visited on 01/05/2015)
4 Ibid.

States, between 1 January 1994 and 31 December 1994."5 The ICTR was created on 8th
November 1994. The Tribunal is located in Arusha, Tanzania, and has offices in Kigali,
Rwanda. Its Appeals Chamber is located in The Hague, Netherlands.
With its sibling international tribunals and courts, the ICTR has played a pioneering role in
the establishment of a credible international criminal justice system, producing a substantial
body of jurisprudence on genocide, crimes against humanity, war crimes, as well as forms of
individual and superior responsibility. While Rwanda, then a member of the Council, was
initially supportive, it did not succeed in including the death penalty, excluding crimes other
than genocide from the courts jurisdiction or granting the court jurisdiction before 1994, and
therefore voted against the creation of the ICTR.6 This does not affect the legality of the
creation of the Tribunal, which finds its basis, like the ICTY, in Chapter VII of the UN
Charter.7
The ICTR is the first ever international tribunal to deliver verdicts in relation to genocide, and
the first to interpret the definition of genocide set forth in the 1948 Geneva Conventions. It
also is the first international tribunal to define rape in international criminal law and to
recognise rape as a means of perpetrating genocide.8
THE STRUCTURE OF THE ICTR
The structure of the ICTR is very similar to that of the ICTY; it too has an Office of the
Prosecutor, a Registry, and three Trial Chambers 9, which have the same functions as their
counterparts in The Hague.

5 Resolution 955 of the United Nations Security Council, 8 Nov. 1994, Preamble
and Article 1 of the ICTR Statute.
6 S/PV.3453, 2, 1012. China abstained on the resolution.
7 The ICTR affirmed the legality of its own creation in Kanyabashi Case ICTR T.Ch. II
18.6.1997. The decision is, however, terse and amounts to little more than a refusal to
investigate the legality of Security Council actions.

8 www.unictr.org/en/tribunal, ICTR official website (Visited on: 1/05/2015)

9 Article 10: Organization of the International Tribunal for Rwanda, ICTR Statute.

The Prosecutor is responsible for the investigation and prosecution of persons indicted. He
acts completely independently from the Security Council, States, International Organisations
and the other two organs of the ICTR. The Prosecutor is appointed by the Security Council on
nomination by the Secretary-General. He serves for a four year renewable term.
According to Article 15 of the ICTR Statute, The Prosecutor shall be responsible for
the investigation and prosecution of persons responsible for serious violations of
international humanitarian law committed in the territory of Rwanda and Rwandan citizens
responsible for genocide and other such violations committed in the territory of neighbouring
States, between 1 January 1994 and 31 December 1994.10
Before 2003, the Prosecutor of the ICTY also served as Prosecutor of the ICTR. However,
with Resolution 1503 of the Security Council dated 28 August 2003, the two positions were
separated and made independent. The current Prosecutor is Hassan B. Jallow from The
Gambia.
The Registry provides legal and judiciary services to the other organs of the Tribunal.
The Registry has responsibility for the administration and day to day organisation of the
Tribunal. More than 700 people, representing around 85 different nationalities are employed
by the Registry in Arusha and Kigali. The Registry is headed by a Registrar, appointed by the
United Nations Secretary-General, after consultation with the ICTR President for a four-year
term. The current Registrar is Mr. Bongani Majola (South Africa), whose term of office
commenced on 1 January 2013.11
The Chambers are composed of sixteen permanent independent judges and a maximum at
any one time of nine independent ad litem judges appointed for the duration of one or more
specified trials. No two of these judges may be nationals of the same State. They are elected
by the United Nations General Assembly from a list submitted by the Security Council. They
are previously selected from a list of candidates nominated by United Nations Member
States. Nominations should take into account an equitable representation of the worlds

10 ICTR Statute.
11 Information taken for ICTR official website i.e. www.unictr.org

principal legal systems. The judges are elected for a four year term. Contrary to the
permanent judges, ad litem judges are not eligible for re-election.12
The judges are apportioned to three Trial Chambers and an Appeals Chamber. Three
permanent judges and a maximum of six ad litem judges are assigned to each Trial Chamber
which may be divided up into three sections. Seven of the permanent judges are members of
the Appeals Chamber (which also serves as the Appeals Chamber for the ICTY) each appeal
is heard by five judges. This Chamber considers appeals lodged by the defendants or the
Prosecutor, related to errors in the legal process or factual errors leading to a miscarriage of
justice. It can uphold, revoke or modify decisions by the Trial Chambers.13
The fact that the permanent and ad litem judges are from different States, guarantees
representation of the main judiciary systems in the Chambers whilst at the same time,
ensuring wide ranging professional experience. Since the ICTR was created on the basis of an
accusatory system, the role of the judges is not to lead the trial (as in the continental
European model), but rather to reach a conclusion concerning the guilt of the defendant and
the appropriate sentence, after open public hearings (with some exceptions) of the evidence
and arguments from both parties. There are therefore no examining magistrates. In addition,
the judges are invested with the power to prepare and adopt the legal documents necessary
for the proper functioning of the Tribunal such as the Rules of Procedure and Evidence which
are in effect similar to a Code of Criminal Law Procedures.14
(Current ICTR Judges Order of Precedence)15
Name
Judge Vagn Joensen
Judge Theodor Meron
Judge Fausto Pocar

