International Criminal Tribunal for Rwanda

The United Nations (UN) Security Council created the International Criminal Tribunal for Rwanda (ICTR) in November 1994 to investigate and, when an apparent case exists, prosecute a select number of political, military, and civic officials for their involvement in the Rwandan genocide that took place from April to July 1994. An estimated 500,000 Rwandans, overwhelmingly Tutsi, were killed during this period.

The ICTR plays an important, albeit not exclusive, role in promoting accountability for perpetrators of genocide. The Rwandan government, for its part, has incapacitated more than 80,000 suspects and provisionally released another 30,000. It intends to prosecute these individuals through national trials or traditional dispute resolution (gacaca). Approximately 6,500 people have thus far been convicted of genociderelated offenses in Rwandan national courts. A handful of perpetrators have been prosecuted in foreign countries, such as Belgium and Switzerland.

The ICTR is a temporary, or ad hoc, institution that will close down once it completes its work. The initial thinking was that the ICTR would complete its investigative and trial work by 2008, to be followed by the resolution of outstanding appeals. It is unclear whether 2008 remains a realistic end-point.

ICTR judgments clarify important aspects of international law regarding genocide and crimes against humanity. In this regard, they establish a strong foundation for the permanent International Criminal Court (ICC), which came into effect in 2002. ICTR experiences have informed and inspired other ad hoc tribunals to involve the international community in the prosecution of systemic human rights abuses, such as the Special Court for Sierra Leone, the hybrid international/national tribunals in East Timor and extraordinary chambers contemplated for Cambodia. Moreover, the ICTR has helped authenticate a historical record of the violence in Rwanda, has decreed that the violence constituted genocide, has educated the international community, and has offered some vindication for victims. That said, the ICTR also has been subject to criticism for its distance—both physically and psychologically—from Rwanda, the length of its proceedings, the small number of accused in its docket, the mistreatment of witnesses in sexual assault cases, and allegations of financial irregularities involving defense counsel and investigators.

Creation of the ICTR

The Security Council, acting under Chapter VII of the UN Charter, created the ICTR by virtue of Resolution 955, adopted on November 8, 1994. Ironically, the only member of the Security Council not to support Resolution 955 was Rwanda, although Rwanda had previously requested that the international community establish a tribunal. Rwanda objected to the limited temporal jurisdiction of the ICTR and the fact the ICTR could not issue the death penalty. On February 22, 1995, the Security Council resolved that the ICTR would be based in Arusha, a city in northern Tanzania. This, too, was of concern to the Rwandan government, as it wished the tribunal to be sited in Rwanda itself.

In Resolution 955 the Security Council recognized reports that "genocide and other systematic, widespread, and flagrant violations of international humanitarian law have been committed in Rwanda." The Security Council determined that this situation rose to the level of a threat to international peace and security. It also affirmed its intention to put an end to these violations and "to take effective measures to bring to justice the persons who are responsible for them."

The ICTR is governed by its statute, which is annexed to Resolution 955. Details regarding the process of ICTR trials and appeals are set out in the ICTR Rules of Procedure and Evidence. These rules were adopted separately by the ICTR judges and have been amended several times since their inception.

Goals

In creating the ICTR, the Security Council affirmed its conviction that the prosecution of persons responsible for serious violations of international humanitarian law in Rwanda would promote a number of goals. The Security Council identified these as: (1) bringing to justice those responsible for genocide in Rwanda; (2) contributing to the process of national reconciliation; (3) restoring and maintaining peace in Rwanda and the Great Lakes region of Africa generally; and (4) halting future violations and effectively redressing those violations that have been committed. On a broader level, the Security Council also intended to signal that the international community would not tolerate crimes of genocide—architects of such violence would incur responsibility instead of benefiting from impunity.

