The Hague, 27 October 2007 (FH) - Faced with all the difficulties which might come by the end of 2008, the end of the mandate of the International Criminal Tribunal for Rwanda (ICTR), as 42 accused have not yet been tried, certain wonder whether it would be possible to mandate the International Criminal Court (ICC) to continue the activities of the ICTR.

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The new permanent International Criminal Court exists since the Rome Statute came into effect in 2002. A score of judges have been named and await their first trial. Criticism on the cost and the effectiveness of this new international organization are starting to turn sour. Only two people until now have been brought before the Court to be tried.
According to Frédéric Casier, an official with the international humanitarian law section of the Red Cross of Belgium, but commenting on a purely personal basis, the ICC could not replace the ICTR for several reasons. Firstly, Rwanda did not ratify the Rome Statute, it is thus not a member country of the ICC. However, according to article 12 § 2, the Court is qualified only to consider crimes committed on the territory of a member country or committed by a national of a member country.
Paragraph 3 of the same article allows for the possibility of a non member country of accepting the jurisdiction of the Court for a particular case, as the Ivory Coast did in 2005, but Frédéric Casier imagines that Rwanda would rather directly ratify the Statute, which it choose not to do.
The second obstacle, which is in fact the main issue and posed by article 11 of the Statute, is that the temporal jurisdiction of the ICC begins on 1 July 2002. It is on this date that the Statute received the number of ratifications necessary for it to come into force. The international court cannot thus prosecute crimes committed during the 1994 Rwandan genocide.
However, article 123 of the Statute of the permanent court plans to convene a revision conference of the founding text seven years after it coming into force, that is to say in 2009. There will be discussions about examining any amendment of the founding text. Could the Court then become qualified for crimes committed before 2002?
The Statute does not prevent such a modification. Questioned by Hirondelle, Martien Schotsmans, official within Lawyers Without Borders for its international and transitional justice program, "does not think that the member countries will reconsider the principle of temporal jurisdiction of the Court, that would likely create too many inconveniences". The procedure of modification of the Statute is extremely complicated because of the various essential votes to reform and of the imposed timeframes, he reminds.
But especially, reminds Frédéric Casier, the countries will not inevitably have the will to do it because that would call into question the principle of legal security. But in the affirmative, "which formulation will we give to the text? And which new date could be fixed for the jurisdiction of the ICC? ".
The continuation of a ICTR chamber, responsible for the judgments of Rwandan accused of genocide, in the ICC cannot be considered either because resolutions 1503 (of 2003) and 1534 (of 2004), of the United Nations Security Council, state that within the framework of the completion process the transfer of cases can not be made to national courts.
Then, the International Criminal Court is subjected to the principle of complementarity according to which it can only act if the national authority that normally holds the jurisdiction abstains or is in the incapacity to exert its jurisdiction.
However, Rwanda, on the contrary, has all the legal and institutional tools to try the génocidaires and has been using them for a certain time. Moreover, Rwanda has been asking and insisting that the international tribunal transfers its case to it.
Rwanda "has the means of facing this situation" estimates Casier. It is completely able "to try the defendants who would not have been by the ICTR". It would thus not be astonishing that it refuses that defendants of the genocide continue to be tried by an international court. According to the expert of the Red Cross, "the chances of legally submitting the case of Rwanda before the ICC are almost nil".
There, thus, remains only the transfer procedure planned by article 11 bis of the rules of evidence and procedure of the ICTR to enable it to finish its first instance trials within 15 months. The first motions for this purpose have just been filed before the chambers. No answer is expected before several weeks. In the event of refusal, the ICTR will have imperatively to prolong its activities.

© Hirondelle News Agency