ICTR Prosecutor Manual on Referring International Criminal Cases to National Jurisdictions

“We are at a critical stage in the transition of international criminal justice. The primary responsibility for investigating and prosecuting international crimes no longer lies with ad hoc tribunals like the International Criminal Tribunal for Rwanda (ICTR); rather that responsibility has shifted to national authorities.”

This is the first sentence of the foreword accompanying a manual released on 10 February by the Prosecutor of the ICTR and the Mechanism for International Criminal Tribunals (MICT), Mr. Hassan Bubacar Jallow, sharing his office’s experience in securing the referral of ten genocide indictments to national jurisdictions for trial.

1998. The trial of Jean-Paul Akayesu begins. With this case, the ICTR becomes the first international tribunal to enter a judgement for genocide and the first to interpret the definition of genocide set forth in the 1948 Geneva Conventions. ©ICTR

1998. The trial of Jean-Paul Akayesu begins. With this case, the ICTR becomes the first international tribunal to enter a judgement for genocide and the first to interpret the definition of genocide set forth in the 1948 Geneva Conventions. ©ICTR

According to Mr. Jallow, the shift to primacy of national prosecutions is reflected in the Rome Statute’s principle of complementarity, as well as in the establishment of the MICT, which makes the referral of cases to national jurisdictions a priority in the completion of the ad hoc tribunals’ remaining work.

The 57-page long manual, “Complementarity In Action”, shares lessons learned from the ICTR Prosecutor’s referral of international criminal cases to national jurisdictions for trial. The Office of the Prosecutor’s (OTP) experiences provide useful lessons for other international courts and tribunals seeking to refer international criminal cases to national jurisdictions. They also provide valuable lessons for national jurisdictions seeking to establish their own ability to fairly prosecute international crimes at the domestic level.

The sheer scale of atrocities committed in Rwanda, coupled with the ICTR’s limited mandate in terms of resources and time, made it essential that national authorities assumed a larger role in prosecuting the crimes that were committed to avoid a gap in impunity. However, before the ICTR could refer cases to national jurisdictions, it had to ensure that the national trials would be conducted in a manner consistent with international fair trial standards.

Among the key lessons learned, the OTP noted that financial incentives may be necessary to help offset or reduce the costs for states willing to accept referred cases. Additionally, where national capacity is lacking or in doubt, strong partnerships with Member States, international and regional authorities, and NGOs are necessary to help restore capacity, particularly in conflict or post-conflict regions.

It further emphasises that capacity-building efforts require careful planning and coordination. The OTP planned outreach efforts, particularly training programs to address areas of need and facilitated the transfer of knowledge to national authorities by recruiting national staff. When possible, further knowledge transfer could be gained through the use of embedded teams or co-locations whereby international and national staff work side-by-side.

In relation to establishing national capacity, the manual finds that a legal framework alone may not be sufficient to establish the capacity of a national judicial system to safeguard fair trial rights in cases referred by international courts or tribunals. Investigations must be undertaken to locate objective evidence demonstrating compliance with fair trial rights and site visits should be conducted to fairly assess conditions.

Last, national trials should be effectively monitored by the international court or tribunal referring the case to the national jurisdiction and revocation mechanisms should be reserved only for fundamental violations of fair trial rights that national authorities are unable or unwilling to remedy.

The manual is part of a broader strategy that the ICTR has undertaken to preserve the ICTR’s legacy for future use. The ICTR is expected to close down in 2015.