In order for the ICTR to fulfill its mandate, the Security Council exhorted that it should receive the assistance of all states. Article 28 of the statute requires states to cooperate with the ICTR in its investigations and prosecutions if a request for assistance or order is issued. Many suspects indicted by the ICTR have been arrested in a variety of African and European countries and been transferred to the ICTR, demonstrating the respect and support foreign national governments exhibit toward the ICTR.

Jurisdiction

Article 1 of the statute provides that the ICTR has the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda between January 1, 1994, and December 31, 1994, as well as Rwandan citizens responsible for violations committed in the territory of neighboring states. The jurisdiction of the ICTR is thus circumscribed by territory, citizenship, and time.

The ICTR prosecutes three categories of crimes: genocide (Article 2), crimes against humanity (Article 3), and war crimes (Article 4). The ICTR has issued convictions for each of these crimes.

Article 2 defines genocide in standard fashion: as one of a number of acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. According to Article 2(2), the enumerated acts are: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; and (e) forcibly transferring children of the group to another group. The ICTR has jurisdiction to prosecute genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide (Article 2[3]).

Article 3 defines crimes against humanity as certain crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial, or religious grounds. Specified crimes include murder; extermination; enslavement; deportation; imprisonment; torture; rape; and political, racial, or religious persecution.

The ICTR has jurisdiction only over individuals (Article 5). Persons incur criminal responsibility if they planned, instigated, ordered, committed, or otherwise aided and abetted in the planning, preparation, or execution of a crime (Article 6[1]). The statute eliminates official immunity, stipulating that the position of any accused person (even a head of state) does not relieve that person of criminal prosecution or mitigate punishment (Article 6[2]). One of the first convictions issued by the ICTR involved Jean Kambanda, the prime minister of Rwanda at the time of the genocide. The fact that the crime was committed "by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof" (Article 6[3]). If a crime was carried out by a subordinate in the chain of command because that subordinate was so ordered, the subordinate is not relieved of individual criminal responsibility, although that fact can be considered in mitigation of punishment.

The ICTR shares concurrent jurisdiction with national courts (Article 8[1]). However, the ICTR can exert primacy over the national courts of all states, including those of Rwanda (Article 8[2]), at any stage of the procedure. The primacy of the ICTR also is buttressed by the overall effect of Article 9 of the statute. This provides, on the one hand, that no person shall be tried before a national court for acts for which he or she has already been tried by the ICTR, but, on the other hand, a person who has been tried before a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the ICTR if one of two conditions applies. These are: (a) the act for which he was tried was characterized as an ordinary crime; or (b) the national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or were not diligently prosecuted.

Structure

The ICTR is composed of three units: Judicial Chambers, the Prosecutor's Office, and the Registry. The ICTR has three Trial Chambers and one Appeals Chamber (Article 10). The Trial Chambers handle the actual trials of the accused and pretrial procedural matters. The Appeals Chamber hears appeals from decisions of the Trial Chambers. Appeals may involve judgments (guilt or innocence) or sentence (the punishment imposed on a convicted person). The Office of the Prosecutor is in charge of investigations and prosecutions. The Registry is responsible for providing overall judicial and administrative support to the chambers and the prosecutor.

The structure of the ICTR is intertwined with that of the International Criminal Tribunal for the Former Yugoslavia (ICTY), which was created in 1993 and to some extent served as a precedent for the ICTR. Although both tribunals operate separate Trial Chambers (the ICTY in The Hague [Netherlands], the ICTR in Arusha), they share common judges in their Appeals Chambers (located in The Hague, although these judges sometimes sit in Arusha as well). Until September 2003 the two tribunals also shared a single chief prosecutor, Carla Del Ponte of Switzerland. That changed when the UN Security Council appointed Hassan Jallow from Gambia as ICTR Chief Prosecutor, with Del Ponte remaining as ICTY Chief Prosecutor.

