International Criminal Tribunal For Rwanda Research Articles

International Residual Mechanism for Criminal Tribunals

The article examines the legal and institutional foundations of the International Residual Mechanism for Criminal Tribunals. The analysis of the jurisdictional powers and functions of the International Residual Mechanism for Criminal Tribunals and the practice of its judicial activities is carried out. The problematic issues in the activities of the institutions of this Mechanism and the ways of their solutions have been identified. The establishment of the International Residual Mechanism for Criminal Tribunals is linked to the implementation of the UN Security Council’s concept of establishing a «small, temporary and effective organization» in the fight against international crime. The jurisdiction and functions of the International Residual Mechanism are defined both directly in UN Security Council Resolution 1966 (2010) and in its Charter, which is an integral part (annex) to this Resolution. Under the mandate, the functions of the International Residual Mechanism include final judicial proceedings in the first and appellate instances, which are inherited from the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia, including retrials, appeals, pending judgments, in the order of review and consideration of cases of contempt of court. Concentrating scholars’ efforts on the study of the legal and institutional framework of international criminal tribunals, in particular the International Residual Mechanism for Criminal Tribunals, will help to increase the effectiveness of the fight against international crimes. Key words: international court, international crimes, international residual mechanism, jurisdiction, cooperation, International Criminal Tribunal, UN Security Council, International Tribunal, Statute of the International Residual Mechanism.

Genocide Never Sleeps. Living Law at the International Criminal Tribunal for Rwanda

International tribunals come and go. By the 2020s, it became clear that the international community had less appetite for international justice than in the early 1990s. Against the background of the permanent International Criminal Court (ICC), the United Nations’ (UN) International Criminal Tribunal for Rwanda (ICTR) — one of the only ever two fully powered UN tribunals — was a unique past phenomenon. Its unfinished business lives on in the UN’s International Residual Mechanism for Criminal Tribunals (IRMCT). Following the arrest, in mid-2020, of the ICTR’s main fugitive, Felicien Kabuga, its Arusha branch will convene the last major international trial. While awaiting the proceedings, and to get a taste of what the ICTR was about, one ought to read Nigel Eltringham’s latest book, with the eye-catching and distressing title Genocide Never Sleeps. It stems from a lawyer who joked, at 1 O’clock in the night over drinks at the ICTR’s popular hangout Via Via, ‘genocide never sleeps and neither should we’.1 It alludes to both what has become a trope for the mass murder of Rwandan Tutsi – proverbially carried out when ‘God was sleeping in Rwanda’ — and to sleepless nights working on complex and haunting cases. No matter how provocative, unsettling and confusing, this utterance illustrates how some lawyers were ‘living the law’.

Suspicious minds? Empirical analysis of insider witness assessments at the ICTY, ICTR and ICC

The testimonies of insider witnesses are often key to prosecutions of international crimes, despite significant trustworthiness concerns. However, we know little about the practice of judicial assessments of insider testimonies, that is, which factors the judges consider relevant to relying on insider testimony. With this article, we set out to provide a comprehensive, explorative examination of the insider witness assessment factors used by the trial judges at the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court in 1996–2019. By using multiple correspondence analysis, we show that the factors related to insider witness assessment outcomes are generally similar across the tribunals and tend to focus on the contents of the testimonies, with less attention given to credibility or competence concerns. This research constitutes the first systematic quantitative analysis and cross-institutional comparison of insider witness assessment practice at an international level.

Defining the National, Ethnic, Racial and Religious Groups of Genocide in the Practice of International Criminal Courts

The article analyzes the approaches of international courts (the UN International Court of Justice, International Criminal Court, International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda and hybrid Extraordinary Chambers in the Courts of Cambodia) to the criteria for defining genocide groups. The article emphasizes that the definition of belonging to a group is a contextual circumstance (contextual element) of the crime of genocide. In particular, the paper studies how the international courts applied positive/negative and objective/subjective identification strategies to conclude that certain groups constitute those protected by the Genocide Convention or the statutes of the international criminal courts. In addition, the article deals with the problem of the stability and mobility of the groups and the ways these characteristics help the international courts to apply the Convention.The article focuses on a search for algorithms that allow international courts to identify genocide groups. It stresses that the international criminal courts have not demonstrated consistency in their assessment of the definition of the groups. Neither have they showed the synchronized understanding of the approaches (objective/subjective, positive/negative, stable/mobile) to be used for the identification of these groups. Therefore, it is further argued that, due to the variability of approaches and strategies used by international courts to identify genocide groups, belonging to the group is a window of opportunity for a contextual reading of international criminal law.

