January 31, 2023 - International Humanitarian Law Blog

January 31, 2023ByBlog EditorNews & Updates

International Criminal Tribunal for Rwanda: The Spotlight: Analyzing the Limitations, Shortcomings and Legacy

Daniel Lubowa

INTRODUCTION:

Factors that led the ICTR’s Inception: Background Scenario

On 1^st October 1990, Rwandese who had lived as refugees throughout East and central Africa since1959, when a Hutu revolution overthrew the then ruling appointed Tutsi monarchy, attacked their motherland, to return home after having tried unsuccessfully for some time to convince President JuvenalHabyarimana’s regime to allow them to return home peacefully. The war that followed hit a climax on 6^th April 1994,[Gerald Prunier,1994]when President Juvenal Habyarimana’s plane was shot down as it landed in Rwanda, and he was instantly killed[together with his Burundian counterpart, President Cyprien Ntarymira and several of their officers].Within hours of the announcement of the President’s death, roadblocks had been set up all over Rwanda, the hunting and slaughter that was to last three months and cause deaths of between five hundred thousand to eight hundred thousand people had started. The genocide ended only when the Rwandese Patriotic Front [RPF] resumed war and captured Kigali on 4^th July 1994.By the time the civil war and genocide ended on 19^th July 1994, over eight hundred thousand Rwandans had been killed[Michael P. Scharf 2018].

When the killings ended, it was clear that something had to be done. In an effort to punish those responsible for the genocide, the United Nations [UN] established the International Criminal tribunal for Rwanda [ICTR] to try all those responsible for genocide and other such violations committed in the neighboring states, between 1^st January 1994 and December 1994.

THE ICTR: IT’S INITIAL INCEPTION: THE PROCESS

In May 1994, the United Nations Commission for Human Rights [UNCHR] met in a special session and named a special rapporteur to investigate the situation in Rwanda and instructed the High Commissioner for Human Rights [HCHR] to establish a field presence in Rwanda [Todd Howland,1998,p.106].The Rwandan Government also requested the UN Secretary General to form a tribunal to try the perpetrators of the genocide. Later, in response, the Security Council[SC] adopted the Secretary General’s report and a draft Statute for the tribunal without amendment under Security Council Resolution[SCR] 955[1994] was adopted, thereby leading to the establishment of the ICTR in Arusha, Tanzania.

THE INITIAL COMPOSITION AND STRUCTURE OF THE ICTR

The ICTR was governed by its Statute, which is annexed to SCR955[1994] consisting of three major organs; the Chambers- three trial chambers, Office of the Prosecutor and the Registry. Each of the trial chambers was composed of three judges, while the Appeals chamber had five judges, who had to be from different states[ICTR Statute, Art 11].

THE ICTR: IT’S INITIAL JURISDICTION

Under Article 1 of the ICTR Statute, the tribunal had power to prosecute persons responsible for serious violations of International Humanitarian Law[IHL] committed in the territory of Rwanda or of neighboring states by Rwandese citizens between 1^st January and 31^st December 1994[Para 1,Res, 955]. The ratione materiae jurisdiction of the tribunal was the prosecution of persons charged with genocide, crimes against humanity and serious violations of Article 3 common to the Geneva Conventions of August 1949, for the prosecution of victims of war, and of Additional Protocol II, thereto of June 1977.

SOME FACTORS THAT LIMITED OPERATIONS OF THE ICTR

This part of the article looks at several serious limitations that faced the ICTR which suffocated its success during its operations. These included; limitations in the ICTR Statute, limited international co-operation and support especially from very relevant states, technical limitations like administrative hardships and limited harmony with the Rwandese Genocide laws and trials, shortcomings of the ICTR. Each of these limitations is discussed hereunder.

Limitations in the ICTR Statute

Despite the ICTR Statute having very commendable provisions like Articles 2-4, on the subject matter of jurisdiction, and Article 28 which compelled the International community to cooperate, the Statute has limitations which affected the success of the ICTR in its operations. The statute for instance has provisions such as 1 and 7 which limited the temporal jurisdiction of the tribunal to only 1994.This limitation left some genocide cases uncovered, for it is seen, that the genocide began way before 1994, and even went on thereafter. The provisions especially undermined the tribunal’s capacity to address the offences of conspiracy and incitement to commit genocide, which in turn undermined reconciliation as the victims were seen not to get proper justice.

