Between April and July 1994, in 100 days, at an average rate of 10,000 souls per day, almost one million minority defenceless civilian Tutsi men women and children were systematically butchered by the Hutu majority throughout Rwanda, mostly with machetes, knives, spears, and cudgels, sometimes with grenades and firearms, sometimes by the army and police, but mostly by fearsome civilian militias often called the Interahamwe. There is evidence very many of the several hundred thousand women were raped before being murdered. The pretext for the carnage was the assassination of the Hutu President Juvenal Habyrimana on 6 April 1994, against a background of ethnic troubles over generations, smoldering particularly after the advent of independence from Belgium in 1959.
The creation of the ICTR
Shocked that there had been such revolting human rights violations, in the late 20th Century no less, and acting under Ch VII of the United Nations Charter, the United Nations Security Council created the International Criminal Tribunal for Rwanda (“ICTR”) by resolution 955 of 8 November 1994. Its mandate is specifically to prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda between 1 January 1994 and 31 December 1994. The ICTR is governed by its Statute annexed to resolution 955. The Rules of Procedure and Evidence, which the judges adopted in accordance with art 14 of the Statute, and regularly update, established the necessary framework for the functioning of the trial process (see further “The structure of the ICTR” – tinted box on p 36).
The tribunal’s work
The tribunal convened the appearance of its first defendant in May 1996, and is due to close sometime between in 2009–2010, with appeals continuing until perhaps 2012. More than a billion dollars has been spent since its inception. Recently, for 2008–2009, the UN General Assembly approved the ICTR biennial budget of $267m and authorised 1,032 posts, in which 86 nationalities are represented in Arusha, The Hague, in Kigali in Rwanda, and in the UN HQ in New York.
So far, since 1998 there have been 34 judgments concerning 43 accused. Eight judgments are imminent concerning 19 defendants. Six cases concerning six defendants are due to start this year. Five cases concerning five defendants are the subject of applications to be tried domestically in Rwanda, so far refused for fear there may not be a fair trial there. There are 13 fugitives. The defendants are mostly senior political leaders, senior civic administrators, and senior army officers. The former Prime Minister Jean Kambanda pleaded guilty on 4 September 1998 and is the first conviction in history for genocide of a head of government. On 18 December 2008, the alleged mastermind of the slaughter Colonel Theoneste Bagosora was convicted after a long trial with proceedings beginning in 1997. Both have received life sentences.
After some months at the International Criminal Tribunal for the former Yugoslavia (“ICTY”), I arrived as a trial prosecutor at the ICTR in March 2005, where I have helped prepare and present four cases: one concerning a singer named Bikindi whose songs were said to incite the killing of the Tutsi (convicted, December 2008); a second concerning the Minister of Education, Rwamakuba, being allegedly personally involved in killings (acquitted, September 2006); the third, Zigiranyirazo, being the brother-in-law of the late President, alleged to have directly encouraged specific slaughters (convicted, December 2008); and the fourth being a long ongoing case since 2003, Karemera, Ngirumpatse and Nzirorera, concerning the three principal leaders of the MRND party said to be responsible for creating and unleashing the murderous Interahamwe.
International criminal courts trying war crimes and crimes against humanity are growing. Aside from the ICTR, ICTY, and the Special Court of Sierra Leone (“SCSL”), there are courts in Iraq, Cambodia, East Timor, Kosovo, and Bosnia. In The Hague, there are additionally the International Criminal Court (“ICC”) presently dealing largely with crimes in Africa, and the Special Tribunal for Lebanon (“STL”) which will prosecute the carbomb assassins in February 2005 of the former Lebanese prime Minister Rafik Hariri.
Presenting the evidence
Challenges of international practice begin with the style of advocacy. In the UK, and throughout the US and the present and former Commonwealth, the court embraces the adversarial style which is well-known to readers.
On the continent of Europe, and throughout the former latin and francophone colonies, and former and present communist countries, the courts tend to a more inquisitorial mode. While there is prosecution and defence, the proceedings of law and evidence are completely controlled by the judge. He or she decides from a dossier of all information gathered on a case what evidence to hear live, and mostly controls what will be put to witnesses, often asking the vast majority of questions. Cross-examination is not allowed, as it is thought it might erroneously place suggestions in the mind of the witness. Essentially, the judge finds the facts, and is active in inquiring into the truth of a matter, asking himself whether a suspect who appears to be guilty is in fact beyond reasonable doubt guilty.
In international criminal courts, judges and lawyers are drawn from around the world from both systems. This daily creates very different perspectives on how best to proceed in trial.
The international system is essentially adversarial, with the prosecution and defence deciding what evidence shall be called. Cross-examination is allowed. However, the court is presided over by a bench of three judges who also find the facts.
To date, I have appeared before judges from St Kitts in the Caribbean, Burkina Faso, Denmark, Ghana, Argentina, Pakistan, Norway, Sweden, the Czech Republic, Cameroon and Kenya. Prosecution advocates with whom I have worked have been from the US, Nigeria, Jamaica, The Netherlands, Canada, South Africa, Botswana, Cameroon, Tanzania, Rwanda, India, Thailand, Uganda, The Gambia, New Zealand and Australia. Defence advocates have been from the US, Senegal, France, Cameroon, Canada, England, South Africa, Kenya and Germany.
There are further challenges created by the volume of material to sift, often running in the aftermath of wars to several million pages of documents, what then to disclose, and how to ask questions clearly and control witnesses where there is simultaneous translation into three languages (local, French and English). Almost all legal arguments are written rather than oral with careful footnoting and cross-referencing to the jurisprudence of the many courts which now runs to thousands of decisions. Days can be long with witness work in court by day, where the court will often sit for seven hours, followed in the evening with preparing written submissions.
Money well spent?
It’s quite a mix of work, and it is enormously interesting. Above all, there is the satisfaction of contributing to an end to impunity and in time it is hoped to improving the future for millions.
Some may ask if so much money is worth spending and the answer surely is that running all the international tribunals annually costs less than one per cent of armed conflict worldwide which they simultaneously help to reduce.
Presently I am the Senior Trial Counsel at the Special Tribunal for Lebanon in The Hague, with responsibility for prosecuting those responsible in February 2005 for the assassination of former Lebanese Prime Minister Rafik Hariri. Working with the tribunals is possibly the most important job I will ever do.
Iain Morley QC of 23 Essex Street, London, is the author of the advocacy manual The Devil’s Advocate