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Transjudicial Dialogue and the Rwandan Genocide: Aspects of Antagonism and Complementarity



The Rwandan genocide remains one of the most horrific atrocities of the twentieth century, resulting in the death of an estimated 500–800,000 human beings, massacred over a 100-day period. In the fourteen years since the genocide, attempts at justice and reconciliation in Rwanda have involved a delicate interplay between national legal systems and the international legal order. This article examines three fora in which Rwandans have been tried for involvement in the genocide: the International Criminal Tribunal for Rwanda, Rwandan courts including Gacaca tribunals, and French attempts to exercise universal jurisdiction. Using Rwanda as a case study, the article illustrates the issues, concerns, and difficulties that arise when multiple jurisdictions assert a right to exercise criminal jurisdiction over the perpetrators of serious atrocity crimes. Beginning with a discussion of the political context, this article considers what the competing narratives and litigation in various fora have meant for the project of international and transnational criminal justice. Cases involving the commission of atrocities pose unique challenges for the international legal order. As the normative structure of international criminal law has arguably been strengthened, political constraints increasingly come to the fore. As illustrated by Rwanda, universal jurisdiction or other bases of jurisdiction may remain necessary vehicles for justice and reconciliation, or, at the very least, they may serve as a catalyst for change in Rwanda itself.



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1 Sadat, L. N., ‘Exile, Amnesty and International Law’, (2006) 81 Notre Dame Law Review 955.

2 See, e.g., Koh, H. H., ‘Transnational Legal Process’, (1996) 75 Nebraska Law Review 181; Koh, H. H., ‘Bringing International Law Home’, (1998) 35 Houston Law Review 623; Waters, M. A., ‘Mediating Norms and Identity: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law’, (2005) 93 Georgetown Law Journal 487.

3 Y. Shany, Regulating Jurisdictional Relations between National and International Courts (2007), 9.

4 Sadat, supra note 1, at 974–5.

5 Rome Statute of the International Criminal Court, Art. 17.

6 Statute of the International Criminal Tribunal for Rwanda (hereafter ICTR Statute), Art. 8(2), available at

7 S. Macedo (ed.), The Princeton Principles on Universal Jurisdiction (2004) 23. Principle 8 posits a situation in which extradition has been requested, but is a useful starting place for determining the suitability of a form even in the absence of an extradition request.

8 On the four Belgian prosecutions see (describing the Vincent Ntezimana, Alphonse Higaniro, Julienne Mukabutera, and Consolata Mukangango cases).

9 A trial is currently under way in Canada, as well. See

10 See infra section 4.

11 W. A. Schabas, ‘Transfer and Extradition to Rwanda’, unpublished manuscript dated 1 July 2008, at 2, citing Niyonteze, Military Court of Cassation, April 27, 2001, Arrêts du Tribunal Militaire de Cassation 2001/220, No. 21, pp. 1–32m, para. 9(e) (Switz.).

12 Schabas, supra note 11, at 2.

13 Roht-Arriaza, N., ‘State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law’, (1990) 78 California Law Review 449, at 512–13.

14 See also P. Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities’, (2001) 95 AJIL 7, at 11.

15 Prosecutor v. Jean-Paul Akayesu, ICTR Case No. 96-4-T, Judgement, 2 September 1998, para. 107.

16 Akhavan, supra note 14, at 11.

17 V. Morris and M. P. Scharf, The International Criminal Tribunal for Rwanda (1997), 54.

18 Prosecutor v. Jean Kambanda, ICTR Case No. 97-23-S, Sentence, 4 September 1998, affirmed on appeal, Jean Kambanda v. Prosecutor, ICTR Case No. 97-23-A, Judgement, 19 October 2000.

19 Morris and Scharf, supra note 17, at 58.

20 S. Power, A Problem from Hell: America and the Age of Genocide (2002), 344–5.

21 A. Lebor, ‘Complicity with Evil’: The United Nations in the Age of Modern Genocide (2008), xii. See also Morris and Scharf, supra note 17, at 59 (describing Rwanda's interventions in the Security Council). See SC Res. 912, UN SCOR, 49th Session, at 4, UN Doc. S/INF/50 (1996).

