1
ARTICLES
THE ICTR: EXPERIENCES AND
CHALLENGES
ERIK MSE*
I. POINTS OF DEPARTURE
The title of the Boston Conference was "The ITCR--Ten Years
After." It is true that more than ten years have lapsed since the Security
Council, in November 1994, adopted a resolution to set up an International
Criminal Tribunal for Rwanda (ICTR).1
This was approximately eighteen
months after the adoption of the resolution establishing the International
Criminal Tribunal for the Former Yugoslavia [ICTY].2
However, it is
important to remember that work in Arusha started much later. Ten years
ago, there was no Tribunal.
The Security Council made the decision to locate the seat of the
Tribunal in Arusha in February 1995, based on the Secretary-Generaľs
recommendation.3
The General Assembly elected the six ICTR judges in
*
President of the ICTR. This contribution is based on my key-note address in Boston
on 4 April 2005. A more extensive evaluation of the Tribunal is given in my article
Main Achievements of the ICTR, 3 J. INTL CRIM. JUST. 920 (2005).
1. S.C. Res. 955  1, U.N. Doc. S/RES/955 (Nov. 8, 1994) [hereinafter Resolution 955].
2. SC Res. 808  1,U.N. Doc S/RES/808 (Feb. 22, 1993).
3. The Security Council considered other alternative locations, in particular Kigali and
Nairobi (the capitals of Rwanda and Kenya), but rejected them. There was a severe
shortage of premises in Kigali that could accommodate the ICTR and properly serve
its needs. It also felt that the appearance of justice and fairness, in particular,
complete impartiality and objectivity, required that trial proceedings be held in a
neutral country. Additionally, the Secretary-General considered that there were
serious security risks in bringing the leaders of the previous regime into Rwanda. The
Kenyan Government ultimately decided that it would not be in a position to provide a
seat for the Tribunal in Nairobi. The Tanzanian Government made an offer to
accommodate the Tribunal in the Arusha International Conference Centre [AICC].
2 NEW ENG. J. INŤL & COMP. LAW [Vol. 12:1
May 1995, however the judges did not officially take office until June 19,
1996, one year later.4
As of September 1995, the Tribunal had no
courtrooms, offices, prison, legal officers, or secretaries. The Tribunal
could only move into a small section of its headquarters in November 1995,
one year after the Security Council decided to set up the ICTR.5
The first
accused arrived in Arusha in May 1996, and his trial commenced in
January 1997.
The ICTR faced problems not encountered by its sister Tribunal in
The Hague. The general infrastructure in Arusha was quite rudimentary.
There were few tarmac roads, very unstable electricity and water supplies,
and austere living conditions. Telephone and fax lines were few and
unreliable. Computers and office equipment had to be imported from
abroad, resulting in delays. In addition, the investigation unit in Kigali had
to function in an environment with a very limited infrastructure. The main
challenge during the first mandate of the ICTR's history was to create a
functional judicial institution under difficult conditions, in an area where
there had never previously been any international court.6
The first two courtrooms were not ready until 1997. During the
period when the courtrooms were being constructed, pre-trial hearings were
held in conference rooms. As there was only one courtroom available from
the outset, it was shared between the two Chambers hearing three cases that
See S.C. Res. 977, U.N. Doc S/RES/977 (Feb 22, 1995); The Secretary-General,
Report of the Secretary-General Pursuant to Paragraph 5 of Security Council
Resolution 955 (1994), U.N. Doc S/1995/134 (Feb. 13, 1995).
4. General Assembly, Security Council, 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
and Rwandan Citizens Responsible for Genocide and Other Such Violations
Committed in the Territory of Neighbouring States between 1 January and 31
December 1994,  7, U.N. Doc. A/51/399, S/1996/778 (Sept. 24, 1996) (The six
ICTR judges were elected by General Assembly decision 49/324). It was only after
September, 1996 that they were allowed by the United Nations Headquarters to take
up residence in Arusha. In the interim, they shuttled between their home countries
and Arusha in order to carry out pre-trial proceedings.
5. The first indictment, Prosecutor v. Akayesu, Case No. ICTR 96-4-I, Confirmation of
Indictment (Nov. 28, 1995), was confirmed in a hotel room. The reading of
documents in the evenings occasionally took place at candle-light because of regular
power-cuts. Generators were rarely available.
6. Judges shall be elected by the General Assembly for a term of four years. Statute of
the International Criminal Tribunal for Rwanda, 2005, art. 12 ter. It is typical to refer
to these four-year periods as the "mandates" of the Tribunal. The first mandate started
on May 25, 1995, the date when the judges were elected, followed by the second
mandate from May 25, 1999, and so forth. At present, the Tribunal is in the second
half of its third mandate.