Limited International Support and Co-operation

The ICTR during its tenure, entirely depended on global support and co-operation for everything; funds, personnel, equipment, and above all, apprehension of the suspects. Antonio Cassese explained this better

Our tribunal is like a giant who has no arms and legs. To walk, he needs artificial limbs. These artificial limbs are the state authorities, without their help, the tribunal cannot operate [ ICTFY-Lawyers’ Committee for Human Rights.[1997] ‘Prosecuting Genocide in Rwanda :The ICTR and National Trials’330 USA, p. 25].

The SC was well aware of this, and therefore heavily provided for state co-operation [Resolution 955, Paragraph 2,Art 28]. The tribunal however, right from its creation faced various serious problems with states. Although a lot of improvement was made, serious problems still remained.

ICTR Poor Relations with Rwanda

Rwanda pledged to work with the tribunal, despite opposing its creation [Alison Des Forges, 1999,p.739].However, the relationship between the two entities remained poor, especially given the fact that, on top of fresh disagreements the original causes of the misunderstandings still remained[The Sentence of Obed Ruzindana to 25 years Instead of Life Imprisonmet,’Rwanda Attractss Light Genocide Sentence’, The New Vision, Kampala, 25^th May 1999 p, 9]. The disagreement between the tribunal and the Rwandan government stemmed from three objections expressed by Rwanda to some of the proposed provisions of the ICTR Statute[Paul J. Magnella 1997, p.121].First the Rwandese Government wanted the maximum punishment for convicts to be death and not the life imprisonment that was proposed; Secondly, the Government also wanted the temporal jurisdiction of the tribunal to go back up to 1990 instead of the proposed year of 1994 alone, to cover earlier crimes especially since it had been agreed that the genocide was masterminded before 1994; thirdly the Government wanted the tribunal to be based in Kigali so as to be appreciated by the Rwandese population, but the Security Council objected to all Rwanda’s proposals. This was however indeed a very bad start for the ICTR, and the poor /frosty relationship between the two parties still existed up to the time of the ICTR’s closure, in December 2015.

Political Influence by some States

Whereas some states were not so co-operative with the ICTR, others exerted political influence on it. It has already been seen that the tribunal was organized according to the wishes of powerful countries like the United States and France, with Rwanda, the concerned party being largely ignored. Unfortunately it looks as if some of these influential states still meddled with the tribunal. For instance back in the day, the Press hinted that, the said dropping of a case against a former Army officer, was a botched attempt to have him extradited to Belgium to face charges for the murder of ten Belgian UN paratroopers[‘Belgium Blasts Tribunal’,The New Vision, Kampala 1^st April 1999,p.12].This can be seen to be a very unfortunate state of affairs. Meddling with the formation of a court is bad enough, but meddling with its independence is a sure way of suffocating justice. No Court can certainly function as a justice entity under such influence.

Technical Limitations and shortcomings

The tribunal began with very serious internal problems. First of all, it was financially strapped; lacking basing equipment like telephones, lacked qualified staff, and was rocked with mis-management, nepotism and corruption [Lawyers’ Committee for Human Rights, supra p.39-40] There was a lot of improvement, since,[Alison Des Forges supra p.741],but serious problems still existed; secondly, the distance and division of personnel between Kigali, Arusha and the Hague complicated and slowed communication amongst staff. [Alison Des Forges supra p.740].This in turn slowed down the tribunal’s work, which was one of its most serious shortcomings. Also, a substantial number of positions including senior prosecutorial ones were unfilled for a very long time, which also contributed to the slow speed of the tribunal [Alison Des Forges,1999,p.742].Similarly, potential witnesses for both the prosecution and defence were unwilling to testify, either due to fear of reprisals for those in Rwanda, or lack of valid travel documents for those in exile. This especially affected the defendants, whereby some of them failed to come up with even a single witness [Lawyers’ Committee for Human rights, supra,p. 36].This did not only undermine proper justice, but never allowed the ICTR to expose the full truth about what really happened, something that was a cornerstone to reconciliation

