Competence of the ICTR
Pursuant to Resolution 955, the ICTR has the power 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 1st January 1994 and 31st December 1994.
According to its Statute, the Tribunal is competent to judge: - crimes committed between 1st January and 31st December 1994 (Art.7 ICTR Statute) (Temporal Jurisdiction)
- crimes committed in the territory of Rwanda and neighbouring States in cases of serious violations of international humanitarian law committed by Rwandan citizens (Art. 7 ICTR Statute) (Territorial Jurisdiction)
- genocide (Art. 2 ICTR Statute), crimes against humanity (Art.3 ICTR Statute), violations of Article 3 common to the Geneva Conventions of 12 August 1949 and of Additional Protocol thereto of 8 June 1977 (Protection of civilians in war time and violations of laws and customs of war) (Art 4 ICTR Statute) (Material Jurisdiction)
- natural persons (Art.5 ICTR Statute) (Personal Jurisdiction)
The ICTR does not have the exclusive competency to try and sentence persons responsible for violations of international humanitarian law committed in the territory of Rwanda. It exercises its competency concurrently with the national courts. (Art. 8 ICTR Statute) However the ICTR has primacy over these courts and may formally request national courts, in the interest of justice, to defer to its competence an investigation or any given case at any stage of the procedure. Alternatively national courts can sit in judgement on crimes which come under the competence of the ICTR, with the latter retaining a right of pre-emption on all of these cases, even after a national judgement is rendered.
Article 6 of the ICTR Statute provides that the perpetrators of the crimes committed in the territory of Rwanda are individually responsible for these crimes. In addition, it specifies that the official position of the accused person, whether it be as Head of State or Government or as a responsible government official, does not relieve such person of criminal responsibility. Finally it considers hierarchical responsibility. Someone who is hierarchically superior, even if he or she does not take an active part in the violation, shall not be relieved of criminal responsibility if necessary measures are not taken to prevent such violations or punish the perpetrators.
Organisation of the ICTR
The ICTR is composed of three organs: - The Chambers, comprising three Trial Chambers and an Appeals Chamber
- The Prosecutor
- The Registry.
The Prosecutor
The Prosecutor is responsible for the investigation and prosecution of persons indicted. He acts completely independently from the Security Council, States, International Organisations and the other two organs of the ICTR. The Prosecutor is appointed by the Security Council on nomination by the Secretary-General. He serves for a four year renewable term.
According to Article 15 of the ICTR Statute, “The Prosecutor shall be responsible for the investigation and prosecution of persons responsible for 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”.
Before 2003, the Prosecutor of the ICTY also served as Prosecutor of the ICTR. However, with Resolution 1503 of the Security Council dated 28 August 2003, the two positions were separated and made independent. Hassan Bubacar Jallow (Gambia) has been the Prosecutor of the ICTR since 15 September 2003.His Deputy Prosecutor is Mr. Bongani Majola (Republic of South Africa). Beforehand, Carla Del Ponte (Switzerland) was appointed Prosecutor of the ICTR on 11 August 1999. She took up her functions on 15 September 1999 as Prosecutor of both the ICTY and the ICTR. Prior to this the South African, Richard Goldstone and the Canadian, Louise Arbor held this position.
The Chambers
The Chambers are composed of sixteen permanent independent judges and a maximum at any one time of nine independent ad litem judges appointed for the duration of one or more specified trials. No two of these judges may be nationals of the same State. They are elected by the United Nations General Assembly from a list submitted by the Security Council. They are previously selected from a list of candidates nominated by United Nations Member States. Nominations should take into account an equitable representation of the world’s principal legal systems. The judges are elected for a four year term. Contrary to the permanent judges, ad litem judges are not eligible for re-election.(Art. 12 bis and 12 ter ICTR Statute).
The judges are apportioned to three Trial Chambers and an Appeals Chamber. Three permanent judges and a maximum of six ad litem judges are assigned to each Trial Chamber which may be divided up into three sections. Seven of the permanent judges are members of the Appeals Chamber (which also serves as the Appeals Chamber for the ICTY) Each appeal is heard by five judges. This Chamber considers appeals lodged by the defendants or the Prosecutor, related to errors in the legal process or factual errors leading to a miscarriage of justice. It can uphold, revoke or modify decisions by the Trial Chambers.
The fact that the permanent and ad litem judges are from different States, guarantees representation of the main judiciary systems in the Chambers whilst at the same time, ensuring wide ranging professional experience. Since the ICTR was created on the basis of an accusatory system, the role of the judges is not to lead the trial (as in the continental European model), but rather to reach a conclusion concerning the guilt of the defendant and the appropriate sentence, after open public hearings (with some exceptions) of the evidence and arguments from both parties. There are therefore no examining magistrates. In addition, the judges are invested with the power to prepare and adopt the legal documents necessary for the proper functioning of the Tribunal such as the Rules of Procedure and Evidence which are in effect similar to a Code of Criminal Law Procedures.
Finally, the permanent judges of each Trial Chamber shall elect a Presiding Judge from amongst their number. On 21 May 2007, Judge Charles Michael Dennis Byron (Saint Kitts and Nevis) was elected President of the ICTR, replacing Judge Erik Mose (Norway) who had held this position since 2003.
The Registry
The Registry provides legal and judiciary services to the other organs of the Tribunal. The Registry has responsibility for the administration and day to day organisation of the Tribunal. More than 700 people, representing around 85 different nationalities are employed by the Registry in Arusha and Kigali. M. Adema Dieng (Senegal), was appointed Registrar by the UN Secretary General on 1 March 2001 and still retains this position.
Defence Counsels
Defendants are free to choose their Defence Counsel but if they do not have sufficient means to do so the Tribunal is obliged to provide them with legal assistance. In the latter is case the accused must choose a lawyer from a list of counsellors from throughout the world who have expressed willingness to work with the ICTR. These officially assigned Counsels for the Defence are paid by the Tribunal unless the Defendant has the means to do so. Nevertheless, it should be noted that these Defence Counsels are not part of the official Tribunal Organisation, being auxiliary officers of the court. They have less power before the international criminal courts than before national courts. Indeed, the fact that the Prosecutor has significant power both in initiating proceedings and in modifying the basis of the proceedings is somewhat of a handicap to the Defence.
|
