Reaction to an article published in The East African by special correspondent Catherine RIUNGU

“Tanzania tipped to host Africa’s criminal court” - The East African., June 8th -14th 2009, Page 5 The reporting by Catherine RIUNGU, Special correspondent of the east African newspaper, following the visit by Sang Hyung Song, the President of the International Criminal Court (ICC) to Tanzania, does not reflect the meaning of, first of all why the ICC came into being, on 1st July 2002, the date on which its founding treaty, the Rome Statute, came into force. It’s important to recall that the ICC is a permanent tribunal established to prosecute individuals for genocide, crimes against humanity, war crimes and crimes of aggression, though it cannot currently exercise jurisdiction over the crime of aggression. The ICC can only prosecute crimes committed on or after that date. According to Article 11 of the Statute, this court has jurisdiction rationae temporis(temporal jurisdiction), meaning it has jurisdiction only with respect to crimes committed after the entry into of the Rome Statute, meaning that the court’s jurisdiction does not apply retroactively. The official seat of the court is in The Hague, Netherlands though it proceedings may take place anywhere.The reporter mentions that Mr. Sang Hyung acknowledged Tanzania’s request to host the court after the mandate of the Arusha based ICTR comes to close in December, and this leaves a room for doubt, whether the reporter can distinguish between the ICTR mandate, jurisdiction and competence, vis-a-vis the ICC’s. The ICTR was established in 1994 by the UN Security Council, in order to prosecute and judge those people responsible for the Rwandan genocide and other serious violations of international law performed on the territory of Rwanda, or by Rwandan citizens between 1st January and 31st December 1994. The completion strategy of the ICTR, and the ICTR’s rules of procedure and evidence, defines how trials can be transferred to nation al jurisdictions under rule 11 bis of the ICTR rules of procedure and evidence, and it’s under no circumstances that the ICTR can be replaced by the ICC, hosted by Tanzania, as the reporter suggests. The two tribunals have two different mandates, on rationae personae and rationae materiae, notwithstanding other factors. (a)“Disappointed: Rwanda is however likely to protest to the United Nations for the ICC’s choice of Tanzania”The ‘Africa’s criminal Court’ suggested by the reporter does not exist. The disappointment and likelihood of protests by Rwanda to the United Nations is a fallacy, and the mentioning of ICC’s choice of Tanzania for the seat of the inexistent tribunal is probably lack of adequate knowledge on the subject matter. The reporter confuses the ICTR and its subsequent closure, with the ICC’s mandate, despite suggesting another inexistent “African Criminal Court”. He suggests that:“Kigali has always considered itself the natural choice not only for trying the pending cases after December....but the ICTR has several times shot down requests to take high profile cases to Rwanda on the grounds that the country would not accord the accused fair trials..” This is a confusing suggestion by the reporter. The ICTR rules of procedure and evidence, under rule 11 bis, suggests transfers to national jurisdictions. Rwanda has never considered itself the natural choice, but rather followed the provisions of art 11 bis to apply for the transfer of cases subsequent to the ICTR prosecutor’s request. Rwanda, whose citizens became victims of the genocide, and the country becoming the victim state, considers herself priority in matters regarding justice to its citizens. To this effect, Rwandan judiciary has built its capacity, both logistically, human resource, and consolidated its Institutions. Numerous pieces of legislation exist to meet international legislative standards. This has been realised, partly in collaboration with the ICTR, and within the line of the Rwandan government policy to streamline and reform the Rwandan judiciary after so many years of impunity that culminated into the 1994 Genocide against the Tutsi. In the Amicus briefs filed by Rwanda to the ICTR, under rule 11 bis, the reporter, if at all could access these briefs, would have found out that, even though the ICTR refused the transfers, the court at least acknowledged the tremendous achievements recorded by the Rwandan judiciary after the reforms of 2004. “Africa’s Criminal Court”The reporter does not show which Africa’s criminal Court will handle Rwandan genocide cases that will remain unfinished business at the ICTR. There is need to make clear distinction between the roles of the tribunal (ICTR) from those attributed to Africa’s criminal Court which does not exist at all. In any case would this so-called Africa’s criminal Court have jurisdiction on Rwandan cases only or would it also try all African War Crimes including those under the ICC? Would this Court take over the role of the ICC, or would the ICC itself take over the responsibilities of the ICTR when it closes? The reporter leaves more questions than answers. The known International tribunals despite their locations outside the African continent, and whose roles and jurisdictions differ, are: The International Criminal Court (ICC), the International Court of Justice (ICJ), International Criminal Tribunal for the former