22 S. Power, ‘Bystanders to Genocide: Why the United States Let the Rwandan Tragedy Happen’, Atlantic Monthly, September 2001, at 84.

23 P. Gourevitch, We Wish to Inform You that Tomorrow We Will Be Killed with Our Families (1998), 150–1.

24 Power, supra note 20, at 352–4.

25 See ‘Belgique–Rwanda–ONU’, Agence France-Presse, 5 December 1997; Belgian Senate, Parliamentary Commission of Inquiry Regarding Events in Rwanda, Report in the Name of Commission of Inquiry by Mr Mahoux and Mr Verhofstadt, available at

26 Gourevitch, supra note 23, at 154.

27 Akayesu, supra note 15.

28 Gourevitch, supra note 23, at 157.

29 See, e.g., ibid. at 161; G. Prunier, The Rwanda Crisis: History of a Genocide (1995).

30 France, Assemblée Nationale, Mission d'information parlementaire sur le Rwanda, Enquête sur la tragédie rwandaise (1990–94), CD-Rom (December 1998).

31 See, e.g., Prunier, supra note 29; Eftekhari, S., ‘International Criminal Justice: Rwanda and French Human Rights Activism’, (2001) 23 Human Rights Quarterly 1032, at 1053.

32 See, e.g., Prunier, supra note 29, at 165; Gourevitch, supra note 23.

33 ‘France denounces genocide claims’, BBC News, available at

34 ‘Rwanda's fury at Spanish warrants’, BBC News, 11 February 2008.

35 Bruguière served as a leading French investigating magistrate in charge of counterterrorism, and played a major role, for example, in bringing to justice such individuals as Carlos the Jackal and Libyan intelligence officials responsible for aircraft bombing in 1989. H. Astie, ‘Profile: France's top anti-terror judge’, BBC News Online, available at See also K. Benhold, ‘French Judge Sets Sights on Kagame Rwandan President Could Face UN Court’, International Herald Tribune, 22 November 2006; ‘Rwanda asks UN Court to Overturn French Arrest Warrants over Genocide’, UN News Centre, 18 April 2007, available at; ‘Rwanda: le juge Bruguière recommande des poursuites contre le président Kagamé’, Le Monde, 20 November 2006, available at

36 See J.-L. Bruguière, ‘Délivrance de Mandats d'Arret Internationaux, Tribunal de Grande Instance de Paris’, 17 November 2006, available at (hereafter Bruguière Indictment).

37 Ibid., at 60.

38 Ibid., at 61.

39 For example, the Los Angeles Times noted that ‘[c]ritics accuse Bruguière of grandstanding and sloppiness. His Indictment contains “disconcerting errors” such as misspelled names, according to Le Monde. Additionally, one of the witnesses, a former Kagame soldier living in Europe, has reversed his testimony and denied that he participated in shooting down the plane.’

40 See ‘Rwanda Breaks Diplomatic Ties with France’, USA Today, 24 November 2006, available at More recently, one of Bruguière's indictees, Rose Kabuye, who was Rwanda's chief of state protocol, was arrested in Germany and extradited to France. She was transferred to French custody immediately, provoking Rwanda to retaliate by expelling the German ambassador, and recalling its envoy to Berlin. She was released on bail and permitted to return to Rwanda for Christmas, returned to France for a hearing, and then returned to Kigali in February. See J. Karuhanga and F. Kimenyi, ‘Rwanda: Rose Kabuye Arrives in France’, New Times, 20 November 2008, available at; E. Kagire, ‘Rwanda Minister Rose Kabuye back in Kigali’, Pan-African News Wire, February 15, 2009, available at As this article was going to press, Rwanda claimed that the warrant had been lifted against her. ‘Rwanda Says Kabuye Warrant Lifted’, Daily Nation, 1 April 2009, available at This could not be confirmed at the time of writing.

41 UN Doc. S/PV.5328, at 15.

42 These concerns have been questioned by experts (comments of W. A. Schabas, ILA Meeting Brazil, 18 August 2008); see also Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994, UN Doc. A/62/284-S/2007/502 (21 August 2007). See also ICTR Newsletter, June 2008, at 6–7.

43 Organic Law No. 11/2007 OF 16/02/2007 concerning transfer of cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from other States, Official Gazette of the Republic of Rwanda, Year 46, special issue of 19 March 2007.