2005] ICTR: EXPERIENCES AND CHALLENGES 3
commenced in early 1997.7
Because the first trial began in January, 1997, it could be said that the
Boston conference actually took place at the ICTR's eight and a half year
anniversary! However, sufficient time has elapsed to evaluate the ICTR's
work and to describe some of its challenges. A final appraisal will have to
take place at the end of its activities.
II. CURRENT SITUATION
As of October 2005, twenty-six people brought before the Tribunal
received judgments in the first instance. Trials of another twenty-six
detainees are on-going. Consequently, fifty-two cases are completed or are
in progress. In addition, seventeen detainees are awaiting trial. The
Tribunal is a full-fledged judicial institution. The proceedings take place in
four high-tech courtrooms, and a convoy of vehicles transport between ten
and twenty detainees to and from the Tribunal almost every day.
From the outset, the Prosecutor's indictment strategy has concentrated
on those individuals in leadership positions in Rwanda in 1994, and who
are therefore alleged to bear the greatest responsibility for the crimes
committed. The fact that the fifty-two cases mentioned above include one
Prime Minister, eleven Government Ministers, one Parliamentarian, four
Prefects, eight bourgmesters, as well as members of the media and military
leaders, illustrates this point. Members of the clergy are also on the ICTR
list of convicts and indictees.
This strategy could not have been successful without the cooperation
of many states. Alleged leaders of the 1994 events were arrested, for
example, in Nairobi in July 1997, and also as a consequence of cooperation
with several West African countries in 1998. The United States
and many European states have also facilitated the apprehension and
transfer of Tribunal indictees to Arusha.
Most of the indictees who fled Rwanda in 1994 would probably not
have been brought to justice at all had it not been for the Tribunaľs efforts
to investigate their crimes and insist upon their arrest and transfer to the
ICTR. Many states are reluctant to initiate investigations and institute
criminal proceedings at their own expense against individuals who may
have committed crimes in other countries. Extradition to other states is
also a cumbersome process, when it is requested at all. In the case of
Rwanda, it may be impeded by the fact that capital punishment, under
Rwandan law, remains a possible penalty for crimes of this magnitude.
Thus, the fact that the accused will receive a fair trial by an independent
7. The Akayesu trial started on January 9, 1997, followed by Prosecutor v. Rutaganda,
Case No. ICTR 96-3 in March, and Prosecutor v. Kayishema, Case No. ICTR 95-1 in
April, 1997. The third courtroom was finished in late 1998.
4 NEW ENG. J. INŤL & COMP. LAW [Vol. 12:1
Tribunal has likely facilitated the transfer of many persons to Arusha.8
There is no doubt that the Tribunaľs proceedings involving persons in
very high positions have sent a strong signal both to the African continent,
and to the world at large, that impunity for crimes of this magnitude will
not be tolerated by the international community.
In August 2003, the Security Council decided that both Tribunals
shall complete all investigations by 2004, all trials by 2008, and all appeals
by 2010.9
In accordance with these Completion Strategy commitments, it
is estimated that by the time it concludes its operations, it will have tried
between sixty-five and seventy accused.10
This is approximately three
times the number of individuals tried at Nuremberg. At present, twentyone
indictees are at large. Some of them may be dead, and others may
never be arrested.
It is obvious that the ICTR, in its lifespan, cannot address all of the
crimes committed in Rwanda during 1994. A very large number of
perpetrators are awaiting proceedings in Rwanda.11
The ordinary courts in
Rwanda and the gacaca process (the grass roots courts in Rwanda) must be
viewed as complementary means for ensuring justice for the majority of the
victims of these terrible events.
Having addressed the difficult beginnings, and the results thus far,
this contribution will now focus on some of the achievements of the ICTR
and the challenges that it has confronted.
III. CREATION OF JURISPRUDENCE
Through its judgements and decisions, the ICTR has bequeathed
highly significant case law to the international community. In particular,
the ICTR jurisprudence provides abundant interpretative material on the
legal nature and factual realities of the crime of genocide. The Prosecutor
8. The Rwandan Government has, in another context, recently stated that the country
would be willing forego the death penalty in relation to ICTR indictees.
9. See S.C. Res. 1503, U.N. Doc. S/RES/1503 (Aug. 28, 2003) (containing the deadlines
for completion); S.C. Res. 1534, U.N. Doc. S/RES/1534 (March 26, 2004)
(requesting bi-annual reports from the Presidents and Prosecutors of the two
Tribunals regarding the implementation of the Completion Strategy).
10. The ICTR President, Letter Dated 23 May 2005 from the President 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 and Rwandan Citizens Responsible for
Genocide and Other Such Violations Committed in the Territory of Neighbouring
States between 1 January and 31 December 1994, at Summary, addressed to the
President of the Security Council, U.N. Doc. S/2005/336 (May 24, 2005).
11. A large number of prisoners were released in 2003 and 2005, but there are still an
estimated 60,000 genocide suspects in Rwanda's prisons.
