1. President Habyarimana and the President of Burundi, Cyprien Ntaryamira, were returning to Kigali from a regional meeting in Dar es Salaam on peace and security in Rwanda and Burundi when their plane was hit by a rocket. See The United Nations and Rwanda, 1993–1996 (The United Nations Blue Book Series), Introduction by Boutros Boutros–Ghali (United Nations Department of Public Information, New York 1996) p. 37Google Scholar.

2. In the Judgement in the case of Prosecutor v. Akayesu, the Trial Chamber concluded that ‘the Tutsis were targeted and killed because of their Tutsi origin’. Case No. ICTR-96-4-T, Judgement of 2 September 1998 at paras. 123–126.

3. For various estimates, see ‘Report on the situation of human rights in Rwanda’ submitted by René Dégni Ségui, Special Rapporteur of the Commission on Human Rights, under para. 20 of Commission Resolution S–3/1 of 25 May 1994, UN Doc. E/CN.4/1995/7 (1994), 28 June 1994; Final report of the Commission of Experts established pursuant to SC Res. 935 (1994) at para. 57, reproduced in The UN and Rwanda, supra n. 1, Doc. 107, p. 415 at 421.

4. See UN Doc. E/CN.4/1995/7, 28 June 1994, para. 26; Final Report of the Commission of Experts, at para. 64. See also Jean Kambanda's guilty plea, case No. ICTR–23–I.

5. The RPF was founded in Kampala, Uganda in 1988 as a political and military movement ‘with the stated aims of securing the repatriation of Rwandans in exile and the reform of the Government in Rwanda, including political power-sharing’. Most RPF members were Tutsi refugees, and many had previously served in Ugandan President Yoweri Museveni's National Resistance Army. See The UN and Rwanda, supra n. 1, Introduction at p. 12.

6. The UN and Rwanda, supra n. 1 at p. 57.

7. Report of the Secretary-General on the situation in Rwanda to the Security Council, reporting on the political mission he sent to Rwanda to move the warring parties towards a ceasefire and recommending that the expanded mandate for UNAMIR be authorized for an initial period of six months. S/1994/640 (1994), 31 May 1994 at para. 43, where he states that the international community ‘failed in our response to the agony of Rwanda, and thus have acquiesced in the continued loss of human lives. Our readiness and capacity for action has been demonstrated to be inadequate at best, and deplorable at worst, owing to the absence of the collective political will’. Reproduced in The UN and Rwanda, supra n. 1, Document 64, p. 290 at p. 297. See also the conclusions of the report of the Commission of Inquiry on Rwanda of the Belgian Senate, Commission d'enquête parlementaire concernant les evenements du Rwanda: Rapport fait au nom de la Commission d'enquête par MM. Mahoux et Verhofstadt. Belgian Senate. Sesssion de 1997–1998. 6 décembre 1997. The former Commander of UNAMIR, General Romeo Dallaire, said in his testimony before the ICTR in the trial of Jean Paul Akayesu that ‘the force could have played a more effective role with adequate equipment and training’. ICTR Press Release, ICTR/INFO–9–2–107, 25 February 1998.

8. The legal basis of the ICTR was unsuccessfully challenged in the case Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-T, Trial Chamber, Decision on Defence motion on jurisdiction, 28 June 1997. That case and the legal basis of the ICTR generally are discussed in Morris, Virginia & Scharf, Michael P., The International Criminal Tribunal for Rwanda (Irvington-on-Hudson, New York 1998) Vol. i, pp. 75–115Google Scholar.

9. Eighteen months after the creation by the Security Council of the International Criminal Tribunal for the Former Yugoslavia to prosecute the atrocities committed in the former Yugoslavia (by SC RES/827(1993)), the Council decided to establish a second ad hoc Tribunal as an enforcement measure to restore international peace and security, with the mandate to prosecute ‘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 1994 and 31 December 1994’. Art. 1, Statute of the ICTR, UN Doc. S/RES/955 (1994), in The UN and Rwanda, supra n. 1, p. 387. The seat of the ICTR was not indicated in its Statute, the preamble of which states, at para. 6, that the seat would be determined by the SC at a later date, having regard to considerations of justice and fairness, as well as administrative efficiency, inter alia. By SC Res. 977 (1995), 22 February 1995, the SC named Arusha, Tanzania as the seat of the Tribunal. In The UN and Rwanda, supra n. 1, Document 119 at p. 470.