Sociolinguistic Challenges of Prosecuting Rape as Genocide at the International Criminal Tribunal for Rwanda: the Trial of Jean-Paul Akayesu

The trial of Jean-Paul Akayesu is by far the most well known and widely discussed case at the International Criminal Tribunal for Rwanda (ICTR), a distinction that can be attributed to the fact that it was groundbreaking for several reasons. However, with regard to the importance of this trial both as a precedent for subsequent ICTR cases and within the broader context of international jurisprudence, its most significant contribution has undoubtedly been the recognition and prosecution of rape as a means of perpetrating genocide. The task of collecting admissible evidence to that end was heavily impacted by the necessity of interpreting and translating witness testimonies from their original language of expression, Kinyarwanda, into the working languages of the Tribunal, French and English. The multiple challenges associated with this translation process concerned not only questions of semantic equivalence of specific lexical terms. They also highlighted the considerable ‘cultural collision’ that occurred in the courtroom between the Rwandan witnesses and the international judiciary. This article elucidates the complex task faced by the courtroom interpreters in navigating these linguistic and sociocultural considerations underpinning the evocations of rape within the evidentiary framework of the Akayesu trial.

Genocide Never Sleeps: Living Law at the International Criminal Tribunal for Rwanda by Nigel Eltringham

Reviewed by: Genocide Never Sleeps: Living Law at the International Criminal Tribunal for Rwanda by Nigel Eltringham Franziska Boehme (bio) Nigel Eltringham, Genocide Never Sleeps: Living Law at the International Criminal Tribunal for Rwanda, (Cambridge University Press, 2019), ISBN 9781108485593, 218 pages. When we assess the record and effectiveness of an international court or tribunal, we often use quantifiable metrics such as the number of cases completed, suspects convicted, or witnesses heard. In his book Genocide Never Sleeps, Nigel Eltringham takes a different approach by shining a spotlight on what happens within these institutions, how the people who work there perceive their jobs and their international justice legacy. Enriched with long quotes from interviews and trial observation, Eltringham provides a deep and rich account that singularly adds a more personal dimension to existing studies on the legacy of the International Criminal Tribunal for Rwanda (ICTR). In his quest to get at law's power through the courtroom's mini dramas and to thus relay the "hidden script" that cannot be gleaned from merely reading trial transcripts, Eltringham describes the extratextual language of the court(room) by focusing for instance on body postures, gestures, and performance in Chapter 2 and the tribunal's setting and structure in Chapter 3. Eltringham, a Senior Lecturer in the Department of Anthropology at the University of Sussex, bases his book in social anthropology. His "deep hanging out in the Geneva of Africa" consisted of extensive fieldwork at the seat of the ICTR in Arusha, Tanzania, for eight months between 2005 and 2007, where he observed trials and conducted several dozen interviews with judges, lawyers, and other court officials. In addition, the book features insights from "informal conversations held during the day of coffee, tea and lunch breaks and in the evenings and weekends in bars, at dinner parties and on day trips."1 This deep immersion can be felt in the book's pages when the author recounts snippets from judges' personal lives or lawyers' [End Page 428] exasperation with the trial process. For instance, the author reveals how the ICTR's simultaneous interpretation disrupted the lawyers' and judges' habitual behavior in the court room to use simpler language and get into what one interviewee called "tribunal mode." The book's pages are filled with these experiences at the ICTR, extensively bookended or related to existing theoretical concepts on which the author draws, including theater metaphor/analogy, ritualization, or performance. For instance, he includes research on the problematic features of witness statements depending on which and how questions had been asked and how these statements were the facts based on which judges decided court cases: "Evaluation of statements given by Rwandan witnesses should, therefore, take account of the fact that statements can never be exhaustive and are products of questions asked."2 The strength of Genocide Never Sleeps lies in getting to know the people behind "international criminal justice" which reveals the diversity of experiences and legal perspectives that staff bring to the table. I applaud the author for being true to a multitude of understandings, diligently reporting the contrasting perspectives that he encountered. His account of the ICTR cautions us against homogenizing these institutions, the offices, and personnel within them. The author is especially assertive in his arguments when it comes to the impact of culture in the courtroom. Eltringham warns us of essentializing culture, in contrast to some judges and lawyers who would remark on the way that Rwandans testify and behave at the court: For the author, rather than Rwandan culture, "the four main impediments to witness testimony […] were the effect of interpretation; the fact that witnesses could only respond to the question asked by a lawyers or judge; the impact of protection orders that anonymized witnesses and that many witnesses had given multiple testimony in multiple for a."3 This shows the importance of different ways of "doing justice" and "raises the question of whether lawyers and judges misinterpreted as 'cultural' the witness's resistance to the exceptional way in which stories were elicited in the ICTR courtroom."4 Eltringham's book is essential reading for anyone interested in transitional justice and especially the ICTR. It shows what is often left...