2005] ICTR: EXPERIENCES AND CHALLENGES 5
v. Akayesu judgment was the first in which an international tribunal was
called upon to interpret the definition of genocide set forth in the Genocide
Convention.12
The comparatively fewer indictments for genocide before
the ICTY mean that the ICTR jurisprudence is a particularly important
source for both the definition and elucidation of the legal ingredients of this
offense. The Akayesu judgment was also groundbreaking for its
affirmation of rape as an international crime. This and subsequent
judgments are notable for finding that rape may comprise a constituent act
of genocide.13
The ICTR was the first international tribunal after Nuremberg to hand
down a judgment against a Head of Government. Some three years before
the former Yugoslav President Slobodan Milošević was transferred to The
Hague to face trial at the ICTY, the ICTR had convicted Jean Kambanda,
the Prime Minister of Rwanda from April to July 1994, for genocide.14
This reaffirmed the principle that no individual enjoys impunity for such
crimes on account of their official position.
In Prosecutor v. Nahimana [the Media case],15
the ICTR developed a
further legacy of the post-World War II case law. This is the first
contemporary judgment to examine the role of the media in the context of
mass crimes. The judgment addresses the boundary between the right
guaranteed under international law to freedom of expression, and
incitement to international crimes.16
This case was the first pronouncement
by an international tribunal on these questions since the conviction of Julius
Streicher at Nuremberg.17
12. See Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment,  112-13 (Sept. 2,
1998).
13. As of October 2005, the Tribunal had prosecuted rape and sexual crimes with respect
to five out of the twenty-six accused, in the following completed cases: Akayesu,
ICTR 96-4-T, Judgment at  112-13; Prosecutor v. Musema, Case No. ICTR 96-13A,
Judgment and Sentence (Jan. 27, 2000); Prosecutor v. Semanza, Case No. ICTR
97-20-T, Judgment and Sentence (May 15, 2003); Prosecutor v. Muhimana, Case No.
ICTR 95-1B-T, Judgment and Sentence (Apr. 28, 2005). Many other such cases are
under way.
14. Prosecutor v. Kambanda, Case No. ICTR 97-23-S, Judgment and Sentence, Verdict
(Sept. 4, 1998). This case was also the first judgment where a Head of Government
pleaded guilty to genocide. Id. at 5. More generally, it was one of the earliest
sentences to be meted out by the ad hoc Tribunals following a plea of guilty. See
generally, Id.
15. Prosecutor v. Nahimana, Case No. ICTR 99-52-T, Judgment and Sentence (Dec. 3,
2003).
16. See id. This case is presently on appeal.
17. INŤL MILITARY TRIBUNAL, JUDGMENT OF THE INTERNATIONAL MILITARY TRIBUNAL
FOR THE TRIAL OF THE GERMAN MAJOR WAR CRIMINALS NUREMBERG 30TH
SEPTEMBER AND 1ST OCTOBER 1946 100-02 (London: HMSO, reprint 1966) (1946).
6 NEW ENG. J. INŤL & COMP. LAW [Vol. 12:1
The ICTR's case law, which applied its Article 6(3) within a conflict
that was both internal and composed of important non-military
components, also endorses application of the doctrine of command
responsibility to the civilian leadership.
In addition to its judgments, the Tribunal has handed down thousands
of written decisions and in-court oral rulings. They form an important part
of the Tribunaľs jurisprudence and clarify a wealth of procedural issues
arising under the Statute and the Rules of Procedure and Evidence [the
Rules].
In a nutshell, the ICTR has already made significant contributions to
the development of international criminal law, human rights law and
international humanitarian law. Above all, the ICTR has shown that
international criminal justice actually works. Far from being a mere
statement of lofty idealism, the ICTR has become a working reality, even
under the most difficult of conditions.
IV. LESSONS LEARNED
The path toward these results has not always been smooth or
unproblematic. Nor has the ICTR been free from error or inefficiency
throughout its history.18
To a large extent, such problems were inevitable.
In setting up the two ad hoc Tribunals, the Security Council entered
uncharted territory. They were the first international criminal tribunals
post-Nuremberg, and the first tribunals ever set up by a Security Council
resolution under Chapter VII of the UN Charter. With such a new venture,
there was always going to be a steep learning curve and the emergence of
issues that would be resolved only through the costly process of trial and
error.19
18. See, e.g. The Secretary-General, Report of the Secretary-General on the Activities of
the Office of Internal Oversight Services, delivered to the General Assembly, U.N.
Doc. A/51/789 (Feb. 6, 1997) (concluding that there were serious operational
difficulties in the Tribunal).
19. See General Assembly, Report of the Expert Group to Conduct a Review of the
Effective Operation and Functioning of the International Tribunal for the Former
Yugoslavia and the International Criminal Tribunal for Rwanda,  15, submitted to
the Secretary-General on 11 November 1999, U.N. Doc. A/54/634 (Nov. 22, 1999).
