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CRIMINAL TRIBUNAL for RWANDA Judicial Developments I OR the PREPARATORY COMMISSION

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CRIMINAL TRIBUNAL for RWANDA Judicial Developments I OR the PREPARATORY COMMISSION International Criminal Tribunal for Rwanda Tribunal Penal International pour le Rwanda .-,-.·, --or- )· :-3' Cir'nre":«: A.N OVERVIEW OF THE WORK OF THE INTERNATIONA! CRIMINAL TRIBUNAL FOR RWANDA Judicial Developments I OR THE PREPARATORY COMMISSION FOR THE PERMANENT INTERNATIONAL CRIMINAL COURT PURL: https://www.legal-tools.org/doc/6c78a6/ 4. Georges Ruggiu. a Belgian-Italian, is thus the third person to be convicted following a guilt>' plea. He is also the first non-Rwandan to be sentenced by the ICTR for crimes perpetrated in Rwanda in 1994. He pleaded guilt)· to Direct and Public Incitement to commit Genocide, as covered by Article 2 (3) (c) of the Statute of the Tribunal, and to Crimes Against Humanity (Persecution), as stipulated in Article 3 (h) of the Statute. 5. Each of the judgements represents an important stepping-stone in the development of international criminal law. They have all, in one respect or another, created legal precedence. The Akayesu judgement presented us with the first legal definition of the crimes of genocide . direct and public incitement to commit genocide10 and complicity in genocide." In the same case, a progressive approach was adopted by the Chamber in including rape and sexual violence in the definition of genocide.12 6. In Musema. the Chamber defined the crime of conspiracy to commit genocide and held that an accused cannot be convicted of both genocide and conspiracy to commit genocide.1"' Many dicta can be found in the Kayishema and Ruzindana judgement on the concept of cumulative charges and the overlap of the constitutive elements of genocide and crimes against humanity. Elsewhere in the judgements, the ICTR has extensively considered the individual criminal responsibility and, where appropriate, superior responsibility, of civilians (Ruzindana. Musema and Rutaganda) and representatives of the Government (Akayesu and Kayishema). To date, no accused has been found guilty of war crimes under Article 4 (Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II) of the Statute of the Tribunal. 7. The case of Ignace Bagilishema. a bourgmestre/mayor, started on 27 October 1999. The presentation of evidence was completed on Friday 8 June 2000. Closing arguments will be heard in July this year. At the commencement or the trial, the Judges of the Trial Chamber and the parties travelled to Kibuye Prefecture in Western Rwanda for an in loco visit of the places referred to in the indictment. This was the first such visit by the ICTR and enabled the Judges to situate at first hand the areas where the events are said to have occurred, thus facilitating the assessment of witness testimonies during the proceedings. " See Akayesu Judgement para. 520: "With regard to the crime of genocide, the offender is culpable only when he has committed one of the offences charged under Article 2(2) of the Statute with the clear intent to destroy, in whole or in part, a particular group. The offender is culpable because he knew or should have known that the act committed would destroy, in whole or in part, a group." 'u /iiWpara. 559: "In light of the foregoing, it can be noted in the final analysis that whatever the legal system. -i;,-.-,-f ·,„. -ι ο,,ΚΙ.'.- :~-:*,^^~r ~,,,-· u., ).,f:_ , ι t-,_ ,ι, , „,._„,. ,. ,r ;„, ,. — ,.·-,., < —. .1 , ~. ·· . >·. · ··>. diufu/ iü iimiinu ijeiiuclUt·, vuieincr iiiruugn speeuicb, snouting or inreais uticrea in places or at public gatherings, or through the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings, or through the public display of placards or posters, or through any other means of audiovisual communication." " Ibid para. 545: " [...] the Chamber is of the opinion that an accused is liable as an accomplice to genocide if he knowingly aided or abetted or instigated one or more persons in the commission of genocide, while knowing that such a person or persons were committing genocide, even though the accused himself did not have the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." '- Ibid paras. 685-688. 11 See Musema Judgement paras. 184-198. PURL: https://www.legal-tools.org/doc/6c78a6/ 14. Rule 72 of the Rules, on preliminary motions, was amended in February 2000 in order to enable the Trial Chamber and Appeals Chamber Judges to deal with such motions without undue delay. A party is now permitted to raise questions as to the form of the indictment in one motion only. As regards interlocutory appeals, the term "lack of jurisdiction" has no\\ been clarified.' 