10. Letter dated 28 September 1994 from the Permanent Representative of Rwanda to the United Nations addressed to the President of the Security Council, transmitting a statement dated 28 September 1994 of the Government of Rwanda on the establishment of an International Tribunal for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law in relation to Rwanda, UN SCOR, 49th Session, UN Doc. S/1994/1115 (1994).

11. S/PV.3453 at p. 14.

12. The government of Rwanda voted against Resolution 955 for the following main reasons: First, Rwanda felt that the ICTR's temporal jurisdiction, which covers the period 1 January to 31 December 1994, was inadequate. It believed that the Tribunal's temporal jurisdiction should extend as far back as 1 October 1990, which it said marked the beginning of the current hostilities, thus capturing the planning of the genocide. Second, Rwanda objected to the absence of a provision for capital punishment in the Statute of the ICTR, claiming that this, taken with its provision in the Rwandan penal code, would create the paradoxical effect that the leadership who planned the genocide and who would most likely be tried before the ICTR would face a maximum of life imprisonment whereas low-ranking perpetrators would be subject to the death penalty if tried before Rwandese courts, giving the impression that the main persons responsible for the genocide and who fled the country would receive better treatment than the ‘second class planners’ who stayed in Rwanda. The Rwandan delegate concluded that such a situation would not be conducive to national reconciliation. Third, the government of Rwanda stressed that the ICTR should be a separate entity, with its own Appeals Chamber and Prosecutor, and not a twin of the ICTY. Fourth, Rwanda argued that the ICTR should only prosecute genocide and crimes against humanity as prosecution of violations of common Art. 3 and Protocol II ‘would disperse its energy’. Fifth, Rwanda deplored that persons sentenced by the Tribunal could be imprisoned in third countries. More importantly, Rwanda argued strongly that decisions concerning the pardon and commutation of detainees could not belong to third states. Sixth, the Rwandan delegate to the UN stressed that the seat of the ICTR ought to be in Rwanda, in order to play a preventative and educative role. See Statement of the Permanent Representative of Rwanda following the voting, UNSCOR, 49th session, 3453rd mtg., UN Doc. S/PV.3453 (1994).

13. Art. 28(2)(e).

14. Except in one case, all states have complied with ICTR requests for arrest and transfer of accused. The decision of a US district court judge not to surrender Pastor Elizaphan Ntakirutimana (indicted in ICTR-96-17-I) to the ICTR detention center in Arusha is the only precedent of noncompliance with Resolution 955. See In re Elizaphan Ntakirutimana, US District Court for the Southern District of Texas, Laredo Division, 1997 US Dist. LEXIS 20714, 17 December 1997. This decision is reproduced infra at p. 607. For commentary on this case see Paust, , infra p. 205Google Scholar. The US government refiled its request for surrender seeking review by a different judge on 29 January 1998. On 5 August 1998, a Federal Judge ordered the deportation of Elizaphan Ntakirutimana to Arusha. US District Court for the Southern District of Texas, Laredo Division.

15. Rwanda promises fair trials for massacre suspects. Reuters World Service, 9 August 1994, LEXIS, News library, Curnws file. Rwanda must, of course, respect the principle of non-bis-in-idem, as stated in Art. 9 of the ICTR Statute.

16. China stated that ‘the establishment of an international tribunal for the prosecution of those who are responsible for crimes that gravely violate international humanitarian law is a special measure taken by the international community to handle certain special problems. It is only a supplement to domestic criminal jurisdiction and the current exercise of universal jurisdiction over certain international crimes.’ UN SCOR, 49th session, 3453rd mtg. at 11, UN Doc. S/PV. 3453(1994).

17. See for example ‘Letter dated 29 August 1995 from the Secretary-General to the President of the Security Council outlining an approach to improve prison conditions in Rwanda and to help strengthen the justice system,’ S/1995/762, 31 August 1995, in The UN and Rwanda, supra n. 1, Document 145 and ‘Report of the Secretary-General to the General Assembly on emergency international assistance for a solution to the problem of refugees, the restoration of total peace, reconstruction and socio-economic development in Rwanda,’ A/50/654, 19 October 1995, in The UN and Rwanda, supra n. 1, Document 152 at p. 551.

18. Res. 978 (1995) UN SCOR, 50th session, UN Doc. S/PV.3453 (1994). In The UN and Rwanda, supra, n. 1, Document 120 at p. 471.

19. For an overview of the ICTR and its Statute and Rules, see Shraga, Daphna & Zacklin, Ralph, ‘The International Criminal Tribunal for Rwanda’, 7 European Journal of International Law (1996) No 4, pp. 501–517CrossRefGoogle Scholar and Morris & Scharf, op. cit. n. 8; Lee, Roy S., ‘The Rwanda Tribunal’, 9 Leiden Journal of International Law (1996) pp. 37–61CrossRefGoogle Scholar.