It cannot be overemphasized that establishing a new and unique
prosecutorial and judicial institution with the task of implementing a
complex and not well defined set of legal norms with respect to
extraordinary events in inhospitable environments was inescapably
going to involve a lengthy development period . . . No system of
international justice embodying standards of fairness, such as those
reflected in the creation of ICTY and ICTR would, under the best of
circumstances, either be inexpensive or free of the growing pains that
2005] ICTR: EXPERIENCES AND CHALLENGES 7
This trial and error learning process becomes evident by looking at
the increased number of accused that have been tried in ICTR proceedings
over time. After the completion of cases involving seven accused during
the first mandate,20
the number doubled to another fourteen accused in the
second.21
This number is expected to be much higher during the third
mandate. Other indicators ­ such as the number of courtroom days
required for trials22
and the streamlining of Tribunal judgments23
­ have
inhere in virtually all new organizations.
Id.
20. The Tribunal rendered six judgments involving seven accused during the first
mandate, mostly single-accused cases. See generally Prosecutor v. Akayesu, Case
No. ICTR 96-4-T, Judgment and Sentence (Sept. 2, 1998) (Jean-Paul Akayesu);
Kambanda, ICTR 97-23-S, Judgment and Sentence (Jean Kambanda, who pleaded
guilty); Prosecutor v. Serushago, Case No. ICTR 98-39-S, Sentence (Feb. 5, 1999)
(Omar Serushago, who pleaded guilty); Prosecutor v. Kayishema, Case No. ICTR 951-T,
Judgment (May 21, 1999) (Clément Kayishema and Obed Ruzindana);
Prosecutor v. Musema, Case No. ICTR 96-13-A, Judgment and Sentence (Jan. 27,
2000) (Alfred Musema).
21. See generally Prosecutor v. Ruggiu, Case No. ICTR 97-32-I, Judgment and Sentence
(June 1, 2000) (Georges Ruggiu, who pleaded guilty); Prosecutor v. Bagilishema,
Case No. ICTR 95-1A-T, Judgment (June 7, 2001) (Ignace Bagilishema); Prosecutor
v. Ntakirutimana, Case No. ICTR 96-10, ICTR 96-17-T, Judgment and Sentence
(Feb. 21, 2003) (Elizaphan Ntakirutimana and Gérard Ntakirutimana); Prosecutor v.
Semanza, Case No. ICTR 97-20-T, Judgment and Sentence (May 15, 2003) (Laurent
Semanza); Prosecutor v. Niyitegeka, Case No. ICTR 96-14-T, Judgment and Sentence
(May 16, 2003) (Eliézer Niyitegeka); Prosecutor v. Kajelijeli, Case No. ICTR 9844A-T,
Judgment and Sentence (Dec. 1, 2003) (Juvénal Kajelijeli); Prosecutor v.
Nahimana, Case No. ICTR 99-52-T, Judgment and Sentence (Dec. 3, 2003)
(Ferdinand Nahimana, Jean-Bosco Barayagwiza, and Hassan Ngeze) [hereinafter
Media case]; Prosecutor v. Kamuhanda, Case No. ICTR 95-54A-T, Judgment (Jan.
22, 2004) (Jean de Dieu Kamuhanda); Prosecutor v. Ntagerura, Case No. ICTR 9946-T,
Judgment and Sentence (Feb. 25, 2004) (André Ntagerura, Emmanuel
Bagambiki, and Samuel Imanishimwe).
22. In the first few years, the average length of trial per accused was sixty-two trial days,
although the last trial in the first mandate ­ Musema, ICTR 96-13 - was completed in
only thirty-nine trial days. Cases completed more recently reflect a lower number of
trial days per accused. See Ntakirutimana, ICTR 96-10, ICTR 96-17-T, Judgment
and Sentence (thirty trial days per accused); Niyitegeka, ICTR 96-14-T (thirty-five
trial days); Prosecutor v. Gacumbitsi, Case No. ICTR 2001-64-T, Judgment (June 17,
2004) (thirty-two trial days); Prosecutor v. Ndindabahizi, Case No. ICTR 2001-71-I,
Judgment & Sentence (July 15, 2004) (twenty-seven trial days); Prosecutor v.
Muhimana, Case No. ICTR 95-1B-T, Judgment & Sentence (Apr. 28, 2005) (thirtyfour
trial days). It is expected that this trend will continue with respect to singleaccused
trials. The period required for judgment writing has also been reduced.
Multi-accused trials, due to their complexity, will continue to require longer periods,
both during the trial and judgment writing phases.
8 NEW ENG. J. INŤL & COMP. LAW [Vol. 12:1
also continued to indicate progress. Further refinement of the working
methods is an on-going process.
