International and National Criminal Justice: Compatibility and Interaction (V. Joensen, журнал "Kutafin University Law Review", N 2 (Volume 2), October 2015)

International and National Criminal Justice: Compatibility and Interaction

V. Joensen (Denmark),

President of the United Nations International Criminal Tribunal for Rwanda

Журнал "Kutafin University Law Review", N 4, October-December 2015, р. 288-295.

The address that follows was delivered at the V St. Petersburg International Legal Forum on May 29, 2015 and examines the particular set of challenges that faced the international community in the aftermath of the 1994 Rwandan Genocide. Specifically, Judge Joensen identifies how the International Criminal Tribunal for Rwanda (ICTR) interacted with national jurisdictions and how these interactions impacted the ICTR. In this regard, three important areas of international cooperation relevant to the ICTR are discussed: (1) the assistance that the ICTR received in relation to its core work, including the tracking and arrest of fugitives, investigations and enforcement of sentences; (2) capacity building and outreach programmes; and (3) the referral of cases to national jurisdictions. Judge Joensen demonstrates how ad hoc Tribunals, like the ICTR, are dependent on assistance from other countries to carry out their core functions while also examining the specific relationship between the ICTR and Rwanda. Shedding light on the activities outside of the courtroom, Judge Joensen provides an overview of the programmes created by the ICTR to develop and empower both international and national justice systems. In this context and when providing an analysis of mutual cooperation, Judge Joensen uses the ICTR's referral programme as an example of the compatibility and incompatibility between international and national jurisdictions from a judicial perspective. In concluding, an emphasis is placed on further discussions regarding the development of legal systems throughout the world and on the continued fight against impunity.

Table of contents

I. Introduction

II. Three important areas of international cooperation relevant for the ICTR

(1) The assistance received by the ICTR in relation to its core work

(2) Capacity building and outreach programmes

(3) The referral of cases to national jurisdictions

III. Conclusion

I. Introduction

I am deeply honoured for the opportunity to participate in this conference that brings together leading scholars and specialists in the field of international law and to address such a distinguished panel of jurists, academics and colleagues on international and national criminal justice. I would like to start by taking this opportunity to thank our cohosts, Martens Readings on International Humanitarian Law and the St. Petersburg International Legal Forum, for organising this event. Also, a special note of thanks to my dear friend Judge Tuzmukhamedov for moderating this panel and for the work he has done to ensure its success.

I cannot overstate the importance of events such as this one, especially when they bring together representatives from a diverse range of courts and institutions that are able to affect greater awareness and more informed decision-making when it comes to both international and national justice mechanisms. During the course of this conference, we continue to discuss how to collectively overcome one thing: challenges. No matter an individual's background, gender, socioeconomic status, ethnicity, and so on, we as human beings all have faced challenges. As hard as it might be to overcome some of these challenges, the knowledge and experience that we gain must be shared and used to further the development of mankind. And, it must be used to foresee the challenges that we will inevitably face in the future.

In 1994 and after the genocide saw the deaths over 800,000 people, Rwanda confronted an unimaginable challenge: How could reconciliation or rather, justice, be brought to those harmed by the genocide? At that time, it was not easy. And it still isn't. Immediately following the Rwandan genocide, only around five judges and fifty practicing lawyers survived the genocide. So, with much of Rwanda's judicial and political structure left in ruin, the UN Security Council created the ICTR to assist Rwanda in bringing those accused of participating in the genocide to Justice.

In this regard, the ICTR's mandate was to prosecute those responsible for serious violations of humanitarian law committed in and around Rwanda during 1994. Practically all of these individuals, mostly high-ranking military and government officials, had already fled Rwanda. The challenge that the ICTR faced immediately, like all international courts, was its reliance on international cooperation to complete its mandate.

II. Three important areas of international cooperation relevant for the ICTR

There are three main ways that cooperation with national jurisdictions has impacted the ICTR, and I will discuss each in turn today. First is the assistance with its core work: tracking and arrest of fugitives, investigations, and enforcement of sentences. The next interaction with national jurisdictions comes in capacity building and outreach, which the Tribunal has considered to be a crucial part of its mandate to help bring reconciliation to the Great Lakes region. And the last, which in many ways relies on the success of the first two, relates to referral of cases to national jurisdictions, which the ICTR has done as a part of its Completion Strategy as mandated by the UN Security Council.

