Justice Hassan Bubacar Jallow's Contribution to International
Total Page：16
File Type：pdf, Size：1020Kb
chapter 21 Justice Hassan Bubacar Jallow’s Contribution to International Criminal Justice An OTP Perspective Alex Obote-Odora 1 Introduction Justice Hassan Bubacar Jallow is the first independent and separate Chief Prosecutor of the International Criminal Tribunal for Rwanda (ICTR).1 As Chief Prosecutor, his contribution to international criminal justice includes legal publications and conference papers, bi-annual reports to the United Nations Security Council, and submissions before ICTR Trial and Appeals Chambers, as well as presentations at the Colloquium of International Prosecutors (the Colloquium) which he founded in 2004 and has since evolved into an annual gathering of International Prosecutors.2 The ICTR is a recent creation. Established in 1994, the ICTR had no mean- ingful procedural rules as a reference to guide investigators and prosecutors of serious international crimes. Its sister Tribunal, the ICTY, established a year earlier, faced a similar situation. The judges of the two Tribunals separately drafted and adopted Rules of Procedure and Evidence (RPE), but the RPE of 1 The first three joint ICTY/ICTR Chief Prosecutors were Judge Richard Goldstone (1994–1996) (South Africa); Judge Louise Arbour (1996–1999) (Canada) and Ms. Carla Del Ponte (1999– 2003) (Switzerland). Technically, the first ICTY Prosecutor was Mr. Ramon Escobar-Salom (Venezuela). However, he resigned before taking up his post to become Venezuela’s Attorney General. See M. Cherif Bassiouni & Peter Mauikas, The Law of the International Criminal Tribunal for the former Yugoslavia 211–12 (Transnational Publishers, Inc., 1996). 2 On the Colloquium of international prosecutors, see Colloquium of Prosecutors of Int’l Crim. Trib., The Challenges of International Criminal Justice (Leigh Swigart, ed., International Criminal Tribunal for Rwanda & Brandies University USA, 2005), available at http://www .brandeis.edu/ethics/pdfs/ICTR_Report.pdf. The first Colloquium was held on November 24–25, 2004 at Arusha, the United Republic of Tanzania. The Prosecutors at the first Colloquium were: Louis Moreno Ocampo of the ICC, David Crane of the SCSL, Carla Del Ponte of the ICTY and host, Hassan Bubacar Jallow of ICTR. © koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004�7�753_0�� jallow’s contribution to international criminal justice 441 the ICTY and ICTR are substantially similar except for a few minor differences such as procedural rules for referral of indictments to states at the ICTY which are handled by a “Referral Chamber” while at the ICTR by a “Trial Chamber”.3 The RPE at the time of their adoption were untested and prosecutors at the ICTY and ICTR had no prior legal precedents on prosecutions of crimes before international tribunals except the scanty legal principles applied by the International Military Tribunal (IMT)4 and the International Military Tribunal for the Far East (IMTFE)5 after World War II. In this chapter, I discuss practical and procedural contributions of Prosecutor Jallow in the conduct of cases before the ICTR. The paper is in five parts. Part 1 examines the Prosecutor’s challenges to practical application of Rules 11 bis. It also discusses problems faced by the Prosecutor in the adoption of Rule 71 bis of the ICTR RPE. The two Rules address new situations not con- templated in the original RPE adopted by the ICTR Judges. Part 2 examines the Prosecutor’s policy on application of Rule 94 of ICTR RPE. While use of 3 Rule 11 bis (A) of the ICTY RPE provides: “After an indictment has been confirmed and prior to the commencement of trial, irrespective of whether or not the accused is in custody of the Tribunal, the President may appoint a bench of three Permanent Judges selected from Trial Chambers (hereafter referred to as the “Referral Bench” which solely and exclusively shall determine whether the case should be referred to the authorities of the state.” ICTY RPE 11 bis (A). On the other hand, Rule 11 bis (A) of the ICTR RPE provides: “If an indictment has been confirmed, whether or not the accused is in the custody of the Tribunal, the President may designate a Trial Chamber which shall determine whether the case should be referred to the authorities of the state.” ICTR RPE 11 bis (A). A fundament difference, apart from the nametag, is that at the ICTY, the President selects judges of a “Referral Bench” from among the permanent judges. However, at the ICTR, both permanent and temporary, ad litem, judges are eligible for appointment by the President to sit as members of a Trial Chamber considering a referral application. In this article, the terms “Referral Bench,” “Referral Chamber” and “Trial Chamber” are used interchangeably as they refer to a chamber at the ICTY or ICTY responsible for determination of a referral of an indictment to authorities of a state. 4 See International Military Tribunal (Nuremberg): Judgement and Sentences, 41 Am. J. Int’l L. 217 (1947). 5 B. V. A. Röling & Antonio Cassese, The Tokyo Trial and Beyond: Reflections of a Peacemaker (Polity Press, 1994). Pritchard also provides a review of jurisprudence on the trial of Japanese under the national military laws of victorious Allied Powers. See R. J. Pritchard, “War Crimes Trial in the Far East”, in Cambridge Encyclopaedia of Japan 107 (R. Bowring & P. Kornick eds., Cambridge University Press, 1993)..