44 Organic Law No. 31/2007 of 25/07/2007 relating to the abolition of the death penalty, Official Gazette of the Republic of Rwanda, Year 46, special issue of 25 July 2007.

45 Indeed, Trial Chamber I said as much in the Munyakazi case, while at the same time denying the transfer on the basis that the improvements were insufficient.

46 R. Teitel, ‘Transitional Jurisprudence: The Role of Law in Political Transformation’, (1997) 105 Yale Law Journal 2028.

47 SC Res. 935, UN SCOR, 49th Session, UN Doc. S/INF/50 (1996), at 11.

48 Preliminary Report of the Independent Commission of Experts established in accordance with Security Council Resolution 935 (1994), UN Doc. S/1994/1125 (1994), paras. 146–149.

49 Morris and Scharf, supra note 17, at 66.

50 Ibid., at 68–71. The Rwandan government also objected to various elements of the tribunal's jurisdiction and wanted proceedings to be in Rwanda.

51 See Statute of the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994, SC Res. 955, Annex, UN SCOR, 49th Session, UN Doc. S/INF/50 (1996), qt 15.

52 D. Shraga and R. Zacklin, ‘The International Criminal Tribunal for Rwanda’, (1996) 7 EJIL 501, at 504.

53 See also Report of the Secretary-General on the Activities of the Office of Internal Oversight Services, GA 51st Session, UN Doc. A/51/789, 6 February 1997, para. 41.

54 Further Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955, UN Doc. S/1995/533 (30 June 1995), para. 4.

55 In 1997 a UN audit stated that there were ‘serious operational deficiencies’ in the management of the tribunal. These involved financial problems as well as administrative, leadership, and operational problems. Report of the Secretary-General, supra note 53, at 1.

56 C. Del Ponte, Madame Prosecutor: Confrontations with Humanity's Worst Criminals and the Culture of Impunity (unofficial English translation, 2009). It should be noted that nothing in this article is intended as a criticism of the Office of the Prosecutor, which, as M. Marcussen described in his commentary to this paper, initially consisted of eight overworked individuals living in a hotel with the windows blown out, who were operating in extraordinarily difficult circumstances.

57 P. Robinson and G. Gharhaman, ‘Can Rwandan President Kagame Be Held Responsible at the ICTR for the Killing of President Habyarimana?’, (2008) 6 Journal of International Criminal Justice 981. But see V. Thalmann, ‘French Justice's Endeavours to Substitute for the ICTR’, (2008) 6 Journal of International Criminal Justice 995.

58 Del Ponte, supra note 56, ch. 3.

59 C. Del Ponte, Address to the UN Security Council by the Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, 27 November 2001, available at

60 Del Ponte, supra note 56, at ch. 9.

61 SC Res. 1503, UN SCOR, 58th Session, 4817th mtg., UN Doc. S/RES/1503 (2003). The resolution amended Art. 5 of the Statute so that as of 15 September 2003, the ICTR had its own prosecutor. Some have also suggested that certain permanent members of the Security Council have wished to remove Del Ponte altogether, but compromised by allowing her to remain at the ICTY for an additional four years. Schabas, W. A., ‘International Criminal Tribunals: A Review of 2007’, (2008) 6 Northwestern Journal of International Human Rights 382, at 389.

62 ‘The Rwandan Genocide Tribunal: Did Carla del Ponte Do Too Little or Too Much in Rwanda? Both’, The Economist, 23 August 2003.

63 ‘Turning a Blind Eye to Increasingly Dictatorial Ways of Rwanda's Leader’, Irish Times, 27 August 2003.

64 UN SCOR, Session, 62nd Session, 5796th mtg., UN Doc. S/PV.5796 (10 December 2007), 13.

65 More than 80 per cent of Rwanda's judges and magistrates were killed or disappeared, and the system faced extraordinary infrastructure challenges. See, e.g., E. Bradley, ‘In Search for Justice – A Truth in Reconciliation [sic] Commission for Rwanda’, (1998) 7 Journal of International Law and Practice 120. But see J. Alvarez, ‘Crimes of State/Crimes of Hate: Lessons from Rwanda’, (1999) 24 Yale Journal of International Law 365 (critiquing the establishment of the ICTR).