Some general lessons deserve to be highlighted. First, it takes time to
build up a judicial infrastructure. The construction of offices and
courtrooms, the election of judges, the appointment of a Chief Prosecutor,
and the recruitment of staff take a considerable amount of time. This has
become evident not only from the experiences of the ad hoc Tribunals for
Yugoslavia and Rwanda, but also from hybrid courts such as the Special
Court for Sierra Leone and Cambodia. It is also foreseeable that the
international community will meet such challenges whenever it seeks to
establish any further tribunals, particularly in regions affected by armed
conflict. However, the International Criminal Court [ICC], being a
permanent institution, will not face identical challenges whenever a new
conflict is placed before it.
Second, international criminal proceedings face certain challenges
generally not found at the national level. There is a considerable volume of
documents required in trying the alleged architects of these genocidal
atrocities, many of which are high-ranking members of governments.
These documents are subject to disclosure and must be translated for legal
teams and the accused. Also, translation of thousands of pages of
documents into the official languages of the Tribunal is often required. The
number of witnesses in these trials is also considerable, particularly in the
multi-accused trials. All testimony must be interpreted in three languages.
The Tribunals often have to extract witnesses from a difficult environment,
and afford them considerable protection before and after testimony,
including relocation.
Moreover, the staff and counsel involved in these cases come from
different cultures and legal traditions. Effective communication requires
new skills and extra efforts, particularly because the legal framework in
which the Tribunals operate is at a relatively early stage of development,
and represents a mixture of legal systems. Additionally, defense counsel
often have to leave their other case-work for considerable periods to spend
time working at the ICTR in Arusha. Unlike domestic legal systems, the ad
hoc Tribunals depend greatly on the cooperation of States so as to ensure
the transfer of the accused, the availability of witnesses, and the locations
for convicts to serve out their sentences.
Third, there is a need for know-how. When the Security Council
established the ad hoc Tribunals, virtually no one knew how to operate an
international court. The trials conducted before these Tribunals are legally
and factually complex, frequently involving multiple defendants and crimes
23. Previously, ICTR judgements were typically two hundred to three hundred pages in
length. More recently, they tend to be about one hundred pages long.
2005] ICTR: EXPERIENCES AND CHALLENGES 9
of enormous magnitude and scale. Trying complex cases of this nature
would be time-consuming and expensive for any legal system.24
An important contribution of the ICTR has therefore been the
emergence of new professional groups ­ judges, prosecutors, defense
counsel and Registry staff skilled in the unique requirements of
international criminal justice. Not only has there been learning within each
institution, but also there has been a transfer of knowledge between the
various institutions. For instance, the ICC has already benefited from the
experience of persons from the ad hoc Tribunals. Such mobility leads to a
beneficial sharing of experience, but also creates problems. This is
particularly true for the two Tribunals, which face difficulties retaining
staff as a consequence of their Completion Strategy. The impending
completion of the Tribunaľs work has caused some staff members to
anticipate looking for new jobs well in advance of its mandate.
IV. REVISING THE STATUTE
The Statutes of both Tribunals provided for six judges in two Trial
Chambers. Not unexpectedly, this soon proved insufficient, in particular
because of the high number of accused and the time needed to conduct the
voluminous trials. In 1997 the ICTR, soon followed by the ICTY,
requested that the Security Council to establish a third Trial Chamber. The
Security Council consequently established one additional Trial Chamber
for each of the Tribunals, bringing the total number of permanent Trial
Chamber judges to nine.25
In 2000, the ICTY proposed the introduction of ad litem judges, who
would be made available to serve in the Trial Chambers when needed. The
purpose of this initiative was to increase the Tribunaľs judicial capacity.
In November 2000, the Security Council established a pool of ad litem
judges in the ICTY.26
Following a similar request for ad litem judges by
24. See, e.g., Closing Arguments Today in McVeigh Trial, CNN, May 28, 1997,
http://www.cnn.com/US/9705/28/mcveigh.4pm/ (the US federal government spent
approximately sixty million United States dollars to prosecute and defend Timothy
McVeigh, the perpetrator of a single complex criminal incident (the Oklahoma City
bombing)).
25. S.C. Res. 1165, U.N. Doc. S/RES/1165 (Apr. 30, 1998) (establishing a third Trial
Chamber for the ICTR); S.C. Res. 1166, U.N. Doc. S/RES/1166 (May 13, 1998)
(establishing a third Trial Chamber for the ICTY). In 1994 the Security Council had
already indicated that it would "consider increasing the number of judges and Trial
Chambers of the International Tribunal if it becomes necessary." Resolution 955,
supra note 1. The election of the three new ICTR judges coincided with the end of
term of office of the six judges who had been elected in 1995, and the election of all
nine judges took place in November 1998.
26. S.C. Res. 1329, U.N. Doc. 1329 (Nov. 30, 2000) (providing that nine ICTY ad litem
10 NEW ENG. J. INŤL & COMP. LAW [Vol. 12:1
the ICTR, in August 2002 the Security Council allowed for the creation of
a pool of eighteen judges.27
They were elected by the General Assembly
on June 25, 2003.
