The International Criminal Tribunal For Rwanda

Daphna Shraga¹ and Ralph Zacklin²

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I. Introduction

Formally in existence since November 1994, the International Tribunal for Rwanda has operated in the shadow of the International Tribunal for the Former Yugoslavia since its inception. Following the first of its indictments in November 1995 and the prospect of trial proceedings in the near future, the Rwanda Tribunal may, at last, emerge as an actor in its own right and confound the sceptics and critics who argue that the international community is incapable of addressing, in a serious and committed manner, the crime of genocide and other egregious violations of international humanitarian law.

There are many reasons why the Rwanda Tribunal has not achieved the same high profile as the Yugoslav Tribunal. This in itself would be a subject worthy of examination but it is not the province of the lawyer or of this article. It is true that, in many respects, the Rwanda Tribunal is a derivative of the Yugoslav Tribunal - indeed it is questionable whether the Rwanda Tribunal would have been established without the Yugoslav precedent - but, as the present article will demonstrate, it has many individual and innovative characteristics which merit an examination and exposition. Not only does the Rwanda Tribunal possess an independent character both formally and in substance, it also differs from the Yugoslav Tribunal in its political setting, that is to say in regard to the nature of the conflict which gave rise to it and in its relationship to the Government most closely concerned. These factors may militate in favour of the Rwanda Tribunal overcoming the political difficulties which have so far hampered the Yugoslav Tribunal.

In the context of the Rwanda genocide of 1994, the international community has an unprecedented opportunity to bring to justice the perpetrators of international crimes. The crimes are well documented and whereabouts of those responsible are known. If the Rwanda Tribunal fails the culture of impunity which has developed and now permeates many parts of the world will remain the legacy of the twentieth century.

The present article examines the legislative history of the Statute of the Rwanda Tribunal and the impact of certain political considerations on some of its provisions. It is in many respects complementary to a previous article published in this Journal on the International Tribunal for the Former Yugoslavia.³ For this reason, and because of the similarities between the Statutes of the Tribunals, it will focus principally on those Statutory provisions which are Rwanda-specific. We shall examine successively the background to the establishment of the Tribunal, its legal basis, its jurisdiction - territorial, temporal and subject-matter - the system of penalties and enforcement of sentences, the financing of the Tribunal, and the determination of its seat. The article will conclude with some reflections on the progress made and the difficulties encountered, the independence of the Tribunal in judicial matters, its dependency on the United Nations in matters of administration and enforcement of orders and requests, and its prospects of success within given political constraints.

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1 Legal Officer, Office of the Legal Counsel, Office of Legal Affairs, United Nations.

2 Director and Deputy to the Under-Secretary-General, Office of the Legal Counsel, Office of Legal Affairs, United Nations.

3 Shraga and Zacklin, `The International Criminal Tribunal for the Former Yugoslavia', 5 EJIL (1994) 360.

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