[PAULINE NYIRAMASUHUKO]

Pauline Nyiramasuhuko (b. 1946) had sometimes been known as a success story and a favorite daughter of Butare. She was a social worker who very quickly became the Minister for Family and Women's Affairs and a powerful member of the Habyarimana government in Kigali. At the start of the genocide, in April 1994, she returned to her hometown to organize and direct the local Interahamwe (right-wing Hutu citizen militias). Night and day for three months, she commanded the anti-Tutsi marauders to commit (among other crimes) the rape and torture of Tutsi women. In July 1994 she fled Rwanda. She lived as a fugitive in Kenya for three years until her arrest in Nairobi by international authorities on July 18, 1997. In recent years she has lived at the UN Detention Facility in Arusha. She and her son are being tried, with four other Hutu leaders from Butare, by the ICTR. All are accused of genocide, crimes against humanity, and war crimes. Nyiramasuhuko's trial began in June 2001 and is expected to continue through the beginning of 2005. PATTI BRECHT

The three Trial Chambers and the Appeals Chamber are composed of judges elected by the UN General Assembly. The Security Council proposes candidates for election based on a list of nominees submitted by member states. Nominations must ensure adequate representation of the principal legal systems of the world. ICTR judges are elected for a term of four years, and are eligible for reelection. Judges "shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices" (Article 12). They are to be experienced in criminal law and international law, including international humanitarian law and human rights law.

The full ICTR consists of sixteen permanent judges, no two of whom may be nationals of the same state. This total breaks down as follows: three judges in each of the three Trial Chambers and seven judges in the Appeals Chamber. Five judges of the Appeals Chamber hear each appeal. There also is an option of adding a number of ad litem (temporary) judges owing to the workload of the ICTR at any point in time. The permanent judges elect a president from among themselves.

The Office of the Prosecutor acts independently to investigate crimes, prepare charges, and prosecute accused persons. The prosecutor does not receive instructions from any government or from any other source. However, the prosecutor may initiate investigations based on information obtained from governments, UN entities, and both intergovernmental and nongovernmental organizations.

The Registry is responsible for the ICTR's overall administration and management. It is headed by the registrar, who provides judicial and legal support services for the work of the judicial chambers and the prosecution and also serves as the ICTR's channel of communication. The ICTR's working languages are English and French (Article 31).

Trial and Appeal Processes

The trial process begins when the prosecutor investigates allegations against an individual. In this investigative process, the prosecutor has the power to question suspects, victims, and witnesses. The prosecutor may also collect evidence and conduct onsite investigations. If the Prosecutor determines that a prima facie (in other words, apparent) case exists, he or she is to prepare an indictment. It is at this point that a suspect becomes an accused. The indictment contains a concise statement of the facts and the crime(s) alleged against the accused. The indictment then is sent to a judge of the Trial Chamber for review. If this judge is satisfied that a prima facie case has in fact been established by the prosecutor, he shall confirm the indictment (Article 18). If the judge is not satisfied, he is to dismiss the indictment. Once the indictment is confirmed, the judge may, at the request of the prosecutor, "issue such orders and warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required for the conduct of the trial" (Article 18[2]).

A person under confirmed indictment can be taken into the custody of the ICTR. That person is then immediately to be informed of the charges. The accused then enters a plea—guilty or not guilty—and, in the event of a not guilty plea, the trial begins thereafter. Details of the trial proceedings are regulated by Rules of Procedure and Evidence.

Hearings are in public unless exceptional circumstances arise, for instance, when witnesses need to be protected. Testifying in a closed session can provide such protection. Of more than eight hundred witnesses who have testified in ICTR proceedings as of 2004, the majority have required protective measures that permit them to testify anonymously and thereby be safeguarded from reprisals. The ICTR also has established a sophisticated witness protection program.

