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Prosecutor v. Kanyabashi, Decision on Jurisdiction

Published online by Cambridge University Press:  27 February 2017

Bernard H. Oxman  and
Virginia Morris
Virginia Morris
Affiliation:
United Nations
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Abstract

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Type
International Decisions
Information
American Journal of International Law , Volume 92 , Issue 1 , January 1998 , pp. 66 - 70
Copyright
Copyright © American Society of International Law 1998

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References

1 The Rwanda Tribunal was established by the Security Council on November 8, 1994. SC Res. 955, UN SCOR, 49th Sess., at 15, UN Doc. S/INF/50 (1994). A similar account of this case in the context of an in-depth analysis and legislative history of the Rwanda Tribunal, its governing legal instruments and a collection of the relevant documents will appear in Virginia, Morris & Michael, P. Scharf, The International Criminal Tribunal for Rwanda (forthcoming 1998)Google Scholar. See also Payam, Akhavan, The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment , 90 AJIL 501 (1996)Google Scholar; Larry, D. Johnson, The International Tribunal for Rwanda , 67 int’l rev. Penal L. 211 (1996)Google Scholar; Roy, S. Lee, The Rwanda Tribunal , 9 Leiden J. Int’l L. 37 (1996)Google Scholar; and Daphna, Shraga & Ralph, Zacklin, The International Criminal Tribunal for Rwanda , 7 Eur. J. Int’l L. 501 (1996)Google Scholar.

2 Rules of Procedure and Evidence of the Rwanda Tribunal, as amended (Jan. & July 1996, & June 1997), UN Doc. ITR/3/Rev.2 (1997). In June 1997, Rule 73 was amended and became Rule 72.

3 Prosecutor v. Tadić, Decision on Jurisdiction, No. I T - 9 4 - 1 -T (Aug. 10,1995), aff’d, Appeal on Jurisdiction, No. IT–94–1-AR72 (Oct. 2, 1995).

4 Decision on Jurisdiction, No. ICTR–96–15-T [hereinafter Kanyabashi].

5 Id. at 4.

6 The trial chamber noted that

the Security Council has established that incidents such as sudden migration of refugees across the borders to neighbouring countries and extension or diffusion of an internal armed conflict into foreign territory may constitute a threat to international peace and security. This might happen, in particular where the areas immediately affected have exhausted their resources.

Id. at 6. In this regard, the chamber drew attention to Security Council action with respect to the Congo, Somalia and Liberia. The trial chamber also noted that the Special Rapporteur for Rwanda, the Commission of Experts on Rwanda and the Security Council—all had “concluded that the conflict in Rwanda as well as the stream of refugees had created a highly volatile situation in some of the neighbouring regions.

Id.

7 In addition, the chamber took

judicial notice of the fact that the conflict in Rwanda created a massive wave of refugees, many of whom were armed, into the neighbouring countries which by itself entailed a considerable risk of serious destabilisation of the local areas in the host countries where the refugees had settled. The demographical composition of the population in certain neighbouring regions outside the territory of Rwanda, furthermore, showed features which suggest that the conflict in Rwanda might eventually spread to some or all of these neighbouring regions.

Id.

7 The trial chamber stated:

Although bound by the provisions in Chapter VII of the UN Charter and in particular Article 39 of the Charter, the Security Council has a wide margin of discretion in deciding when and where there exists a threat to international peace and security. By their very nature, however, such discretionary assessments are not justiciable since they involve the consideration of a number of social, political and circumstantial factors which cannot be weighed and balanced objectively by this Trial Chamber.

Id.

8 Id. at 7. “The decisive pre-requisite for the Security Council’s prerogative under Article[s] 39 and 41 of the UN Charter,” the trial chamber observed, “is not whether there exists an international conflict, but whether the conflict at hand entails a threat to international peace and security. Internal conflicts, too, may well have international implications which can justify Security Council action.” Id.

9 The trial chamber observed:

[T]his argument entails a finding of fact based on evidence and . . . whether or not the Security Council was justified in taking actions under Chapter VII when it did, is a matter to be determined by the Security Council itself. . . . [Cassation of the atrocities of the conflict does not necessarily imply that international peace and security had been restored, because peace and security cannot be said to be re-established adequately without justice being done. In the Trial Chamber’s view, the achievement of international peace and security required that swift international action be taken by the Security Council to bring to justice those responsible for the atrocities in the conflict.