20. Rwanda became a non-permanent member of the Security Council, for two years, on 1 January 1994. The UN and Rwanda, supra n. 1 at p. 117.

21. See Lee, op. cit. n. 19; Cissé, Catherine, ‘The International Tribunals for the former Yugoslavia and Rwanda: Some elements of comparison’, 7 Transnational Law & Contemporary Problems (Spring 1997) pp. 104–117Google Scholar.

22. 78 UNTS 277 (1951).

23. Including the following indictments: Clément Kayishema and Obed Ruzindana, ICTR-95-l-I; Georges Anderson Nderubumwe Rutaganda, ICTR-96-3-I; Jean Paul Akayesu, ICTR-96-4-I; Théoneste Bagosora ICTR-96-7-I; Elie Ndayambaje, ICTR-96-8-I; Ladislas Ntaganzwa, 21 June 1996; Elizaphan Ntakirutimana, Gérard Ntakirutimana, Obed Ruzindana and Charles Sikubwabo, ICTR-96-10-I; André Ntagerura, ICTR-96-10-I; Ferdinand Nahimana, ICTR-11-I; Anatole Nsengiyumva, ICTR-96-12-I; Alfred Musema, ICTR-96-13-I; Eliezer Niyitegeka, ICTR-96-14-I; Joseph Kanyabashi, ICTR-96-15-I.

24. Art. 3 states: ‘The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnical, racial or religious grounds: a) murder; b) extermination; c) enslavement; d) deportation; e) imprisonment; f) torture; g) rape; h) persecutions on political, racial and religious grounds; i) other inhumane acts.’

25. See report of the Secretary-General on the Statute of the ICTY, which enumerated those parts of IHL that without a doubt constitute customary international law: the Geneva Conventions; Hague IV and Regulations; the Genocide Convention and the IMT Charter. (S/25704, at p. 9, para. 34). Based on this statement, common Art. 3 of the Geneva Conventions, but not necessarily the two additional Protocols thereto, would form part of customary international law. See also report of the Secretary General pursuant to para. 5 of SC Res. 955 (1994) at p. 2 para. 12 (S/1995/134) which states that ‘the Security Council has elected to take a more expansive approach to the choice of the applicable law than the one underlying the statute of the Yugoslav Tribunal, and included within the subject matter jurisdiction of the Rwanda Tribunal international instruments regardless of whether they were considered part of customary international law or whether they have customarily entailed the individual criminal responsibility of the perpetrator of the crime’; See also Meron, Theodor, ‘International criminalization of internal atrocities’, 89 AJIL (1995) p. 554CrossRefGoogle Scholar; in Prosecutor v. Akayesu, supra n. 2, the Trial Chamber found that under customary international law, breaches of common Art. 3 and Art. 4 of Additional Protocol II entail criminal responsibility for the perpetrator. At paras. 604–610.

26. ICTY Case No. IT-94-1 AR 72. 2 October 1995, at paras. 128–137.

27. Fifth plenary session, 18 June 1998.

28. Rules of Procedure and Evidence adopted on 29 June 1995, as amended on 8 June 1998.

29. Akayesu case, ICTR 96–4–T, Decision by the Tribunal on its request to the Prosecutor to submit the written statements, 28 January 1997. The ICTY has taken a similarly broad approach to the disclosure obligations. See for e.g., the Dokmanović case, IT-95-13a-PT, written order, 28 November 1997.

30. See fore.g., The Prosecutor v. Rutaganda, Case No. ITCR-96-3-T, Decision on protective measures for Defence witnesses, 30 June 1998.

31. Code pénal, Art. 26.

32. Morris & Scharf, op. cit. n. 8 at p. 582.

33. Following the report by the Office of Internal Oversight Services (OIOS) of 6 February 1997, the Deputy Prosecutor, Honoré Rakotomanana and the Registrar, Andronico Adede had to resign. The follow up report of 6 February 1998 stated that ‘improvements were observed in virtually every area of the tribunal’ and noted that ‘substantial changes have occurred in the Tribunal since the review by the OIOS in 1997.’

34. Another five suspects are being held under Rule 40 bis, which permits suspects to be held provisionally.

35. See supra n. 14.

36. See report of the International Criminal Tribunal for Rwanda, S/1997/868.

37. OIOS Report of 6 February 1997. Position of the government of Rwanda in May 1997. (In the personal files of the author).

