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contribution 4 - BYRON Dennis C. M.

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Thank you very much, Mr. Chairman.
Your Excellency, Honourable Judges, Mr. Prosecutor, Mr. Registrar, distinguished professors, journalist,
distinguished ladies and gentlemen, I must say it’s a real pleasure being here in Geneva. The weather
has been wonderful, and I think we have all had a very wonderful commencement to our deliberations.

So I should first of all start by thanking the Government of Switzerland, Professor Burrin,
Professor Flour, and all of your colleagues from the three organising academic institutions, as well as
present and former colleagues of the ICTR who have been involved in the planning of this symposium
for bringing us together for three days here in Geneva to take time and reflect on the record of the
International Criminal Tribunal for Rwanda.
Now, I have noticed the planning of this session. I had, in fact, not intended to absorb 90 minutes in my
presentation to you. I don’t know if we will finish early or if this is an indication that we are probably
going to have a working session for questions and answers until our lunch break. But I think I would not
be longer than 30 minutes in my opening presentation this morning.
It would, of course, be very easy to dwell on the difficulties and frustrations that have been faced by the
Tribunal and our admittedly numerous setbacks. But I think that any assessment of our work must be
done in the context of what we have achieved in our 15-year history and in the light of the extraordinary
progress of international criminal justice in the 20th Century.
Fifteen years is, indeed, a long time for a Rwandan victim to wait for justice to be delivered. But it is
nonetheless a short span in the development of international rules and individual responsibility for
serious violations of humanitarian law.
We should not forget that the foundations for the Tribunal’s work were created after World War II. The
horror of the Holocaust inspired the Universal Declaration of Human Rights, the Genocide Convention
and the Geneva Conventions of 1948. These documents serve as a symbol and the legal commitment
of States to the hope of "never again".

Of course, as Richard Goldstone has wryly noted, "The hope of ’never again’ became the reality of
’again and again’."

After World War II, atrocities continued at an unthinkable pace. Hundreds of thousands of victims in
Sudan, Vietnam, Indonesia, Uganda, Angola, Cambodia, the Balkans — the list is long and horrendous
and spans the entire planet. It has been calculated that in the course of the 20th Century, 262,000,000
have been murdered for political reasons by or with the approval of their own governments. This is the
context in which we operate and the reasons why we engage in this work.
The Nuremberg trials set a precedent to which we still refer in our jurisprudence. But the developments
in international humanitarian and criminal law were few in the second half of the 20th Century. In
particular, despite obligations in the 1948 Conventions to prosecute and punish great crimes, the focus
remained on state responsibility, not on individual accountability.
But the Security Council, freed of its cold war stalemate, established international criminal tribunals, first
in 1993 the former Yugoslavia and then in 1994 for Rwanda. The Council deemed the conflicts to
constitute a threat to international peace and security and decided under Chapter 7 of the UN Chapter
that one means of restoring peace was to establish judicial tribunals to prosecute high-ranking
perpetrators for the gravest crimes. Of course, you are all well aware of these events. But we should
not forget that they constitute a very important milestone.
The creation of these Tribunals signalled that the judiciary and the rule of law were essential to restoring
peace, ending impunity, and rebuilding post-conflict societies. For too long judicial institutions had been
ignored in this process. And even today, the debate over the alleged choice between peace and justice
has not subsided. I need only mention the discussions about the arrest warrant for President Al-Bashir
in Sudan and its possible implications for the peace process.
But we should note that for many victims the link between justice and peace seems to be much more
obvious than for the politicians. In a recent survey in the Democratic Republic of Congo, 82 per cent of
the over 3,700 survivors of war crimes who were asked stated that accountability for war crimes was an
essential step towards securing peace.
Resolution 1995 in 1994 of the Security Council was giving the Tribunal, the ICTR, an organ of justice, a
unique mandate, which included not only to assist with the restoration and maintenance of peace but
also to "contribute to the process of national reconciliation" and thereby to reach an even broader
political goal.