Originally, only four ICTR ad litem judges could take office at any
one time.28
Pursuant to two requests in September 2003 from the ICTR, in
October the Security Council decided to increase the number from four to
nine, and it also conferred to the ad litem judges the power to adjudicate in
pre-trial matters.29
The arrival of the nine ad litem judges made it possible
to start seven new trials at the ICTR. For quite some time now, there have
been eighteen (nine permanent and nine ad litem) judges in Arusha.
Another important reform concerned the role of the Prosecutor. The
Statutes of the two Tribunals originally provided for a common Prosecutor,
as well as a common Appeals Chamber. This had the advantage of
ensuring a uniform prosecutorial policy for the ICTR and the ICTY. In
August 2003, the Security Council, for reasons of efficiency, decided to
establish a separate Prosecutor for the ICTR. It was thought important to
divide up the comprehensive work performed by the Prosecutor as the two
Tribunals entered into the crucial period of implementing their Completion
Strategy.30
V. AMENDING THE RULES
Amendments to the Rules of Procedure and Evidence are decided by
the judges in plenary sessions, usually held once or twice a year in Arusha.
Since its establishment, the ICTR has had fifteen plenary sessions. Only
some of the most important improvements will be mentioned here. In 1999
the judges amended Rule 73 so as to allow motions under that provision to
be considered on the basis of written submissions. In the first mandate, all
motions, irrespective of their significance, were heard orally, which
contributed to delays in the proceedings. The introduction of written
submissions greatly improved the efficiency of the Trial Chambers,
reduced the number of outstanding motions, and reduced the Tribunaľs
costs. Another innovation adopted in 1999 allowed some motions to be
decided by a single judge rather than by a Chamber.
judges could serve at any one time). In the same resolution, membership of the
common Appeals Chamber was also enlarged by two judges. Id. This reform was
intended to ease the workload of Appeals Chamber. It would also ensure that the
ICTR was represented with two judges in the common Appeals Chamber, which was
not envisaged under the original Statutes.
27. S.C. Res. 1431, U.N. Doc. S/RES/1431 (Aug. 8, 2002).
28. Id.
29. S.C. Res. 1512, U.N. Doc. S/RES/1512 (Oct. 27, 2003).
30. S.C. Res. 1504, U.N. Doc. S/RES/1504 (Aug. 28 2003).
2005] ICTR: EXPERIENCES AND CHALLENGES 11
Amendments to Rule 15 bis were also significant. Previously, a case
would be stopped if a judge was ill or absent, and a case would have to
resume de novo in the event of the death or non re-election of a judge.
Now, a Trial Chamber may continue a case with a substitute judge under
the amended Rule 15 bis.
In 2000, the judges introduced deadlines for some motions and a
general time limit for responding to motions. They allowed questions
pertaining to the form of the indictment to be raised in one motion only;
and they introduced a filtering process at the appellate level.
Finally, an explicit provision was also adopted to allow a Chamber to
impose sanctions against counsel who brings motions that, in the opinion of
the Chamber, are frivolous or an abuse of process. Such sanctions include
non-payment, in whole or in part, of fees associated with the motion and
costs thereof. It has been used in some cases.
VI. PRACTICAL MEASURES
Legal amendments are significant, but equally important is the
streamlining of working methods through practical measures. For instance,
experience has shown that long term planning is required to ensure the
timely commencement of new trials. Since 1998, the ICTR Trial Chambers
began organizing pre-trial and pre-defense conferences in conformity with
the newly adopted Rules 73 bis and 73 ter, respectively. For these
conferences 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
agreed 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 and the length of the testimonies be reduced. In practice, a
suggestion to the parties to avoid repetitive evidence is often successful.
The Tribunal also had problems with disclosure of witness statements
and other documents to the defense, as well as with a need to translate
thousands of pages into the two official languages of the Tribunal. A
working group has found ways to speed up translation of documents,
thereby reducing delays in judicial proceedings. Techniques have been
developed to reduce the volume of documents that require translation.
However, the Tribunal still has to prioritize. This is not an easy task
because the translation services work for the Appeals Chamber, the three
Trial Chambers, the Prosecution, the Defense and the Registry. In practice,
solutions are found after consultation, but some delays are unavoidable.
Another important innovation was the establishment of the Trial
Committee in 2003. This Committee is composed of representatives from
the Chambers, the Registry and the Prosecution. The Committee's work
facilitates the trial-readiness of many cases. It identifies and contributes to
the resolution of problems that may slow down the proceedings, such as
12 NEW ENG. J. INŤL & COMP. LAW [Vol. 12:1
lack of disclosure, translation and the availability of counsel. The
Committee is also in contact with the various defense teams.