Country
Origin
Denmark
United States
Italy

of

Chamber
ICTR President
Presiding Judge, Appeals Chamber
Member, Appeals Chamber

12 Art. 12 bis and 12 ter ICTR Statute.

13http://www.trial-ch.org/en/resources/tribunals/international-criminaltribunals/the-international-criminal-tribunal-for-rwanda/competence-andorganisation-of-the-ictr.html, (Visited on: 01/05/2015)
14 Ibid.
15
As
provided
over
official
website
of
ICTR
http://www.unictr.org/en/tribunal/chambers. (Visited on: 01/05/2015)

i.e.

Country

Name
Judge Liu Daqun
Judge Arlette Ramaroson
Judge Carmel Agius
Judge Khalida Rachid Khan
Judge
Bakhtiyar
Tuzmukhamedov
Judge Mandiaye Niang
Judge Koffi Kumelio

Origin
China
Madagascar
Malta
Pakistan
Russian
Federation
Senegal

A.

Afande

Togo

of

Chamber
Member, Appeals Chamber
Member, Appeals Chamber
Member, Appeals Chamber
Member, Appeals Chamber
Member, Appeals Chamber
Member, Appeals Chamber
Member, Appeals Chamber

THE COMPETENCE AND JURISDICTION OF THE ICTR.

As stated earlier, pursuant to Resolution 955, the ICTR has the power to prosecute persons
responsible for genocide and other serious violations of International Humanitarian Law
committed in the territory of Rwanda and Rwandan citizens responsible for genocide and
other such violations committed in the territory of neighbouring States, between 1st January
1994 and 31st December 1994.
According to its Statute, the Tribunal is competent to judge:
1. Crimes committed between 1st January and 31st December 1994.16
2. Crimes committed in the territory of Rwanda and neighbouring States in cases of
serious violations of international humanitarian law committed by Rwandan citizens
3. It has jurisdiction over crimes relating to: genocide 17, crimes against humanity18,
violations of Article 3 common to the Geneva Conventions of 12 August 1949 and of
Additional Protocol thereto of 8 June 1977 (Protection of civilians in war time and
violations of laws and customs of war)19

16 Art.7 ICTR Statute (Temporal Jurisdiction)

17 Art. 2 of the ICTR Statute.
18 Art.3 of the ICTR Statute.
19 Art 4 of the ICTR Statute.

4. Natural persons20
The ICTR does not have the exclusive competency to try and sentence persons responsible
for violations of international humanitarian law committed in the territory of Rwanda. It
exercises its competency concurrently with the national courts. 21 However the ICTR has
primacy over these courts and may formally request national courts, in the interest of justice,
to defer to its competence an investigation or any given case at any stage of the procedure.22
Furthermore, the statute provides that the perpetrators of the crimes committed in the
territory of Rwanda are individually responsible for these crimes. In addition, it specifies that
the official position of the accused person, whether it be as Head of State or Government or
as a responsible government official, does not relieve such person of criminal responsibility. 23
Finally it considers hierarchical responsibility. Someone who is hierarchically superior, even
if he or she does not take an active part in the violation, shall not be relieved of criminal
responsibility if necessary measures are not taken to prevent such violations or punish the
perpetrators.24

THE CONTRIBUTIONS OF THE ICTR

(INTERNATIONAL LEGAL JURISPRUDENCE)

TO

JUSTICE

IN

RWANDA

The ICTR has been successful in its mandate to hold accountable the highest level of
perpetrators who organized and carried out the genocide in Rwanda. The trials completed by
the Tribunal have challenged the historical impunity that existed in Rwanda for government
and military officials who conducted previous massacres of Tutsi civilians 25 under a societal
ideology of hatred and extermination as a final solution to a scapegoat minority. The Tribunal
has had the immediate impact of taking most of the suspected high-level perpetrators out of
20 Art.5 of the ICTR Statute (Personal Jurisdiction)
21 Art. 8 of the ICTR Statute.
22 Art. 8(2) of the ICTR Statute.
23 Article 6 of the ICTR Statute
24 Article 6(4) of the ICTR Statute.