It was also remarkable that the Security Council found that it had the power to react to an internal
conflict. This is of note in the context of the changed nature of armed conflict since the end of the
Second World War. A recent study has concluded that internal conflicts now make up more than
95 per cent of all conflicts. And as a corollary, the nature of hostilities has changed from large,
conventional armies to relatively small, ill-trained forces. Civilian fatalities have climbed from 5 per cent
of war-related deaths at the beginning of the 20th Century to more than 90 per cent in the wars of the

I recount these statistics to make the point that it is through the work of the ICTR that we make the rules
of international humanitarian and criminal law relevant to the conflicts and the victims of today. Had the
international community continued to oppose state sovereignty as inviolable, atrocities committed within
state borders would be out of reach, and international humanitarian and criminal law would have
become increasingly irrelevant.

Now, having recalled its creation, and its ambitious mandate, we will in the next three days have the
opportunity to assess the Tribunal’s achievements and failures over the past years. For my own part, I
would particularly stress that international judicial institutions are gaining acceptance and legitimacy
because they have generally carried out the tasks given them with independence and integrity.

This is a particular achievement considering the political setting in which the ad hoc Tribunals function.

Despite the fact that they were created by the Security Council, and have to report every six months to
the Council, and every year to the General Assembly about the achievements in completing their
mandate, despite their dependence on funding by the Member States, despite their cooperation, despite
their dependence on Member States for their cooperation in the arrest of fugitives and for the
enforcement of sentences, the ad hoc Tribunals have remained fully independent as judicial bodies.
The Judges have done judicial work in the same way that Judges do in national jurisdictions. The
Judges keep the courtroom and their deliberations free of politics. They have acquitted accused
whenever the strict standing of proof beyond reasonable doubt was not met. They have voiced their
concerns about fair trial guarantees in Rwandan and thereby triggered valuable reforms of the judicial
system there. They have refused to bow to time pressures of the Completion Strategy and have never
compromised on the rights of the accused.

Looking back to the beginning, one must recall that when the Tribunal was created we were doing much
more than simply setting up a courthouse. We created an entire judicial system, from investigations, to
security, to organisational infrastructure, to detention facilities.
In order to ensure complete impartiality and objectivity, as well as for many practical reasons, the
Tribunal was located in Arusha. The remoteness from Rwanda has been criticised. But we should
remember what Rwanda looked like when the Security Council Resolution 955 was adopted. Only 244
Magistrates and 12 Prosecutors had survived the genocide, most of them without adequate legal
training. Lawlessness had reigned in the country for months. And even 14 years later, in 2008,
different Trial Chambers and the Appeals Chamber still were concerned about the possibility of
adequate protection for Defence witnesses. A neutral location was the only viable option.

The Rwandan government itself had the explicit hope that an international body would avoid "any
suspicion of its wanting to organise speedy and vengeful justice" as the Rwandan representative to the
Security Council pointed out in the discussions preceding the adoption of the Resolution establishing
the Tribunal.

With rudimentary infrastructure, no offices, let alone office equipment, the first Judges adopted the
Rules of Procedure and Evidence, and the work of the Tribunal commenced.

The late
Alison Des Forges, who will be specially remembered during this programme, describes that period
vividly. She said, and I quote: "Drained by the search for paperclips, pens and paper, Tribunal staff had
little energy left for dealing with the complexities of understanding, investigating and prosecuting the
genocide of at least half a million people." But, nevertheless, by the end of 1999, the Tribunal had
delivered five judgements involving six accused, including two guilty pleas.
We should not forget the dependency of the Tribunal on the political will of Member States for its
effectiveness in many respects.
This cooperation has generally been successful and the
Security Council has never had to use coercive powers up to now.
Indictees have been arrested and transferred to the Tribunal from 26 countries in Africa, Europe and
North America. Seven countries have concluded agreements with the Tribunal allowing those convicted
to serve sentences in their prisons. All this must be recalled when assessing the costs and speed of the
Tribunal’s work.

With the greatest respect, I do have a slightly different perception of costs to that expressed by
His Excellency Ambassador Dahinden for I have considered that, compared to many national
jurisdictions, the costs per accused has not been excessive. Consider, for example, the costs involved
in the Lockerbie trial or the Oklahoma bombing case where many costs were hidden in the normal
budgets in the nations involved as well.
Our costs have been estimated at approximately $10 million US per accused, while in the Oklahoma
trial, estimations amount to $20 million US for one accused, and in the Lockerbie case to $75 million US
for two accused.

