History

Key unit competence

Analyse the national, international judicial systems and instruments

and how justice has been delayed and denied in Rwandan society

Introduction

The international judicial system is dominated by the international

Court of Justice (ICJ) and the International Criminal Court (ICC).

In Rwanda, the judicial system is divided into ordinary and

specialised courts. The ordinary courts are headed by the high

council of the judiciary. This was established by the Rwandan

Constitution of 4/06/2003, article 157 and 158, as amended. It is

the supreme organ of the judiciary.

Links to other subjects

This unit can be linked to justice and democracy in General Studies

and Communication Skills

Main points to be covered in this unit

࿤ Concepts of judicial systems

࿤ National and international judicial systems and instruments.

࿤ Structure and organisation of national and international judicial

systems and instruments

࿤ Different ways in which justice in Rwanda has been delayed

and denied

Concepts of Judicial Systems

Activity 1

Explain the concepts of the judicial systems, and then present

your work to the class.

The judicial or court system interprets and applies the law on

behalf of the state. The judiciary also provides a mechanism for

the resolution of disputes.

In some nations, under the doctrine of separation of powers,

the judiciary does not make law (which is the responsibility of

the legislature) or enforce law (which is the responsibility of the

executive), but rather interprets law and applies it to the facts of

each case.

In other nations, the judiciary can make law, known as common

law, by setting precedent for other judges to follow, as opposed

to statutory law made by the legislature. The judiciary is often

tasked with ensuring equal justice under the law.

In many jurisdictions, the judiciary has the power to change laws

through judicial review. Courts with judicial review power may

annul the laws and rules of the state which are incompatible

with a higher norm, such as primary legislation, the provisions of

the constitution or international law. Judges are responsible for the

interpretation and implementation of a constitution, thus charged

with creating the body of constitutional lawin common law countries.

In some countries the judiciary includes legal professionals and

institutions such as prosecutors, state attorneys, ombudsmen, public

notaries, judicial police service and legal aid officers. These

institutions are sometimes governed by the same administration

that governs courts. In some cases the judiciary also administers

private legal professions such as lawyers and private notary offices.

National Judicial Systems and Instruments

Activity 2

Analyse the Rwanda national judicial systems. Thereafter,

present the outcomes of your work to the class.

After the High Council of the Judiciary, there is the Supreme Court

as the coordinating organ of justice in Rwanda. It was instituted

for the first time by the constitution of January 28th, 1962. It

was composed of five members appointed by the president of

the republic. It was also composed of five sections: Department

of Courts and Tribunals, the Court of Appeals, the Constitutional

Court, the Council of State and the Audit Office.

According to the constitution of December 28th, 1978, the Supreme

Court with five sections was replaced by four high jurisdictions

which were separated from each other. These included the Court

of Appeals, the Constitutional Court (composed of the Court of

Appeals and the Council of State) and the Audit Office.

During the post-genocide period (from 1994 to 2003) the

Fundamental Law established the Supreme Court which consisted

of five sections: the Department of Courts and Tribunals, the

Court of Appeals, the Constitutional Court, the Council of State

and the Auditor’s Office. With the April 18th 2000 reform to the

Fundamental Law, it was provided with the sixth section named

Department of “Gacaca jurisdictions”.

Apart from the Supreme Court, there is a High Court with the

chamber of international crimes, the chamber of Nyanza in

southern province, the chamber of Rusizi in western province, the

chamber of Rwamagana in the eastern province and the chamber

of Musanze in northern province. There are intermediate and

primary courts in the districts of Nyarugenge, Gasabo, Nyagatare,

Ngoma, Muhanga, Huye, Nyamagabe, Rusizi, Karongi, Rubavu,

Gicumbi and Musanze.

The specialised courts include the Commercial High Court at

Nyamirambo with its branches at Musanze and Huye, and the

military courts.