Accused persons are entitled to procedural rights. Some of these—such as the right to counsel—arise as soon as an individual is a suspect. At trial, an accused is presumed innocent until proven guilty. An accused person also is entitled to the rights set out in Article 20(4) of the statute. These include protection against self-incrimination, as well as rights to be tried without undue delay, to be informed of the charges, to examine witnesses, and to an interpreter. Moreover, accused are free to retain counsel of their own choice. If an accused person is unable to afford counsel, the ICTR is to assign counsel to that person. In such a situation, which frequently has arisen at the ICTR, the accused person can choose from a list of qualified counsel. These legal services are without charge to the accused. The ICTR Appeals Chamber, however, has ruled that the right of an indigent person to be represented by a lawyer free of charge does not imply the right to select counsel (Prosecutor v. Akayesu, Appeal Judgment, 2001, para. 61).

After the trial has concluded, the Trial Chamber pronounces judgment. The judges are triers of fact and law; there are no juries. At the same time, the judges impose sentences and penalties. This differs from the procedure in a number of national legal systems, such as the United States, where the sentencing stage begins as a separate process following the issuance of a guilty verdict. However, this tracks the process that obtains in many civil law countries. Judgment is by a majority of judges and delivered in public. The majority provides a reasoned written opinion. Dissenting judges may provide their own opinion.

The accused has a right to appeal the judgment and the sentence. The prosecutor also can appeal (this also runs counter to the national practice in some states, e.g., the United States, but reflects national practices in many civil law countries and some common law countries such as Canada). However, the Appeals Chamber is empowered only to hear appeals that stem from an error on a question of law that invalidates the decision, or an error of fact that has occasioned a miscarriage of justice. The Appeals Chamber may affirm, reverse, or revise Trial Chambers decisions.

Article 25 of the statute permits an exceptional measure called a review proceeding. This is permitted in instances in which "a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision" (Article 25). In such a situation, a convicted person or the prosecutor may submit an application for the judgment to be reviewed.

Article 25 has been successfully invoked by the prosecutor in the case of Jean-Bosco Barayagwiza, the former director of political affairs in the Rwandan Ministry of Foreign Affairs eventually convicted of genocide. Barayagwiza helped set up a radio station whose purpose was to incite anti-Tutsi violence. On November 3, 1999, the Appeals Chamber had quashed the indictment against Barayagwiza and ordered him released owing to the lengthy delays that had occurred during the process of his being brought to justice, which were found to have violated his human rights. One and a half years had elapsed from the time of Barayagwiza's arrest to the time of his actually being charged, and additional delays had subsequently occurred at the pretrial stage. The former prosecutor, Carla Del Ponte, then filed an Article 25 application with the Appeals Chamber for the review of the prior decision to free Barayagwiza. On March 31, 2000, the Appeals Chamber unanimously overturned its previous decision to quash Barayagwiza's indictment (Prosecutor v. Barayagwiza, Appeals Chamber, 2000). It found that, although Barayagwiza's rights had been infringed, "new facts" presented to the ICTR for the first time during the request for review diminished the gravity of any rights infringement. For example, it was found that the actual period of pretrial delay was much shorter than previously believed; it was also found that some of the delays faced by Barayagwiza were not the responsibility of the prosecutor. Because of this diminished gravity, the ICTR characterized its previous decision to release Barayagwiza as "disproportionate." Basing itself in "the wholly exceptional circumstances of the case," and the "possible miscarriage of justice" that would arise by releasing Barayagwiza, the ICTR set aside its prior release (Prosecutor v. Barayagwiza, Appeals Chamber, 2000, para. 65).

Sentencing

Article 23 limits the punishment that the ICTR can impose to imprisonment. The Trial Chambers do have considerable discretion as to the length of the period of imprisonment. The ICTR has issued a number of life sentences and sentences in the ten to thirty-five–year range. The practice of the ICTR reveals that genocide is sentenced more severely than crimes against humanity or war crimes, even though there is no formalized hierarchy among the various crimes the statute ascribes to the jurisdiction of the ICTR. This comports with the notion, evoked judicially by the ICTR, that genocide is the "crime of crimes" (Prosecutor v. Serushago, Sentence, 1999, para. 15; Schabas, 2000, p. 9). Other factors that affect sentencing include the accused's seniority in the command structure, remorse and cooperation, age of the accused and of the victims, and the sheer inhumanity of the crime. In addition to imprisonment, the ICTR "may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners" (Article 23[3]). In practice, this option has not been utilized.