15. Judges are no longer disqualified from sitting at a trial in which they have confirmed the indictment against one or more accused. This amendment to Rule 15 of the Rules had been an issue since the inception of the ICTR and was necessary as it had become apparent that disqualification of confirming Judges was impeding the organisation of trials. As there are only nine Trial Chamber Judges, the constitution of Trial Chambers, especially where there were multiple accused, became difficult as often more than one Judge was disqualified for having confirmed a relevant indictment.18 16. Prior to the commencement of either the Prosecution or Defence case, the Trial Chamber now holds Pre-trial and Pre-Defence conferences, respectively, in conformity with Rules 73bis and 73/t?r adopted by the ICTR Plenary in July 1998. These two Rules allow for the Judges to require the parties to present to the Chamber details as to their case. The Chamber may require a list of witnesses, a summary of the intended content and length of the testimony of each witness, a statement of admitted facts and law, a statement of contested facts and law. and a list of exhibits. On this basis, the Chamber can order that the number of witnesses be reduced and the intended length of the testimonies of the remaining witnesses to be shortened. In part as a result of the application of these two Rules, the proceedings in the case "The Prosecutor v. Alfred \fusema" were shortened.19 17. Following prosecution requests for joinder, and on the basis of Rule 4&bis~°. accused have been joined into political, military, media, and senior administrators groups for joint trials. This, it is hoped, will ensure that all the detained accused are brought to trial and tried without undue delay. Judge designated by the Chamber from among its members, may rule on such motions based solely on the briefs of the parties, unless it is decided to hear the motion in open court." 1 Rule 72 is amended by the addition of: "(G) Objections to the form of the indictment, including an amended indictment, shall be raised by a parry in one motion only, unless otherwise allowed by a Trial Chamber. (H) For the purposes of Rule 72(B)(i) and (D) an "objection based on lack of jurisdiction" refers exclusively to a motion · · - ': ' u- "·>·ΐ" ι i-imf -t .HIV·* nnt relate to· (i\ anv of the persons indicated in Articles Ι. χ ο and Ü οι me .Mdiuiu. \m ui». ^.,,^..^> ...„.^^>. period indicated in Articles 1. 7 and 8 of the Statute: or (iii) any of the violations indicated in Articles 2. 3. 4 and 6 of the Statute. (1) An appeal brought under Rule 72 (D) may not be proceeded with if a bench of three Judges. assigned by the Presiding Judge of the Appeals Chamber, decides that the appeal is not capable of satisfying the requirements of paragraph (H), in which case the appeal shall be dismissed." 18 Rule 15 (C), amended February 2000. now reads: "The Judge who reviews an indictment against an accused, pursuant to Article 18 of the Statute and Rule 47 or 61, shall not be disqualified from sitting as a member of a Trial Chamber for the trial ofthat accused." " The trial lasted thirty-nine days, between 25 January and 28 June 1999. :o Adopted June 1999." PURL: https://www.legal-tools.org/doc/6c78a6/ VI. Defence Counsel 22. under Article 20(4) of the Statute an accused has the right to defend himself or herself in person or through legal assistance of his or her own choosing; to be informed, if he or she does not have legal assistance, of this right: and to have legal assistance assigned to him or her, in any case where the interest of justice so require, and without payment by him or her in any such case if he or she does not have sufficient means to pay for it. Nearly all of the accused presently detained at the Tribunal's Detention Facility in Arusha have been found to be indigent and thus unable to afford to pay for legal representation of their own choosing. As such, a total of forty two lead counsel, coming from seventeen different countries, and nineteen co-counsel have been assigned to the accused and paid by the ICTR.22 The costs of twenty-two assistants and thirty-seven investigators are also covered by the Tribunal. There are six duty counsel. The Lawyers and Detention Facilities Section is responsible for defence counsel issues. 23. The constitutive document regulating the assignment and activités of defence counsel is the Directive on the Assignment of Defence Counsel, adopted on 9 January 1996 by the Judges during the second plenary Session."3 The Directive, prepared by the Registrar, covers 32 Articles and is essentially an elaboration of Rules 44 to 46 of the Rules, which deal with defence counsel. "4 24. Defence counsel are expected to be available to appear before the ICTR within a reasonable time and to represent the accused and conduct the case to finality.25 To be considered for assignment, they must meet certain pre-requisites.
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