66 Category 1 offenders include organizers or planners of the genocide, persons in positions of authority, ‘notorious murderers who by virtue of the zeal or excessive malice with which they committed atrocities, distinguished themselves’, and persons who committed ‘acts of sexual torture’. Bradley, supra note 65, at 134–5.

68 Schabas, W. A., ‘Justice, Democracy, and Impunity in Post-genocide Rwanda: Searching for Solutions to Impossible Problems’, (1996) 7 Criminal Law Forum 536.

69 If true, it is arguable that Rwanda would be worse off if it released prisoners still under the influence of the génocidaires.

70 Defendants often had little or no access to legal counsel during critical periods of the investigation or trial, trials were unduly rapid and conducted in an atmosphere hostile to the defendants, and the trials often resulted in death sentences that were expeditiously carried out. Bradley, supra note 65, at 144–5. M. Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (1998), 124–5.

71 Dugard suggests an alternative reason why criminal prosecutions may be thwarted following a transition to democracy: sufficient evidence may simply be unavailable to support a criminal conviction, given that the repressive regime in question may quite probably have operated under a shroud of secrecy that makes information-gathering after the fact quite difficult. He suggests that South Africa is a case in point. J. Dugard, ‘Reconciliation and Justice: The South African Experience’, (1998) 8 Transnational Law and Contemporary Problems 277, at 286.

72 Schabas, supra note 68, at 547–8. Avoiding some of these difficulties is one reason why the establishment of an international criminal tribunal for Rwanda appeared desirable. The Security Council resolution establishing the tribunal expressly suggests that international co-operation will ‘strengthen the courts and judicial systems of Rwanda, having regard in particular to the necessity for those courts to deal with large numbers of suspects’. SC Res. 955, UN SCOR, 49th Session 3453rd mtg., UN Doc. S/RES/955 (1994).

73 Werchick, L., ‘Prospects for Justice in Rwanda's Citizen Tribunals’, (2001) 8 (3)Human Rights Brief 15. The procedure departs considerably from the traditional Gacaca model, which was developed to handle property or marital disputes, not criminal trials or genocide.

74 A. McLauglin, ‘Rwanda Bucks Blind Obedience’, Christian Science Monitor, 9 April 2004, available at (last visited 14 January 2005).

75 The ICTR has also avoided the question of whether or not the RPF was engaged in the commission of atrocities. Irish Times, supra note 63, at 14. See also The Economist, supra note 62.

76 S. Raghavan, ‘Rwanda Prepares to Use Tribunals for Genocide but Community Courts Ill-Prepared’, San Jose Mercury News, 20 June 2002.

77 Remarks of Gerard Gahima, International Conference on Atrocities, Galway, Ireland, July 2004 (author's notes).

78 Kagame Accused’, BBC World Service, 30 January 2007, available at See also Yacoubian, G., Jr, ‘Releasing Accused Genocidal Perpetrators in Rwanda: The Displacement of Preventative Justice’, (2005–6) 3 Loyola University Chicago International Law Review 21.

79 Sadat, L. N., ‘The Application of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again’, (1994) 32 Columbia Journal of Transnational Law 289 (formerly Wexler).

80 L. N. Sadat, The Nuremberg Paradox (forthcoming). See also B. Stern, ‘Universal Jurisdiction over Crimes against Humanity under French Law’, (1999) 93 AJIL 525.

81 Sadat, supra note 80.

82 In re Javor, 1996 Bull. Crim., No. 132, at 379, French Court de Cassation, Chambre Criminelle, 26 March 1996.

83 Stern, supra note 80, at 527; Trial Watch, Wenceslas Munyeshyaka, available at (last visited 26 November 2007).

85 Stern, supra note 80, at 528.

87 Two days later, on 22 May 1996, a new law (Law No. 96-432) was adopted to adapt French law to Security Council Resolution 955 creating the International Criminal Tribunal for Rwanda.