Convicted persons serve their sentences either in Rwanda or in countries that have made agreements with the ICTR to enforce such sentences. Mali, Benin, and Swaziland have signed such agreements.

Budget and Staff

From 2002 to 2003 the UN General Assembly appropriated $177,739,400 (U.S.) for the ICTR. Approximately 800 individuals representing 80 nationalities work for the ICTR.

History of Prosecutions

The ICTR issued its first indictment in late 1995. By early 2004 it had issued approximately seventy indictments, and more than fifty-five indicted individuals were in the custody of the ICTR, either on trial, awaiting trial, or pending appeal.

As of early 2004, the ICTR had convicted twelve individuals, including a number of very senior members of the Rwandan government, civil society, and clergy. Convicted individuals include Jean Kambanda, the Prime Minister of Rwanda during the genocide; Jean-Paul Akayesu and Juvenal Kajelijeli, both local mayors; Georges Rutaganda, a militia leader; Elizaphan Ntakirutimana, a Seventh-Day Adventist pastor, and Georges Ruggiu, a Belgian-born radio journalist whose broadcasts encouraged the setting up of roadblocks and congratulated those who massacred Tutsi at these roadblocks.

Kambanda is the first head of state to have been convicted of genocide, establishing that internationalcriminal law could apply to the highest authorities. On October 19, 2000, the Appeals Chamber unanimously dismissed Jean Kambanda's appeal against conviction and sentence (Prosecutor v. Kambanda, Appeals Chamber, 2000). Kambanda had previously pleaded guilty to six counts of genocide and crimes against humanity (although he subsequently sought to challenge his own guilty plea and demanded a trial), and had been sentenced to life imprisonment by the Trial Chamber on September 4, 1998. As to conviction, Kambanda had argued that his initial guilty plea should be quashed as he allegedly had not been represented by a lawyer of his own choosing, he had been detained in oppressive conditions, and the Trial Chamber had failed to determine that the guilty plea was voluntary, informed, and unequivocal. The Appeals Chamber rejected all of these arguments. In so doing, it drew heavily from its prior decisions in matters involving appeals from the ICTY Trial Chamber, thereby promoting principles of consistency and precedent. As to sentence, the Appeals Chamber dismissed Kambanda's allegations of excessiveness. Although Kambanda's cooperation with the prosecutor was found to be a mitigating factor to be taken into consideration, the "intrinsic gravity" of the crimes and the position of authority Kambanda occupied in Rwanda outweighed any considerations of leniency and justified the imposition of a life sentence (Prosecutor v. Kambanda, Appeals Chamber, 2000, paras. 119, 126).

Not all prosecuted individuals are convicted. The ICTR issued its first acquittal in the matter of Ignace Bagilishema, the bourgmestre (mayor) of the Mabanza commune, who was accused of seven counts of genocide, crimes against humanity, and war crimes related to the murder of thousands of Tutsi in the Kibuye prefecture (Prosecutor v. Bagilishema, Appeals Chamber, 2002). The Trial Chamber held that the prosecutor failed to prove beyond a reasonable doubt that Bagilishema had committed the alleged atrocities. It concluded that the testimony of prosecution witnesses was riddled with inconsistencies and contradictions and thereby failed to establish Bagilishema's individual criminal responsibility (Prosecutor v. Bagilishema, Trial Chamber, 2001). The Bagilishema case demonstrates the ICTR's attentiveness to matters of due process and procedural rights, although the acquittal triggered controversy in Rwanda.

