The International Criminal Tribunal For Rwanda

II. The Establishment of the Rwanda Tribunal

The planned and systematic mass killing of the Tutsi minority group in Rwanda, following the death of the Presidents of Rwanda and Burundi in the air crash of 6 April 1994, was the latest in a long series of massacres perpetrated against the Tutsis since the overthrow of the Tutsi royal family in 1959. Historically, massacres were committed in 1959, 1963, 1966, 1973, and since 1990 almost annually, in 1991, 1992, and 1993.

On previous occasions, the Security Council had limited itself to rhetorical intervention and, most recently, the dispatching of a fact-finding Commission. Over the years, a culture and climate of impunity had been allowed to grow and fester. The consequences of this became horribly and tragically apparent in the months following the April air crash. The scale of the carnage and violence - between 500,000 to one million people are estimated to have perished in a period of less than four months - was unprecedented. The member States of the international community, despite desperate calls for assistance from some of its leaders, proved unable or unwilling to take the necessary measures to halt the genocide.

Although evidence that genocide had been committed in Rwanda was abundant,⁴ the Security Council, nevertheless decided to follow the step-by-step approach it had adopted in the establishment of the Yugoslav Tribunal, and requested the Secretary-General to establish a Commission of Experts to provide him with evidence of serious violations of international humanitarian law and acts of genocide committed in Rwanda.⁵

The Commission of Experts established by the Secretary-General confirmed in its Final Report the existence of overwhelming evidence that acts of genocide, within the meaning of Article II of the Genocide Convention, had been committed against the Tutsi ethnic group by Hutu elements in a concerted, planned, systematic and methodical way. It also concluded that although crimes against humanity and other serious violations of international humanitarian law had been committed by individuals on both sides of the conflict, there was no evidence to suggest that acts committed by Tutsi were perpetrated with an intention to destroy the Hutu ethnic group, as such, and therefore were not within the meaning of the Genocide Convention.⁶

The establishment of an international tribunal had almost certainly been the intention of the Security Council from the very beginning. Both the Special Rapporteur of the Commission on Human Rights,⁷ and the Commission of Experts in its interim report submitted to the Council on 1 October 1994⁸ had recommended the establishment of a tribunal. But more important was the position of the Government of Rwanda which already in August 1994 had urged the Secretary-General to establish an international tribunal along the lines developed for the former Yugoslavia. The Government of Rwanda expressed the hope that the trial of perpetrators of genocide and other grave violations of international humanitarian law by an external, impartial body in the short term would contribute to peace and reconciliation among the parties to the conflict. It was also its expectation, however unrealistic, that the International Tribunal would undertake the investigation and prosecution of most, if not all, the detainees held in Rwandan prisons.⁹ The realization that an international tribunal is not equipped to undertake a prosecution of thousands of detainees was probably one of the reasons for which the Government of Rwanda eventually withdrew its support for the International Tribunal.

Eighteen months after the adoption of Security Council resolution 827 (1993) which established the International Tribunal for the Former Yugoslavia, the Council adopted resolution 955 (1994) by which it decided to establish an international tribunal for the purpose of prosecuting 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.

The Statute of the International Tribunal for Rwanda was annexed to resolution 955 (1994) adopted under Chapter VII of the United Nations Charter. It was drafted and negotiated by Members of the Security Council, drawing heavily upon the Statute of the Yugoslav Tribunal. The fact that the resolution and its annexed Statute were negotiated among Members of the Council, in which Rwanda as a non-permanent Member actively participated, explains many of the legal and political choices made, regarding, in particular, the temporal jurisdiction of the Tribunal, the number of judges and Trial Chambers, enforcement of sentences, pardon and commutation and the establishment of an Office, although not the seat, of the International Tribunal in Kigali. Resolution 955 (1994), was thus in many respects a `Chapter-VII-negotiated resolution'.

Notwithstanding its initial request that an international tribunal for Rwanda be established and its active participation in the drafting of the resolution establishing the Tribunal, at the time of its adoption Rwanda voted against the resolution. What prompted its negative vote, quite apart from the arguments formally advanced,¹⁰ was the realization that the International Tribunal, as it finally emerged, was not responsive to the wishes of the Government, in particular that capital punishment be imposed on the former leaders and principal planners of the crime of genocide. At the same time, the Government of Rwanda continued to express its support and willingness to cooperate with the Tribunal, which, as a Chapter VII based Tribunal, was the only body endowed with the power to compel States to surrender former leaders who had sought refuge in their territories.

4 In his report on the situation in Rwanda of 31 May 1994, the Secretary-General observed that: `The magnitude of the human calamity that has engulfed Rwanda might be unimaginable but for its having transpired. On the basis of the evidence that has emerged, there can be little doubt that it constitutes genocide, since there have been large-scale killings of communities and families belonging to a particular ethnic group. ` (Report of the Secretary-General on the situation in Rwanda, UNSC, UN Doc. S/1994/640 (1994) para. 36.) Similarly, in resolution 925 (1994) of 8 June 1994, the Council noted with the gravest concern the reports on acts of genocide that have occurred in Rwanda, and recalled that genocide constituted a crime punishable under international law (SC Res. 925, 8 June 1994, UN Doc. S/RES/925 (1994)).

5 SC Res. 935, 1 July 1994, UN Doc. S/RES/935 (1994). The mandate of the Commission was further elaborated by the Secretary-General to include the drawing of conclusions on the evidence of specific violations of international humanitarian law and in particular acts of genocide, on the basis of which identification of persons responsible for these violations could be made, and to examine the question of jurisdiction, whether international or national, before which such persons could be brought to trial (Report of the Secretary-General on the establishment of the Commission of Experts pursuant to paragraph 1 of Security Council resolution 935 (1994), UNSC, UN Doc. S/1994/879 (1994) para. 10).

6 Final Report of the Commission of Experts established pursuant to Security Council resolution 935 (1994), UNSC, UN Doc. S/1994/1405 (1994), Annex (hereinafter: `Final Report').

7 Report on the situation of human rights in Rwanda prepared by the Special Rapporteur of the Commission on Human Rights in accordance with Commission resolution S-3/1 and Economic and Social Council decision 1994/223, UNSC, UN Doc. A/49/508-S/1994/1157 (1994), Annex I, para. 75.

8 Preliminary Report of the Independent Commission of Experts established in accordance with Security Council resolution 935 (1994), UNSC, UN Doc. S/1994/1125 (1994) Annex.

9 Letter of 6 August 1994 addressed to the Secretary-General from the Minister of Justice of Rwanda, Mr. Nkubito (unpublished). See also Letter from the Permanent Representative of Rwanda to the President of the Security Council, 28 September 1994, UNSC, UN Doc. S/1994/1115 (1994).

10 See Statement of the Permanent Representative of Rwanda following the voting, UNSC, Provisional Verbatim Record, 3453 mtg. UN Doc. S/PV.3453 (1994) (hereinafter: `Verbatim Record').

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