public circulation so that they can no longer continue their planning and execution of mass
murder. The arrest, or flight into hiding after indictment, of these perpetrators has eliminated
their ability to promote genocide ideology, hate propaganda, and the justification of human
rights abuses. 26
The ICTR has established an international legal regime that has refuted genocide ideology as
it condemned the perpetrators and sentenced them to prison for their illegal acts. This is a
unique contribution by the Tribunal to justice in Rwanda because these high-level
perpetrators were all apprehended outside of Rwanda and would probably have escaped
justice all together due to Rwandas limited ability to arrest and extradite them from the
countries to which they fled following the genocide.27
The first trial at the ICTR started in January 1997, following the arrival of the first accused in
Arusha in May 1996. As of January 2015, 93 persons have been indicted, of which 61 have
been sentenced28, 14 are acquitted, 10 referred to national jurisdictions for trial, 3 were
deceased prior to or during trial, 3 fugitives were referred to MICT and 2 indictments were
withdrawn before trial.29 The convicts have been sentenced to prison for terms ranging from
six years to life imprisonment. Almost the entire interim government of the Rwanda genocide
25 The Tutsi are the second largest population division among the three largest
groups in Rwanda and Burundi; the other two being the Hutu (largest) and the
Twa (smallest). (Source: Wikipedia, visited on:02/05/2015)
26 Timothy Gallimore, The Legacy of the ICTR and its Contribution to Reconciliation in
Rwanda, 5th Edn. (2008) P. 242.

27 Ibid.
28 Several judgements have been pronounced and sentences handed down by the
ICTR:To life imprisonment: Jean-Paul Akayesu, Sylvestre Gacumbitsi, Jean Kambanda,
(former Prime Minister of Rwanda who pleaded guilty to crimes of genocide), Jean de
Dieu Kamuhanda, Franois Karera (former prfet for the Kigali region), Clment
Kayishhema, Michael Muhimana, Alfred Musema, Emmanuel Ndindabahizi, Eliezer
Niyitegeka and George Anderson Nderubumwe Rutaganda, all of whom were sentenced
to life imprisonment by a Trial Chamber or by the Appeals Chamber.
To a fixed prison term: Jean-Bosco Barayagwiza (32 years), Paul Bisengimana (15
years), Samuel Imanishimwe (12 years), Juvenal Kajelijeli (45 years), Fredinand Nahimana
(30 years), Hassan Ngeze (35 years), Elizaphan Ntakirutimana (10 years), Grard
Ntakirutimana (25 years), Joseph Nzabirinda (7 years), Juvenal Rugambarara (11 years),
Georges Ruggiu (12 years), Vincent Rutaganira (6 years), Obed Ruzindana (25 years),
Laurent Semanza (35 years), Omar Serushago (15 years) and Aloys Simba (25 Years).

era has been placed on trial at the Tribunal. The convictions so far have been against the
Prime Minister, government ministers, Prefects, Bourgmestres (Mayors) and several others
holding leadership positions in government and the military during the 1994 genocide. Other
convicts include religious leaders, journalists and media executives, medical doctors,
businessmen, and militia leaders.30 Prominent among the legal achievements and legacy of
the Tribunal was the sentencing of Jean-Paul Akayesu, former Mayor of Taba commune in
the former Gitarama Prefecture, to life imprisonment for the first ever conviction of the crime
of genocide in an international criminal court, handed down on October 2, 1998.31
Besides its success in holding accountable the so-called big fish 32 among the genocide
perpetrators, the Tribunal has made substantial contributions to international criminal
jurisprudence and to the developing human rights legal regime. Many have argued that the
primary contribution of the Tribunal so far has been in the area of international jurisprudence,
to the neglect of delivering justice to the genocide survivors in Rwanda. 33 However in order
to ascertain the contribution and positivity of the tribunal, a comprehensive study must be
made of the general Rwandan population to assess their views about the contribution and
impact of the Tribunals cases on justice in Rwanda. At this point, we can only assume that
the victims and survivors of the genocide view the ICTR as delivering justice to them.
Some tangible measure of the victims satisfaction with the work of the Tribunal is needed to
conclude whether or not they feel vindicated or that their injuries and grievances have been
redressed by the outcome of the trials.34 Despite these criticisms and challenges, the ICTR
29 Information as available on official website of ICTR. www.unictr.org (Visited
on:02/05/2015)
30 http://www.unictr.org/en/tribunal, information as available on official website
of ICTR (Visited on: 02/05/2015)
31 Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment (Sept. 2, 1998);
Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Sentence (Oct. 2, 1998).
32 High Official Dignitaries including the Prime Minister, government ministers,
Prefects, Bourgmestres (Mayors) and several others holding leadership positions
in government and the military.
33 Steve Sanderson, Jurisprudence not justice at the ICTR? 3 rd edn. (2003). P.
329.
34 Timothy Gallimore, The Legacy of the ICTR and its Contribution to
Reconciliation in Rwanda, 5th Edn. (2008) P. 249.