(1) The assistance received by the ICTR in relation to its core work

I will begin by discussing the cooperation that the Tribunal has had with respect to tracking, arrest, investigations, and enforcement of sentences. It is important to recall that the ICTR does not have the power of arrest and is dependent on other countries to obtain custody of indicted persons. In this regard, more than 22 countries have assisted in the tracking, arrest and transfer of those indicted by the Tribunal. With the help and cooperation from different national governments, the accused persons that were to be tried before the ICTR were arrested throughout Africa and in Belgium, Switzerland, the Netherlands and in the United States.

In addition to the crucial cooperation without which the ICTR would not have been able to arrest and bring to trial those indicted, the ICTR also relied heavily on Rwandan cooperation during pre-trial investigations and trial proceedings. The Rwandan cooperation, which had been crucial to arresting and bringing to trial those indicted, was also heavily relied upon by the ICTR during pre-trial investigations and trial proceedings. The cooperation of the Rwandan authorities was essential as it would have been impossible without it for the ICTR Prosecutor to conduct investigations and obtain evidence of and witnesses to the crimes committed. The cooperation of the Rwandan government further facilitated the trials at the ICTR as Rwanda not only provided access and produced key government documents, but also assisted the Tribunal by helping with travel documents for witnesses from Rwanda who came to Arusha to testify in ICTR trials.

The Tribunal's interactions with national jurisdictions also extend to post-trial activities, especially considering that the ICTR relies on Members States to enforce sentences imposed by the Trial and Appeals Chamber. Under the ICTR Statute, States are not obligated to accept convicted persons and are asked to volunteer for this responsibility. To date, the Tribunal has received assistance with enforcement of sentences from Mali, Benin, Swaziland, France, Italy, Sweden, Rwanda, and Senegal.

(2) Capacity building and outreach programmes

We must recall, however, that the cooperation with national jurisdictions has not only been a one way street. The Tribunal has made extensive efforts to assist national jurisdictions through outreach and capacity building in order to develop and empower national justice systems. In addition to our outreach programmes in Rwanda which bring the work of the ICTR to the people through information centres throughout the country, we have also developed capacity building initiatives including training programmes, professional workshops, visiting professional programs, and partnerships with higher learning institutions that the Tribunal instituted throughout its existence.

For example, the ICTR held workshops for more than 150 Rwandan lawyers, judges and prosecutors with the goal of educating them and preparing the judiciary for the referral cases. All of these programmes and interactions not only facilitated the development of the judicial system, but also allowed for a more cooperative and supportive relationship with the Tribunal. There was also extensive interaction between the Tribunal and Rwanda as the legislation in Rwanda was being reviewed in order to assist with the referral of cases, which I will discuss in more detail later.

Moreover, the outreach programmes did not stop at the borders of Rwanda. The efforts and contributions from the ICTR have been vast and have resulted in the sharing of expertise and best practices on the Prosecution and administration of criminal justice in countries such as Kenya, Tanzania, Uganda and Zambia. The Tribunal has also shared its lessons learned with other international justice mechanisms, including the ICC, the Special Tribunal for Lebanon, the ECOWAS court, the African Court of Human and Peoples' Rights and the Caribbean Court of Justice. These important programmes ensure that the legacy of the ICTR is not only its judicial decisions, but also the knowledge gained and lessons learned with respect to the operations of an international court, specifically with those trying accused of international crimes.

In order to ensure that these lessons learned are not only preserved for posterity, but also used by future international and nations courts, the Tribunal has taken the specialised knowledge it has gained and compounded it into a series of best practice manuals. Notably, the Office of the Prosecutor created best practices manuals on the lessons learned from the referral of international criminal cases to national jurisdictions and a manual on the prosecution of sexual violence. The manual on the referral of cases highlights the importance of complementarity and is intended to assist other international and national courts to build on the ICTR's achievements and empower national authorities to discharge their responsibility to investigate and prosecute international crimes in a manner consistent with international standards. The manual on the prosecution of sexual violence continues the ongoing dialogue between international and domestic judicial institutions about the best way to close the impunity gap that exists for perpetrators of rape and other crimes of sexual and gender-based violence.

