A Study Of The International Criminal Tribunal For Rwanda

The United Nations Security Council decided to create the International Criminal Court for Rwanda (ICTR) by resolution 955 (1994) passed at its 3453rd session on 8 November 1994, which is the second international criminal tribunal after the former International Criminal Tribunal for Yugoslavia (ICTY) created by the Security Council in 1993. Despite 13 years'operation since its establishment, the Chinese people know little about ICTR and they pay less concern to it than to International Criminal Court (ICC) after and ICTY before its creation. This thesis discusses the reasons to establish ICTR, its jurisdiction, procedure and its status in international criminal law.There are six parts in the thesis besides the Introduction and Concluding Remarks.Part One explores the background and legal basis of ICTR. The prerequisite, necessity and legality to create ICTR are analyzed through historical survey, and it is submitted that the disregard of history by ICTR is inconducive to the maintenance of peace and stability in Rwanda. ICTR is legally established in accordance with the resolution of the Security Council and Chapter VII of United Nations Charter by which the relevant provisions of Chapter VII of United Nations Charter are creatively interpreted, which complies with the principle of United Nations Charter and contributes to world's peace and equity.Part Two analyzes the structure of ICTR. The Tribunal consists of three organs, namely, the Office of Prosecution, the Chambers and the Registry. Later some internal units such as Coordinating Council and Administration Committee were set up for efficiency after reform. The qualifications and functions of the prosecutors and judges are emphatically discussed, the prosecutors are accorded with great and active power to investigate by the ICTR on one hand to find out the facts as soon as possible to fight against international crimes, on the other hand, ICTR endows the suspects with such rights as the right to silence in order that their legal rights and interests are guaranteed, the Tribunal attempts to draw the investigatory advantages from the common and civil legal systems, which is a beneficial experiment to build an ideal international criminal investigation system. As to the impartiality of the judges, it does not mean that the tribunal should be isolated from the outside world. Impartiality is only required in the judicial function, it will not affect the administrative services, and also, it will not be affected by the measures that the Security Council adopted later to accelerate the trial, instead the measures are to help ICTR realize its aim.The jurisdiction of ICTR is examined in Part Three by comparing it with those of Nuremberg Tribunal, Tokyo Tribunal, ICTY and ICC. The differences between the jurisdictions of ICTR and other tribunals as well as the reasons for them are discussed, and the primacy jurisdiction of ICTR and the jurisdictions of other national courts are especially analyzed. Part Three probes the origin and development of international sovereignty, examines the attitude of Rwanda government towards the establishment of ICTR and finally concludes that the jurisdiction of ICTR is the result of the transfer of Rwandan sovereignty.Part Four mainly deals with the three crimes over which ICTR has competence, namely, crimes of genocide, crimes against humanity and war crimes, and analyzes the forms of them. The definition of crimes of genocide is basically the same as that in the Convention on the Prevention and Punishment of Crimes of Genocide adopted by the General Assembly of the United Nations in December 1948, though it has some development in the judicial practice. The crimes against humanity in ICTR refers to those committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds such as murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecutions on political, racial and religious grounds; and other inhumane acts. This definition is very peculiar, different from those adopted in Nuremberg Tribunal, ICTY and ICC.Part Five comments on the procedure of ICTR to make further discussion of its nature, status and role. ICTR adopts the mixed procedure mode, combining primarily the Anglo-American adversary elements with the inquisitorial elements of civil legal system, in order to make balance between the punishment of crimes and the guarantee of human rights.Part Six summarizes its contribution to the development of international criminal law , which are manifested as the following: (1) ICTR is the first international tribunal for the trial of non-international armed conflict in history; (2) ICTR makes contribution in the area of the subjects of international law and the development of international humanitarian law by confirming the international criminal responsibility of individuals and the application of international humanitarian law in peaceful period; (3) ICTR extends the jurisdiction of international criminal justice body, especially it recognizes the universal jurisdiction by its legislation for the first time; (4) ICTR further enriches and develops the contents of crimes of genocide, crimes against humanity and war crimes; (5) The establishment and operation of ICTR enhance the development of international law in Africa and facilitate the creation of permanent international criminal court to some degree; (6) ICTR makes a beneficial experiment for the establishment of the mixed international criminal procedure by its combination of the procedural elements from common law system with those from civil law system.