Now, I think our legal challenges were even greater than our logistical ones. Much of what we did was
being done for the first time. No one had yet brought the Conventions to life. The substantive legal
rules were almost entirely theoretical, and the Tribunal was attempting to enforce these rules in a setting
which blended common and civil law with judges, prosecutors and lawyers from the most diverse
Substantively, we have taken the "elementary considerations of humanity" that underline
Common Article 3 of the Geneva Conventions and turned these basic humanitarian provisions into an
enforceable reality. The jurisprudence of the Rwanda Tribunal validates the conviction that served as
the basis for its creation that atrocities cannot be committed within a state’s borders with impunity.

We now have 70 persons whose trials are completed or in progress, including a prime minister,
ministers of government, the president of the national assembly, préfets, bourgmestres, other senior
political public servants, businessmen, leaders of Interahamwe, senior military officers, media
representatives, a doctor, members of the clergy. In sum, the Tribunal has held accountable those in
positions of power and privilege and from a broad spectrum of society.
In turn, the Tribunal has attempted to provide justice for those who are often the most powerless. As I
mentioned to you already, civilians now account for an astonishing 90 per cent of war-related deaths,
and most of those deaths are women and children.
As the UN Division for the Advancement of Women observed in 1998, women and children "were
victims of massive violations of human rights in armed conflicts, and they faced the particular risk of
rape and sexual violence, including systematic rape." These terrible statics were no less true in
Rwanda where investigators opened up mass graves and found that typically over a third of the remains
were of children under 15. The massacres in Rwanda in 1994 were in effect one of the greatest
infanticides in human history.

The accomplishment of the Tribunal in confronting this brutal reality cannot be overestimated. As you
know, in the Akayesu Judgement, rape was defined for the first time in international law, and the
Accused were convicted for rape both as an instrument of genocide and as a crime against humanity.
Again I quote the UN Division for the Advancement of Women commenting on the historic conviction of
the former mayor of the Rwandan town of Taba, Jean Paul Akayesu, "In making rape part of the
perpetrator’s conviction of genocide, the Tribunal had advanced the world treatment of rape and sexual
violence and begun the long process of reversing the climate of impunity that sexual crimes in wars had

The explicit inclusion of listed forms of sexual violence, such as sexual slavery, forced pregnancy, both
in the Rome Statute and in the Statute of the Sierra Leone Court, would have been unthinkable without

There have been many other achievements I need mention only briefly. The Tribunal has entered the
first conviction for genocide. Genocide in Rwanda has been found by the Appeals Chamber to be an
indisputable fact of common knowledge. We have given a voice to victims and free and fair trials to
accused. We have dedicated staff who work long hours dealing with challenging subjects in often
difficult conditions, and our legal determinations are guided by states and non-state actors alike as

This is the legacy that I would like us to build on: If there is only hope for changing and challenging the
statistics of horror that I have recounted to you, it lies in the development of a planetary rule of law. The
role of international criminal law in penetrating the "veil of the State" and holding powerful individuals
responsible for the events they caused is central to the growth of the planetary rule of law.

The record is encouraging but not complete. At the United Nations Millennium Summit, some
40 instruments of international law were signed, ratified or acceded to by 84 countries. A United Nation
Member States resolved to "strengthen the rule of law in international as national affairs."

State and non-state actor responsibility flows from recognised formal duties to protect citizens,
non-citizens, and in time of war, non-combatants, and even minimise certain harms to hostile
combatants. In effect, a set of duties now increasingly recognised as encompassing members of the
human race.

It is not enough, however, to articulate such duties or to pay lip-service to them. They must be given
expression in some kind of forum that may make determination of breaches of such duties, ascribe
individual responsibility for them, and make binding orders and judgements that will, looking backward,
make a contribution to amending the past and, looking to the future, make it less likely that other
powerful individuals and their associates will commit crimes against the human race.