International Judicial Systems and Instruments

Activity 3

Analyse the international judicial systems and their instruments.

Present your work to the class.

The ICJ was established in 1945 by the UN Charter. The court

started its work in 1946 as the successor to the Permanent Court

of International Justice. The statute of the International Court of

Justice, similar to that of its predecessor, is the main constitutional

document constituting and regulating the court.

The court covers a wide range of judicial activity. Chapter XIV of

the United Nations Charter authorises the UN Security Council to

enforce the court’s rulings. However, such enforcement is subject

to the veto power of the five permanent members of the council.

The International Criminal Court (ICC orICCt) is an intergovernmental

organisation and international tribunal that sits in The Hague in

the Netherlands. The ICC has the jurisdiction to prosecute

individuals for the international crimes of genocide, crimes against

humanity, and war crimes The ICC is intended to complement

The Rome Statute is a multilateral treaty which serves as the ICC’s

foundational and governing document. The states which become

party to the Rome Statute are member states of the ICC. Currently,

there are 124 states which are party to the Rome Statute and

therefore members of the ICC.

The establishment of an international tribunal to judge political

leaders accused of international crimes was first proposed

during the Paris Peace Conference in 1919 following the First

World War by the Commission of Responsibilities. The issue

was addressed again at a conference held in Geneva under the

auspices of the League of Nations in 1937. This resulted in the

conclusion of the first convention stipulating the establishment of a

permanent international court to try acts of international terrorism.

The convention was signed by 13 states, but none ratified it and it

never entered into force.

Following the Second World War, the allied powers established

two ad hoc tribunals to prosecute axis power leaders accused of war

crimes. The International Military Tribunal, which sat in Nuremberg,

prosecuted German leaders while the International Military Tribunal

for the Far East in Tokyo prosecuted Japanese leaders. In 1948

the United Nations General Assembly first recognised the need

for a permanent international court to deal with atrocities of the

kind prosecuted after the Second World War. At the request of the

General Assembly, the International Law Commission (ILC) drafted 

two statutes by the early 1950s. These were abandoned during

the Cold War which made the establishment of an international

criminal court politically unrealistic.

In 1994, the ILC presented its final draft statute for the International

Criminal Court to the General Assembly and recommended that a

conference be convened to negotiate a treaty that would serve as

the Court’s statute. To consider major substantive issues in the draft

statute, the General Assembly established the Ad Hoc Committee

on the Establishment of an International Criminal Court, which

met twice in 1995. After considering the committee’s report,

the General Assembly created the Preparatory Committee on the

Establishment of the ICC to prepare a consolidated draft text.

From 1996 to 1998, six sessions of the Preparatory Committee

were held at the United Nations headquarters in New York City,

during which NGOs provided input and attended meetings under

the umbrella organisation of the Coalition for an ICC (CICC). In

January 1998, the Bureau and coordinators of the Preparatory

Committee convened for an Inter-Sessional meeting in Zutphen in

the Netherlands to technically consolidate and restructure the draft

articles into a draft.

Finally, the General Assembly convened a conference in Rome

in June 1998, with the aim of finalising the treaty to serve as

the court’s statute. On 17 July 1998, the Rome Statute of the

International Criminal Court was adopted by a vote of 120 to

7, with 21 countries abstaining. The seven countries that voted

against the treaty were China, Iraq, Israel, Libya, Qatar, the United

States, and Yemen. Following 60 ratifications, the Rome Statute

entered into force on 1 July 2002 and the International Criminal

Court was formally established. The first bench of 18 judges was

elected by the Assembly of States Parties in February 2003. They

were sworn in at the inaugural session of the court on 11 March

2003.

The court issued its first arrest warrants on 8 July 2005, and the

first pre-trial hearings were held in 2006. The court issued its first

judgment in 2012 when it found Congolese rebel leader Thomas

Lubanga Dyilo guilty of war crimes related to using child soldiers.