Yugoslavia(ICTY), the International Criminal Tribunal for Rwanda(ICTR), African Court of Justice (ACJ), Caribbean Court of Justice (CCJ), Inter American Court of Human Rights (IACHR), European Court of Justice (ECJ), European Court of Human Rights (ECHR). Another existing court is the Special Court for Sierra Leone, which is an independent judicial body set up to try those who bear the greatest responsibility for war crimes and crimes against humanity. The reporter does not suggest that any of these tribunals will assume the roles of the ICTR, or which of them would become “Africa’s Criminal Court” (b) “Rwanda could lose out on hosting ICC Despite reforms” “Conditions: The United Nations had asked Kigali to upgrade its judiciary system and jails to conform to international standards” The reporter suggests that:“The decision by the International Criminal Court to grant Tanzania’s request to try Rwanda Genocide suspects after the expiry of the Arusha based ICTR has caught Rwanda by surprise, given that it is the only country that had expressed willingness to do so...” Rwanda is not aware of such a “decision by the International Criminal Court to grant Tanzania’s request to try Rwanda genocide suspects...” The ICC has no mandate to grant request to member states to try suspects under the jurisdiction of sister international tribunals. The jurisdiction and functioning of the ICC is governed by the Rome Statute as provided for in its article 1 Further, the granting of such a request as the reporter suggests, has also to be viewed in the context of the ICC’s jurisdiction, and competence. The ICC can generally excercise jurisdiction only in cases where the accused is a national of a state party, Rwanda is not a state party to the ICC, and the detainees at the ICTR are not Tanzanians. Does the reporter suggest that Tanzania, being a State Party to the ICC will try non-Tanzanians, who committed crimes in Rwanda, and who are Rwandans but detained on the Tanzanian territory? In addition, the ICC cannot decide to grant request to Tanzania to try Rwandan genocide suspects, when the ICC itself does not have powers to do so, because, besides the nationalities of the suspects (Rwandans), whose country of origin (Rwanda) is not a state party to the Rome Statute, the alleged crime must have taken place on the territory of the State party,(Tanzania) unless a situation is referred to by the United Nations Security Council. The reporter need to know that powers of transfer to national jurisdictions, of an already existing International tribunal, does not lie within the powers of the ICC. As regards the ICC’s territorial jurisdiction, during the negotiations that led to the Rome Statute, a large number of States argued that the court should be allowed to exercise universal jurisdiction. This proposal was however defeated largely due to intense opposition to it. In view of articles 12 and 13 of the Rome Statute, a compromise was reached later, allowing court to exercise jurisdiction only under the following limited circumstances:• Where the person accused of committing a crime is a national of a state party of the Rome statute, or where the person’s state has accepted jurisdiction of the ICC. • Where the alleged crime was committed on the territory of a state party, or where the state on whose territory the crime was committed has accepted jurisdiction of the court, and thirdly; • Where a situation is referred to the court by the United Nations Security CouncilThe reporter does not bring to light issues of cooperation by states-non party to the Rome Statute, and grants all the powers of decision making on trying Rwandan genocide suspects to the ICC, by Tanzania. It is incomprehensible how this would work out either in law or in actual practice. The reporter might wish to throw some light or explanation on how: “Rwanda could lose out on hosting of ICC, despite reforms”, because such statement is misleading and leaves a lot of questions unanswered. The reporter might wish to know that the submissions of Rwanda at the ICTR at the filing of applications under rule 11 bis were set out under three broad headings, each addressing how the criteria laid out in Rule 11bis of the ICTR Rules is satisfied, justifying the referral of the case of the said suspects to Rwanda, as follows:- i. The Republic of Rwanda has personal jurisdiction (rationae personae) over the accused because it is the territory in which the accused committed the crimes; ii.The Republic of Rwanda has subject matter jurisdiction (rationae materiae) over the crimes alleged in the indictment and has the willingness and ability to try the case; iii.The Accused will receive a fair trial in Rwanda, and the death penalty will not be imposed on the Accused in the event of a conviction. Rwanda has hope in the ICTR, and appreciates the work done in bringing to justice the perpetrators of the 1994 Genocide against the Tutsi. Despite temporary refusal by the ICTR to transfer some cases to Rwanda, the country itself believes that it has undergone such massive judicial reforms that the refusal is in the long term untenable. This means that future applications for transfer will most likely be successful. ConclusionIt is hoped that these observations will help to put the record straight and sort out the wrong impressions created by the article. The Author is Rwanda’s Minister of Justice and Attorney General