Further measures designed to increase productivity include
conducting trials on a twin-track basis.31
The purpose of this system is to
use the inevitable breaks that occur during one trial to ensure progress in
another. This also allows the Prosecution and the Defense to prepare for the
next stage of the proceedings while the other case is being heard. The
strategy has resulted in the production of a considerable number of
judgments. The Tribunal has also used the "shift system" by sitting in
morning and afternoon sessions.32
With many on-going trials the lack of courtroom space soon became a
problem in Arusha. A fourth courtroom was inaugurated on March 1,
2005, funded by voluntary contributions from two Governments. It was
constructed in record time - only four weeks - and has been used for trials
from the day of its inauguration. This new courtroom is an important
element in the Tribunaľs Completion Strategy.
One factor contributing to the reduction in the number of trial days is
the difficulty of obtaining the appearances of witnesses from Rwanda, or
their falling ill upon their arrival in Arusha. In order to reduce this
problem, judges expect counsel to have substitute witnesses available in
case the witness scheduled to testify fails to appear or falls ill. Another
problem is that counsel frequently requests additional time for the
preparation of cross-examination in situations where unexpected evidence
emerges or is tendered without proper prior notice. In order to avoid such
delays, Chambers require "will-say" statements when counsel discovers
that a witness may provide new information during the testimony. This
reduces the element of surprise as well as subsequent requests for
adjournments.
31. "Twin-tracking" means that two trials are heard in consecutive slots. For instance
consider the following pattern: Trial A five weeks, trial B five weeks, trial A five
weeks, etc. Defense counsel in trial A will leave Arusha while trial B is heard.
Almost all judges sit on one multi-accused trial and at least one single-accused trial.
See Security Council, Letter dated 23 May 2005 from the President 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 and Rwandan Citizens Responsible for
Genocide and Other Such Violations Committed in the Territory of Neighbouring
States between 1 January and 31 December 1994 addressed to the President of the
Security Council,  50, S/2005/336 (May 24, 2005).
32. The "shift-system" means that one court room is used for two cases: one heard in the
morning, from about 8:45 am to 1:00 pm; and the other in an afternoon session that
lasts until about 6:30 pm. Some of the judges sit in two different trials on the same
day in order to ensure rapid progress. See id.
2005] ICTR: EXPERIENCES AND CHALLENGES 13
The Tribunaľs insistence on having two defense counselors, so that in
the event of illness or absence of one counselor, the other can continue
representing the defendant, has also reduced the number of interruptions to
trials.
At the administrative level, the establishment of the Coordination
Council has improved coordination between the three branches of the
Tribunal. The Coordination Counsel consists of the President, the
Prosecutor and the Registrar; and it was established following a Rule
change in 2003 (Rule 23 bis).
VII. GLIMPSES FROM THE PROCEEDINGS
The trial judges come from a wide variety of legal cultures;
predominantly African, European, and Asian. The Tribunaľs practices and
procedures are a mix of common law and civil law traditions. In other
words, they have created a legal system which is largely sui generis.
The Tribunals adopt an open attitude regarding evidence that may be
considered admissible. However, irrelevant evidence is excluded. Hearsay
evidence is accepted in principle, but carries very limited weight. None of
the convictions at the ICTR have been based on hearsay evidence. This
approach assists in the search for truth and often avoids time-consuming
discussions of admissibility. It also allows all sides to convey their
versions of the events that took place in Rwanda, and is in the interest of
fairness. As in the common law tradition, there is an emphasis on crossexamination
to test the veracity of evidence.
It is important to note that trials in the Tribunal have a number of
objectives, some of which are not readily comparable to those found in
other criminal courts. For example, besides efficiently prosecuting people
for alleged commission of crimes, another aim of these trials is to establish
a historical record. This may require more time and effort than would be
necessary to simply complete a case.
Readers of the New England Journal of International and
Comparative Law may wish to note that there has never been an American
trial judge at the Arusha Tribunal. However, two American Presidents of
the ICTY have served as presiding judges of the ICTR Appeals Chamber
(Judges Gabrielle Kirk McDonald and Theodor Meron). Many American
lawyers are also part of the Prosecution and Defense teams, and are
members of the Chambers' legal staff. Also, numerous court reporters are
of American, Canadian or Australian origin.
In the daily life of the Tribunal, the differences between common law
and civil law traditions play a limited role. The judges tend to reason
similarly, irrespective of their national systems of origin. Disagreement
between the judges appears to be more a matter of personality than legal
culture. Therefore, dissenting opinions are rare.
14 NEW ENG. J. INŤL & COMP. LAW [Vol. 12:1
Dressed in their various national robes, lawyers from diverse national
legal systems appear in the courtroom and perform their respective roles to
the best of their abilities. In each trial a common understanding of the rules
within this sui generis system emerges.