ICTR LEGACY

In the months following the 1994 genocide in Rwanda, the UN Security Council established the ICTR. Just before the tribunal’s halting of operations in December 2015, it delivered its Forty Fifth and final judgment-an appeal ruling against six convictions. The tribunal was not the only body set up to judge those responsible for perhaps eight hundred thousand deaths in a hundred days of killing, but it became the first international court to pass a judgment on genocide [Alastair Leithead’ BBC, 2022]. The tribunal was initially a tiny organization, underfunded, and initially permitted only one small court room and two trial chambers to address possible crimes involving the murder of hundreds of thousands. The first hearing of the tribunal, presided over by Senegalese Judge Laity Kama, took place in a small room with a leaky ceiling with’ a couple of tables, a few dozen chairs, one or two interpreters, and a squad of security guards’. The ICTR also suffered from allegations of corruption and several forcing prominent staff to resign in 1996. It took another five years for the tribunal to really find its footing. This inauspicious beginning notwithstanding, slowly but surely made the ICTR begin to establish itself as a functioning, important and indeed vital institution, growing to peak capacity with more than a thousand staff members, four modern courtrooms, and an annual budget of US 140 million.

The ICTR created jurisprudence that both transformed international law and directly affected state behavior paving way for the establishment of the International Criminal Court [ICC] a permanent court that has since succeeded it. Although the ICTR continued to experience growing pains during the period from 1995-98 when the Rome Statute was being negotiated, its establishment, the enthusiasm of international lawyers and Non Governmental Organizations[NGOs] for their operations, and their ability to overcome both technical and practical difficulties proved that international justice could be successfully undertaken.

CONCLUSION

The ICTR had a profound short-and medium-term effect locally, regionally and internationally. This effect was felt in local, regional and international politics, it flowed through the thousands of people whose lives were touched by the work done by the tribunal, and it resulted in the establishment of new institutions of international criminal justice that have since succeeded the ICTR. Indeed, the establishment of a global tribunal to try the perpetrators of the Rwandese atrocities is indeed commendable. But the suffocating limitations, shortcomings evolving around the ICTR, strongly hindered its chances of success in the sense that the ICTR was entirely not able to reconcile the Rwandese or to protect international peace and security, therefore some of the challenges that faced the ICTR still remained even after its closure. In the long or even short run, the legacy of the ICTR lay in the way it dealt with the challenges it faced while still operational, and the future of mankind on the other hand entirely lies in a strong and effective international legal system.

[1]Daniel Lubowa,LLB [Makerere University, Kampala Uganda], LLM [St. Augustine University of Tanzania, Mwanza,Tanzania], He is a Lecturer of International Law at St. Augustine University of Tanzania and a Ph D in Law Candidate at the Open University of Tanzania, Dar es Salaam, Tanzania.

January 31, 2023ByBlog EditorHuman Rights and IHL

The Impediments Facing ICRC in The Implementation And Enforcement of International Humanitarian Law In some Selected Conflict Zones On The African Continent

Daniel Lubowa[1]

Introduction

Just before the mid Nineteenth Century, there were no organized and well established army nursing systems for causalities and no safe and protected institutions to accommodate and treat those who were wounded on the battlefield[Bullough, Vern L and Bonnie Bullough’2^nd edn,1972].In June 1859, a Swiss businessman, Henry Dunant who had travelled to Italy on a business venture, witnessed the ‘Battle of Solferino’, an engagement in the Franco-Austrian war, shocked by the terrible aftermath of the battle, he advocated for the formation of a national voluntary relief organization to help wounded soldiers in case of war. It was against this background that the International Committee of the Red Cross [ICRC] was founded, bringing on board, a new era only which set out to civilize war, thus establishing rules designed to protect, potential victims of armed conflict.

The ICRC is the only institution explicitly named under international humanitarian law [IHL] as a controlling authority. The two entities have significant roles in war situations. The ICRC gives relief to the war victims while IHL establishes various forms of protection of all war participants. However, in war situations, the ICRC has faced or continues to face a number of challenges such as lack of cooperation from Governments where they are working, death of ICRC staff at battle fronts, being understaffed etc. It is some of these challenges which render the ICRC ineffective in its role of promoting and implementing IHL, despite the comprehensive legal regime in place governing armed conflicts. The current article briefly highlights some of the challenges facing ICRC in promoting IHL particularly focusing on some African conflict zones as case studies.