Many ministers of the genocidal regime are in ICTR custody, along with senior military commanders, bureaucrats, corporate leaders, clergy, journalists, popular culture icons, and intellectuals. Many of these individuals are being tried jointly. Joined proceedings involve two or more defendants, among whom there is a nexus justifying their being tried together.

For example, on December 3, 2003 the ICTR Trial Chamber issued convictions in the "media case." The media case explores the role, responsibility, and liability of the media in inciting genocide. This case represents the first time since Julius Streicher, the Nazi publisher of the anti-Semitic weekly Der Stürmer, appeared before the Nuremberg Tribunal that a group of leading journalists have been similarly charged. Convicted by the ICTR of inciting genocide through the media are Hassan Ngeze (editor of the extremist Kangura newspaper), Ferdinand Nahimana (former director of Radio-Télévision Libre des Mille Collines (RTLM), the national broadcaster), and Jean-Bosco Barayagwiza (politician and board member of the RTLM). Ngeze and Nahimana were sentenced to life imprisonment and Barayagwiza to a term of thirty-five years. In its judgment, the ICTR Trial Chamber underscored that "[t]he power of the media to create and destroy fundamental human values comes with great responsibility. Those who control such media are accountable for its consequences." The media case unpacks the interface between international criminal law and freedom of expression. The defense vigorously argued that the impugned communications constituted speech protected by the international right to freedom of expression. The ICTR disagreed. It distinguished "discussion of ethnic consciousness" from "the promotion of ethnic hatred." While the former is protected speech, the latter is not. On the facts, it was found that the exhortations to incite genocide constituted the promotion of ethnic hatred and, hence, unprotected speech.

The prosecutor is charging political leaders jointly in three separate groups. The "Butare group," which consists of six accused, includes Pauline Nyiramasuhuko, the former Minister for Family and Women's Affairs and the first woman to be indicted by an international criminal tribunal (among the charges she faces is inciting rape). Butare is a city in southern Rwanda and the seat of the national university. The second group, known as the Government I group, involves four ministers from the genocidal government, including Edouard Karemera, former Minister of the Interior, and André Rwamakuba, former Minister of Education. The third group, Government II, includes four other ministers from the genocidal government. All defendants in the Government I and II groups face charges of genocide and crimes against humanity based on theories of individual criminal responsibility that include conspiracy and direct and public incitement to commit genocide.

The military trial involves Colonel Théoneste Bagosora, the Director of the Cabinet in the Ministry of Defense, and a number of senior military officials. It examines how the genocide allegedly was planned and implemented at the highest levels of the Rwandan army. Bagosora is alleged to be the military mastermind of the genocide.

Former prosecutor Del Ponte had affirmed an interest in investigating allegations of crimes committed by Tutsi armed forces (the RPA). This is a matter of considerable controversy for the Rwandan government. Thus far, no indictments have been issued against the RPA, notwithstanding allegations that it massacred up to thirty thousand Hutu civilians when it wrested control of the Rwandan state from its genocidal government in 1994.

Contribution to Legal and Political Issues Concerning Genocide

The ICTR shows that those responsible for mass violence can face their day in court. In this sense, the ICTR helps promote accountability for human rights abuses and combat the impunity that, historically, often has inured to the benefit of those who perpetrate such abuses.

However, the ICTR—and legal responses to mass violence more generally—cannot create a culture of human rights on its own. Democratization, power-sharing, social equity, and economic opportunity each are central to transitional justice. Moreover, although the law can promote some justice after tragedy has occurred, it is important to devote resources prospectively to prevent genocide in the first place. In this sense, by creating the ICTR the international community only addressed part of the obligation announced by the 1948 UN Genocide Convention, namely the prevention and punishment of genocide.

For many Rwandans, the international community's response to and effort in preventing the genocide is questionable at best. The international community was not willing to meaningfully invest in armed intervention that may have prevented, or at least mitigated, genocide in Rwanda in the first place. Various independent reports and studies have found the UN (as well as many states) responsible for failing to prevent or end the Rwandan genocide.