can still point to the many specific legal accomplishments and contributions to justice it has
made in the aftermath of the Rwanda genocide. They are:
A. Interpreting the Geneva Conventions/Defining Genocide
The quest for justice in the aftermath of the Rwanda genocide gave substance to the crime of
genocide, which was outlawed after the Holocaust of the Jews in the 1940s. The ICTR was
the first international tribunal to interpret the definition of genocide set forth in the 1948
Geneva Conventions. The ICTR jurisprudence is a particularly important source for both the
definition and application of the legal components for the criminal offence of genocide. 35 The
Tribunal issued its first judgment on September 2, 1998 in the case of Prosecutor v. JeanPaul Akayesu.36 This case set out very important legal doctrines and tests for assessing
components of genocide crimes.
B. Judicial Notice of Genocide in Rwanda
On June 16, 2006, the ICTR Appeals Chamber issued a decision that the Trial Chambers must
take judicial notice that between April 6, 1994 and July 17, 1994 there was genocide in
Rwanda against the Tutsi ethnic group. The Appeals Chamber delivered the decision in
response to the Prosecutors Appeal on Judicial Notice in the case of Prosecutor v.
Karemera.37 Judicial notice of the genocide means that the occurrence of the 1994 genocide
in Rwanda is to be taken as an established fact that is beyond dispute and does not require
any further proof. The legal finding that there was genocide of the Tutsi in Rwanda in 1994 is
equivalent to the commonly accepted fact that the sun rises in the east and sets in the west.
The ICTR Prosecutor no longer has to provide evidence to prove the occurrence of the
genocide in each case still pending before the Tribunal.38

35 Ibid. P. 251.
36 Prosecutor v. Jean-Paul Akayesu, ICTR 96-4-T, Judgment.
37 Prosecutor v. Karemera, Case No. ICTR 98-44-AR73.
38 Timothy Gallimore, The Legacy of the ICTR and its Contribution to
Reconciliation in Rwanda, 5th Edn. (2008) P. 250.

C. No Immunity from Prosecution for Heads of State

The ICTR was the first international tribunal since the International Military Tribunal in
Nuremberg in 1946 to hand down a judgment against a head of government. The Former
Prime Minister of the Interim Government of Rwanda, Jean Kambanda, was convicted of
genocide and sentenced to life in prison, thus reaffirming the principle that no individual
enjoys impunity for serious mass crimes because of official position. The case, Prosecutor v.
Kambanda,39 was decided by Trial Chamber I on September 4, 1998. The Kambanda case
was also the first in which a head of government pleaded guilty to genocide. 40 Kambanda
pleaded guilty to the six counts against him: genocide, conspiracy to commit genocide, direct
and public incitement to commit genocide, complicity in genocide, and crimes against
humanity (murder and extermination). On October 19, 2000, the Appeals Chamber affirmed
the conviction against Kambanda on all six counts.41
D. Legal Doctrine of Command/Supervisory Responsibility
Under the doctrine of command or supervisory responsibility, military leaders are held
personally responsible for human rights violations and other international crimes committed
by their subordinates. The ICTR Statute holds superiors responsible for genocide crimes if
they knew or had reason to know that the subordinate was about to commit such acts or had
done so and the supervisor failed to take the necessary and reasonable measures to prevent
such acts or to punish the perpetrators thereof.42 In November 2007, the ICTR Appeals
Chamber issued a judgment reaffirming that the doctrine of superior responsibility does apply
to civilians in leadership positions. The Chamber affirmed the conviction of Ferdinand
Nahimana for using the mass media to incite genocide and to persecute the Tutsi ethnic
minority in Rwanda.43 However, the Appeals Chamber reversed numerous convictions issued

39 Prosecutor v. Kambanda, Case No. ICTR 97-23-S, Judgment and Sentence

(Sept. 4, 1998).
40 Ibid.
41 Kambanda v. Prosecutor, Case No. ICTR 97-23-A, Appeals Judgment (Oct. 19,
2000).
42 Article 6(3) of the ICTR Statute.