Liberal international criminal law and legal memory: deconstructing the production of witness memories at the International Criminal Tribunal for Rwanda

International criminal tribunals and courts, such as the International Criminal Tribunal for Rwanda (ICTR), are commonly understood within legal transitional justice scholarship as the primary response to mass human rights violations, not only in addressing impunity, but also in uncovering the truth of what happened and why. This conceptually orientated article aims to deconstruct legal witnessing and memory production at the ICTR in order to critique claims in legal scholarship that international criminal institutions are able to produce a collective memory of mass rights violations. Specifically, the article proposes an original conceptual framework using insights from critical theory, Giorgio Agamben (witness) and Paul Ricoeur (memory), which it is argued extends our understanding of the scope, and limitations, of liberal Western criminal institutions� (in)ability to make sense of past atrocities.

Komandna odgovornost

As a part of the presentation in this paper, we will deal with one of a number of specific characteristics arisen while determining the criminal responsibility of perpetrators of international crimes, the one related to the institute of command responsibility, which are familiar with the statutes of both ad hoc tribunals (the Statute of the Tribunal in the Hague of 1993 and the International Criminal Tribunal for Rwanda of 1994), as well as the so - called the Rome Statute from 1998. In these statutes, it is set in such a way that, in one of its parts, it contradicts the basic criminal law institutes (the principle of individual subjective responsibility, the principle of justice). However, in accordance with the assumed international obligations, this institute was introduced to the criminal law system of Republic of Serbia on January 1st 2006, by prescribing, within Article 384 of the Criminal Code of Republic of Serbia, a real criminal offense of omission, which is also the subject of this paper.

South Africa’s Engagement with International Human Rights Law

The commitment to human rights is the cornerstone of the Constitution of the Republic of South Africa, 1996. However, South Africa’s human rights record in the international community often stands in stark contrast to its constitutional commitment to human rights. In both international and regional contexts, South Africa has demonstrated an inconsistent approach to foreign policy that is often guided more by political considerations than by a principled commitment to advancing human rights. This lecture provides an overview of South Africa’s engagement with international human rights law in the constitutional era and evaluates its human rights record in the international arena in a diverse range of fields. These fields include South Africa’s record of human rights protection in peace and security operations on the African continent; its record as a member of the UN Security Council and Human Rights Council; the assessment of its performance by UN human rights treaty bodies; and its record in respect of the Covid-19 pandemic, international criminal justice, the death penalty, and the arms trade. The lecture draws on Judge Pillay’s extensive experience in international law, including as President of the International Criminal Tribunal for Rwanda, Judge at the International Criminal Court in The Hague and former UN High Commissioner for Human Rights.