38. The Prosecutor v. Jean-Paul Akayesu, supra n. 2.

39. Ibid. para. 12.

40. See ICTY Press Release CC/PIO/34–E, 4 September 1998.

41. Supra n. 2 at para. 732. See also Year in Review at pp. 126–128.

42. Supra n. 2 at para. 643.

43. Supra n. 26.

44. Ibid., at para. 69.

45. Ibid., at para. 70.

46. The Prosecutor v. jean Kambanda, ICTR–97–23–S, 4 September 1998.

47. On 7 September 1998, Jean Kambanda filed a notice of appeal against the sentence.

48. Rule 62(iv).

49. This is the numbering system adopted in the judgement.

50. Supra n. 46, at para. 51

51. Art. 26 of the Statute and Rule 103(A).

52. Case No. ICTR-96-3-T.

53. Case No. ICTR-96-1-T.

54. Amnesty International's report, ‘International Criminal Tribunal for Rwanda: Trials and Tribulations’, 30 April 1998. AI Index: IOR 40/03/98.

55. (1998) S/RES/1165(1998).

56. Theoneste Bagosora and Others. See ICTR-98-37-I.

57. ICTR Press Release. ICTR/INFO-9-2-115, 1 April 1998. At the request of the Prosecutor, Judge Khan ordered that the unconfirmed indictment not be disclosed, pursuant to Rule 53 of the Rules of Procedure and Evidence.

58. Decision on the Admissibility of the Prosecutor's Appeal from the decision of a Confirming Judge dismissing an indictment against Theoneste Bagasora and 28 others, Case No. ICTR-98-37-A, Appeals Chamber, 8 June 1998.

59. Ibid.

60. Under Rule 4, ‘A Chamber or a Judge may exercise their functions at a place other than the seat of the Tribunal, if so authorised by the President in the interests of justice.’

61. Rwanda, the crisis continues Vol. 7 No. 1, at p. 5, Human Rights Watch and the Fédération Internationale des Droits de l'Homme. UN High Commissioner for Human Rights field operation in Rwanda, ‘The administration of justice in post-genocide Rwanda,’ at p. 2, para. 11, UN. Doc. HRFOR/JUSTICE/June 1996/E (1996); it is estimated that 90 percent of police officers and prosecutors were either dead or had left Rwanda and only 250 of 719 magistrates survived the genocide. See McKinley, J.C. Jr., ‘76,000 still in jail in Rwanda awaiting Trial in ‘94 slayings,’ The New York Times (24 06 1996)Google Scholar.

62. See Mutagwera, Frederic, La justice internationale face au drame rwandais (Karthala, Paris 1996) pp. 18–19Google Scholar.

63. ICTR-95-I-T.

64. See testimony of the expert witness Francois Xavier Nsansuwera before the ICTR in the Kayishema case, on 28 October 1997, ICTR-96-1-T.

65. See the International Commission of Investigation on Human Rights Violations in Rwanda since 1 October 1990, Final Report, 8 March 1993.

66. According to William Schabas, the institution of a truth commission in Rwanda was not appropriate ‘given the magnitude of the crimes and the scale upon which they were committed’, Schabas, William, ‘Justice, Democracy, and Impunity in post-genocide Rwanda: searching for solutions to impossible problems’, 7 Criminal Law Forum (1996) p. 529CrossRefGoogle Scholar.

67. As suggested by William Schabas, it is therefore ‘imperative to separate the goals of rebuilding the judicial system and prosecuting genocide. The two problems should be solved in parallel.’ Ibid., at p. 534.

68. Recommendations of the conference held in Kigali from November 1st to 5th. 1995, on ‘genocide, impunity and accountability’: Dialogue for a national and international response. (Office of the President, Rwanda 1995).

69. Ntampaka, Charles, ‘Le retour à la tradition dans le règlement des différends: le GACACA du Rwanda’, Dialogue No. 186, pp. 95–104Google Scholar. There are two levels of GACACA. The first level traditionally grouped relatives from the same family and immediate neighbors. Its function is to solve minor conflicts. The second level involves conflicts, including murders, between two non-allied families. Neutral arbitrators are appointed to reconciliate the parties. The author notes that the GACACA now plays a limited role. As a consequence of the genocide, the social fabric has been deeply damaged and it is very difficult to find persons who were not involved in the genocide and who are able to reach a consensus.

70. Res. 114, UN GAOR 51st sess., Supp. No. 49 at 263, UN Doc. A/51/49/1997. The resolution invites all states, United Nations bodies as well as intergovernmental and nongovernmental organisations ‘to continue and to intensify their contributions of financial and technical support to accelerate the efforts of the government of Rwanda, to inter alia, restore the judicial system’.