by the Trial Chamber under Article 6(3) of the Tribunals Statute. 44 Most notably, Trial
Chamber I had convicted one media executive, who was also a militia leader, of genocide
under Article 6(3). The Trial Chamber found that the leaders of the Radio-Tlvision Libre
des Milles Collines (RTLM) radio station failed to exercise the authority vested in them as
office-holding members of the governing body of RTLM, to prevent the genocidal harm that
was caused by RTLM programming.45 The Chamber also found the same media official
guilty of genocide under Article 6(3) for his failure to prevent militia under his supervision
from killing Tutsi civilians.46
E. Rape as an Act of Genocide
In spite of logistical difficulties encountered by the Tribunal at its start, it has made
path-breaking contributions to the development of jurisprudence in international criminal law,
especially with regard to gender issues. It has been amply documented that at least 250,000
Tutsi and Hutu women were systematically raped and sexually assaulted as part of the
genocide.47 The ICTR has played a pivotal role in developing the standards for adjudicating
43 Nahimana v. Prosecutor, Case No. ICTR 99-52-A, Appeals Judgment, at 346
(Nov. 28, 2007).
44 Ibid. The convictions were overturned based on a technicality. The charges
concerning command responsibility were not correctly pled in the indictment to
give the accused proper notice of the specific allegations against them. The
omission had to do with the Prosecutions argument at trial that Kangura articles
originally published in 1990 were republished in 1994 by virtue of a contest
conducted by Kangura and RTLM to get readers and listeners to find answers to
the contest questions in back issues of the publication. The Appeals Chamber
ruled that the evidence related to republication of Kangura issues was not
admissible because the republication charge was not pled in the indictment,
therefore the communication that the Prosecution sought to admit as evidence of
incitement to genocide was outside the temporal jurisdiction of the ICTR. Despite
the significant number of convictions that the Appeals Chamber reversed, it still
reaffirmed the principle that, if properly brought, charges against civilians under
the doctrine of supervisory responsibility constitute grounds for successful
conviction.
45 Prosecutor v. Nahimana, Case No. ICTR 99-52-T, Judgment and Sentence.
(Dec. 3, 2003).
46 Ibid.
47 Rebecca L. Haffajee, Prosecuting Crimes of Rape and Sexual Violence at the
ICTR: the Application of Joint Criminal Enterprise Theory (2006).

these cases of sexual violence crimes. The Akayesu judgment was also groundbreaking for its
finding that rape can be an act of genocide. The Trial Chamber found that rape and other acts
of sexual violence constituted infliction of serious bodily or mental harm intended to
destroy members of the Tutsi ethnic group.48 The Trial Chamber enunciated a broad definition
of rape that is not limited to forcible sexual intercourse but also includes any physical
invasion of a sexual nature committed under coercive circumstances. Since the enunciation of
that definition, the Tribunal has convicted many others who were charged with rape as an act
of genocide or as a crime against humanity.49
F. Freedom of Expression vs. Incitement to Criminal Action
On December 3, 2003, the Tribunal convicted three Rwandans for using the media to commit
the crime of genocide by inciting the general Rwandan population to murder. They were
Ferdinand Nahimana and Jean Bosco Barayagwiza, who controlled and managed the RadioTlvision Libre des Milles Collines (RTLM) radio station, and Hassan Ngeze, the owner,
founder, and editor of the Kangura newspaper. In the so-called Media Case, the Tribunal set
the principle that those who use the media for inciting the public to commit genocide can be
punished for their communication because it amounts to persecution as a crime against
humanity.50 The case further developed the legacy of the post-World War II case law on
freedom of expression because it is the first contemporary judgment to examine the role of
the media in the context of inciting the public to commit mass crimes. 51 Additionally, the
Tribunal found the defendants guilty for using the media to promote sexual attacks on Tutsi
women who were targeted for persecution because the media portrayed them as femme
48 Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment, Sept. 2, 1998).
Akayesu was convicted of the rape charges based on his command of superior
responsibility.
49 Besides Akayesus Case other cases of same notion includes: Prosecutor
Musema, Case No. ICTR 96-13-A, Judgment (Jan. 27, 2000); Prosecutor
Semanza, Case No. ICTR 97-20-T, Judgment (May 15, 2003); Prosecutor
Niyitegeka, Case No. ICTR 96-14-T, Judgment (May 16, 2003); Prosecutor
Muhimana, Case No. ICTR 95-1B-T, Judgment (Apr. 28, 2005).

v.
v.
v.
v.

50 Nahimana v. Prosecutor, ICTR 99-52-A, Appeals Judgment (Nov. 28, 2007). P.

1033-32
51 The Media Case verdict was the first pronouncement by an international
tribunal on these questions since the conviction of Julius Streicher at Nuremberg.