Structure and Organisation of the International 

Judicial Systems

Activity 4

Describe the structure and organisation of the international

judiacial systems. Thereafter, present your work to the class.

The structure and organisation of the International Court of Justice

The ICJ is composed of fifteen judges elected to nine-year terms

by the UN General Assembly and the UN Security Council from a

list of people nominated by the national groups in the Permanent

Court of Arbitration. The election process is set out in Articles 4–19

of the ICJ statute. Five judges are elected every three years to

ensure continuity within the court. Should a judge die in office, the

practice has generally been to elect a judge in a special election to

complete the term.

No two judges may be nationals of the same country. According

to Article 9, the membership of the court is supposed to represent

the “main forms of civilisation and of the principal legal systems

of the world”. Essentially, that has meant common law, civil

law and socialist law (now post-communist law).

There is an informal understanding that the seats will be distributedby

geographic regions so that there are five seats for western countries,

three for African states (including one judge of Francophone civil

law, one of Anglophone common law and one Arab), two

for eastern European states, three for Asian states and two for Latin

American and Caribbean states. The five permanent members

of the United Nations Security Council (France, Russia, China,

the United Kingdom, and the United States) always have a judge

on the court, thereby occupying three of the western seats, one

of the Asian seats and one of the eastern European seats. The

exception was China, which did not have a judge on the court from

1967 to 1985 because it did not put forward a candidate

Article 6 of the statute provides that all judges should be

“elected regardless of their nationality among persons of high

moral character” who are either qualified for the highest judicial

office in their home states or known as lawyers with sufficient

competence in international law. Judicial independence is dealt

with specifically in articles 16–18. Judges of the ICJ are not able

to hold any other post or act as counsel. In practice, members of

the court have their own interpretation of these rules and allow

them to be involved in outside arbitration, hold professional

posts as long as there is no conflict of interest. A judge can be

dismissed only by a unanimous vote of the other members of the

court. Despite these provisions, the independence of ICJ judges

has been questioned. For example, during the Nicaragua Case, the

United States issued a communiqué suggesting that it could not

present sensitive material to the court because of the presence of

judges from eastern bloc states.

Judges may deliver joint judgments or give their own separate

opinions. Decisions and advisory opinions are by majority. In the

event of an equal division, the President’s vote becomes decisive.

Judges may also deliver separate dissenting opinions.

Generally, the court sits as full bench, but in the last fifteen years,

it has on occasion sat as a chamber. Articles 26–29 of the statute

allow the court to form smaller chambers, usually of 3 or 5 judges,

to hear cases. Two types of chambers are provided for in article

26. These are chambers for special categories of cases, and ad

hoc chambers to hear particular disputes. In 1993, a special

chamber was established, under Article 26(1) of the ICJ statute, to

deal specifically with environmental matters.

Organisation of the International Criminal Court

The ICC is governed by an assembly of states parties, which is

made up of the states which are party to the Rome Statute. The

assembly elects officials of the court, approves its budget, and

adopts amendments to the Rome Statute. The court itself, however,

is composed of four organs: the Presidency, the judicial divisions,

the Office of the Prosecutor, and the registry.

The presidency is responsible for the proper administration of the

court (apart from the Office of the Prosecutor). It comprises the

president and the first and second vice-presidents—three judges of

the court who are elected to the presidency by their fellow judges

for a maximum of two three-year terms.

The judicial divisions consist of the 18 judges of the court,

organised into three chambers; the pre-trial chamber, trial chamber

and appeals chamber which carry out the judicial functions of the

court. Judges are elected to the court by the Assembly of States

Parties. They serve nine-year terms and are not generally eligible

for re-election. All judges must be nationals of states party to the

Rome Statute, and no two judges may be nationals of the same

state. They must be “persons of high moral character, impartiality

and integrity who possess the qualifications required in their

respective states for appointment to the highest judicial offices”.

