| The Trials of
Concurrent Jurisdiction: The Case of Rwanda
By Madeline H. Morris*
During three months in 1994, genocide was committed in the central African republic of Rwanda. Two and a half years after those events, and notwithstanding efforts at both national and international levels to bring the perpetrators to justice, the first trials both in the Rwandan courts and before the International Criminal Tribunal for Rwanda (ICTR) were begun only weeks ago. This Article, after briefly describing the context of the Rwandan genocide, examines the approaches to justice that have been employed in Rwanda and considers the obstacles to justice that have been confronted despite–or in some instances, because of–the approaches taken.
The Article scrutinizes the mandate of the ICTR, the terms of the recently enacted Rwandan legislation on the handling of genocide-related cases and, particularly, the interaction of national and international jurisdictions in the Rwandan context. Extrapolating from the Rwandan case, the Article points to areas of difficulty and potential friction–particularly, but not only, including the distribution of defendants–that are likely to arise in regimes of concurrent national and international jurisdiction. In addressing the best approaches to those areas of potential difficulty, the Article argues that the most appropriate approach will depend upon the particular purposes of the international tribunal in question. The Article identifies a range of quite different needs that an international tribunal may fulfill in different circumstances, and concludes that greater clarity in identifying the specific purposes of convening an international tribunal in each particular instance is an essential prerequisite to improving the efficacy of future efforts at prosecutions for genocide and crimes against humanity in both national and international fora.
II. The Context of Genocide
In the weeks from April 6 to July 17, 1994, between half a million and a million Rwandans were butchered by their neighbors.1 The murdered included men, women, and children. The killings, accomplished largely through hacking to death with machetes and other rudimentary instruments,2were accompanied by acts of torture and rape.3
The great majority of the killers were members of the Hutu ethnic group, which constituted approximately eighty-five percent of the population.4 The majority of the victims were Tutsi, the group that constituted approximately fourteen percent of Rwanda’s population.5 Hutu moderates, those identified as favoring the sharing of political power, were slaughtered as well.6
Substantial evidence indicates that the mass killings were preplanned and orchestrated by high officials of the then-government of Rwanda in a desperate attempt to avoid a broadened sharing of power.7 During the Rwandan colonial period, the Belgians governed the Rwandan populace through a privileged class of Tutsis.8 Shortly before Rwanda gained independence from Belgium in 1959, persecution of Tutsi, including widespread massacres, began and, for the next several years, drove many Tutsi from their homes.9 A large proportion of the Tutsi population fled Rwanda during this period, resettling as refugees in surrounding countries.10 In the following decades, the government of Rwanda prevented their return. Thirty years later, on October 1, 1990, a rebel group–the “Rwandan Patriotic Front” (RPF)–comprised largely of Tutsi refugees in Uganda, began a military campaign, invading Rwanda from Uganda.11 Intermittent fighting and halting political negotiations ensued for nearly three years until, on August 4, 1993, the Arusha Peace Accords were signed by the Government of Rwanda and the RPF.12 The Accords provided for political power-sharing in Rwanda and for the repatriation of refugees.13
Regime hardliners, displeased with this turn of events, took steps to obstruct implementation of the Arusha Accords.14 Then, on April 6, 1994, the airplane carrying Rwandan President Juvenal Habyarimana and President Ntaryamira of neighboring Burundi was shot out of the sky as the presidents returned from a meeting in Tanzania.15 Theories abound on who downed the plane, but no dispositive proof of responsibility has been established.
Within hours of the plane crash, the killings in Rwanda began. Roadblocks were thrown up to prevent escape. Leaders viewed as moderate or “pro-Tutsi” were singled out to be killed first, and then the campaign of exterminating all Tutsi began. The events unfolded in what seems clearly to have been a preplanned and organized manner.16
The killings continued, day and night, for the next fifteen weeks. The international community did virtually nothing to intervene. Indeed, the U.N. Assistance Mission in Rwanda (UNAMIR), which on April 6 had 2,500 troops in Rwanda to oversee implementation of the Arusha Accords,17 within weeks pulled out all but a token force of 450, and gave the remaining troops no mandate to intervene in the killing of civilians.18
The Rwandan Patriotic Army (RPA) (the army of the RPF) on April 7 began a final offensive to overtake the country militarily.19 As the RPA forces progressed through the country in the following three months, RPA soldiers incarcerated those whom they identified as perpetrators of the ongoing genocide. Upon entering a village, the RPF forces often found that much of the Tutsi population had been massacred. Soldiers, untrained in law or police work, simply identified those who appeared to them to be the “genocidaires,” incarcerated them in a local facility, and moved on with the military operation. There was no systematic collection of evidence; most prisoners were not formally charged; and, for many, no file at all was prepared.20
On July 17, over three months after the killings had begun, the RPF achieved military victory, and formed the core of what would become the new government of Rwanda.21 By that time, the Rwandan prisons, designed to hold a maximum of 15,000 prisoners, held far more than that number.22