Compensation to the Acquitted Person in International Criminal Law

INTRODUCTION. The practice of modern international criminal courts and tribunals raises serious questions about the proper enforcement of the rights of the accused. Among these rights, the accused's right to compensation is highlighted. Compensation is given to the accused (regardless of the verdict) for violation of his procedural rights and fundamental human rights and compensation to the acquitted person.MATERIALS AND METHODS. The analysis of ensuring the human right to compensation in the event of an unjust sentence is carried out on the basis of international human rights treaties, treaties on the creation of international courts, including appeal to the travaux preparatoires of the Statute of the International Criminal Court (ICC) and the practice of international criminal courts and tribunals, especially the ICC, as well as the International Tribunal for Rwanda and the International Tribunal for the Former Yugoslavia. The study was conducted using general scientific methods of cognition (in particular, analysis and synthesis), as well as comparative legal, historical legal and formal dogmatic methods. To achieve the corresponding conclusions, various methods of interpretation of the rule of law are used, in particular, grammatical, systematic, teleological, harmonic, etc.RESEARCH RESULTS. In the activities of international criminal courts and tribunals, a violation of the accused’s right to a hearing within a reasonable time is systemic, including due to the absence of any procedural deadlines on the one hand, and the absence of any rules (or their non-application) to restore the rights of the accused and punishment of the party who committed the violation of these rights. This situation poses serious problems of ensuring the rights of specific accused (including justified), but also the development of modern international criminal procedural law and international human rights law.DISCUSSION AND CONCLUSIONS. National legislation and international human rights instruments provide for the right of an acquitted person to compensation. In international criminal courts, this issue, however, is addressed in different ways. The statutes of international criminal courts ad hoc created by the UN Security Council do not mention the right to compensation for an accused or acquitted person. At the same time, the International Criminal Tribunal for Rwanda recognized that the absence of a reference to law in the Statute of the Tribunal does not mean that the persons concerned do not have the corresponding right. At the same time, this recognition did not have practical consequences. The Statute of the International Criminal Court recognizes the right to compensation, however, does so to a limited extent. Thus, in international criminal courts and tribunals, the provision of the human right to compensation (primarily compensation to an acquitted person) is performed at a lower level than that established in international human rights treaties.

The International Criminal Tribunal for Rwanda and Post-Genocide Justice 25 Years On

Abstract 2019 marked the 25th anniversary of the Rwandan genocide and of the establishment of the International Criminal Tribunal for Rwanda (ICTR). After prosecuting 73 people, including high-ranking politicians and military leaders, the Rwanda Tribunal closed its doors in 2015. Together with its sister tribunal, the International Criminal Tribunal for the former Yugoslavia, the ICTR is considered one of the first-generation ad hoc tribunals mandated to bring justice to countries emerging from conflict. This review essay examines four books to take stock of the scholarly debate on the ICTR’s performance. After analysing the Tribunal’s achievements and shortcomings, it explains that scholarly assessments of the ICTR rely on two different analytical lenses – a national and/or international perspective – to make claims about the roles of international criminal tribunals. The essay then discusses the ICTR’s interactions with other post-genocide justice mechanisms in Rwanda and the compatibility of concurrent judicial responses to mass violence. In conclusion, it suggests that evolving interpretations of the ICTR’s performance reflect prevailing ideas about the goals and limitations of international criminal tribunals.

Remembering atrocities: legal archives and the discursive conditions of witnessing

ABSTRACT International criminal tribunals and courts, such as the International Criminal Tribunal for Rwanda (ICTR), are commonly understood within the legal transitional justice scholarship as the primary response to mass human rights violations. Tribunals and courts are expected to address the issue of impunity, but also uncover the truth of what happened and why. The legal scholarship often understands the ICTR as able to produce a collective legal memory of the atrocities through the memories of witnesses. Using the ICTR as a case study, the aim of this conceptually led article is to respond to these discussions by exploring the potential role ICTR archival material can have in extending our understanding of the construction of memory at international criminal courts and tribunals. The article uses insights from discourse studies, specifically based on the work of French philosopher Michel Foucault. It applies these insights to an exploratory analysis of legal documents relating to the selection of witnesses from the ICTR archive and interview transcripts with ICTR personnel from the archive of the University of Washington (UoW). This exploration suggests that the pre-trial stage shape, edit and restrict in significant ways, determining which individuals can be witnesses and what these witnesses can remember.