fatales52 and particularly dangerous enemies of the Hutu ethnic group. 53 The Trial Chamber
found that by defining the Tutsi woman as an enemy, RTLM and Kangura articulated a
rationale that made the sexual attacks on Tutsi women a foreseeable consequence of the role
attributed to them. This important case fixed the boundary between the rights guaranteed
under international law to freedom of expression and incitement to genocide. The judgment
sets out criteria for distinguishing between incitement and legitimate use of the media.
Applying its content-based test, the Chamber found that: Hate speech is a discriminatory
form of aggression that destroys the dignity of those in the group under attack. It creates a
lesser status not only in the eyes of the group members themselves but also in the eyes of
others who perceive and treat them as less than human. The denigration of persons on the
basis of their ethnic identity or other group membership in and of itself, as well as in its other
consequences, can be an irreversible harm.54
SERIOUS DEFECTS WITHIN THE WORKING AND MANAGEMENT OF THE
TRIBUNAL
The problem with the ICTR was that it began at a snails pace. Its seat, in Arusha, Tanzania,
was only decided upon in February 1995.55 Also, staffing was a problem, recruitment being
difficult and slow.56 Even so, the first indictment was confirmed in November 1995. 57 Early
cooperation from some African States was quite quick, and proceedings opened against
52 A French word, meaning: an irresistible attractive women, who is considered
to be dangerously seductive. (source: Oxford Dictionary, 2010)
53 Prosecutor v. Nahimana, Case No. ICTR 99-52-T, Judgment and Sentence,
(Dec. 3, 2003) P. 1027.
54 Ibid. P. 1024. The Chamber also stated:The Chamber recognizes that some media are
advocacy-oriented and considers that the issue of importance to its findings is not
whether the media played an advocacy role but rather the content of what I was actually
advocating. In cases where the media disseminates views that constitute ethnic hatred
and calls to violence for
Informative or educational purposes, a clear distancing from these is necessary to avoid
conveying an endorsement of the message and in fact to convey a counter-message to
ensure that no harm results from the broadcast. The positioning of the media with regard
to the message indicates the real intent of the message, and to some degree the real
message itself.

55 Security Council Resolution 977 (1995).

56 Annual Report of the ICTR 1996, S/1996/778, para. 12.

Georges Rutaganda and Jean-Paul Akayesu on 30th May 1996.58 Rwanda, however, remained
rather inconsistent in its relations with the Tribunal.
Although funding for the Tribunal at the time was inadequate, 59 there were also concerns
about the extent to which resources, and the Tribunal as a whole, were being managed. 60
These were brought into the open in a highly critical report of the UN Office of Internal
Oversight Services of 6 February 1997.61 The report unveiled:

Sporadic funding for the Tribunal being limited to its effectiveness.

Evidence adduced did not confirm allegations of corrupt practices or misuse of

funds.
Mismanagement in almost all areas of the Tribunal.
Frequent violations of United Nations rules and regulations.62
Financial irregularities by the Registry for employing under-qualified staff and

weak asset management.63

The Office of the Prosecutor was considered inefficient, and beset by leadership
failure by the deputy prosecutor.64

Of the three organs, only the Chambers escaped serious critique. 65 As a result of the
report, both the registrars and the deputy prosecutors resignations were sought, and

57 Ibid., para. 31.

58 Ibid., para. 39.
59 Ibid., para. 77.
60 General Assembly Resolution 52/213 C.
61 Report of the Secretary-General on the Activities of the Office of Internal
Oversight Services, A/51/789.
62 Ibid.
63 Ibid., paras. 1133.
64 Ibid., paras. 559.
65 Ibid., paras. 6063.

obtained.66 Also, attempts were made to recruit appropriate people to managerial positions
and to improve financial discipline.67
MOVING FORWARD WITH NEW DIMENSIONS IN TRIBUNAL
The ICTRs fortunes took a turn for the better in May 1998, when Jean Kambanda, the Prime
Minister of the government that presided over the genocide, pleaded guilty to genocide.
Notwithstanding his guilty plea, which recognized, importantly, that genocide had occurred in
Rwanda, he was sentenced to life imprisonment. 68 In spite of continuing technical, logistical
and resourcing problems, the Tribunal moved into a phase of increased trial work, which led
the Security Council to increase the number of Trial Chambers to three in April 1998. 69 The
first full trial ended in September 1998, with the conviction of Akayesu for genocide, in a
judgment that not only offered the first express application of the Genocide Convention by an
international tribunal, but also determined that sexual offences could form the actus reus of
genocide.70
Trials were moving slowly but forward during 1999, when the relationship between the ICTR
and Rwanda collapsed. The reason for this was the decision of the Appeals Chamber that the
pre-trial detention of Jean-Bosco Barayagwiza, one of the mass media advocates of the
genocide, violated his human rights, and so the Tribunal should use its inherent power to
decline jurisdiction over him.71 Rwanda was outraged, and suspended cooperation with the
Tribunal, which owing to the vast majority of evidence and witnesses being located in
Rwanda made progress with trials very difficult. The Appeals Chamber quickly revisited its
decision on the point and determined that on the basis of further factual submissions by the
prosecutor, the Tribunal ought to continue to exercise jurisdiction over him, but he ought to
66 Annual Report of the ICTR 1997, S/1997/868, para. 57.
67 Ibid.
68 Kambanda ICTR T.Ch. I 4.9.1998. Kambanda unsuccessfully appealed; Kambanda ICTR
A.Ch. 19.10.2000.