88 Cass. crim., Jan. 6, 1998, Bull. crim., No. 2, at 3 (hereafter Munyeshyaka I).

89 Bucyibaruta was the former prefect of the Rwandan province of Gikongoro. The ICTR indicted him on six counts including direct and public incitement to commit genocide, genocide, complicity in genocide, and the crimes against humanity of extermination, murder, and rape. Prosecutor v. Bucyibaruta, Case No. ICTR-2005–85-I, Indictment (June 16, 2005). When the ICTR released the arrest warrant for Bucyibaruta, he had already been the subject of a criminal investigation in France for genocide and crimes against humanity. See Trial Watch, L. Bucyibaruta, available at (last visited 22 February 2008); La Fédération internationale des ligues des droits de l'Homme, ‘France should arrest Wenceslas Munyeshyaka, Laurent Bucyibaruta and Dominique Ntawukuriryayo immediately’, 7 June 2007, As with Munyeshyaka, the French judiciary determined that Bucyibaruta could be tried on the basis of the universal jurisdiction.

90 Trial Watch, Wenceslas Munyeshyaka, (last visited 22 February 2008).

93 See Complaint, Kalinda et al. (T.G.I. Paris filed 4 July 1994); Complaint, Depaquier et al. (filed July 19, 1994), T.G.I. Paris, Order, 23 February 1994 (noted in Stern, supra note 80, at 527). For discussion of the Javor, Munyeshyaka, and Kalinda cases, see also M. Massé, ‘Ex-Yougoslavie, Rwanda: Une compétence “virtuelle” des juridictions françaises?’, (1997) Revue de science criminelle et de droit pénal comparé 893. The imposition of the presence limitation on the exercise of universal jurisdiction has been strongly criticized, as it prevents prosecutors or investigating judges from investigating crimes abroad unless, as illustrated in Munyeshyaka, the suspect is living openly in French territory and readily identifiable. See, e.g., C. Lombois, ‘De la compassion territoriale’, (1995) Revue de science criminelle et de droit pénal comparé 399; Stern, B., ‘La compétence universelle en France: le cas des crimes commis en ex-Yougoslavie et au Rwanda’, (1997) 40 German Yearbook of International Law 280; R. Maison, ‘Les premiers cas d'application des dispositions pénales des Conventions de Genève par les juridictions internes’, 6 EJIL 260. See also Roulot, J.-F., ‘La répression des crimes contre l'humanité par les juridictions criminelles en France: une répression nationale d'un crime international’, (1999) 3 Revue de science criminelle et de droit pénal comparé 545, at 560–61.

94 Prosecutor v. Munyeshyaka, Case No. ICTR-2005-87-I, Decision on the Prosecutor's Request for the Referral of Wencelas Munyeshyaka's Indictment to France, 20 November 2007.

95 Amnesty International, ‘Universal Jurisdiction: The Duty of States to Enact and Enforce Legislation’, report, AI Index IOR 53/002/2001, 1 September 2001.

96 Sadat, supra note 1, at 1009–11.

97 See ‘Rwanda: le juge Bruguière recommande des poursuites contre le président Kagamé’, Le Monde, 20 November 2006, available at K. Benhold, ‘French Judge Sets Sights on Kagame: Rwandan President Could Face UN Court’, International Herald Tribune, 22 November 2006; ‘Rwanda Asks UN Court to Overturn French Arrest Warrants’, supra note 35.

98 For background information on Judge Bruguière see supra note 35.

99 The crew included Jacky Heraud, pilot, Jean-Pierre Minaberry, co-pilot, and Jean-Marc Perrine, flight engineer. Bruguière Indictment, supra note 36, at 1.

100 S. Rotella, ‘New Accusations Jar Rwanda's Bad Memories’, LA Times, 17 February 2007, available at

101 ‘Rwanda Breaks Diplomatic Ties with France’, supra note 40.

102 Bruguière Indictment, supra note 36, at 62.

103 Ibid., at 61, 63, 64.

104 Rwanda Breaks Diplomatic Ties with France’, supra note 40.

105 See, e.g., Clermont, K. M. and Palmer, J. R. B., ‘Exorbitant Jurisdiction’, (2006) 58 Maine Law Review 473.

106 Bruguière Indictment, supra note 36, at 61.

107 See ‘Rwanda asks UN Court to Overturn French Arrest Warrants’, supra note 35; Rotella, supra note 100. The ICTR has reportedly ‘brushed aside suggestions from Judge Bruguière that Mr Kagame should stand trial there’. ‘France Issues Rwanda Warrants’, BBC News, Nov. 23, 2006, available at Everard O'Donnell, the spokesman for the ICTR, asserted that ‘The prosecutor takes instructions from nobody in the world’, adding that ‘The crash did not create the genocide’. Ibid.