Archiving (In)justice: Building Archives and Imagining Community

This article explores the role that archives play in the constitution and governance of the international community. First, drawing on post-colonial scholarship, it develops a framework to explicate the link between archive and community, centring on questions of voice, identity and responsibility. It then examines how the archive can be analysed, pointing additionally to the importance of the archive’s materiality. Second, these ideas are explored through a reading of the International Criminal Tribunal for Rwanda’s (ICTR) archive, which helped rebuild the international community in the wake of its failure to prevent the Rwandan genocide. By providing a detailed reading of the ICTR’s records, and drawing on the framework established in the first section, the article shows that the archive constructed a liberal, patriarchal and colonial understanding of the international community.

Constructing Women Perpetrators of International Crimes: A Critical Discourse Analysis

Recognising rape and other sexual and gender-based violence as forms of, rather than being peripheral to, international crimes has been instrumental in bringing to the forefront the impacts of, and motivation for, crimes committed against women, in particular in the context of war. However, the prevailing silence about women who commit crimes has stagnated the recognition of the diverse roles that women play in war, including being directly involved in the commission of (most serious) crimes. This study attempted to challenge some of the dominant positionalities on women in war by conducting a critical discourse analysis of the relevant legal court material relating to the high-profile cases of Biljana Plavsic at the International Criminal Tribunal for the former Yugoslavia (ICTY) and Pauline Nyiramasuhuko at the International Criminal Tribunal for Rwanda (ICTR). Our findings indicate that it is necessary to recognise a multiplicity of personal, social, cultural and situational factors that might influence women’s exercise of agency and women’s propensity to engage in violence, including violence committed against other women. Consequently, law’s gender neutrality is little more than gender blindness if it does not take account of the social, cultural and personal embodiment of gender practices, including in crime.

Judicial Witness Assessments at the ICTY, ICTR and ICC

Abstract Accurate assessment of witness testimonies underpins judicial fact-finding at international criminal courts and tribunals (ICCTs). However, the lack of formal assessment criteria and uncoordinated methods, coupled with advances in the scientific understanding of the psychology of witnessing, calls for a re-examination of the judicial practice. This study critically evaluates the state of the art of witness assessments at the International Criminal Tribunal for Rwanda (ICTR), International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Court (ICC), based on all the trial judgments issued in 1996–2019. The analysis results in a consolidation of this ad hoc, constantly evolving jurisprudence, into a framework that has been in development since the 1990s. The authors reflect upon the scientific validity of the criteria used throughout the analysis, based on up-to-date findings from psychology and criminology, and identify the areas that would most benefit from standardized procedures.

Defining Hate Speech

Abstract This article looks at the international criminal law on hate speech that falls short of direct and public incitement to commit genocide. Using the most egregious form of hate speech that has been prosecuted as an international crime — that of direct and public incitement to genocide — as a baseline, the author analyses the legal parameters of hate speech as persecution (a crime against humanity) and hate speech as instigation (a mode of liability). In so doing, the author critically reviews the International Residual Mechanism for the International Criminal Tribunals’ (IRMCT) appeal judgment in the Šešelj case (Šešelj Appeal Judgment) in the light of prior case law of the International Military Tribunal of Nuremberg (IMT) and the International Criminal Tribunals for Rwanda and the former Yugoslavia (ICTR and ICTY respectively). The author submits that a plain reading of the Šešelj Appeal Judgment supports the view that it is only the more extreme form of incitement to violence, incitement to commit crimes, followed by actual violent acts, that may constitute hate speech amounting to the crime of persecution: incitement to discrimination or incitement to hatred as such do not qualify. Whether ‘incitement to violence’ absent the commission of crimes could qualify as persecution (a crime against humanity) remains an unsettled point. With regard to hate speech as instigation, the Šešelj Appeal Judgment’s restatement and application of the law causes less controversy: the substantial causal connection required for instigation was found to be direct in the circumstances of that case — even though directness is not a legal requirement for instigation. The author concludes that both these interpretations of hate speech are consistent with the earlier ad hoc tribunals’ jurisprudence and, more generally, with international human rights law which, with some controversial exceptions, allows criminalization only of the most extreme forms of incitement to violence.