71. See Power, Samantha, ‘Life after death’, The New Republic (6 04 1998) p. 3Google Scholar.

72. UNDP, UNHCR and UNICEF also have programmes of assistance to the Rwandan justice system.

73. Germany; Belgium; Ireland; The Netherlands; United Kingdom and Northern Ireland; Sweden; Canada; USA; and Switzerland.

74. Report on the situation on human rights in Rwanda submitted by Mr Michel Moussali, Special Representative of the Commission on Human Rights, under Commission Resolution 1997/66 of 19 February 1998 at paras. 26 and 27.

75. Report of the Special Representative for Rwanda, of 19 February 1998, at para. 22.

76. Published in Official Journal of the Republic of Rwanda (1 09 1996). Reproduced at p. 625Google Scholar of this volume. See also Vandeginste, Stefan, ‘Poursuite des presumes responsables du genocide et des massacres politiques devant les juridictions rwandaises’, Annuaire 1996–1997 l'Afrique des Grands Lacs (1997) pp. 93–99Google Scholar.

77. GA Res 2391, 23 UN GAOR supp. No.18 at p. 40, UN Doc. A/7342 & corr. 1 (1968).

78. Journal Officiel, special edition, 30 November 1996.

79. Under Art. 20, the Supreme Court plays a vital role in the organisation of the Specialised Chambers. See also the Organic Law No. 07/96 of June 1996 (Journal Officiel 10 June 1996) and relating to the organization, working and competence of the Supreme Court.

80. Art. 19, Organic Law, supra n. 76.

81. International Covenant on Civil and Political Rights, GA Res. 2200 (XXI), 21 UN GAOR. Supp. (No. 16) 52, UN Doc.A/6316 (1966) (herein after ICCPR).

82. HRFOR/STRPT/59/2/19 December 1997/E, pp. 3–4. See also Amnesty International, Rwanda. Unfair trials: justice denied, AFR 47/08/97 (1997) p. 9Google Scholar.

83. Art. 30 makes a distinction between category 1 offenders and other categories. The first are held liable for all damages caused in the country … while offenders in other categories are liable for damages for the criminal acts they have committed.

84. Law No. 02/98 of 22 January 1998.

85. Under Art. 30(1), ‘Convicted persons whose acts place them in Category 1 under Article 2 shall be held jointly and severally liable for all damages caused in the country by their acts of criminal participation, regardless of where the offences were committed’, whereas, under subpara. 2, ‘Persons whose acts place them within Categories 2, 3 or 4 shall be liable for damages for the criminal acts they have committed.’

86. Law No. 16/97 of 26/12/1997 modifying Law No. 9/96 of 8 September and relating to provisional modifications to the criminal procedure code. Journal Officiel No. SP. of 31/12/1997.

87. Law 9/96 relating to provisional modifications to the criminal procedure code, Journal Officiel 1996, No. 18 at p. 8Google Scholar.

88. Vandeginste, Stefan, Justice for Rwanda and international cooperation (Centre for the study of the Great Lakes Region, Antwerp University 09 1996)Google Scholar.

89. Published in Journal Officiel, 10 June 1996.

90. Power, op. cit. n. 71 at pp. 2–3.

91. The Arusha School on international criminal law and human rights established by Avocats sans Frontiéres in 1995 has only held three sessions since its creation and very few Rwandese lawyers have participated in these sessions.

92. Karin Davies, AP 4 September 1998.

93. UNHFOR: Report on the Human Rights Situation in Rwanda and on the Activities of UNHFOR, March 1998.

94. Report of the UN High Commissioner for Human Rights, UN Doc. E/CN.4/1998/61. Avocats sans frontières had requested the Rwandan government to allow an individual reexamination of each case. Agence France Presse, 24 April 1998; Deutsche Presse Agentur, 23 April 1998.

95. Deutsche Presse Agentur, 23 April 1998.

96. The confession and guilty procedure has been extended for 18 months from 1 March 1998 by Presidential Order No. 5/01 of 10/03/1998 in Official Gazette, 15 March 1998.

97. Figures on file with the author.

98. Arrêté présidentiel No. 26/01, 11 November 1997, Gazette Cfficielle de la République du Rwanda (1 December 1997).

99. Regulation No. 1 dated 1 March 1998.

100. Statement by the United Nations Secretary-General Kofi Annan at the Ceremony held at the Campidoglio Celebrating the Adoption of the Statute of the International Criminal Court, 18 July 1998. Available online at http://www.un.org/icc/speeches/718sg.htm.