Now, let us look finally at the goals of the Tribunal contributing to national reconciliation. The true
impact of the Tribunal on reconciliation in Rwanda can be properly assessed only when the mandate is
completed and more experience has also been gained with other mechanisms such as the Gacaca

The Rwandan government had considered in 1994 that it would be "impossible to build a state of law
and arrive at true national reconciliation" without eradicating the culture of impunity. But when
assessing the Tribunal’s contribution today, we should never forget that a judicial system, however
important, is only one piece of the complex puzzle of efforts that are required to reconcile people in a
country like Rwandan where survivors and perpetrators are in many cases forced to continue living
together in close proximity to each other.
The Czech delegate in the discussion following the adoption of the Resolution creating the Tribunal for
the former Yugoslavia in 1993 rightly pointed out: "Justice treats criminals whether or not they see the
error of their ways, but reconciliation is much more complicated, and it is certainly impossible until and
unless the criminals repent and show remorse."

Reconciliation also requires the search of truth. The Tribunal is not an enquiry commission. Judges are
not historians. The purpose of a criminal trial is to establish individual guilt, not to establish the historical
truth about the conflict. But the Tribunal gives a voice to victims through its primary insistence on
orality, and it establishes a factual record of the genocide and the atrocities to the extent that they are
the framework of findings on individual criminal responsibility. These records deny the playing field to

The Tribunal also contributes to reconciliation and maintenance of peace through its outreach
programme which helps the Rwandan people to understand the work of the Tribunal and fosters
confidence in the judicial process. I would imagine that today, we would all agree that the focus on
outreach to Rwanda should have started earlier and with more intensity, but we have been learning
important lessons. Information centres have been opened throughout the country with libraries utilised
by lawyers, students, journalists, civil servants and members of the general public. Judgements are
broadcast live in Kinyarwanda. Awareness-raising workshops are systematically conducted throughout

While those contributions to reconciliation are undeniable, the model character of the judicial and penal
systems created at the Tribunal, and in many aspects used as an example, may have in some
instances have adverse effects on the feelings of survivors in Rwanda, for example, the high standards
in the detention facility with comprehensive medical care and the right to conjugal visits. To a certain
extent, the conflict between international standards and the reality of the lives of the survivors seems
unavoidable, but the alternative, compromising on the standards of the Tribunal, would appear also to
be unacceptable.

Some projects funded by the Tribunal’s Trust Fund, providing, for example, medical care to witnesses
living with HIV, alleviate, to some extent, this conflict of interest.
Now, to conclude, what the former UN High Commissioner for Human Rights, Jose Ayala Lasso, said in
1996, was true for many years, and unfortunately it still is true in some instances: "A person stands a
better chance of being tried and judged for killing one human being than for killing 100,000." Or in the
cynical words of Joseph Stalin: "One death is a tragedy; one million is a statistic."

As a result of setting up the ad hoc Tribunals, followed by the Special Court for Sierra Leone, the
Extraordinary Chambers for Cambodia, the International Criminal Court, millions of deaths are no
longer merely a statistic. They are now identified in indictments brought against their murderers who
are being brought to justice, even if they are former prime ministers, military or religious leaders or
wealthy businessmen.

Through the pioneering jurisprudence of the two ad hoc Tribunals, international criminal justice has
become a fact that no political or military leader can ignore. Not in all instances, not everywhere, but
more and more, and under a more and more developed legal system which is continuing to learn
lessons from the work of the Rwanda Tribunal both from its flaws and from it achievements.

What we have been doing over the last 15 years is unavoidably to a certain degree "experimental
justice", but only through such "experiments" can a new system improve. As we strive to improve
constantly, even in this the last phase of the trials, we work on improving trial management, case
management and the judgement drafting process.
But despite this sometimes experimental character, the Judges of the Tribunal have made no
experiments if it might prejudice fair trial guarantees, and the standards they have set inspire Judges in
war crimes and genocide cases nationally and internationally.
This symposium offers a rare opportunity to discuss with so many different important actors coming
from so many different perspectives: Judges, Prosecutors, Defence counsel, witnesses, academics,

I am looking forward to intense discussions over the next three days.