Review Essay: The International Criminal Tribunal for Rwanda and Post- Genocide Justice 25 Years On

2019 marked the 25th anniversary of the Rwandan genocide and of the establishment of the International Criminal Tribunal for Rwanda (ICTR). After prosecuting 73 people, including high-ranking politicians and military leaders, the Rwanda Tribunal closed its doors in 2015. Together with its sister tribunal, the International Criminal Tribunal for the former Yugoslavia, the ICTR is considered one of the first-generation ad hoc tribunals mandated to bring justice to countries emerging from conflict. This review essay examines four books to take stock of the scholarly debate on the ICTR’s performance. After analyzing the Tribunal’s achievements and shortcomings, it explains that scholarly assessments of the ICTR rely on two different analytical lenses – a national and/or international perspective – to make claims about the roles of international criminal tribunals. The essay then discusses the ICTR’s interactions with other post-genocide justice mechanisms in Rwanda and the compatibility of concurrent judicial responses to mass violence. In conclusion, it suggests that evolving interpretations of the ICTR’s performance reflect prevailing ideas about the goals and limitations of international criminal tribunals.

СПІВВІДНОШЕННЯ ІНДИВІДУАЛЬНОГО ТА КОЛЕКТИВНОГО НАМІРУ ВЗЛОЧИНІ ГЕНОЦИДУ (НА ПРИКЛАДІГОЛОДОМОРУ-ГЕНОЦИДУ ПРОТИ УКРАЇНСЬКОЇ НАЦІЇ)

The article deals with the definition of the concept of intent to commit genocide in the Statute of the International Criminal Court, in the document “Elements of Crimes” adopted by the International Criminal Court, as well as in decisions of the International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda, International Criminal Court and in practice of the International Court of Justice. The author reveals constitutive elements of the concept of intent to commit genocide: intent to be engaged in the conduct which would cause destructive consequences for a national, ethnic, religious or racial group as such; intent to reach these consequences; or awareness that they will occur as a result of this conduct in the ordinary course of events. The author indicates slightly different approaches of the international criminal tribunals and courts to knowledge of the consequences as a result of destruction of a group. It is stated that the intent should not necessarily be fixed in documents or formulated in public oral speeches, but may also be certified by facts and circumstances of a crime. The author analyzes different circumstances which may evidence the intent to commit genocide. Special attention is paid to differentiation between individual and collective intent to commit genocide. The author examines the intent to commit genocide in the Holodomor organized against the Ukrainian national and ethnic group.

Twenty-Five Years of Contemporary International Criminal Justice

There is much to be said for the contention that 2019 marks the twenty-five years period of contemporary practice of international criminal justice. In 1994 the International Criminal Tribunal for the Former Yugoslavia (ICTY), which was established in 1993, became operational and in 1994 the International Criminal Tribunal for Rwanda (ICTR) was set up. The creation of these two UN Tribunals has spurred unprecedented developments in respect of international criminal accountability in legislation and practice, at both the national and international level. Twenty-five years is a significant period of time and a good moment to look back and to look ahead. I will do so through the prism of the overarching and unwithering goal of international criminal justice: to end impunity for the most serious crimes known to mankind, and in doing so seek to ensure an optimal balance between efficiency and fairness. This paper reflects on two major issues and challenges for contemporary international criminal justice: the scope of criminal accountability and the nature and organization of the model of criminal procedure applied by international criminal tribunals.

Judicial Dialogue after the Genocide in Rwanda

Abstract In this study, the author describes the dialogue between the International Criminal Tribunal for Rwanda and the Gacaca courts after one of the bloodiest conflicts in the contemporary history of Africa – the 1994 genocide in Rwanda. The purpose of this work is to show how international and internal cooperation can influence the solving of armed conflicts, especially in the process seeking justice for the civilian casualties. By recalling the historical context, the author emphasizes the importance of the juridical basics, which are established immediately after the armed conflicts. Furthermore, this study also shows how Gacaca courts were a new dimension of judicial proceedings in the Rwandan legal system. It analyzes how these courts were able to contribute to successfully prosecuting war criminals. This subject is not widely discussed in the literature and the size limitations necessarily imposed on an article of this nature do not allow for a detailed exploration of the subject here so it is vital that this subject is studied further.