Id.

10 Id. at 8. Promoting respect for human rights is one of the fundamental purposes of the United Nations under Article 1 of the Charter. All entities established within the framework of the United Nations share this common purpose of the Organization. The General Assembly has the primary—but not the exclusive—responsibility for promoting universal respect for human rights under Articles 55 and 60 of the UN Charter.

11 For a discussion of the primacy of the Rwanda Tribunal, see 1 MORRIS & SCHARF, note 1 supra, ch. VIII.

12 Kanyabashi at 8.

13 Id.

14 Id. at 9. The trial chamber was presumably referring to the recognition of individual criminal responsibility for violations of international humanitarian law applicable in internal armed conflict. The principle of individual criminal responsibility for the other crimes within the jurisdiction of the Yugoslavia Tribunal and the Rwanda Tribunal clearly constituted customary law at the time of their establishment. See 1 MORRIS & SCHARF, note 1 supra, chs. IV, VI.

15 Kanyabashi at 9.

16 The trial chamber stated in this regard:

The fact that the Security Council, for previously prevailing geo-strategic and international political reasons, was unable in the past to take adequate measures to bring to justice the perpetrators of crimes against international humanitarian law is not an acceptable argument against introducing measures to punish serious violations of international humanitarian law when this becomes an option under international law.

Id.

17 Id. at 10.

18 Id.

19 The trial chamber invoked the appeals decision in Tadić in expressing the view that, “when determining whether a tribunal has been ‘established by law’, consideration should be made to the setting up of an organ in keeping with the proper international standards providing all the guarantees of fairness and justice.” Id.

20 In rejecting the prosecutor’s contention that “this obligation was discretionary,” the chamber stated:

In fact it is mandatory. In Article 34 of the Statute, the Tribunal is duty bound to [report to the Security Council] annually. This requirement is not only a link between it and the Security Council but it is also a channel of communication to the International community, which has an interest in the issues being addressed and the right to be informed of the activities of the Tribunal. In the Chamber’s view, the Tribunal’s obligation to report progress to the Security Council is purely administrative and not a judicial act and therefore does not in any way impinge upon the impartiality and independence of [its] judicial decision.

Id. at 11.

21 In rejecting defense counsel’s contention, the trial chamber cited “the important instruments on human rights in Africa, including the Charter of the Organization of African Unity (O.A.U.) and the African Charter on Human Rights (‘the African Charter’)” as having been “indirectly included in the law applicable to the Tribunal. Articles 3 and 7 of the African Charter on Human and Peoples’ Rights, for example, contain rights which are similar to those guaranteed in the Statute.” Id.

22 The trial chamber noted that the prosecutor had dismissed these allegations and stated that indictments had been issued against “leading perpetrators of the genocide and that subject to the availability of evidence, he intended to prosecute Hutu and Tutsi ‘extremists’.” The chamber considered the use of the word “extremist” “inaccurate and unfortunate, in view of Article 1 of the Statute. The Trial Chamber simply reiterates that, pursuant to Article 1 of the Statute, all persons who are suspected of having committed crimes falling within the jurisdiction of the Tribunal are liable to prosecution.” Id. The personal jurisdiction of the Rwanda Tribunal is limited only with respect to crimes committed by Rwandan citizens in neighboring states. See 1 Morris & Scharf, note 1 supra, ch. VI.

23 The defense filed a notice of appeal on July 10, 1997. The appeals chamber dismissed the notice of appeal for failure to set forth die grounds for appeal in accordance with Rule 108 of the Rules of Procedure and Evidence, and extended the time for filing a new notice of appeal. Kanyabashi v. Prosecutor, Scheduling Order, No. ICTR–96–15-AR72 (Rwanda App. July 29, 1997).

24 The defense officially withdrew the appeal on August 6, 1997. Second Annual 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 covering the period from 1 July 1996 to 30 June 1997, UN Doc. A/52/582-S/1997/868, App. V (1997).