108 Even prior to the issuance of Bruguière's indictment, relations between France and Rwanda have been strained during the last several years, in part due to Kagame's accusations that France did little to stop the genocide and that France had links to those who carried out the genocide. See ‘France Issues Rwanda Warrants’, supra note 107.

109 Ibid. Protesters reportedly marched through the streets carrying signs reading, ‘France: stop organising a second genocide’ and ‘France get out of Rwanda’, and at a rally in Rwanda's Amahoro National Stadium, protesters chanted anti−French slogans and burned the French flag. Ibid. See generally Thalmann, supra note 57.

110 Ibid. The French foreign minister, Philippe Douste-Blazy, has expressed the view, however, that the request for international arrest warrants against nine ranking Rwandans in the case ‘is not at all a political decision by the French government’. French Foreign Minister Laments Rwanda's Move to Cut Diplomatic Ties’, International Herald Tribune, 26 November 2006, available at In private conversations with French government officials, I have been told the same thing, ‘that this is a matter of “indépendence judiciaire”’.

111 Rotella, supra note 100.

112 Ibid.

113 Del Ponte, supra note 56, ch. 9.

114 ‘Rwanda Breaks Diplomatic Ties with France’, supra note 40.

115 Ibid.

116 Ibid. In January 2008, the French foreign minister, Bernard Kouchner, visited Kigali, when he and the Rwandan foreign affairs minister expressed their interest in working to restore relations between the two countries. See ‘Rwanda: France, Govt Move to Repair Diplomatic Ties’, Weekly Observer (Kampala), 31 January 2008, available at In August Rwanda issued a report suggesting that France was complicit in the genocide, further exacerbating tense relations between the two countries. P. Bernard and A. Leparmentier, ‘Paris ne veut pas répondre aux accusations du Rwanda’, Le Monde, 8 August 2008, 6.

117 International Court of Justice, ‘The Republic of Rwanda Applies to the International Court of Justice in a Dispute with France’, press release, 18 April 2007, available at

118 Ibid.

119 Ibid. In its application to the Court, Rwanda bases the Court's jurisdiction in the matter on Article 38(5) of the Rules of the Court and expressed its ‘full confidence that France . . . will accept the jurisdiction of the Court’ to settle the dispute. The application by Rwanda has been transmitted to the French government, and, in accordance with the rules of the Court, no action will be taken in the proceedings unless and until France consents to the Court's jurisdiction in the case.

120 See, e.g., International Convention against the Taking of Hostages, GA Res. 146 (XXXIV), UN GAOR, 34th Session, Supp. No. 46, at 245, UN Doc, A/34/46 (1979), entered into force June 3, 1983, at Art. 5(1)(d). The hostages taking convention specifically permits the nationality of the victim to be a basis for jurisdiction; other terrorism conventions, however, such as the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, do not. Both create a form of universal jurisdiction by treaty, requiring the states to exercise jurisdiction if the alleged offender is ‘present in its territory’. Hostage Taking Convention, Art. 5(2).

121 U.S. v. Yunis, 681 F. Supp. 896 (1988).

122 Sadat, L. N., ‘Terrorism and the Rule of Law’, (2004) 3 Washington University Global Studies Law Review 135, at 150.

123 Del Ponte, supra note 56, ch. 9. She writes, ‘If Bruguière provided sufficient evidence to indict Kagame . . . we would do so only as the Rwanda Tribunal approached the end of its lifetime, when the genocide trials were almost concluded and the Tribunal was less vulnerable.’ Ibid.

* Henry H. Oberschelp Professor of Law, Director, Whitney R. Harris World Law Institute, Washington University School of Law. Thanks to Richard Goldstone, William Schabas, and Mathias Marcussen for their helpful comments and to Carsten Stahn and the Grotius Centre for International Legal Studies for the opportunity to present this paper. Thanks, as well, to Amitis Khojasteh, Sonja Schiller, and Margaret Wichman for able research assistance. An earlier version of this essay was delivered at the biannual meeting of the International Law Association in Rio de Janeiro, Brazil, in August 2008.



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