69 Security Council Resolution 1165 (1998). See Annual Report of the ICTR 1999,
S/1999/943, paras. 5, 126.
70 Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment, Sept. 2, 1998).
71 Prosecutor v. Barayagwiza, ICTR Appeal Chamber. (Dated:.11.1999)

receive a reduction in any sentence he received if he were to be convicted, to take into

account his pre-trial predicament.72 Although relations between the ICTR and Rwanda
improved, many thought that politics, more than law, was involved in the decision.73
Nonetheless, the position of the ICTR was improved in 2001 when, pursuant to Security
Council Resolution 1329,74 ad litem judges were appointed to assist in trials. By early 2001, it
was thought that the prosecutor would complete her investigative work by 2005. 75 Trial work
remained slow, however, and pre-trial detention of suspects remained very long.76
THE COMPLETION STRATEGY
As the ICTR began to think in terms of completion, plans were formulated to pass up to forty
cases to national jurisdictions (including Rwanda) rather than have them prosecuted by the
ICTR.77 Thus in July 2002, the ICTR adopted its own procedure, permitting the transfer of
cases to national jurisdictions.78 To assist the ICTR in completing its judicial business (which
was still taking a great deal of time) the Security Council adopted a Resolution 79, which set
up a pool of eighteen ad litem judges.80

72 Barayagwiza, ICTR A.Ch. 31.3.2000. In the event, he was convicted, and sentenced to
thirty-five years imprisonment, unlike his co-defendants, both of whom were sentenced
to life. Nahimana, Barayagwiza and Ngeze . However, his sentence was reduced to thirtytwo years on appeal.

73 Prosecutor v. Barayagwiza (2000) 94 AJIL P. 563.

74 Dated: 5/12/2000.
75 Annual Report of the ICTR 2002, S/2002/733, para. 121.
76 Ibid.
77 Ibid., para. 10. The ICTR had, early on in its practice, unsuccessfully attempted such
an approach, with respect to Bernard Ntuyuhaga; Ntuyuhaga, ICTR T. Ch. I 18.3.1999.

78 Rule 11bis.
79 Resolution (1431) adopted on 14 August 2002.
80 See Annual Report of the ICTR 2003, S/2003/707, paras. 78; Annual Report of the
ICTR 2005, S/2005/ 534, para. 5.

In August 2003, Security Council Resolution 1503 (2003) set out the Security Councils
timetable for completion, which was the same as that for the ICTY. This resolution also split
the role of the prosecutor in two, creating separate positions of ICTY and ICTR prosecutor on
the stated basis that the job was too large for one person and thus Rwanda was being
overlooked.81
The completion strategy was expanded upon by Resolution 1534, which required both
Tribunals to review their caseloads to determine which cases could be tried at the domestic
level.82 The ICTR declared its ability to meet the various deadlines (subject to State
cooperation) in 2005.83 Its ability to do so was, it was hoped, to be assisted by negotiations
with Rwanda to facilitate transfer of cases from the ICTR to Kigali. 84 However, although
some transfers have occurred (to France),85 none, to date, has been made to Rwanda. Indeed
the ICTR has been critical of the possibility of fair trials in Rwanda and of the standards of
imprisonment there. This stance has led to consternation in Rwanda, and to other States being
wary of extraditing suspects there.86
A report87 by Security Council on Aug, 2014 stated about the progress in the
Completion strategy by ICTR. It clearly mentioned that the Security Council, in its resolution
1966 (2010) establishing the International Residual Mechanism for Criminal Tribunals,
81 Luc Reydams, The ICTR Ten Years On: Back to the Nuremberg Paradigm? (2005) 3
JICJ P. 977.
82 Resolution adopted on 26/3/2004.
83 S/2005/336.
84 Annual Report of the ICTR 2005, para. 49.
85 Buchiybaruta ICTR T.Ch. 20.11.2007; Munyeshaka ICTR T.Ch. 20.11.2007.
86 See, e.g. Munyakazi ICTR A.Ch. 8.10.2008; Brown and others v. Government of
Rwanda and Secretary of State for the Home Department [2009] EWCA 770. See also
section 5.4.5.