The ICTR's judicial decisions, outreach and capacity building programmes along with the best practices manuals are all illustrations of the importance that the Tribunal places on engaging with and assisting domestic legal institutions so as to strengthen existing judiciaries. These programmes and sharing of lessons learned with future courts, both international and domestic, are paramount to the continued compatibility and interaction between international and domestic actors.

(3) The referral of cases to national jurisdictions

Now I turn to my final example of how international and national justice mechanisms interact: the referral of cases from international to domestic justice institutions, where cooperation must occur in both directions, combining aspects of the first two examples I have given today.

In 2007, the Rwandan National Assembly passed what is generally referred to as 'the Transfer Law', which allowed Rwandan courts to receive cases referred from the ICTR. However, between 2007 and 2008, the ICTR denied each of the Prosecutor's initial requests for referral of cases to Rwanda. In each case, the Trial Chamber and Appeals Chamber identified a number of factors for these denials, which included the penalty structure, concerns over fair trial rights, judicial impartiality and conditions of detention in Rwanda. Shortly thereafter, the Office of the Prosecutor began working with Rwanda to overcome the barriers cited by the Trial Chamber and these comments became a roadmap for what needed to be done to strengthen Rwanda's capacity to provide a fair trial in any referred cases. On 28 June 2011, the Trial Chamber granted the first referral case to Rwanda, noting its reasoning included the improvements to the Rwandan legal and penitentiary system, and the fact that the ICTR had amended Rule 11 bis, thus allowing the Trial Chamber, to monitor referred cases along with the Prosecutor who had the sole power under the original iteration of Rule 11 bis. The monitoring now falls under the Mechanism for International Criminal Tribunals, which will handle the residual functions of the ICTR and ICTY.

To date, the Tribunal has referred eight cases to Rwanda, which include six fugitive indictees and two other indictees already in custody. Similarly, success of the referral program was also seen in France when it apprehended two ICTR fugitives. After expressing its willingness to accept the referral of these indictments and after the Chambers determined that the accused could receive a fair trial before the French courts, the cases were referred and continued to be monitored by both the Prosecution and the Chambers of the Mechanism for International Criminal Tribunals.

However, there were also examples of willing countries which were prevented from receiving referred cases from the ICTR. In 2006, the Prosecutor attempted to refer the Bagaragaza indictment, which included charges of genocide, to Norway. But Norway's domestic law did not, at the time, include the crime of genocide and the Referral Chamber rejected the application. This is the principle of nulla crimen sine lege, which precludes the exercise of jurisdiction over international crimes that were not incorporated into domestic law at the time of commission or prosecution. While initially succeeding in its second attempt to refer the Bagaragaza indictment to The Netherlands, the Prosecutor ultimately had to revoke the referral because (1) The Netherlands lacked jurisdiction over the crime of genocide for acts committed in Rwanda in 1994 and (2) because it was unlikely that the Dutch Court could satisfy the nexus required under domestic law for the exercise of universal jurisdiction, which meant the physical presence of the Accused in The Netherlands when the case started.

The success and limitations of the ICTR's referral programme demonstrates both the interaction and the compatibility, or as it is often a case, the incompatibility, between international and national jurisdictions from a judicial perspective. How these incompatibilities have been resolved is an important lesson in facing challenges and continuing to work to overcome them.

III. Conclusion

The great philosopher Aristotle once said, At his best, man is the noblest of all animals; separated from law and justice he is the worst.' As the political and judicial mechanisms of the world develop and change, it is our duty to continue the fight against impunity and to participate in discussions, like this one, about the evolution of our own legal systems. I would like once again to extend my gratitude to the organisers for providing me with the opportunity to speak with you today. I would also like to thank this esteemed panel for thoughtful words and I look forward to the upcoming discussion. Thank you.