ICRC and IHL: Their Genesis, Evolution and Contact Points

At first, there were unwritten rules based on customs that regulated armed conflicts. Then came bilateral treaties drafted in varying degrees in detail gradually coming into force. The belligerents sometimes ratified them after the war was over [ICRC ’2^nd ed, 2004 p.8].The ICRC and the codification of IHLhave evolved from the notion that the individual is entitled to certain minimum rights in situations of armed conflict. The founding of the ICRC and starting point of IHL came about when Henry Dunant, a Swiss business man and Guillaume Henri Dufour, a Swiss Army General of great renown formulated the idea in ‘A Memory of Solferino ‘published in 1862 following the battle of Solferino witnessed by Dunant in Italy. On the strength of his own experience of war, General Dufour lost no time in lending his active moral support, notably by chairing the 1864 Diplomatic conference in Geneva. The Swiss Government at the prompting of the founding members of the ICRC, convened the 1864 Diplomatic conference which was attended by sixteen states who adopted the Geneva Convention for the amelioration of the condition of the wounded in armies in the field, thus, this whole process giving birth to the ICRC and IHL as we know them today.

ICRC and IHL: Mission

The ICRC is an impartial, neutral and independent organization whose exclusively humanitarian mission is to protect the lives and dignity of victims of war and internal violence providing them with assistance. It directs and coordinates the international relief activities conducted by the Movement in situations of conflict, endeavoring to prevent suffering by promoting and strengthening humanitarian law and universal humanitarian principles. Though the ICRC tries to live up to its mission, during conflict situations, in very many times, the ICRC has been let down, in the sense that it is unable to fulfill its principle objectives, due to the dangerous environment in which it continuously operates in[Pierre Hazan and Jean Francois Berger,2004].

IHL: Legal Controls of the ICRC

The ICRC operations are generally based on IHL, the four Geneva Conventions of 1949, their three Additional Protocols of 1977,2005, the Statutes of ICRC and the Red Crescent Movement and the resolutions of the International conferences of the Red Cross and Red Crescent[ICRC’2^nd ed,2004,p.2].All these articles and laws together form the mandate given to the ICRC by the International community, i.e. by global States.

ICRC Operational Challenges in Some Key Conflict Zones in Africa

The ICRC maintains a strong operational presence on the African continent, with activities focused on protecting and assisting people affected by armed conflict or other forms of violence. Working closely with the national Red Cross and Red Crescent societies throughout the continent it promotes a greater recognition and wider implementation of IHL.Though this is the case, the ICRC faces numerous operational challenges in its work in some conflict zones as illustrated below:

Eastern Congo:

In Congo, after almost two decades of intermittent armed conflict and festering insecurity, vast numbers of people have died, mostly from disease and malnutrition, and countless have been displaced. Dozens of humanitarian organizations such as the ICRC have been deployed continuously since even before the first major armed conflict in 1996, struggling to respond to the most urgent needs of the population [Al Jazeera, 14^th January 2013, Para IV]. With the sheer complexity and intractability of the crisis, eastern Congo is increasingly at the epicenter of professional challenges confronted by the humanitarian community. How to engage with dozens of continuously mutating armed groups to ensure at least a minimum of access and protection of the civilian population against the most egregious attacks is one such challenge. Reaching populations in need when swathes of the vast country are inaccessible by road is another. So too is ensuring the safety and security of humanitarian workers operating in such a difficult environment [ICRC Case book 2022].

Somalia:

Two decades of armed conflict have had a heavy toll on Somalis in and outside of Mogadishu. Fighting has destroyed essential infrastructure, including hospitals, all over the country. Access to proper health care is precarious, at best [Guha-Sapir D. Ratnayake R 2022]. Somalia’s hard lined-Islamist al-Shabaab rebels say they ordered ICRC out of areas the group controls in the South and central parts of the country [ICRC 2022]. The al-Qaeda linked al-Shabaab kicked the ICRC out of areas under their control because it had falsely accused the Islamist group of hindering food distribution. They also claimed that the ICRC was distributing food to the local population that was past its expiry date.

South Sudan:

The South Sudanese conflict is a conflict between Government and opposition forces in South Sudan that started in December 2013.The Fourth year of Sudan’s civil war saw a severe deterioration of humanitarian conditions across the country. The Conflict has since claimed innumerable lives and left millions forcibly displaced from their homes and unable to meet even their most basic needs. The ICRC continued to work on the frontlines of the crisis throughout 2017, providing life saving assistance to the most vulnerable. In September 2017, the ICRC suffered the tragic loss of one of its staff, Lukudu Kennedy Emmanuel Laki, a driver who was shot and killed while helping to deliver aid to the victims of the conflict in Western Equatorial. Consequently, the ICRC immediately suspended most of its activities in the region and resumed a month later after receiving security reassurances from the concerned parties. Kennedy had been the first ICRC staffmember to lose his life in a violent attack since the beginning of the South Sudan conflict in December 2013[ICRC, 2022].