87 19th annual report of the International Criminal Tribunal for the Prosecution of
Persons Responsible for Genocide and Other Serious Violations of International
Humanitarian Law Committed in the Territory of Rwanda. Doc. no. A/69/206
S/2014/546, Dated: 1st August, 2014. Available at official website of ICTR i.e.
www.unictr.org (Visited on 03/05/2015)

requested the Secretary General to make the practical arrangements necessary for the
commencement of the Mechanisms operations. Under the direction of the Office of Legal
Affairs, the Tribunal has worked closely with the International Criminal Tribunal for the
Former Yugoslavia and the Mechanism to implement that mandate.
The report further asserted, In close cooperation with the Prosecutor and the Registrar, the
President has continued to implement the Tribunals completion strategy. On 5 December
2013 and 5 June 2014, the President presented the six-monthly completion strategy reports to
the Security Council. In the course of the reporting period, the Tribunal issued three
judgements at the appeals level concerning five accused. The work at the trial level was
completed in December 2012 and only appeals remain.88
APPRAISAL OF THE ICTR
The Tribunal has come in for a great deal of criticism in the past, but the picture is more
mixed than critics would suggest, and the ICTR has been working hard. The ICTR has had
notable success in obtaining, and trying, high-level suspects. As stated earlier that by 2015,
93 persons have been indicted, of which 61 have been sentenced, 14 are acquitted, 10 referred
to national jurisdictions for trial, 3 were deceased prior to or during trial, 3 fugitives were
referred to MICT and 2 indictments were withdrawn before trial. 89 Although it has not
obtained all of the ringleaders of the genocide, it has many of them, both civilian and
military, and they are being prosecuted or have been convicted.90 Its successes on this point
are perhaps greater than those of the ICTY. Also the early Akayesu 91 decision has formed an
important authoritative determination that genocide had occurred in Rwanda. Indeed the
ICTR now takes juridical notice of the fact that there was genocide in Rwanda in 1994.92
88 Ibid.
89 Report of 14 May, S/2009/247, Annex 1.
90 Larissa J. van den Herik, The Contribution of the Rwanda Tribunal to the Development
of International Law (The Hague, 2005) 263; these include Kambanda and top-ranking
military officials such as Thoneste Bagosora, Bagosora ICTR T. Ch. I 18.12.2008.

91 Prosecutor v. Jean-Paul Akayesu, ICTR 96-4-T, Judgment.

92 Prosecutor v Karamera (2007) 101 AJIL P. 157.

The Tribunal has assisted in the development of international criminal law, perhaps most
notably by its treatment of sexual offences,93 and also in relation to the responsibility of
controllers of mass media for incitement to commit genocide. 94 It is nonetheless true that the
quality of the legal reasoning contained in judgments of the ICTR is variable at many points
and situations.95
Trials at the ICTR have taken an extremely long time, and have been subject to manifold
delays. These are, in part, because of the difficulties involved in translation of Kinyarwanda 96
into English and French, and the awkward logistics of having the Tribunal based in Arusha,
and the Office of the Prosecutor based in Kigali, neither of which are cities with a strong
infrastructure and located at a far distances. 97 Problems relating to repeated changes of
defence counsel by the defendants have also contributed to trial dilatory nature, and the
judges too have not always helped to move things along speedily.98 Also, attempts to assist
victims although laudable, have not always been effective, and treatment of victims by the
Tribunal has not always lived up to its aspirations, or basic standards.99
One of the major critiques that has been made of the ICTR is its failure to prosecute alleged
offences committed by the RPF (Rwandan Patriotic Front) after the genocide in 2004. The
ICTR has undertaken some investigations into the RPF, but referred some allegations back to
Rwanda after investigation and the establishment of a prima facie case.100

93 Kelly Askin, Gender Crimes at the ICTR: Positive Developments (2005) 3 JICJ P.1007.
94 Nahimana, Barayagwiza and Ngeze Judgmments specifically.
95
96 Official language of Rwanda.
97 Eric Mose, The Main Achievements of the ICTR (2005) 3 JICJ P. 920.
98 Annual Report of the ICTR 2001, para. 14.
99 Goran Sluiter, The ICTR and the Protection of Witnesses (2005) 3 JICJ P. 962.
100 Report of the ICTR to the Security Council, 12 May 2008, Doc No.
S/2008/322, para. 45

It has been suggested that the ICTR is both geographically and metaphorically too distant
from the people of Rwanda, who remain for the most part uninformed about and unaffected
by the Tribunal. The Tribunal has created an outreach programme, which includes a visitors
centre in Rwanda, radio broadcasts and the creation of a satellite television station, but
whether these have proved effective is a matter of controversy.101 A linked critique is the cost
of the ICTR, which has been high (although lower than the cost of the ICTY).102

101 Annual Report of the ICTR 1999, Annual Report of the ICTR 2001, Annual Report of
the ICTR 2004, Annual Report of the ICTR 2005.

102 The ICTRs annual budget for 200809 was approximately $270 million,
whereas that of the ICTY was $342 million.