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.

Amnesty according to the Merriam Webster dictionary is, ‘the act of an authority (such as a government) by which pardon is granted to someone or a large group of individuals often before a trial or conviction.’ Article 8 of the Rome Statute of International Criminal Court defines War crimes as, ‘acts carried out during the conduct of a war that violates accepted international rules of war.  These acts include but are not limited to; intentionally killing civilians, prisoners of war, torture, taking hostages, unnecessarily destroying civilian property, deception by perfidy, war time sexual violence, the conspiration of children in the military, genocide or ethnic cleansing, etc.’ The greatest question that we should be asking ourselves today in regards the LRA combatants is, ‘Should rebels who turn themselves in, be allowed to escape justice for potential war crimes through Amnesty? Or must they be prosecuted even at the risk of discouraging reconciliation which is one of the main tenants of the principles of Amnesty. These were the main facts in contention in the case of Thomas Kwoyelo versus Uganda (Constitutional Petition 36 of 2011) [2011] UGCC10.

Thomas Kwoyelo was a commander in the rebel group called the  Lord’s Resistance Army (LRA). He has been in prison since 2009 when he was captured by the Ugandan Peoples Defense forces. He is awaiting trial at the International Crimes Division (ICD) of the High Court in Uganda, which is specially designed to handle war crimes and crimes against humanity. He appeared before the International Crimes Division for plea taking, where his indictment was amended from 12 counts to 53 counts of War Crimes under Article 147 of the fourth Geneva Convention section 2(1)(d) and (e) of the Geneva Convention Act, Cap 363 (Laws of Uganda).

The Court observed that the rationale behind amnesty laws is to offer blanket immunity to criminals in this particular instance, the LRA rebel combatants who abandoned the group and renounced involvement in the war. The amnesty laws in Uganda also apply equally to other Ugandan nationals in other rebel groups, of which the Allied Democratic Forces is the most prominent. Court analyzed the issue of applicability of the amnesty laws in Uganda. Who is eligible and ineligible to be granted amnesty? Justice Peter Onaga held that there is need to grant discretion to judicial officials on who they can give amnesty, because judicial officers have no choice but to grant amnesty to anyone who applies for it. However, this must be carried out in pursuit of justice.

National amnesty laws are founded to shield perpetrators from prosecution for serious human rights violations and war crimes and to bring reconciliation between the perpetrators and the rest of the people in society. It is believed that some of the participants in these war crimes want a way out but are afraid of the harsh legal sanctions such as life imprisonment for their actions. Amnesty comes in as a motivation for some of these war combats to come clean and make amends for their acts without being severely punished by the Law. However, according to the state in the above case, recourse should be made on the type of offender to some of these offences. For example, in the present case, Thomas Kwoyelo was a commander in Chief of the LRA group, making him a principal offender. He was the face of the LRA, he influenced and coerced others to join the war and was the leader in carrying out the war crimes. This was the defense the state used to give amnesty to the other soldiers who were accessories before, during and after the war crimes that were committed by the LRA rebels in Uganda and Congo.

The Inter-American Court on Human Rights, has issued a number of rulings on the same issue, finding that states cannot neglect their duty to investigate, identify, and punish those persons responsible for war crimes, and crimes against humanity by enforcing amnesty laws or other similar domestic provisions. Blanket amnesties have the effect of protecting all individuals without regard to the nature of the crimes committed. Before shielding individuals suspected of committing serious human rights violations and war crimes using amnesty, investigations should be carried out by the state and those found guilty of committing these war crimes ought to be punished. Otherwise, these same criminals will use it as a defense to carry out war crimes, knowing that in the long run Amnesty laws will exonerate them. Amnesty will end up being a ‘sword’ and not a ‘shield’. This will also contravene the whole essence of Criminal Law, which is to stop crime in society through punishment/sanctions.

This principle is affirmed in the Juba Agreement that states that, ‘For formal Courts, once amnesty is provided for under the constitution, they shall exercise discretion over individuals who are alleged to bear particular responsibility for the most serious crimes especially crimes amounting to international crimes during the course of conflict.’

The accused Thomas Kwoyelo as a principal offender was denied amnesty and indicted for the alleged commission of international war crimes as provided under section 2(1)(d) and (e) of the Geneva Conventions Act Cap 363 (Laws of Uganda).

In conclusion therefore, before granting amnesty to perpetrators, regard should be given to the nature of violation or war crime, the type of offender the accused is. Regard should also be made to the fact that international laws complement the national laws. In case of conflict of legal principles in international laws and national laws, national laws will take precedence.

Written by;

Jochebed Nassimbwa And Imecu Rebecca Eriechu