The testimony of Kinyarwandan-speaking witnesses presents
particular problems. Vigilance is of the essence when the communication
between the witness and those asking the questions takes place through
translation into two languages - Kinyarwanda to French, and then French to
English. Occasionally, there is a need for repetition of the evidence in
order to avoid mistakes. Cultural differences also play a role. For instance,
Rwandan witnesses will often try to avoid giving estimates of numbers,
distances and time. Not all witnesses make a clear distinction between
what they saw and what they heard. Additional questions may clarify the
issues, but all this requires time.
Many witnesses were also victims during the 1994 events. In this
regard, the ICTR is committed to ensuring that the witnesses are accorded
respect and treated with dignity. A Witness and Victims Support Section
[WVSS] within the Registry provides witnesses with all necessary
assistance. Thusfar the WVSS has ensured the availability of about 1,200
witnesses from 38 countries. It establishes initial contact with the
witnesses after their names and addresses have been provided by the
prosecution or the defense. The WVSS also confirms their availability to
testify, assesses their specific needs, ensures that travel documents are
issued, provides escort from their place of residence to Arusha, and places
them in safe houses or other accommodations once they have arrived.
While witnesses are in Arusha, the WVSS ensures their security,
familiarizes them with court procedures, provides psychological and
medical support, buys clothes for those who need them in order to appear
in court, and transports them to and from court. After the trial, the WVSS
returns the witnesses to their places of residence and provides them with
security. They have also adopted specific measures with respect to
witnesses who have expressed serious security concerns.
A special project for the psychological and medical support of
witnesses and potential witnesses provides technical support to the WVSS
for the physical and psychological rehabilitation of witnesses, including
rape victims.33
Psychological counseling has reduced the trauma for
witnesses in connection with their testimony, which has reduced the
occurrence of delays during trial. This brief summary of an important but
little-known part of the Tribunaľs work illustrates the weight given to the
33. The ICTR Medical Clinic in Kigali employs a psychologist, gynecologist, nursepsychologist,
and laboratory technician. The Clinic's many activities include
treatment for HIV/AIDS.
2005] ICTR: EXPERIENCES AND CHALLENGES 15
protection of and assistance to victims and witnesses. In the courtroom, the
Chambers endeavor to ensure the necessary balance between crossexamination
required to test the evidence of witnesses and the need to
protect them from harassment.
FINAL OBSERVATIONS
At the beginning of the 1990s, there were no international criminal
tribunals. The last decade has, however, witnessed a proliferation of such
courts. When the ICTR commenced its judicial activities, little international
jurisprudence was available. Guidance as to the interpretation of the
Statute and the Rules could be found in case law from the Nuremberg and
Tokyo tribunals, human rights bodies, and the limited jurisprudence
developed by the ICTY since its establishment. Solutions in national legal
systems have also provided inspiration. The Tribunals' practice, in turn,
has had an impact on judicial proceedings at the national level.
An abundance of substantive and procedural law has emerged at the
ICTR. Although not bound to do so, the ICTY and ICTR Chambers often
rely on one another's case law. The law developed by the two ad hoc
Tribunals constitutes a basis for subsequent trials in international and
hybrid tribunals, including the ICC, and the Sierra Leone and Cambodia
tribunals. New professional groups of international judges, prosecutors,
defense counsel and administrators have experience that did not exist ten
years ago.
At present, the ICTR has held a high number of people in positions of
leadership accountable for their actions, and has conducted judicial
proceedings in conformity with the highest standards of international due
process. The principle of individual criminal responsibility for everyone,
including leaders, has been firmly established. Accountability has replaced
impunity in principle, if not yet entirely in practice.
When the Tribunal was set up, the Security Council stated that the
prosecution of persons responsible for serious violations of international
humanitarian law would "contribute to the process of national
reconciliation."34
Although reconciliation cannot be enforced from outside,
it is certainly an aim of the Tribunal to contribute to the process of
reconciliation in Rwanda. The judicial proceedings at the Tribunal
represent the core element in the process of reconciliation. By conducting
fair trials, listening to the parties, establishing the facts, and applying the
law in an impartial manner, the Tribunal decides the guilt or innocence of
the accused with respect to each of the charges against them. It is also
reasonable to believe that guilty pleas, combined with expressions of
34. S.C. Res. 955, preambular  7, 9, U.N. Doc S/RES/955 Nov. 8, 1994).
16 NEW ENG. J. INŤL & COMP. LAW [Vol. 12:1
remorse, may contribute to reconciliation.35
Of great importance is the
ICTR Outreach Programme, designed to reach all sectors of Rwandan
society, and the world at large. The programme includes a wide range of
measures whose impact should be assessed closer to the end of the
Tribunaľs mandate, and in the last resort, by Rwandans themselves.
Although a final appraisal can only be made upon the completion of
its work, it is beyond doubt that the ICTR has made a significant
contribution to the development of international criminal justice.
35. So far, four persons have pleaded guilty at the ICTR. This is a much lower number
than at the ICTY.