Recent Trends in International Criminal Law: Perspectives from the U.N. International Criminal Tribunal for Rwanda

William Mugwanya, Dr. George | January 1, 2008

This article appraises recent developments in international criminal law, with an emphasis on the jurisprudence engendered by the U.N. International Criminal Tribunal for (“ICTR” or “Tribunal”) during 2007. It evaluates trends in the ICTR’s jurisprudence during the year 2007 in relation to substantive, procedural and evidentiary aspects of international criminal law. It is noteworthy that over the course of 2007, by and large, the ICTR did not break much new ground in the arena of international criminal law. Nevertheless, the ICTR addressed some critical issues that deserve evaluation. Some of the decisions reached by the ICTR provide important elaboration as to the position of international criminal law, while others raise controversies. Moreover, a number of decisions reached by the ICTR’s Appeals Chambera chamber also shared by the ICTY, and the only appellate and highest courtwere not unanimous. Many of these decisions generated important dissents, thus pointing to conflicting signals from the ICTR. While absence of unanimity by the judges raises challenges as to the current status of international law, arguably it equally creates some room for the possibility of remedying some questionable positions in the future, and thus may lead to the improvement of international criminal jurisprudence. In appraising the issues addressed by the ICTR over the course of 2007, this Article is arranged as follows: Part II evaluates the ICTR’s approach to the elements, participation in, and proof of the crime of rape, as well as issues arising from the Tribunal’s approach. The issues raised include the status of circumstantial evidence, and its application to the crime of rape, the scope of commission as a mode of criminal participation, and the status in the Tribunal’s jurisprudence of the concepts of ‘lesser included or subsumed crimes or modes of liability’ and ‘re-qualification’ of crimes. Part III deals with the ICTR’s approach to extermination as a crime against humanity, while the crimes of direct and public incitement to commit genocide, conspiracy to commit genocide, and persecution as crime against humanity are covered in Parts IV, V and VI respectively. These are followed by some procedural and evidentiary aspects of the Tribunal’s jurisprudence, namely, specificity in pleading and the status quo of hearsay evidence. They are addressed in Parts VII and VIII respectively. Concluding the analysis is Part IX, which also comments, in brief, on other issues addressed by the Tribunal, including the notion of ‘witness proofing;’ the scope of the rights of the accused, such as the right to be tried in one’s presence and the right to compensation; joint criminal enterprise liability; the powers of Trial Chambers to control proceedings, and issues arising from the Tribunal’s plea of guilty jurisprudence.