ICRC and the Implementation of IHL in Some Conflict zones in Africa: The Setbacks: A Discussion

Lack of Access to War Victims by ICRC

The ICRC’s important operational challenge is the inability to ensure access to victims of armed conflict and other situations of violence. Most of the time, ICRC in conflict a situation is unable to access war victims, understand their situation and addresses their needs. This is further enhanced by the ever-changing conflict environment, making access more difficult due to security constraints [ICRC, 2022]. Northern Mali was illustrative of this difficulty, whereby just only a handful of agencies managed to carry out structured and sustained activities in these highly polarized or politicized environments.

Inability of Civilians to Access Basic Social Services

Amongst the most pressing situations facing the ICRC are those in which civilians and communities cannot access commodities or basic services such as health care, education, water and sanitation as they are caught up in the middle of the fighting and freedom of movement is restricted. This happens in main cities, villages and residential neighborhoods where hostilities damage or destroy buildings and infrastructure, and areas are cordoned off by one side or the other, leaving civilians trapped and unable to approach soldiers or fighters for fear of being harassed or arrested [Betsy Jose and Peace A. Medie Oxford Research Encyclopedia, Politics, 2016].

Security Challenges: ICRC Targeted

The recurrent attack by parties to many conflicts against medical structures, transport and staff, including ambulances, rescue workers, hospitals and clinics jeopardize the timely provision of emergency care and is an issue that has necessitated strong renewed attention from the ICRC and its Movement partners. In certain situations, humanitarian organizations face threats and rejection by armed groups [ICRC, 2012]. For instance, various studies have indicated that more aid workers were killed, injured or kidnapped in 2011 than ever before, a reality that had an impact on the choices made by agencies in several contexts [Paul Christopher Webster, Vol.183[13],2011].

Armed Conflict Horrors in Africa: ICRC Incapacitated, Helpless

As earlier on noted, the ICRC derives its mandate from the Geneva Conventions of 1949 and their Additional Protocols of 1977.The Geneva Conventions, also known as IHL protect man against the consequences of war. In spite of such international treaties, the African continent is continuously witnessing a daily catalogue of horrors[such as murder, forced disappearance, torture, cruel treatment and outrages upon personal dignity, rape and other forms of sexual violence and atrocities perpetrated against the very persons these laws were designed to protect. These violations do not illustrate the inadequacy of the law, but rather that the rules are either not known to the leaders and combatants or that they are quite disregarded [Jennifer Nduku Kiti,1997,p.106].This whole state of affairs renders the ICRC, incapacitated, helpless in its work.

Conclusion

The ICRC is the fruit of private initiative; attaining global stature. As noted, the main constraints for ICRC at global level are linked to access and security. In many areas, even where ICRC is granted access, it is simply too dangerous for international staff to operate. However although the ICRC still manages to perform considerable work in most conflict situations in Africa, the multiplication of serious security incidents, the ultimate consequences of which is to block assistance activities or force humanitarian organizations to withdrawal unilaterally from the operation, has prompted them to question the means used to date to ensure the safety of their personnel. In this regard, it is recommended that there should be some preventive measures initiated by states in Africa in times of peace, such as ratification of or adherence to the instruments of IHL such as the Geneva Conventions of 1949 and their Additional Protocols, 1977. With the growing number of organizations present in conflict situations, there’s need to raise the professional standards of humanitarian action in making itself felt.

The parties to an armed conflict must take all appropriate measures in ensuring the safety of the personnel of ICRC. They must take steps in protecting them from all attacks and protecting their official premises, private residences and means of transport. States must do everything in their power to grant and guarantee to humanitarian organizations and to their personnel the immunities they require in carrying out their tasks in complete independence most particularly those relating to their safety.

[1]Daniel Lubowa is a Lecturer of Law at St. Augustine’s University of Tanzania Law School in Mwanza, Tanzania with more than 15 years of teaching experience. He holds an LLB[MUK], LLM[SAUT]. He is currently a Ph D Candidate at the Open University of Tanzania. Dar es Salaam, Tanzania. He is a researcher, author, human rights activist as well as motivational speaker.

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International Criminal Tribunal for Rwanda: The Spotlight: Analyzing the Limitations, Shortcomings and Legacy

The Impediments Facing ICRC in The Implementation And Enforcement of International Humanitarian Law In some Selected Conflict Zones On The African Continent

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