The Office of the Prosecutor is responsible for conducting

investigations and prosecutions. It is headed by the chief

prosecutor, who is assisted by one or more deputy prosecutors. The

Rome Statute provides that the Office of the Prosecutor shall

act independently. No member of the office may seek or act on

instructions from any external source, such as states, international

organisations, non-governmental organisations or individuals.

The Registry is responsible for the non-judicial aspects of the

administration and servicing of the court. This includes, among other

things, the administration of legal aid matters, court management,

victims and witnesses matters, defence counsel, detention unit, and

the traditional services provided by administrations in international

organisations, such as finance, translation, building management,

procurement and personnel. The Registry is headed by the registrar,

who is elected by the judges to a five-year term.

Ways in which justice has been denied and delayed in Rwanda

Activity 5

Discuss different ways in which justice has been denied and

delayed in Rwanda. Thereafter, present the results of your

discussion to the class.

During the First and the Second Republics, the culture of impunity

was prevailing in Rwanda. The Tutsi were targeted and killed and

the perpetrators of these crimes were not punished. Moreover, the

properties of the Tutsi were either destroyed or confiscated. For

instance in 1963, more than 8,000 Tutsi were killed in Gikingoro.

In the same period, Kayibanda ordered the execution of 27 leaders

of UNAR and RADER who had been imprisoned in Ruhengeri

without any form of legal procedure. In 1973, a big number of

Tutsi were chased from their jobs and schools. Their killers however

remained unpunished.

During the Liberation War which started on October 1st, 1990,

the Tutsi were attacked by government soldiers and Interahamwe.

Many Tutsi in Bugesera, Kibuye, Ngororero, Murambi in Byumba,

the Bagogwe in Ruhengeri and Gisenyi and the Bahima of Mutara

were killed. The people who committed these crimes did not face

justice.

After the 1994 genocide against the Tutsi, justice faced the problem

of delay due to the following reasons:

࿤ Absence of laws punishing the crime of genocide:

࿤ There was lack of competent judiciary tribunals and judges

because many of them had either been killed during the 1994 

genocide against the Tutsi or had fled the country. In addition,

the few judges who remained were not skilled enough.

࿤ The situation was complicated by the big number of genocide

prisoners. It was difficult to judge all the criminals in a

short time. This is why in 2005 the government of Rwanda

introduced the Gacaca courts to judge the perpetrators of the

1994 genocide against the Tutsi.

࿤ Many countries which host the genocide criminals refuse to

judge them or to send them to Rwanda; for example, France.

The judicial system interprets and applies the law in the name of

the state. This system also provides a mechanism for the resolution

of disputes.

In countries which apply the doctrine of separation of powers,

the judiciary does not make laws. It rather interprets the law and

applies it to the facts of each case.

The international judicial system is controlled by the International

Court of Justice (ICJ) and the International Criminal Court (ICC).

In Rwanda, the judicial system is divided into two kinds of courts:

ordinary and specialised courts. The ordinary courts are headed

by the High Council of the Judiciary. This is established by the

Rwandan Constitution of 4/06/2003 in article 157 and 158. It is

the supreme organ of the judiciary.

Glossary

Dispute: an argument or a disagreement between two

people, groups or countries; a discussion about

a subject where there is disagreement.

Doctrine: a belief or set of beliefs held and taught by a

religion, political party, etc.

Guilty: being responsible for something bad or illegal.

Jurisdiction: the authority that an official organisation has

to make legal decisions about somebody/something.

Substantive: dealing with real, important or serious matters.

Unanimous: a decision or an opinion agreed or shared by

everyone in a group.

Veto: the right to refuse to allow something to be

done, especially the right to stop a law from

being passed or decision from being taken.

Workload: the amount of work that has to be done by a

particular person or organisation.

Revision questions

1. Analyse the ways in which justice has been denied and delayed

in Rwanda.

2. Explain the organisation of the International Court of Justice.