The ICTR's most significant contribution is to the development of international criminal law. Its decisions build a jurisprudence that informs the work of other international criminal tribunals, such as the ICTY, other temporary institutions, and prospectively the permanent ICC. National courts in a number of countries have also relied on ICTR decisions when these courts have been called on to adjudicate human rights cases.

Several of the ICTR's decisions highlight these contributions. One of these is the Trial Chamber's ground-breaking 1998 judgment in the Akayesu case (subsequently affirmed on appeal), which provided judicial notice that the Rwandan violence was organized, planned, ethnically motivated, and undertaken with the intent to wipe out the Tutsi (the latter element being a prerequisite to genocide). The Akayesu judgment marked the first time that an international tribunal ruled that rape and other forms of systematic sexual violence could constitute genocide. Moreover, it provided a progressive definition of rape. Another important example is the Trial and Appeals Chamber's conviction of Clément Kayishema, a former local governmental official, and Obed Ruzindana, a businessman, jointly of genocide and crimes against humanity, and its sentencing them to life imprisonment and twenty-five years imprisonment, respectively, clarifying the law regarding the requirement of the "mental element" (proof of malevolent intent) in the establishment of the crime of genocide, and the type of circumstantial evidence that could establish that mental element (Prosecutor v. Kayishema, Appeals Chamber, 2001).

Also significantly, the notion of command responsibility was squarely addressed and expanded in the case of Alfred Musema, the director of a tea factory. Along with other convictions for crimes for which he was directly responsible, Musema was held liable for the acts carried out by the employees of his factory over whom he was found to have legal control, an important extension of the doctrine of superior responsibility outside the military context and into the context of a civilian workplace (Prosecutor v. Musema, Trial Chamber, 2000, paras. 141–148). In the Musema case, the ICTR also provided interpretive guidance as to what sorts of attacks could constitute crimes against humanity.

Contribution to Postgenocide Rwanda

There is cause to be more circumspect regarding the contribution of the ICTR to postgenocide Rwanda. Many Rwandans are poorly informed of the work of the ICTR. Moreover, many of those aware of the work of the ICTR remain skeptical of the process and results. The justice resulting from the operation of the ICTR is distant from the lives of Rwandans and may inure more to the benefit of the international community than to victims, positive kinds of transition, and justice in Rwanda itself. This provides a valuable lesson: In order for international legal institutions to play catalytic roles, it is best if they resonate with lives lived locally. This signals a need for such institutions to work in harmony with local practices. Moreover, there also is reason to suspect that for many afflicted populations justice may mean something quite different than the narrow retributive justice flowing from criminal trials. In this vein, it is important for international legal interventions to adumbrate a multilayered notion of justice that actively contemplates restorative, indigenous, truth-seeking, and reparative methodologies.

There is evidence the international community is moving toward this pluralist direction, both in terms of the work of the ICTR and also the construction of recent justice initiatives that are more polycentric in focus. There is an emphasis on institutional reform that could make the work of the ICTR more relevant to Rwandans. The ICTR has, in conjunction with Rwandan nongovernmental organizations, launched a victim-oriented restitutionary justice program to provide psychological counseling, physical rehabilitation, reintegration assistance, and legal guidance to genocide survivors. There also is a possibility—as of 2004 unrealized—of locating ICTR proceedings in Kigali, where the ICTR has opened an information center. Such a relocation would invest financial resources and infrastructure into Rwanda itself and thereby facilitate one of the unattained goals of Resolution 955, namely to "strengthen the courts and judicial system of Rwanda" (Resolution 955, 1994, Preamble).

SEE ALSO Arbour, Louise; Del Ponte, Carla; Goldstone, Richard; International Criminal Court; International Criminal Tribunal for the Former Yugoslavia; Rwanda; War Crimes

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Michelle S. Lyon
Mark A. Drumbl